In 2006, Michigan voters approved a ban on affirmative action (preferential treatment to individuals because of race, ethnicity, etc.) in the public sector. The ban encompassed admission to public universities as well as the hiring of government employees. The ban reads as follows:
(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 in the operation of public employment, public education, or public contracting.
Soon after the proposal was accepted by the people of the state of Michigan it was challenged in court. In 2012 the 6th Circuit Court of Appeals declared the law unconstitutional, and Michigan Attorney General Bill Schuette appealed the decision on behalf of the state. The appeal was granted and tomorrow oral arguments will be heard in Court.
The Equal Protection Clause "guarantees racial minorities the right to full participation in the political life of the community. It is beyond dispute ... that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner." But the Equal Protection Clause reaches even further, prohibiting "a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation." Id. (internal quotation marks and citation omitted). "[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size."
The Court forgets to mention that affirmative action benefits "minorities" by discriminating against white males, who are considered "non-minority." Therefore by definition affirmative action, which disadvantages white males, would be unconstitutional under this test.
Let me explain. The test says that something is unconstitutional if it;
1 - Places special burdens on the ability of minority groups to achieve beneficial legislation
2 - Disadvantage a particular group.
Looking at affirmative action, we see that it gives places burdens on white males (particularly making college acceptance more difficult). Since white males are by definition a people group, affirmative action should be declared unconstitutional under this interpretation of the 14th Amendment.
The Court found it unconstitutional because Proposition 2 quote;
Hunter and Seattle thus expounded the rule that an enactment deprives minority groups of the equal protection of the laws when it: (1) has a racial focus, targeting a policy or program that "inures primarily to the benefit of the minority"; and (2) reallocates political power or reorders the decision-making process in a way that places special burdens on a minority group's ability to achieve its goals through that process. Applying this rule here, we conclude that Proposal 2 targets a program that "inures primarily to the benefit of the minority" and reorders the political process in Michigan in a way that places special burdens on racial minorities.
Oddly if we substitute the language of the 14th Amendment in for "minority" we once again arrive at the opinion that affirmative action is unconstitutional.
(1) has a racial focus, targeting a policy or program that "inures primarily to the benefit of (a person)"; and
(2) reallocates political power or reorders the decision-making process in a way that places special burdens on a (people) group's ability to achieve its goals through that process.
The 14th Amendment does not guarantee any group special privileges; it only acknowledges the rights of the individual, regardless of ethnic background.
As Chief Justice Roberts once said:
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. - Chief Justice Roberts
My Grandfather's Son by Justice Clarence Thomas
Affirmative Action: Social Justice or Reverse Discrimination? by Francis Beckwith Ph.D.
Click here for transcript of oral arguments before the US Supreme Court