November 15, 2012 3:42PM

Court Finds That Outlawing Racial Preferences Violates Constitutional Provision That Outlaws Racial Preferences

The Sixth Circuit’s sharply split decision reads like something out of Orwell (or The Onion): Michiganders’ decision to amend their state constitution to outlaw racial preferences in college admissions somehow violates the Fourteenth Amendment’s Equal Protection Clause. As Dave Barry would say, I’m not making this up: The court voted 8–7 that making people more equal under the law violates the constitutional provision that requires people to be treated equally under the law!

The Sixth Circuit’s “logic” would similarly prevent Congress from outlawing racial preferences under federal law.

Fortunately, this crazy ruling will not long survive. The California‐​based Ninth Circuit has (remarkably) ruled the other way; conflict between the lower courts virtually ensures that the Supreme Court will take the case.

And don’t forget that the Court this term is already considering the propriety of racial preferences in UT-Austin’s admissions program. If the Court finds racial preferences themselves to be unconstitutional—that’s my view—then the Sixth Circuit’s ruling has no practical effect anyway.