The Supreme Court’s ruling Tuesday upholding Michigan’s ban on race-based preferences in state university admissions should send a message to lawmakers in Sacramento seeking to undo California’s Proposition 209, the 1996 voter-approved measure on which the disputed Michigan measure was modeled.
In language identical to Prop. 209, Michigan’s Proposal 2 declares that colleges and universities in the Wolverine State “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.”
The 6th U.S. Circuit Court of Appeals in Ohio held that the Michigan law was unconstitutional because it violated the so-called “political-process doctrine,” established during the Warren Court era, and which holds that a political structure that “places special burdens on the ability of minorities to achieve beneficial legislation” must be analyzed under “strict scrutiny.”
The 6th Circuit determined that Michigan did not provide a compelling interest for enacting the state constitutional amendment. Thus, the lower court declared, the Michigan law violated the U.S. Constitution’s equal protection clause.
The nation’s highest court disagreed, 6-2. In the majority opinion, Justice Anthony Kennedy wrote that “Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences.”
That’s precisely what California voters did in 1996, when a 55 percent majority approved Prop. 209. And while the measure was portrayed by its opponents as anti-minority, that did not dissuade a quarter of both black and Latino voters from supporting Prop. 209, according to exits polls, not to mention more than a third of Asian voters.
Those black, Latino and Asian voters’ faith in colorblind college admissions has not been misplaced.
White enrollment in the UC system has fallen from 35.7 percent when Prop. 209 took effect to 27.9 percent last fall. Latino enrollment over the same span has risen from 12.1 percent to 26.8 percent, while black enrollment has increased from 2.8 percent to 4.1 percent.
Despite that progress, Prop. 209 foes are still trying to repeal the duly approved state law. In fact, the state Senate in January passed Senate Constitutional Amendment 5, which proposed to reinstate racial preferences in higher education.
Faced with opposition from the Asian community, Assembly Speaker John Perez decided to return SCA5 to the Senate without a vote in the lower chamber, which meant that it will not be on the ballot this November.
SCA5 is the latest attempt by Sen. Ed Hernandez, D-West Covina, to repeal Prop. 209. In 2010, a bill he authored was vetoed by former Gov. Arnold Schwarzenegger, and a similar measure by the lawmaker was vetoed by Gov. Jerry Brown in 2011.
Yet, Sen. Hernandez is undeterred. He vows to put a proposed constitutional amendment on the 2016 ballot that will overturn Prop. 209.
“I am not proposing quota systems or preferential treatment,” he insists. But that almost certainly will be the outcome if he succeeds in restoring color-consciousness to college admissions in California.
— From the Orange County Register