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An Opportunity for the Court

Nov 4, 2013, Vol. 19, No. 08 • By TERRY EASTLAND
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The restructuring argument boils down to this: that by including in the state constitution a policy against racial discrimination, Michigan is discriminating against racial minorities who might wish to revive preferential admissions policies. For before they can lobby the usual parties—admissions officers, deans, elected education officials—they have to get rid of the constitutional provision, meaning they have to put a measure on the ballot, as the advocates of Proposal 2 did, and move public opinion to their side. Meanwhile, other nonracial interest groups—fishermen, homebuilders, doctors, even alums seeking change in alumni admissions—can lobby for their causes through the ordinary avenues of change, not constrained in any way by the state constitution.

The problem with this argument is that Proposal 2 doesn’t target racial minorities. It discriminates, to be sure, but what it discriminates against aren’t people but racial discrimination, hostility to which is commanded by the Fourteenth Amendment’s equal protection guarantee.

Nor is “restructuring” an evil of some kind. Law reorders things. That’s what it does. And as a result of the reordering effected by Proposal 2, racial preferences in admissions are no longer left to ordinary politics but “taken off the table,” where, history counsels, they ought to stay.

Justice Elena Kagan is recused from Schuette, having worked on it as solicitor general, so eight justices will decide the case. Five will be needed to reverse the Sixth Circuit, which is working on a 20-case losing streak in the Supreme Court. The decision the Court renders could apply nationwide and affect similar measures that have been added to the constitutions of Arizona, Nebraska, and Oklahoma, as well as, of course, California.

Justice Anthony Kennedy’s vote may prove decisive. Kennedy dissented in Grutter, yet he seems unwilling to go as far in eliminating consideration of race in admissions as Roberts probably is—which seems to be all the way. The critical point for the Court to take up is whether the Fourteenth Amendment indeed forbids the choice Michigan made in passing Proposal 2—the choice for color-blind law. Proposal 2 is actually in full agreement with Grutter’s understanding of fundamental principle, as stated by the majority in that case: “A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.”

The Court, perhaps with Kennedy writing, has the opportunity to further that purpose by reversing the Sixth Circuit and affirming the constitutionality of Proposal 2.

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