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Let the people decide racial preferences

This week, the U.S. Supreme Court upheld Michigan’s ban on using race as a determining factor in public university admissions and public employment.  Opponents of affirmative action are hailing the decision as a step toward eliminating racial preferences.

In one sense, they are correct.  The court, in the 6-2 ruling (Justice Elena Kagan was recused), upheld the 2006 constitutional amendment passed by Michigan voters prohibiting the state from granting racial preferences.

The amendment stated simply that 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.”

However, Justice Anthony Kennedy, writing for the majority, cast the decision in a broader sense.  “This case is not about how the debate about racial preferences should be resolved.  It is about who may resolve it.”

And that authority, Kennedy concluded, rests with the people.

Supporters of racial preferences argue they are a legitimate means of balancing societal inequities created by historical discrimination against certain groups.  However, they are also controversial because they can perpetuate racial stereotypes and pit groups against each other based on their characteristics.

Kennedy concludes that the best way to resolve these kinds of debates is to let a state’s voters, and not the courts, sort them out.

“The courts may not disempower the voters from choosing which path to follow,” Kennedy wrote.   “Our constitutional system embraces… the right of citizens to debate so they can learn and decide and, through the political process, act in concert to try to shape the course of their own times.”

That’s what the voters of Michigan did.  They did not gut the concept of equal protection, as Justice Sonia Sotomayor fumed in her dissent.  If they had, the court’s majority would have been compelled to correct a clear violation of the Constitution.

The wisdom of dividing people into groups based on race–especially, as Justice Kennedy pointed out, since those lines are becoming more blurred—so the government can single out some for preferential treatment is a matter of intense public policy debate.  Democracy is built for such discussions and our federalist system means states can be the laboratories for experimentation.

As Kennedy opined, “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.”

Those for and against affirmative action will attempt to use the court’s decision to their advantage;  supporters will try to motivate their side to push harder for racial preferences while opponents will argue that affirmative action has been invalidated by the court (is has not).

The real elegance of the ruling is that it puts the issue right where it belongs—in the public forum where citizens are empowered to make the decision.

 

 





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