But racial preferences still grate against a sense of right and wrong for most people, which is why cases continue to work their way back up before the court. In July, the court punted on the issue in a challenge to Texas' college admissions policy by sending the case back to the lower court. This week, the court heard arguments on whether Michigan voters violated the U.S. Constitution by forbidding state colleges from using race as a factor in deciding which students to admit.
In a ballot referendum in 2006 known as Proposal 2, 58 percent of voters approved an amendment to Michigan's constitution banning consideration of race in college admissions, state employment and government contracting. At the time of its adoption, black and Latino students received substantial preference in admission to the state's most competitive campuses. According to studies by my Center for Equal Opportunity, black applicants with the same test scores as white or Asian students were as much as 70 times more likely to be admitted to the University of Michigan at Ann Arbor as undergraduates and 36 times more likely to be admitted to the law school prior to adoption of Proposal 2.
Ironically, the whole reason the initiative came to be on the ballot was because in 2003, the Supreme Court upheld preferential admissions at the University of Michigan Law School, while striking down the university's undergraduate affirmative action plan as too rigid. The only alternative left to those who opposed the school's preferential policies was to amend the state constitution. Now, having lost at the ballot box, proponents of preferential admissions are back at the Supreme Court.
Court watchers predict that, once again, the court may find a way to duck the big issue. Given the court's composition, it is unlikely that opponents of Proposal 2 will see it struck down on constitutional grounds. But the court could do what it did with the Texas case: decide it on the narrowest legal grounds, which would leave the ban against racial preferences in Michigan in place but would not settle the larger question of why government should ever be permitted to use race in discriminating against or granting preference to anyone.
Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .
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