The Five Fallacies Of Schuette v. Coalition to Defend Affirmative Action

An old friend and famous editor, Angus Cameron (who, if he were still alive, would be amused and disappointed by the views expressed on this blog), once told me of many authors he knew who submitted elephant-length manuscripts expecting editorial assistance in shortening them to horse-length final versions … but wound up instead with skinny elephants.

A skinny elephant version of the following post appeared today on Minding The Campus. Here is the full-sized elephant:

The Supreme Court decided last week to review the Sixth Circuit’s decision in Schuette v. Coalition to Defend Affirmative Action, whose majority opinion (joined by all 8 Democratic appointees, opposed by all 7 Republican appointees) held that the 14th Amendment bars the people of Michigan from amending their state constitution to prohibit preferential treatment based on race or ethnicity by any state agency.

The Court’s decision to grant certorari has been widely mentioned, usually as an unexpected twofer to go with Fisher v. University of Texas, a challenge to affirmative action in university admissions whose decision is expected this term, but Schuette ostensibly does not address the constitutionality of affirmative action at all. The 14th Amendment violation it strives mightily to find is that barring racial preferences by constitutional amendment imposes a “structural burden” on minorities: other groups can seek preferential treatment  through legislation or lobbying, but minorities cannot. Even the notoriously liberal Ninth Circuit virtually laughed this same argument out of court on three separate occasions (most recently here, citing the earlier two).

Most of the discussion (an exception is James Taranto’s excellent column in the Wall Street Journal) of Schuette’s odd holding — that mandating equal protection violates the 14th Amendment — minimizes or misses altogether five fundamental fallacies at the heart of the majority opinion.

The Fallacy Of Fungible Discriminations
The very first sentence of the majority opinion notes that the effect of Michigan’s prohibition of racial preferences is that a student has many avenues open to seek legacy preference in admissions, but “the same cannot be said for a black student” seeking a racial preference. Thus a state that allows preferences for tuba players or tight ends cannot bar preferences for blacks or Hispanics.

The majority opinion, in short, recognizes no difference between discrimination based on race or ethnicity and discrimination based on legacy status or rural residence or athletic ability. All groups are entitled to seek what they believe is in their interest, and hence telling minorities they must surmount higher obstacles than other groups to seek  what they want — racial favoritism — violates their right to equal protection.

The Fallacy That Affirmative Action “Inures To the Benefit” Of Minorities: Intent
The Sixth Circuit found Michigan’s constitutional amendment barring racial preferences unconstitutional because a state cannot make a policy that “at bottom inures primarily to the benefit of the minority, and is designed for that purpose,” more difficult to obtain than policies that benefit other groups.

There are three fundamental flaws with the court’s rationale:

  1. Racial preference in college admission does not in fact “inure to the benefit of the minority” — assuming for a moment that there is one homogeneous “the minority.” (See Fallacies No. 3 and No. 4 below.)
  2. Racial preference in college admission was not designed for that purpose.
  3. The majority opinion in Grutter v. Bollinger allowed (but did not require) preferential treatment based on race only because it accepted the University of Michigan’s assurances that its intent and effect was to bolster the educational mission of the university, not to provide a boon to minorities. To do otherwise, to admit “a particular group merely because of its race or ethnic origin,” Justice O’Connor held, “would amount to outright racial balancing, which is patently unconstitutional.”

The Sixth Circuit disregarded the University of Michigan’s repeated insistence  that its racial preference policies were not designed to benefit minorities. In its brief filed in Gratz v. Bollinger, for example, it insisted that “[t]he University’s interest in providing its students with the concrete educational benefits generated by a diverse student body bears no resemblance to the generalized interest in remedying societal discrimination….”

Under affirmative action preferred minorities are, of course, given preferential treatment because of their race or ethnicity, but the stated rationale for the preference is not to benefit the minorities but the whites and few Asians who receive the benefit of being exposed to them. “White students interacting with African Americans, Hispanics and Native Americans sometimes come with stereotypes about these minorities,” Lee Bollinger, former president of the University of Michigan, told the Michigan Daily (quoted here). “That kind of breaking down of expectations is the essence of what a liberal education is all about.” Bollinger did not address the evidence that admitting less qualified minorities who proceed to cluster at the bottom of their classes actually reinforces stereotypes of underperforming minorities.

Bollinger was mouthing what has become party line palaver about diversity. “We’re turning the challenges of a multicultural society into a major academic endeavor,” Robert Birgenau, then Chancellor of the University of California, told the San Francisco Chronicle (quoted in The Patronizing Exclusiveness of Inclusiveness). “The message the university is sending to its students, he said, is that “We no longer can live in our own world surrounded by people who are just like us.”

