From an editorial published in the Los Angeles Times on Tuesday:
In 2006, Michigan voters banned affirmative action at the states public universities. On Tuesday, the Supreme Court heard arguments challenging that ban. If you support affirmative action, you must hope that the court will strike it down, right?
But this case isnt about whether state universities may provide preferential treatment in admissions policies. Rather, its whether the voters of Michigan violated the U.S. Constitution when they amended the state Constitution to say that universities shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin. That is a much harder question.
We support affirmative action. Racial preferences at highly selective public universities ensure a modicum of racial diversity at those institutions, and they make it possible for students from groups that historically have been victims of discrimination to move into leadership positions in society. The value of such policies is demonstrated by Californias experience after the adoption of Proposition 209 in 1996. As the Los Angeles Times reported this year, African-American freshmen at UCLA dropped from 7.1 percent of the class in 1995 to 3.6 percent in 2012. At UC Berkeley, African-Americans made up 6.3 percent of freshmen in 1995 and 3.4 percent last fall.
Affirmative action policies also have passed muster at the Supreme Court. In June, in a case involving the University of Texas, the court made it clear that judges must scrutinize affirmative action programs to ensure that no workable race-neutral alternatives would produce the educational benefits of diversity. But if a university can meet that stringent test, racial preferences are permissible.
They are not, however, constitutionally required.
The problem with the Michigan amendment, the 6th Circuit ruled, was that it reorders the political process in Michigan in a way that discriminates against racial minorities. The appeals court noted that although a student seeking preference in admissions based on family connections had only to lobby university officials, an African-American student hoping to benefit from a race-conscious admissions policy would have to try to amend the state Constitution, a lengthy, expensive and arduous process.
This is an ingenious argument, and it didnt come from thin air. Twice the Supreme Court has struck down measures that made it harder for minorities to achieve their goals by placing an onerous political burden on them that doesnt apply to others.
But the state of Michigan argues persuasively that neither of those precedents undermines its ban on racial preferences.
The opponents of Michigans ban are seeking to set aside a state constitutional amendment that was approved by the voters. We dont believe that ballot initiatives are sacrosanct. But bans on racial preferences at state universities, in Michigan or in California while bad policy dont violate the Constitution. They should be undone at the ballot box, not by the courts.
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