It's racially discriminatory to prohibit racial discrimination. That's the bottom line of a decision issued last Friday, just before the Fourth of July weekend, by the U.S. Court of Appeals for the Sixth Circuit.
The case was brought by an organization called By Any Means Necessary to overturn a state constitutional amendment passed by a 58 percent majority of Michigan voters in November 2006.
This was not BAMN's first challenge to the proposition. It staged a mini-riot in the secretary of state's office to try to block submission of the signatures that put the proposition on the ballot.
The ballot proposition, sponsored by the indefatigable Ward Connerly, banned racial discrimination by state colleges and universities and by state government generally. It is consistent with the Civil Rights Act of 1964 and in line with the aims of the 14th Amendment to the Constitution.
Its chief goal was to ban the racial quotas and preferences long used in admissions by Michigan's state universities. The U.S. Supreme Court in 2003 overturned the explicit quotas used by the University of Michigan's undergraduate college but, in a controlling opinion by Justice Sandra Day O'Connor, approved the "holistic" admissions process of U of M's law school.
The Sixth Circuit ruling seems unlikely to stand. Its citation of Supreme Court precedents is unpersuasive. The proposition that a state's voters cannot ban racial discrimination seems palpably absurd.
But it does stand as a monument to the contortions that liberal lawyers and judges will go through to perpetuate the racial quotas and preferences that have become embedded in important parts of American life.
The first step in these contortions is to ignore the fact that any racial quota or preference violates the Civil Rights Act of 1964. Discriminating by race is racial discrimination, even if your intention is to help black people.
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The next step is, as the Sixth Circuit panel did explicitly and Justice O'Connor did more surreptitiously, to close your eyes to the fact that racial quotas and preferences are being employed. The admissions directors and the corporate human relations departments are just being, um, "holistic."
All of which is intellectually dishonest and corrosive to honest discourse.
In my view, the strongest argument against racial quotas and preferences is that they tend to cast a pall of illegitimacy over the achievements of the intended beneficiaries. We see this every time a liberal critic questions the competence of Justice Clarence Thomas.
Within colleges and universities the existence of racial quotas and preferences, unacknowledged but understood by everyone, tends to make relations between blacks and whites more tense and distant. We see all-black dorms on campus, separate orientations for students of color, separate graduation ceremonies -- everything but separate drinking fountains.
In addition, the obvious unfairness of racial quotas and preferences has led to the adoption of speech codes, to suppress any criticism and prohibit any statement that makes someone feel uncomfortable. Campuses that were once havens of free speech are now patrolled and regulated by thought police. Intellectual dishonesty has become a job requirement for university administrators.
The argument for racial quotas and preferences is that every sort of talent and ability is equally distributed among every conceivable category of persons, but that quotas and preferences are needed to identify qualified members of groups that were objects of discrimination in the past.
But the idea of equal distribution of talents and abilities, as Richard Herrnstein and Charles Murray showed definitively in their 1994 book "The Bell Curve," is simply factually wrong.
The ordinary American knows this -- and knows also that that is not a rational basis for discriminating against members of any group. It's not very hard to understand that beneath any group average there is a wide range of individual abilities.
Why are university and legal elites so determined to preserve racial quotas and preferences? One reason, I suspect, is that they can't bear to see lower percentages of blacks in the institutions they run than you find in the U.S. Army or many local police departments.
Such attitudes help explain the Sixth Circuit decision and indicate that, even if it is overturned, racial quotas and preferences will remain intact, if unacknowledged and disguised, in higher education.
In 2003, O'Connor suggested that we might need such policies for only another 25 years. I'm betting they'll be around a lot longer than that.
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