When Sandra Day O’Connor wrote her majority opinion in the 2003 Grutter v. Bollinger Supreme Court decision, she explicitly said that voters had every right to strike down race and gender preferences. That’s important because the news media does not typically report on this part of the decision.
O’Connor also ruled in Grutter that the University of Michigan Law School could use race as one of many factors in a “narrowly tailored fashion” to achieve diversity. That’s the part that gets all the press. But the majority in Grutter also outlawed the use of hard, systemic quotas. Moreover, the Court made it clear that quotas could not be used in a separate, but related case known as Gratz v. Bollinger, which said the point system used at the University of Michigan’s undergraduate program was unconstitutional.
These 2003 decisions came full circle today when the Supreme Court, in a 6-2 decision, ruled to uphold the Michigan Civil Rights Initiative (MCRI). The organization that had brought suit against the MCRI is known in full as the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary, or BAMN for short. The group’s attorneys lived up to that title. They essentially argued the MCRI could not stand because in their view the only way to treat people equally is to treat them unequally. The Court rejected this argument and ruled that the MCRI in fact advances and bolsters the Equal Protection Clause of the Fourteenth Amendment. That much was expected, but what’s interesting here is that Justice Anthony Kennedy, who wrote for the majority, also invoked the First Amendment.
“It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds,” Kennedy wrote.
MCRI is patterned after California’s Proposition 209, which prohibits the state from discriminating on the basis of race, gender, or ethnicity by way of a constitutional amendment. O’Connor specifically pointed to Prop 209, and subsequent actions in Washington State and Florida, as examples of what other states should be doing.
Try searching for the media reports that mention this statement in Grutter and you will search in vain:
Universities in California, Florida and Washington State where racial preferences in admissions are prohibited by state law are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other states can and should draw on the most promising aspects of these race-neutral alternatives as they develop.
All told, there are now eight states that have followed California. Today’s ruling in favor of MCRI should embolden voters in other states who want to restore the Fourteenth Amendment’s equal protection clause to its proper station. Proposed initiatives are already working their way up in Ohio, Missouri, and Michigan.
A critical turning point came earlier this year when California Assembly Speaker John Pérez announced that he would withdraw from consideration a proposed measure to overturn the state’s ban on race and gender preferences in education. The bill (titled SCA-5) had passed out of the Senate with a supermajority but is now dead in the water.
Jennifer Gratz, CEO of the XIV Foundation, attributed this dramatic turnaround to a wave of grassroots opposition. Gratz, who was also the plaintiff in Gratz v. Bollinger, had this to say about today’s decision upholding the MCRI:
"Much progress has been made over the past 15 years in challenging discriminatory policies based on race preferences and moving toward colorblind government. Today’s ruling preserves this foundation and is a clear signal that states are moving in the right direction when they do away with policies that treat people differently based on race, gender, ethnicity or skin color.”
The MCRI passed in 2006 by a margin of 58 to 42 percent. Michigan is not exactly a red state. This margin says that a broad cross-section of Americans have had their stomach full of quotas and set asides.
Here’s something else you won’t read in the media.
The opponents of state-based initiatives that ban preferential treatment would frequently point to the Grutter decision as a rationale for overturning the will of voters. This was done by BAMN, California Governor Jerry Brown, and Sacramento lawmakers. But in doing so, they undercut their own arguments since Grutter had already empowered and encouraged voters to move in a race- and gender-neutral direction. This latest ruling reaffirms one of nuances of O’Connor’s opinion.
But don’t expect to read about it unless you’re savvy enough to pick up the American Spectator.