On Monday, the Supreme Court agreed to review an important case on race and sex discrimination (also known as affirmative action) that will give it another chance to overturn a court of appeals ruling and confirm that discrimination is always wrong.
Schuette v. Coalition to Defend Affirmative Action is an unfortunate example of the activism practiced by too many federal judges today. In 2006, voters in Michigan approved a ban on “all sex- and race-based preferences in public education, public employment, and public contracting.” It passed by a margin of 58 percent to 42 percent and was almost identical in language to a similar referendum passed in California in 1996.
Having lost at the ballot box, the supporters of affirmative action and racial quotas filed a lawsuit claiming that the Michigan referendum violated the Equal Protection Clause of the Fourteenth Amendment. In a closely divided case, eight judges of the Sixth Circuit Court of Appeals adopted a startlingly expansive view of the Equal Protection Clause.
The majority held that banning racial and sex discrimination in the college admissions process deprived the plaintiffs of equal protection under the “political-process doctrine” for two reasons: because the initiative targeted a program that “inures primarily to the benefit of” a minority group and because it reallocates political power and the decision-making process in a way that places a special burden on the minority’s ability to try to overturn it through the normal democratic process.
As one of the seven dissenting judges, Julia Smith Gibbons stated the majority’s opinion basically claims that “Michigan must retain its racial and other preference policies in higher education and that the state’s voters cannot make the contrary policy choice that factors like race and gender may not be taken into account in admissions.” As Gibbons pointed out, this argument flies “in the face of the core equal protection principle of nondiscrimination—a principle consistent with the choice of the people of Michigan.”
In essence, the court declared that the U.S. Constitution protects racial and gender preferences, which Judge Gibbons noted is “a concept at odds with the basic meaning of the Equal Protection Clause, as understood and explained through decades of jurisprudence.” Even the Ninth Circuit Court of Appeals disagreed with this type of claim when it upheld a similar California referendum in 1997.
The Sixth Circuit’s decision cannot be justified under the law because it turns the Equal Protection Doctrine on its head, holding that when a state bans unequal treatment under the law it somehow violates the concept of equal protection under the law. The case will be heard when the new term of the Supreme Court begins in October 2013. One hopes the Court will give this decision the short shrift it deserves and overturn it.