Not Your Typical Affirmative Action Case

On October 15th, 2013, CNN’s website banner read: “Supreme Court tackles new affirmative action case.” Although CNN presented Schuette v. Coalition to Defend Affirmative Action as another affirmative action case, the merits of affirmative action are not the primary issue before the Court; the placement of a political decision is.

In November 2006, Michigan voters passed the Michigan Civil Rights Initiative (MCRI) by 58%. This Constitutional amendment declared that public universities shall not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” Opponents of the new amendment contend it violates the 14th Amendment to the U.S. Constitution because, unlike other groups like veterans, legacy children, and disabled students, racial minorities must change the state constitution to reinstate preferential treatment whereas these other groups can merely lobby the Michigan Board of Regents for special admissions treatment. Supporters assert the law guarantees equal access to public universities by eliminating race as a factor in admissions decisions.

For this argument, we will take affirmative action as a given; it is unlikely to be abolished anytime soon. Instead, when analyzing this law, it is best to focus on how different groups that represent innate traits (racial groups, legacy, disabilities, etc.) now face an unequal process to lobby for preferential treatment. As a personal opponent of government social engineering resigned to the continued existence of affirmative action in some form, it becomes clear that the MCRI is misguided because it unequally allocates access to the body that designs affirmative action policy. Government policy, rather than lobbying ability, now helps decide which groups receive preference in Michigan.

The only way to abolish the MCRI is to amend Michigan’s constitution via legislative action (a joint resolution) or a ballot initiative. From 2004-2008, all proposed constitutional amendments were adopted. An argument could be made that it would be difficult to pass an amendment overturning an existing change passed by a wide majority of the electorate without a widespread multi-million dollar ad campaign, but that is beside the point. Regardless of whether it is harder or easier to pass an amendment or enact change through a public Board of Regents, the MCRI artificially makes it harder for some groups to affect change in the admissions process relative to others.

MCRI, in its current language, constitutionally bans treatment or discrimination based on nationality, race, sex, and ethnicity. These traits can no longer have an affirmative effect on an admissions decision. For opponents of affirmative action, this is a good start. Since the amendment does not cover a wider range of innate traits, however, its placement in the constitution creates an imbalance of power.

Consider a child born to a University of Michigan alumnus. Since birth, the child has had an advantage in the admissions process. Regardless of the merits of a legacy program, the decision to implement one rests with the University’s Regents Board. Legacy children are not barred from receiving preferential treatment by the state constitution despite the fact that, like race, legacy status is innate. Similarly, those with born disabilities are not constitutionally barred from receiving preferential treatment.

At issue in this current discussion is not which groups of innate traits should receive preference; it is where decisions about these preference allocations should be made. If a state university system is going to assist some innate characteristics but not others, then each group, whether minorities, the disabled or any other, should have an equal field in the process that decides how to allocate preference. The fact that the initiative is a constitutional amendment rather than a university policy creates a disparity in access to the process by which admissions criteria are decided. Either constitutionally ban all affirmative action based on innate traits in favor of situational factors, such as socioeconomic status and experience, or allow decisions to be made on the same level of government. It is inherently unfair to have it both ways.

The initiative’s current placement in the constitution is an example of the government picking winners and losers, despite the amendment’s opposite purpose. The amendment does not bar affirmative action, it only blocks it from benefiting politically unpopular beneficiaries in Michigan (if we define affirmative action loosely as any policy that assists a group of people with certain innate characteristics relative to the generic applicant pool.) If we view affirmative action as any policy that assists a group of people with specific innate characteristics, then deciding which groups must work harder to receive it is a form of social engineering driven by the whims of the populace.

With an affirmative action policy, there is no way to avoid this social engineering and, the more groups which receive affirmative action, the more diluted its power is relative to the generic applicant pool. Nevertheless, to combat this social engineering without ending affirmative action, which currently is politically impossible, all groups must have the same opportunity to influence the process. To equalize this influence, either all decisions about traits to assist should be made at a state level or at a university level. Michigan’s current system of different allocations of decisions only further entrenches this social engineering.

While it is acutely important to discuss the merits of affirmative action, this is not the primary issue before the Supreme Court. Instead, the Supreme Court must determine whether it is constitutional for a state to allocate decisions on how to treat innate characteristics in a non-uniform matter. In a society that champions equality before the law, in a nation that claims to disdain social engineering, and in the spirit of equal protection, the answer should be no.