Liberal Judges: Equality Violates Equal Protection Clause; Taxpayers to Pay More Due to Ruling

Last week, a divided Sixth Circuit Court of Appeals struck down the Michigan Civil Rights Initiative, which amended Michigan’s constitution in 2006 to ban racial discrimination and preferences in government contracts, employment, and education. In a 2-to-1 ruling, the judges claimed that the constitutional amendment violated the Constitution’s equal protection clause by eliminating racial and gender preferences. The two judges in the majority were appointed by Clinton; the dissenting judge was appointed by Bush.

The ruling contradicts common sense — how can the Equal Protection Clause require that people be treated unequally? — and turns the Constitution upside down. The ruling in Coalition to Defend Affirmative Action v. Regents of the University of Michigan also contradicts multiple prior court rulings over the years. A virtually identical state constitutional amendment in California, known as Prop. 209 or the California Civil Rights Initiative, was upheld in 1997 by another federal appeals court, the Ninth Circuit Court of Appeals, in Coalition for Economic Equity v. Wilson, a ruling that the Supreme Court declined to overturn. It was also upheld by the California Supreme Court in a 6-to-1 vote in Coral Construction, Inc. v. San Francisco (2010).

The court’s ruling striking down the Michigan Civil Rights Initiative was contemptuous of its own past precedents. In 2006, a different panel of the Sixth Circuit earlier overturned a preliminary injunction against the Michigan Civil Rights Initiative in Coalition to Defend Affirmative Action v. Granholm, concluding that the legal arguments against it had no merit. Those meritless legal arguments were the very arguments later relied upon by a different group of judges on the same court to strike it down in the July 1 ruling.

The Sixth Circuit’s bizarre ruling to strike down equality as a violation of equal protection will harm taxpayers by increasing the cost of government contracts. Taxpayers of all races pay more when government contracts are assigned based on race, rather than awarded to the lowest bidder. Even fairly mild racial preferences impose substantial costs on businesses and taxpayers.

For example, in the Domar Electric case, Los Angeles accepted a bid for almost $4 million to complete a contract rather than the lowest bid of approximately $3.3 million, at a cost to taxpayers of more than $650,000. The lowest bidder was rejected solely because it failed to engage in affirmative action in subcontracting. California’s Proposition 209 later limited this sort of racial favoritism by banning racial preferences, saving taxpayers money. A number of state affirmative-action programs have since been struck down under Prop. 209, saving taxpayers millions of dollars. The Michigan Civil Rights Initiative is modeled directly on Prop. 209. (I cite the Domar case because it involved an affirmative-action program that has been depicted by supporters as unobjectionable and unburdensome because it did not mandate racial quotas. Racial quotas can lead to even larger disparities between the lowest bid and the bid accepted by the government, resulting in much higher costs to taxpayers).

Similar savings in government contracts can be expected if the Michigan Civil Rights Initiative is ultimately upheld (it is codified in Article 1, Section 26 of the Michigan Constitution). The Michigan Attorney General has announced plans to appeal the ruling striking it down.