Why Michigan's Affirmative Action Decision Will Be Overturned

Why Michigan's Affirmative Action Decision Will Be Overturned

November 20, 2012
Originally published in The College Fix

Hans Bader of OpenMarkets.org, explains why the recent appeals court decision to uphold affirmative action in college admissions in Michigan will not stand for long:

The appeals court’s ruling invalidating the Michigan Civil Rights Initiative was not supported by the Supreme Court rulings it cited. It declared that Michigan had impermissibly altered the “political process” for deciding on whether to adopt racial measures “beneficial” to minorities, citing a controversial 5-to-4 Supreme Court ruling in 1982 that invalidated a Washington State ballot initiative that removed local school districts’ discretion to use busing to remedy de facto segregation, but allowed them to use busing for certain other reasons. See Washington v. Seattle School Dist. No. 1 (1982).

The rationale behind that decision was that the state had altered the political process in a racial fashion by selectively shifting race-related decision-making from local government to the (more remote and less easily-influenced) state government. But state universities, unlike school districts, are arms of the State, for purposes of the Eleventh Amendment, not local governments, and a state obviously has a keen and legitimate interest in preventing racial discrimination for which it can be held liable out of the state treasury.