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BAMN! Are the people sovereign, or aren't they?

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Candid scholars who study affirmative action law, particularly in the field of higher education admissions systems, must admit that the area is full of instances in which the English language has been twisted beyond recognition. How else could the meaning of the term "equal protection" be so often manipulated? To choose the court opinion in this context based upon the most tenuous application of language, and indeed of logic, would be a challenge. But this fall the U.S. Supreme Court is set to hear an appeal from a decision by the 6th Circuit that may just win the prize. The case, Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) v. Regents of the University of Michigan, (No, I didn't make up that name.) relates to Michigan's successful post-Grutter ballot initiative known as Proposal 2. Via proposal 2, the people of Michigan amended their Constitution, effectively outlawing consideration of race in admission to the state's public universities.

In response, a group of plaintiffs (BAMN) sued, asserting that Proposal 2 violated the Equal Protection Clause of the U.S. Constitution. To its credit, the 6th Circuit began its review by analyzing the amendment using traditional Equal Protection analysis, and held that it was not unconstitutional under the strict scrutiny framework. However, to its shame, the court majority went on to apply a relatively obscure standard it dubbed "political process theory," and found that under the Hunter/Seattle framework Proposal 2 is unconstitutional. Why? Because the amendment resulting from Proposal 2, in the opinion of the court, made lobbying for racial preferences more difficult than lobbying for, say, athletic or legacy preferences.

In the usual irony present in equal protection cases the court attempted to have its cake and eat it, too. On the one hand it acknowledged that "the Constitution does not protect minorities from political defeat: Politics necessarily produces winners and losers." On the other hand, the majority's opinion rested almost entirely on the presumed political disadvantage held by minorities due to the nature of mathematics. Relying on two arguably inapposite Supreme Court cases, the 6th circuit found that "the majority has not only won, but has rigged the game to reproduce its success indefinitely." To reach this conclusion the court had to ignore the fact that the very racial preferences at issue were originally adopted when Michigan's population was more predominately White than the current one. It also rested on a stereotype that diversity proponents claim to fight-that there is such a thing as one minority viewpoint, and one set of interests upon which "minorities" agree. Likewise, it presumed that members of the majority will all vote in lock-step, despite ample evidence to the contrary.

As a practical result of the BAMN case the public universities of Michigan may ignore the will of the people, in its highest from of expression, the Michigan Constitution. More precisely, college admissions committees may ignore the will of the people. They may continue to engage in racial discrimination for the supposed benefit of some members of preferred minority groups, also in spite of ample evidence of the harm they do. The 6th Circuit's opinion is worth reading, if just for the entertainment value. The effort it took the court to justify striking down Proposal 2 under the Equal Protection Clause was impressive, and necessarily lengthy and unclear. Sophistry, after all, relies on a cloud of words to dull the reader's senses. The problem is that there are serious consequences to the silliness behind the nakedly political decision. The supposed beneficiaries will be harmed. Persons who were born into a race that does not benefit from affirmative action will be harmed. A federal court of appeals has allowed the political objectives of a lobbying group for a subset of the population to trump a fundamental right, "whatever" those objectives may be. The principle of state sovereignty has been undermined, and the people of Michigan have been instructed by a few judges that not only are they allowed to tolerate racial discrimination temporarily, in pursuit of a compelling interest, but that they must do so indefinitely, in pursuit of an advocacy group's ideology. Not even the 9th Circuit would buy that.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.