In 2003, the United States Supreme Court ruled in Gratz v. Bollinger that the granting of racial preferences in admission by the University of Michigan was an unconstitutional violation of the 14th Amendment. A few years later, Michigan voters passed an initiative that banned the use of racial preferences in school admissions. Today, the 6th Circuit issued a decision reversing a lower court and holding that the initiatve was unconstitutional because it place and undue burden on minorities.
Perhaps the best analysis of this decision could be expressed this way: HUH???
According to the court, a rule that prohibits favoring one race or ethnic group over another is an undue and unfair burden on minorities. Maybe the court should just have said that no matter what the constitution says and no matter what the Supreme court has ruled, and no matter what the vast majority of Michigan voters favored, they did not want to end affirmative action. The decision is judicial activism run amok.
Think of it this way. the Fourteenth Amendment to the Constitution reads in part: "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." This is the purported basis for the ruling of the court.
The First Amendment to the Constitution reads in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" and the Fourteenth Amendment makes that language applicable to the states. Suppose that the University of Michigan wanted to use religion as a factor in admissions. The University would give preference to applicants who were of a particular religion. There is no real difference between the two criteria, but can anyone out there imagine that the 6th Circuit would rule that religious preferences were allowable?
It is sad that this court could not accept the determination of the people of Michigan, the Supreme Court and the Constitution itself.
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