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Saturday Night Card Game (Would this rewrite of Michigan Prop. 2 be constitutional?)

Saturday Night Card Game (Would this rewrite of Michigan Prop. 2 be constitutional?)

This is the latest in a series on the use of the race card for political gain:

The Sixth Circuit Court of Appeals issued a ruling on Friday holding that Michigan Proposal 2, which banned the use of racial and other preferences in a variety of contexts, was unconsitutional.

Jonathan Adler summarizes the ruling:

In a divided opinion, the U.S. Court of Appeals for the Sixth Circuit struck down Michigan’s Proposal 2, aka the “Michigan Civil Rights Initiative.” Proposal 2 was a successful ballot initiative that provides that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.” Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented. The decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan is here.

This is an unusual case.  Normally the issue before a court is whether racial preferences are constitutional, not challenges to the failure to use racial preferences.  As the dissent noted (at p. 44):

“Racial preferences are not favored under the law but must be exactingly justified. No constitutional jurisprudence exists that requires their use.”

I’m not going to predict the outcome if and when this gets to the Supreme Court.  As they say, the Supreme Court is right because it is the Supreme Court, it is not the Supreme Court because it is right. 

But let’s think about what this means if the majority is correct under existing Supreme Court precedent (read the dissent for the counter-argument); a referendum which forbids racial discrimination would be unconstitutional.

Which means that this rewrite of Proposal 2 probably would be unconstitutional under the Sixth Circuit’s application of Supreme Court precedent (italics signify new text):

(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin not judge people by the color of their skin but by the content of their character,  in the operation of public employment, public education or public contracting.
(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin not judge people by the color of their skin but by the content of their character in the operation of public employment, public education, or public contracting.

Hey, call me a dreamer, but maybe it’s worth a try anyway.

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Comments

Wow, talk about dreaming.

I have discovered that if you tell a liberal, especially one who just finished a ten-minute speech on how they are NOT a racist, that you have never felt compelled to defend or prove your innocence when it comes to the issue of race and racism they will explode with rage.

Maybe it’s just me but the 6th circuit’s ruling seems completely nonsensical. It seems so completely separated from common sense as to make me think that the court found what it intended to find and then faked up some “reasoning” afterwards.

” … and up is down and left is right and day is night and right is wrong ….”

Treating people equally under the law? Now you’re just talking crazy, professor.

Hopefully someday Professor Sander at UCLA Law will be able to do his research on whether Affirmative Action in law school admissions actually hurts the students its meant to help. I suspect it does, I didn’t learn a thing when I took AP Chemistry because everyone learned faster than me, I would have been better off in the regular class.

Professor, not being a lawyer, let me see if I have this right: The court rules that affirmative action, which gives preference to one person over another due to race, is not constitutional, but to end the policy of affirmative action would place undue hardship on one race over another and that is also unconstitutional?

Please, explain to me if you have two university applicants, both with 3.8 GPAs and one is white and one is black, how it is constitutional to grant admission to one based on race when the one who is denied admission is being racially profiled, which the courts have decided that racial profiling is unconstitional?

What a kettle of fish.

DINORightMarie | July 2, 2011 at 6:44 pm

“…This section states the general principle that no person in the United States shall be excluded from participation in or otherwise discriminated against on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance….” –Civil Rights Act, 1964 (bolded emphasis mine>

I don’t see how the MI Prop 2 law differs from this quote from the federal Civil Rights Act of 1964. It is worded slightly differently from the bolded parts I emphasized. However, it is essentially the same wording. What is the 6th Circuit doing?! First it’s okay to mandate people to purchase something, because it’s okay….now this?!

This ruling does not make any sense. I understand why the law was written – to help eliminate affirmative action programs that put bias into the equation – but the wording of MI prop 2 is essentially reiterating federal law. Amazing.

How many precedents have been made in the ensuing years that have essentially rewritten the Civil Rights Act? The lack of reason is dizzying

Truly a face-palm moment here! And the left got all hot and bothered when Rand Paul said he wouldn’t have voted for the Civil Rights Act because parts of it were, in his opinion, unconstitutional. But apparently, it was ruled out of actual law by the men (and women) in black long ago.

No hue and cry over this? Nope. Crickets.

It’s “social justice” – that makes it all okay. /sarc

1. Heh. I jumped to your conclusion after the second sentence. Apparently a color-blind society is now unConstitutional.

2. In fact, I gather that if one even advocates a color-blind society, there are those who consider it proof of racism.

    gs in reply to gs. | July 6, 2011 at 4:23 pm

    According to Michael Barone (via Instapundit), “It’s racially discriminatory to prohibit racial discrimination.”

    Aw shucks. (pretends to look modest)

Afterthought: A government doesn’t have to machinegun its peaceful citizens in the streets to qualify as illegitimate.

Carol Herman | July 2, 2011 at 7:56 pm

What’s Tanney’s first name? I’ll throw that card.

And, if I lose this hand, do I have to remove an article of clothing?

Michigan’s got Detroit. Right there you see the toe tag.

How did we end up with a state in worse condition than when we got it from the indians?

Any,hoo. It’s like spitting into the ocean. Or, as someone on a cruise ship would say, when you flush the toilet the ocean doesn’t get to stink like it’s a cesspool with broken plumbing.

And, there are some judges dumber than pantaloons.

It would have made more sense if they decided this case by coin toss. At least there is some logic and reason behind the math involved in calculating the odds.

I wonder how many mathematicians become judges.

Sixth Circuit. Newspeak. Aggg.

retire05: You didn’t say this, so you are not racist, but if the student denied admission is white there is no crime. One cannot discriminate against white students. I believe the correct term for an activity like that is “aconstitutional”.

It is no wonder that we are in such trouble. How have we even survived this long?

Would they consider Sasha or Malia Obama for preferential treatment over a poor white student? Not all blacks are disadvantaged and most people I know of all colors are too poor to go to college, forget about whether or not they are qualified.

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