One need not be a deconstructionist to figure out who “we” and the “people who are just like us” are, and in fact discerning minorities have realized that they are merely the instruments used to provide “diversity” to others, not its beneficiaries. A good example comes from the University of Michigan itself. Patricia Pacania, in 2005 director of the Office of Multi-Ethnic Student Affairs, was quoted in the Michigan Daily asserting that looking “to students of color to say ‘educate me’ is an unfair burden, and I don’t think that’s something we as a University should ask of its students” (quoted in Michigan: The Internal Contradictions Of “Diversity”). She favored allowing blacks to self-segregate in residence halls rather than “to just sprinkle” them throughout residence halls so that others could be exposed to them.

This is not to deny that preferentially admitted minorities may receive some of whatever benefits “diversity” has to offer, but it is to deny that the intent and design of “race-sensitive” admissions is to benefit them. It is thus also to deny that the discrimination against the Asians and whites who would have been admitted absent racial preferences is justified. (Mainly Asians. Princeton sociologist Thomas Espenshade has found that “Asian students would fill nearly four out of every five places in the admitted class not taken by African-American and Hispanic students” if racial preferences were eliminated across the nation.) Preferentially admitted minorities, after all, could receive the same “diversity” benefits without requiring any discrimination against Asians and others simply by attending a less selective university.

The Fallacy That Affirmative Action “Inures To the Benefit” Of Minorities: Effect
At this late date, given the mountingmismatchevidence, it has become increasingly difficult to argue with a straight face that it benefits blacks and Hispanics to admit them to selective institutions with lower grades and tests scores than their peers, resulting in their clustering at the bottom of their classes, dropping out of STEM fields, failing to graduate, and failing post-graduate tests of their knowledge such as the bar exam in disproportionately high numbers. The eight Democrats on the Sixth Circuit, however, proved they were up to the task.

The majority Democratic judges were not unaware of the “mismatch” critique; they simply disregarded it. “Critics of affirmative action,” they wrote, “maintain that race-conscious admissions policies actually harm minorities by stigmatizing minority students admitted into high-caliber institutions through a perception that they lack sufficient qualifications; by impeding the academic success of minority students admitted to institutions they are not qualified to attend; and by impairing the admissions prospects of traditionally higher-performing minority groups, such as Asian-Americans.” They concluded, however, that this “controversy surrounding” racial preference policies was merely political — “a matter[] to be resolved through the political process” — and hence “irrelevant” to the “racial focus,” and hence constitutional violation, of Proposition 2.

Despite the argument and evidence that racial preference policies do not benefit the preferred, the majority strikingly concluded, “it is enough that minorities may consider [the prohibited policies] to be ‘legislation that is in their interest.’”

Exactly why one minority group deciding that it benefits from discrimination against other groups (including other minority groups) should be “enough” to make the discrimination virtually mandatory is never made clear.

The Fallacy Of Fungible Minorities
Aside from the dramatic, even shocking, view that a state cannot prohibit racial discrimination if a racial minority concludes, accurately or not, that racial discrimination against others “is in their interest,” the Sixth Circuit Democratic majority repeatedly lumped all minorities together into one amorphous mass — “the minority,” a lumping that was unaffected by its one brief recognition of the argument that Asian Americans suffer from racial preferences given to others.

Asian Americans, as Espenshade and others have demonstrated, suffer the most from racial preference policies. In their amicus brief filed in Fisher Richard Sander and Stuart Taylor refer to data showing Asians “as objects of systematic discrimination,” but they are not the only minority victimized by by the discrimination that the Sixth Circuit insists benefits “the minority.” Sander and Taylor found that, even after Gratz and Grutter, the University of Michigan  continued to pursue “proportionate racial representation — the essence of racial balancing — by systematically preferring blacks over better-prepared Hispanics,” and they found the same thing at the University of Texas.

The Fallacy That Discrimination And Freedom From Discrimination Are Constitutionally Indistinguishable
Perhaps the most radical and disturbing fallacy of the Democratic judges’  decision in Schuette is that the Constitution looks with equal favor on a group’s interest in being free from discrimination based on race and its interest in receiving preferential treatment based on race.

It does not. As Judge Julia Gibbons forcefully argued in her dissent, “these are fundamentally different concepts.” Quoting the Ninth Circuit’s identical conclusion, she added: “It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment.”

