At 1:00 p.m. this afternoon, in Schuette v. Coalition to Defend Affirmative Action, the Supreme Court will begin hearing oral argument on a simple question: may states ban racial discrimination in their public colleges and universities? Given that the U.S. Constitution, for 145 years, has said that “No state shall deny to any person within its jurisdiction the equal protection of the laws,” one would think that an easy question to answer. But such is our convoluted equal-protection law today that last November the entire Sixth Circuit Court of Appeals decided, 8-7, that 58 percent of Michigan’s voters violated the Constitution when in 2006 they passed Proposition 2, amending the state’s constitution by prohibiting, among other things, discrimination by race in public higher education.
To understand why Prop. 2 was thought necessary in the first place, given the 14th Amendment’s equal protection guarantee, we have to consider the Supreme Court’s 2003 decision in Grutter v. Bollinger. There the Court held, 5-4, that public universities may take race into consideration in their admissions decisions in order to promote “diversity” – at least as long as they consider race among other factors and don’t do so too explicitly. In that case the University of Michigan’s law school passed the test. In a companion case, Gratz v. Bollinger, the college failed because its discrimination was too blatant. Wanting no part of that social engineering scheme, Michigan’s voters passed Prop. 2.
What, then, was the Sixth Circuit’s reasoning (which generated five dissenting opinions from all seven dissenting judges)? Prop. 2, the majority said, disproportionately burdens minorities by requiring them not simply to appeal to admissions officers for special consideration – as those seeking, say, legacy preferences might – but to overturn a state constitutional amendment. Citing "political structure" precedents, which Cato's brief before the High Court shows to be irrelevant in this case, the court below held that Prop. 2 "placed special burdens on the ability of minority groups to achieve beneficial legislation." As my colleague Ilya Shapiro contends below, that argument is not likely to wash with the Supreme Court, not least because California's Prop. 209, which prohibits racial preferences in that state's public higher education, has been upheld by several courts, including the notoriously liberal Ninth Circuit Court of Appeals.
There are a couple of deeper issues at play here, however, that ought at least to be mentioned. First, why is it that legacy preferences, say, get a free pass while racial preferences do not? Our history of racial discrimination explains that only in part. The question leads, however, to another: on what grounds may public institutions discriminate—or give preferences, which comes to the same thing? Government, after all, belongs to all of us. As a matter of first principle, therefore, it should be able to discriminate only on grounds that are narrowly tailored to serve the function of the public institution at issue—here, perhaps, academic merit.
I say "perhaps" because, in truth, this is a question that arises with every public institution, not only those involving higher education, and at the end of the day, because such institutions belong to all of us, it is not easy to answer the question of why some applicants should be admitted to a public university while others are excluded. The second, still deeper question, then, is why, given the discrimination that is inherent in higher education—"legitimate" or not—do we have public institutions of higher education. The dirty little secret here, after all, is that these institutions amount to massive wealth transfers from the ordinarily less well off to the better off and better connected parts of society, a point economists have long noted and one that Justice Clarence Thomas explored at some length in his Grutter dissent. I've discussed these issues more fully here and here.