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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



     
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    Anchovy | July 2, 2011 at 9:20 pm

    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.


     
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    janitor | July 3, 2011 at 2:19 am

    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?


     
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    ella8 | July 3, 2011 at 10:21 am

    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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