[See update below.
This term, the Supreme Court will decide Schuette v. Coalition to Defend Affirmative Action. The Sixth Circuit, in an en banc 8-7 opinion, invalidated a Michigan constitutional amendment, passed by referendum, that forbids racial preferences by government institutions, including public universities The court held that the amendment violated the Fourteenth Amendment’s Equal Protection Clause, because it put African American students who wish to lobby for affirmative action university preferences at a structural political disadvantage relative to other students who wish to lobby for other sorts of preferences, such as legacy preferences. The latter students need only go through ordinary legislative or regulatory processes, while the hypothetical black student needs to overturn a constitutional amendment.
There is a lot to criticize in the Schuette opinion, but I wanted to focus on a point that I haven’t seen raised elsewhere, but that I raise in a forthcoming article in the NYU Journal of Law & Liberty, which I will post a link to when its ready. The Sixth Circuit treats affirmative action preferences as if they are designed to benefit African American students, and thus making it more difficult for them to lobby for such preferences puts African Americans, as a class, at a political disadvantage. The problem is that the Sixth Circuit forgot the narrative. While the impetus for affirmative action in higher education among American elites is, in fact, primarily to pursue “social justice” for underrepresented minorities in general and African Americans in particular, the Supreme Court has consistently held that this is an illegal, unconstitutional rationale for affirmative action preferences.
Rather, under governing precedent, any use of race in admissions is subject to strict scrutiny, which could be overcome only if the relevant educational officials have determined that student racial and ethnic diversity “is essential to its educational mission,” and even then the university must ensure that “the means chosen by the University to attain diversity are narrowly tailored to that goal.” So, from a legal perspective their underlying purpose cannot be to benefit black students or other minority students who receive admissions preferences. Rather, they must benefit all students at the university due to “the educational benefits that flow from a diverse student body.” In fact, the Supreme Court’s diversity rationale arguably suggests that the main benefit of achieving a critical mass of minority students through affirmative action preferences is that it improves the education of the non-minority students. Not surprisingly, many affirmative action advocates are uncomfortable with this rationale, but the Sixth Circuit is required to take Supreme Court precedent as it exists.
If white students benefit from “diversity”-based preferences at least as much as minority students, there is no particular group being disadvantaged by Proposition 2s ban on such preferences. In other words, Proposition 2 can’t be unconstitutional because it makes it more difficult for minority students to lobby for benefits for themselves, given that it would be unconstitutional for the state government to respond to such lobbying by enacting racial preferences. This, in turn, undermines the entire logic of the Sixth Circuit’s decision.
UPDATE: Readers point me to at least three sources that make a similar argument: (1) an article by Prof. Garrett Epps; (2) Pages 22-23 of the Petitioner’s merits brief; and (c) section IID of the brief filed on behalf of the XIV Foundation.