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I don't believe there's an atom of meaning in it.

The title is taken from Alice in Wonderland and gives us Alice's reaction to the nonsense poem listed as "evidence" in the court of the White King, which is trying the Knave on the charge of stealing the tarts.

Our own courts are becoming sufficiently illogical that the same might be said for their rulings, including the recent ruling of the Sixth Circuit Court deeming the Michigan Civil Rights Initiative (which, for all you democracy-bemoaners out there, I would note was passed as a referendum by the citizens of Michigan six years ago) unconstitutional.

The "reasoning" of the majority is breathtakingly bad, so much so that it makes the proceedings of the White King look almost reasonable by comparison. Here is a central paragraph of the ruling. (To save me the trouble of writing "sic" after each use of the pseudo-generic "she," take it as read.)

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.

According to this reasoning, the MCRI is unconstitutional because it makes it harder for students to get race-conscious programs put into place than for students belonging to some group characterized in another way (such as the children of alumni) to get programs put into place favoring them.

As one of the dissenting judges put it,

Under the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law. Doing so would perforce make it harder for one minority or another to obtain a preference at the lower level.

Well, yes. As a matter of fact (this cannot have escaped the notice of others thinking about this case, but so far I haven't seen anyone else mention it), this ruling if applied consistently would mean that the 1964 Civil Rights Act is also unconstitutional. Not that that is a conclusion I find prima facie absurd, but the reason would be a rather surprising reason. Based on the Sixth Circuit's reasoning, the 1964 Civil Rights Act would be unconstitutional not because, per the 10th amendment, it exceeds the powers granted to the federal government, but rather because a person wishing to get a legacy-conscious admissions policy (or an admissions or hiring policy based on some other factor not mentioned in the Civil Rights Act) put into place at some lower level would have an easier time doing so than if the same person wanted to have a race-based policy put into place. Since the 1964 Civil Rights Act allegedly bans racial discrimination at all lower levels, someone trying to get racial discrimination instated would find it impossible to do so without getting federal law changed, because it is banned at the federal level. The same is not true of someone trying to get a policy instated at some institution favoring, say, vegetarians, political liberals, or people who always wear the color green.

In fact, plenty of people who supported the MCRI did so in the belief that they were restoring what was (or what should have been) the true intent of earlier federal and state civil rights acts banning racial discrimination. The MCRI simply made it explicit that Michigan law also applies even-handedly to affirmative action programs. It seems impossible for the court's reasoning to be upheld without (if one were being consistent) applying the same reasoning to all state or federal bans on racial discrimination, whether they are actually applied in practice to favor or disfavor minorities.

Since it is fairly obvious that the courts will not want to do that and did not intend to do that, one can only conclude that the authors of the majority opinion in the recent ruling intend their ruling to be applied in an utterly ad hoc and illogical fashion: Where a state or federal law allegedly bans racial discrimination, it is (I predict) to be regarded as constitutional just insofar as its actual history of interpretation and application assists mascot groups such as favored racial minorities. Where a state law (such as the MCRI) actually prohibits racial discrimination and makes it clear that this is to be applied to discrimination both for and against racial minorities, it is to be deemed unconstitutional on the basis of reasoning about "making it harder for one group than for another to get policies in place that favor that group," that logically ought to apply to the other laws as well, but will not be so applied, for no reason at all.

Welcome to the world of postmodern legal theory. I don't believe there's an atom of meaning in it.

P.S. The SCOTUS will probably have to take up this case, because the ruling here conflicts directly with a ruling by a different federal court upholding a similar law in California.

Comments (3)

It is a truly horrendous ruling. The sad thing is that there is no recourse for a bad court ruling other than a higher court. Even constitutional amendments don't work anymore. My prediction is that liberals everywhere will support it, or at the least regard it with rehearsed indifference, because like Roe v Wade it reaches the correct conclusion.

Roe v. Wade and its application have a kind of horrible consistency. I yield to none in my hatred for it, but _if_ I'm right that the courts will not apply the logic of this ruling to other state and federal anti-discrimination rulings (and I'm sure I'm right about that), we have here entered a realm in which the court's little Mad Logic games are no longer even internally consistent. It's for that very reason that I have some hope that SCOTUS will overturn this particular decision. Or perhaps what SCOTUS will do will be to get more ingenious than the 6th circuit (paging John Roberts) and invent some bizarre pseudo-reason that says that MCRI is unconstitutional but that other non-discrimination laws (the ones they like) are constitutional. At the moment, I'm not thinking of anything that sounds any less crazy, but...

So... now it's easier for the child of an alumni who is also black to get into school than a child of an alumni who is not black. Got it.

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