“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
Dr. Martin Luther King, Jr. (August 28, 1963)
Well over a half century ago in Brown v. Board of Education—one of the greatest cases ever decided—the United States Supreme Court adopted what it described as a “fundamental principle.” It unanimously held that:
[R]acial discrimination in public education is unconstitutional . . . . All provisions of federal, state, or local law requiring or permitting such discrimination must yield to that principle.
See Brown II, 349 U.S. 294, 298 (1955).
In 2006, over a half century after Brown, the citizens in the State of Michigan added the following language to their own state constitution:
Article I, Section 26
Civil Rights. . . . (1) The University of Michigan . . . 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, color, ethnicity, or national origin in the operation of . . . public education, . . .” (emphasis added).
Originally known as the Michigan Civil Rights Initiative (or “Proposal 2”), this language is fully consistent with Brown’s principle.
The History of MCRI
As it turns out, Proposal 2 was proposed and passed in direct response to a 2003 Supreme Court ruling in Grutter v. Bollinger, 539 U.S. 306 (2003). Now retired Supreme Court Justice Sandra Day O’Connor’s opinion in Grutter approved (by a vote of 5-4) the use of racially discriminatory admissions policies at the University of Michigan’s elite public law school. It was a ruling that all but rejected Brown’s principle; and continues to reverberate in myriad ways around the nation.
For example, the ease with which Justice O’Connor condoned the use of race as a factor in university admissions led some universities in other states to adopt Michigan’s overtly race-conscious policies. (These policies are now facing a fresh challenge in a case known as Fisher v. University of Texas.) It also led well-intentioned but misguided individuals to promote the use of race-conscious policies by other public institutions, including our nation’s military.
On the other hand, Grutter also provided the impetus for millions of citizens in several states to say “no” to all racial discrimination by passing laws designed to make Dr. King’s dream of living in a color-blind society a reality.
Indeed, two states, California and Washington, had already begun the process before Grutter was even decided. See Proposition 209 in California (1996) and voter initiative I-200 in Washington State (1998). Following Grutter, Michigan responded in similar fashion when its voters adopted Proposal 2. Virtually identical referenda later passed in the States of Nebraska (2008), Arizona (2010), and Oklahoma (2012). As of November 6, 2012, approximately 28 percent of the citizens in the United States live in states that have adopted the color-blind principle long encapsulated in the Fourteenth Amendment and legislatively reaffirmed in the language of Title VI of the Civil Rights Act of 1964.
Now, however, in a decision that may rank among the worst in the history of American jurisprudence, an en banc panel composed of fifteen active Sixth Circuit Court of Appeals judges ruled (8-7) that citizens, like those in Michigan (and presumably by extension, the citizens in California, Washington, Nebraska, Arizona and Oklahoma), possess neither the freedom nor the right to establish a state-wide policy that forbids racial discrimination against any applicant to a state’s public universities. See Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN), et al. v. Regents of the University of Michigan, et al.
As Sixth Circuit Judge Danny J. Boggs, one of the seven dissenting judges, rather understatedly observed, Circuit Judge R. Guy Cole, Jr.’s opinion for the majority determined that it is “a violation of equal protection [under the Fourteenth Amendment] for the ultimate political authority [in any State] to declare a uniform policy of non-discrimination . . . .” See Slip Op. at page 40 (emphasis added).
The process by which Judge Cole reached his decision is not complicated; but it is virtually impossible to comprehend when considered in the context of the language of our Constitution, our federal civil rights legislation, and our landmark case law (like Brown). It’s also a cavalier dismissal of decades of hard work by civil rights advocates of all races who worked tirelessly—and, like Dr. King, sacrificed so greatly—to achieve what Proposal 2 enacted. Judge Cole’s decision, like his previous decision before the original three-judge panel, is hopelessly untethered from this historical landscape. His majority decision can basically be boiled down to this:
The University of Michigan law school’s admissions policy, which Justice O’Connor blessed in Grutter, granted racial preferences to certain underrepresented minority applicants. Judge Cole considers these preferences to be a “benefit” to these minorities. See Slip Op. at page18. He then reasoned that Michigan’s citizens’ action in adopting a constitutional amendment banning all racial preferences constitutes an unfair taking of this purported benefit from the preferred minorities (i.e., the “benefit” of having racial discrimination practiced against non-preferred minority applicants with whom the preferred minority applicants are competing). In effect, the majority concludes that the University is free to engage in racially discriminatory conduct while the People of the State of Michigan are not free to ban all racial discrimination from their public universities’ admissions process.
