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Update on BAMN
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Earlier this year I posted a blog about the case the Supreme Court was set to hear concerning Michigan's ban on affirmative action, pointing out what I viewed as some significant flaws in the plaintiffs' arguments. Moreover, I analyzed the issues in a more thorough manner in a recent law journal article here. On October 15th of this year, the Supreme Court heard oral arguments in that case, under the title Schuette, Attny. Gen of Mich., v. BAMN, et al. Central to the BAMN case is the assertion that Michigan's Proposal 2, which amended the state constitution to outlaw affirmative action, inter alia, at the state universities, set up a different political process for lobbying for racial preferences than the process for lobbying preferences based on alumni status, athletic ability, etc. Thus, under the Hunter/Seattle line of cases, Proposal 2 arguably violates the federal Equal Protection Clause.

As is often the case, both listening to the oral arguments, and reading the transcripts thereof, provides the observer with a very brief glance at what the attorneys presenting consider the most important aspects of the case. Actually, what the transcripts probably show is the issues that the competing attorneys think are both central to the issue, and on which certain Justices are still persuadable. They only have a brief time, the issues are very complex, and so choices of time and energy must be made.

The written briefs, along with briefs from amici, lay out the arguments in more detail. They show that Justice Kennedy, once again, is perceived as the swing vote, as arguments in the briefs are clearly designed to convince him, not so subtly, often reminding him of his own words from other cases. But despite this strategy, Shuette, who as Michigan's Attorney General was defending Proposal 2, spent most of his time answering questions by Justices Ginsburg & Sotomayor. In contrast, and perhaps not surprisingly, the attorneys for the two defendant groups were grilled pretty thoroughly by Justices Roberts, Scalia, and Alito. With all the usual cautionary caveats about predicting what the Court will do, the interactions with Justices Kennedy and Breyer may be most relevant. Both seemed somewhat skeptical of the defendants' arguments. Obviously, only time will tell how the Court will rule. But based on the arguments expounded in the oral arguments, it would be difficult if not impossible for the Court to rule in favor of the defendants. Otherwise, as Justice Scalia suggested, the federal Equal protection clause would contradict itself.

The citizens of Louisiana, through their elected representatives, have chosen to fund educational opportunity for students primarily through traditional public schools. In addition, in situations where those public schools prove to be insufficient, they have offered to a small percentage of parents the opportunity to try an alternative-a private school experience at taxpayer expense (at least partially). But the Louisiana Supreme Court recently held the portion of the voucher law that took funding from public schools to give to parents for use at private schools invalid under the state constitution. Following this setback, the legislature was confronted with the task of finding alternative funding for the voucher program.

Regardless of what one thinks of the merits of the Louisiana voucher program, it appears the state Supreme Court did its job, construing the statute strictly, and recognizing that it is the legislature who is responsible for changing the funding mechanism of the state's schooling options, not the court's. But to make an already difficult situation even more so, the U.S. Department of Justice is now engaged in a law suit against the State of Louisiana in an attempt to restrict or stop the voucher program. The justification for DOJ's position is stated as an attempt to enforce compliance with decades-old desegregation orders. While there may be some technical legal merit to the argument, I find myself skeptical that Justice cares more about integration than it does about protecting the interests of the public education lobby. Notably, the beneficiaries of these voucher programs are by statutory requirement poor, and stuck in failing schools, and are de facto overwhelmingly minority. Moreover, in the absence of evidence of de jure discrimination, the U.S. Supreme Court has repeatedly held racial balancing per se in K-12 schools to be unconstitutional. Thankfully, the discrimination that led to the decades-old desegregation orders in Louisiana is a thing of the past, and DOJ invoking them now seems a cynical move.

The DOJ, coupled with teacher union lawsuits, are not the only threats to Louisiana's voucher program, however. Political advocates of public schools are on the attack as well, sometimes advancing reasonable arguments, though not especially convincing ones, in my view. But a recent piece in Slate by Allison Benedict showed the ugly side of the anti-voucher movement. The title of the article itself (If You Send Your Kid to a Private School, You are a Bad Person: a manifesto) is almost a caricature. But sadly, the author seems to be in earnest. In the Public Discourse, Tollefsen lampooned the Benedict article, making some good points in the process. But having limited space, he left out a few things that his perceptive intellect would have doubtless treated were he addressing the topic at length. I'll try to fill a couple of gaps.

First, Tollefsen rightly notes that Benedict suggests that parents sacrifice their own children to failing public schools for some alleged benefit that might accrue to future generations. But Benedict's underlying assumption is an even more dangerous one-that the individual ought to subordinate oneself, and one's children, to the state, however destructive the arm of the state requiring sacrifice may be to those children. She baldly asserts that to do otherwise makes one "bad." This idea conflicts directly with the enlightenment principle that organized society exists to protect inherent rights of persons; persons do not exist to protect the interests of organized society. The U.S. Supreme Court, in more enlightened times, honored this principle:

"The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State."

While Benedict, to give her some credit, concedes that she prefers moral arm-twisting to government force in this case, she does so while admitting she is not an educational policy wonk. Though I didn't brag to the cool kids in high school that I wanted to become one, I kind of am. At least I'm enough of one to recognize that in addition to her passionate plea to parents to force their children to take one for the team, Benedict seems to have gone out of her way to undercut her own thesis. She intentionally highlights her own ignorance, complete with illuminating examples, and attributes this state to her attendance of "crappy" public schools. In addition to her self-diagnosed lack of knowledge, she might have noted the gap in her preparation regarding the use of vulgar, scatological references to people she is trying to win over to her side. Perhaps a more values-centered private school could have helped her there. A better educational experience might also have helped her understand that the relationship between her public school experience and her ignorance does not necessarily imply causation.

But despite her self-professed ignorance and judgmental character, Benedict does offer reassurance. She wants the reader to know that she is "doing fine" in spite of it. In his piece referenced above, Tollefsen does a good job convincing us that Benedict is not, in fact, doing fine. But if we assume for the sake of argument that she is, her argument for universal public schooling loses all force. She wants everyone to send their children to public schools so that they will all insist that public schools be improved. But based on her own narrative, why should her readers care? If one can do "just fine" after attending a bad public school, why should any additional resources be expended to improve them? Why should anyone sacrifice their own children for some speculative future improvement?

However bad the public school Benedict attended, I am guessing it was not as bad as some of the shockingly dishonest, ineffective, and dangerous public schools attended by some would-be beneficiaries of voucher systems. I am willing to bet I could easily find many public schools to which she would not willingly send any child she loves, or even marginally values. Perhaps I'm wrong on this point, but I hope not.

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.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.