Race-based discrimination is wrong, yet it is the foundation of the Affirmative Action industry, which has survived judicial scrutiny based on historical wrongs which have very little bearing on college students today.

Yet any attempt to tinker with racial preferences meets with a faily hysterical response, as reflected in a recent statement issued by the Harvard Black Students Association in response to calls for economic-based affirmative action to replace race-based affirmative action (via College Insurrection):

We, the Black Community Leaders, must express how thoroughly disappointed many members of our community are at recent, public misrepresentations of affirmative action. As leaders and members of various cultural and ethnic groups on campus, it is our responsibility to respond to such blatant inaccuracies.

We were deeply disheartened by the assertion that students who benefit from affirmative action are less qualified than their peers. Aside from the fact that Harvard’s community of color is rich with exemplary students, the recent piece, “Affirmative Dissatisfaction,” also fails to recognize the importance of diversity, including the diversity of race. Furthermore, moving toward an exclusively class-based affirmative action policy, as alternatively suggested, ignores the continued importance of race in decision-making at all levels of American civil society. Unlike many in the majority race, minorities can expect to experience racially prejudiced interactions in almost every part of their daily lives, regardless of their elevated socio-economic or educational statuses.

In Michigan, voters took matters into their own hands, and ended racial preferences at state universities after a U.S. Supreme Court decision upheld such preferences as not violating the rights of non-minorities if done on very narrow grounds but not a point system.  That gave administrators some perceived wiggle room to continue racial preferences.

Now a sharply divided Court of Appeals has stricken the Michigan law, as detailed by Hans Bader (an occasional contributer at College Insurrection) at the OpenMarket.org blog, Liberal Judges: Equality Is Unconstitutional:

On Thursday, a federal appeals court, dividing along ideological lines in an 8-to-7 ruling, struck down a provision of the Michigan state constitution prohibiting racial preferences in state college admissions, in Coalition to Defend Affirmative Action v. Regents of the University of Michigan.

Voters added Article 1, Section 26 to the Michigan State Constitution in 2006, to ban racial discrimination and preferences in government contracts, employment, and education. The appeals court declared that it violated the federal Constitution’s Equal Protection Clause for a state to require its state universities to treat students equally regardless of race, and to drop racial preferences in college admissions. (The University of Michigan has a history of discriminating against whites and Asians in admissions; in 2003, the Supreme Court struck down its undergraduate admissions policy, while upholding its law school admissions policy.) ….

The appeals court’s ruling contradicts multiple prior court rulings over the years. A virtually identical state constitutional amendment in California, known as Prop. 209 or the California Civil Rights Initiative, was upheld in 1997 by another federal appeals court, the Ninth Circuit Court of Appeals, in Coalition for Economic Equity v. Wilson, a ruling that the Supreme Court declined to overturn. It was also upheld by the California Supreme Court in a 6-to-1 vote in Coral Construction, Inc. v. San Francisco (2010). As law professor Eugene Volokh notes, it is likely “that the U.S. Supreme Court will agree to hear the case,” since “there’s a circuit split” (disagreement between different federal appeals courts), since “the Sixth Circuit disagrees with the Ninth Circuit,” and “the issue is one of significant national importance, and the 8-to-7 disagreement among the en banc court judges helps, too.” Like Professor Benjamin, he also predicts that “it’s very likely that the Court will reverse the Sixth Circuit.”

Affirmative action, as it currently is practiced, is coming to an end because the rationale no longer applies. 

Student groups with vested interests, frightened administrators, and misguided judges can delay the inevitable, but they cannot hold back the march towards true equal protection under the law.