Judge Boggs, who penned the first of the dissenting opinions, begins with a fascinating history lesson:
In 1848, the relevant local authority, the Boston School Board, decided that race should be used in making assignments to the Boston public schools. See Roberts v. City of Boston, 59 Mass. 198, 208-09 (1849). They excluded and segregated black students. However, in 1855 the ultimate political authority, the legislature of Massachusetts, established the general principle against racial discrimination in educational choices [mirroring the “fundamental principle” eventually adopted by the U.S. Supreme Court in Brown]. (Cite omitted.) The legislature was lauded for that choice. (Cite omitted.)
Over 100 years later, various Michigan local and subordinate state authorities began to implement policies of racial discrimination in decisions on, inter alia, educational admissions. The Supreme Court of the United States held that such actions were permissible, but certainly not that they were compelled. Grutter v. Bollinger, 539 U.S. 306 (2003). Subsequently, the ultimate state political authority, the People of Michigan, voted to establish the same principle that Massachusetts did in 1855. This is the same principle embodied in President Kennedy’s Executive Order 10925 of 1961—that government decisions should be undertaken “without regard to race, creed, color or national origin.” (Cite omitted.) Indeed, the very term “affirmative action” comes from that presidential order. (Cite omitted.)
Slip Op. at 37-38.
It is both a history and a recitation of principle that Judge Cole and his brethren in the majority ignored.
Circuit Judge Julia Smith Gibbons, in a separate dissent, amplified Judge Boggs’ observation:
Essentially, [the majority seeks to confer] constitutional protection for racial . . . preference[s]—a concept at odds with the basic meaning of the Equal Protection Clause as understood and explained through decades of jurisprudence. (Emphasis added) (Slip Op. at 41.)
Of course, mandating equal treatment by banning discrimination against, or the granting of preference to, any individual or group based on race was precisely what the voters in Michigan intended when they overwhelmingly passed Proposal 2 in November 2006. The majority’s finding that it is unconstitutional to establish, as a matter of state constitutional law, the plainly laudable principle of forbidding of all racial discrimination in public education is difficult to fathom.
When viewed through the majority’s lens, it is doubtful that a successful effort could be mounted today to pass the language of Title VI of the Civil Rights Act of 1964 (banning racial discrimination in all programs receiving federal funding) if it were being proposed in response to a Supreme Court decision like Grutter.
For any brave soul who wishes to attempt it, I recommend a review of all five dissenting opinions (authored by Circuit Judges Boggs, Gibbons, John M. Rogers (very brief), Jeffrey S. Sutton, and Richard Allen Griffin). The tragedy of the majority’s judgment is, perhaps, best summed up by Judge Griffin:
Today’s decision is the antithesis of the Equal Protection Clause of the Fourteenth Amendment. The post-Civil War amendment that guarantees equal protection to persons of all races has now been construed as barring a state from prohibiting discrimination on the basis of race.
Slip Op. at 70 (emphasis added).
The Supreme Court seems all but certain to review an expected appeal by the State of Michigan, and so it should.
Only then, it appears, will there be any hope of redirecting our nation along the path illuminated by Dr. King’s dream.
Mr. Purdy is a lawyer in private practice in Minneapolis, Minnesota. He served as one of the pro bono trial and appellate lawyers for the plaintiffs who challenged the University of Michigan’s race-conscious admissions policies at issue in Grutter and Gratz.