It is a good measure of how far liberalism today — and the Democratic view of equality informed by it, as reflected so well in the majority opinion in Schuette — has fallen from its past commitment to equality that it can no longer distinguish between efforts to prohibit and efforts to promote racial discrimination.

Say What? (6)

  1. Rose April 7, 2013 at 7:50 pm | | Reply

    I am “Black” and I have a 3.97 GPA. I am a junior pursuing a bachelor of science degree in Biological and Health Sciences. I am employed and I do not have a social life. I work hard in school because my family values education and I want to have a respectable career. I have reached this point in my life through my own efforts not because of Affirmative Action.

  2. Cobra April 8, 2013 at 11:15 pm | | Reply


    One of the unfortunately effects of living in America is that for centuries, there has been large a segment of America that will consider Blacks (you and I) inferior and undeserving no matter what grades you achieve or what you accomplish in life.

    Racism and Discrimination existed BEFORE Affirmative Action was signed into law by President Nixon (R). It will exist no matter what practice is repealed, outlawed or ruled unconstitutional, despite misleading propaganda from many who benefit from majority status historically.


  3. Travis April 8, 2013 at 11:35 pm | | Reply

    Cobra, Nixon signed true structural racism (sorry, I mean Affirmative Action) into law but blacks like you have fought for it tooth and nail ever since. And let me pause to wipe away my tears at your sob story about your so-called oppression. It has existed solely in your minds for generations now, but you can’t admit it, since that would mean actually achieving something without laying claim to your skin color privilege.

  4. Cobra April 14, 2013 at 10:20 am | | Reply


    So you don’t actually believe that Rose is Black and has a 3.97 GPA?


  5. Sophia April 24, 2013 at 2:34 pm | | Reply

    Race-based affirmative action is very harmful to blacks as shown in Dr. Sanders’ WSJ article “The Unraveling of Affirmative Action.” Black leaders want to continue this destructive govt policy because its harmful effects can enable them to use the fed govt to establish “The War on Racism” in about about 20 years. As soon as 2042, whites will be a racial minority, but their political power will dramatically fall well before that time.

    For this war on racism to be justified, State and fed govts must continue to use AA to systematically deny them a reasonable opportunity to succeed in higher education (without education-based AA, AA in employment is largely irrelevant).

    AA ensures significant racial inequality between whites and certain minorities. This is NOT based on genetics, but the type of socialization promoted by “well-intentioned” K-12 and govt policies.

    Most black leaders (and those of Latin and Native American heritage – also victimized by AA) do everything they can to perpetuate the above harmful policies. Why? They need racial inequality to continue so that past white racism can be blamed for racial disparities in education and the workplace.

    Once there are sufficiently few white voters, today’s racial minorities can begin advocating federal legislation to remedy the adverse effects of past white racism. This legislation will oppress racists (easily proven to be via email to judges/personnel in Courts of Racism). The oppression will include the following:

    1) banning public universities from admitting racists,

    2) banning all govt entities (and organizations sponsored by them) from employing racists or giving them contracts,

    3) banning proven racists from controlling publicly-owned air waves for TV and radio transmission,

    4) requiring proven racists to pay higher taxes so the govt. can divert extra money to “disadvantaged Americans,” etc.

    The best way to prevent or at lease minimize any unfair harmful actions against future white Americans is for today’s whites to march on Washington (by the tens of millions)to reject current govt policies that harm today’s racial minorities. Electing a black President means little when you do nothing to prevent today’s white-controlled educational and govt establishments from suppressing blacks’ (and others’) educational and economic development.

    KKK members are too arrogant and/or stupid to understand that there’s nothing they can do to prevent whites from becoming increasingly powerless (as they go from 16% of the world’s population today to 10% as soon as 2060). Instead of shouting “white supremacy,” these people need to inform whites (and everyone else) that racial preferences in education and employment harm only a small percentage of whites while victimizing huge numbers of minorities.

    I’m black and it’s unfortunate that people like Donald Trump can’t figure out that he can’t promote American meritocracy (and thus prosperity) by attacking the country’s first black President. He’s just going to be viewed as a racist. People like him (and his descendents) will be among the first to have their possessions confiscated by the govt. Instead of offering $5 million for President Obama’s college transcripts, he could have offered this money to black and Latino victims of racial preferences in higher education. These intelligent and highly motivated victims of race-based AA have huge student loans and no jobs. In addition to a poor economy, these individuals must also suffer from Dr. Sanders’ mismatch effect (solely due to their physical features).

Say What?