If the U.S. Supreme Court rules to uphold the Michigan Civil Rights Act (MCRI) in its current term, voters across the country will be in a stronger position to outlaw race and gender preferences.
That’s the good news.
The bad news is that college admissions officials can continue to play games at the expense of qualified applicants in an effort to boost “diversity” on campus.
That much was evident last year when the high court ruled in favor of a female plaintiff who sued the University of Texas at Austin for using racial considerations in its admissions process that ran counter to the equal protection clause of the 14th Amendment.
This June 10 2013 photo, Marysville Getchell High School seniors celebrate their graduation at Everett Community College in Everett, Wash. Credit: Annie Mulligan/AP
The 7-1 ruling in Fisher v. University of Texas demonstrates that a majority of justices maintain a jaundiced view toward preferential policies and will very likely uphold the MCRI, which amends the Michigan state constitution to say: “The state 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.”
That’s the kind of language a broad cross-section of Americans has embraced in state ballot initiatives beginning with California’s Proposition 209 in 1996. Since then, Washington State, Arizona, Nebraska, Oklahoma and Michigan have passed their own version of constitutional amendments banning discriminatory practices. Other states, including Tennessee, are poised to move forward with their ballot proposals.
But the momentum in favor of race and gender neutral policies was disrupted in July 2011 when a three-judge panel on the Sixth Circuit Court of Appeals ruled that the MCRI actually violated the 14th Amendment.
The panel accepted the argument advanced by a well-funded, far left group that essentially said in order to treat people equally in college admissions and government hiring they must be treated unequally. That group describes itself as the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, or BAMN for short. Michigan Attorney General Bill Schuette’s appeal of the Sixth Circuit ruling is the case now before the Supreme Court.
ACLU logo. Credit: ACLU
Assuming the Court reverses the Sixth Circuit and restores the MCRI, and it is reasonable to make that assumption based on recent rulings, the BAMN mentality will continue to find expression in college admissions.
Jennifer Gratz, CEO of the XIV (14th) Amendment Foundation puts it very well.
“Racial discrimination will not end simply by passing a law or by receiving a favorable legal decision,” she has observed. “It takes a determined, unrelenting movement to bring about such lasting change. The Supreme Court won’t do it for us.”
So how should civil rights activists respond if college admissions officials proceed to violate the rule of law, as they did at the University of Texas, despite the clear language of the 14th Amendment and existing U.S. Supreme Court precedents that outlaw quotas and set asides?
Here’s an idea, why not recruit the American Civil Liberties Union (ACLU) to keep tabs on college admission officials so as to ensure that they do not engage in racial profiling?
It’s a fair question since the ACLU has been aiming its legal arrows against police departments and border security officials who confront suspected illegal aliens. As The Washington Times recently reported, The ACLU branch in Arizona has filed a complaint against the Tucson Police Department accusing it of violating the civil liberties of two Hispanic men. Police officers detained the two men after pulling over their van, which had a broken license plate. The suspects were turned over to the U.S. border security and later released on bond.
"This is racial profiling pure and simple," Christine P. Sun, an ACLU attorney, is quoted as saying.
This March 1, 2012 file photo shows Maricopa County Sheriff Joe Arpaio speaking at a news conference in Phoenix. A federal judge on Wednesday Oct. 2, 2013, ordered the appointment of an independent monitor and a community advisory board to ensure that Arpaio is complying with constitutional requirements after finding his office engages in racial profiling. Credit: AP
The police department denies the ACLU allegations and it may have the better argument. For starters, the ACLU is challenging a part of the Arizona immigration enforcement law, SB 1070, the U.S. Supreme Court has already upheld. The police are permitted to ask about the legal status of individuals they encounter as part of their routine duties; such as traffic stops. It would seem the ACLU would only have a case if a suspected illegal alien was pulled over or confronted at random. SB 1070 does not become active unless an individual stands accused of committing another crime such as a traffic violation.
Still, the ACLU is convinced that border security activities in Arizona and other states lead into racial profiling. That’s why the ACLU has set up its own checkpoints in close proximity to where the Border Patrol operates along the U.S.-Mexican border so individuals can be advised of their rights. To the extent the ACLU protects the rights of legal citizens, it is performing a valuable service. To the extent its attorneys are intruding upon legitimate border security exercises, it is doing a great disservice to all Americans.
There’s a better way.
If the ACLU is genuinely concerned about racial profiling and how this practice impacts the 14th Amendment, why not set up checkpoints in front of the admissions offices at say the University of Texas, the University of Michigan, and other institutions of higher learning that have been called out for profiling and discriminating against Americans who are denied opportunity because of their skin color? How about it?
Gratz, the civil rights activist who heads up the XIV Foundation, was also the plaintiff in Gratz v. Bollinger, a 2003 Supreme Court ruling that overturned racial quotas at the University of Michigan's undergraduate program. She knows how duplicitious and misleading the opposing side can be.
This is how she reacted to oral arguments before the Supreme Court concerning the MCRI.
“Supporters of race preferences now have conflicting arguments,” she said in a press release. “First they argued before the Supreme Court that race preferences were for the benefit of everyone. And now argue in front of the same court that race preferences are for the benefit of minorities. This conflict means that either proponents lied in front of the court before, or they are lying to the court now. This is a sign of just how willing proponents of race preferences are to shoe-horn any argument in order to hold onto the unpopular discriminatory policies.”
That's why the ACLU's services are needed where colleges admissions are concerned. In a few months, the high court will very likely give the green light to the MCRI and other state initiatives. But will university officials honor a ruling in favor of equal rights?
The ACLU attorneys can help make sure that they do.
Kevin Mooney can be reached at Kevin.MooneyJ@gmail.com and followed on Twitter @KevinMooneyDC. Please visit KevinMooney.Net for additional information and previous reports.
TheBlaze contributor channel supports an open discourse on a range of views. The opinions expressed in this channel are solely those of each individual author.