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What's fair? Challenging the affirmative action ban in Michigan

The U.S. Supreme Court is hearing oral arguments today on the constitutionality of Michigan’s affirmative action ban. The justices aren’t expected to announce a decision till next spring. And most of the so-called experts are betting that the Supreme Court will uphold our constitutional amendment banning affirmative action, the one voters passed by a wide margin seven years ago.

They think the vote will be 5-3, and that Justice Anthony Kennedy will be the swing vote. Well, they may be right. But none of the experts ever dreamed that the swing vote in the court’s ruling on the Affordable Care Act would be that of Chief Justice John Roberts, and that he would find it constitutional on the grounds that it was actually a tax. So you never really know.

This issue is more complicated than many people on either side think.  I can sympathize with those opposing affirmative action. Giving someone special treatment because their ethnic background or the color of their skin, sounds terribly unfair. Unfair whether we are talking about discriminating for them or against them. Except -- it’s not that simple.  

Years ago, I asked former Detroit Mayor Coleman Young why we still needed affirmative action in a world where it has been illegal to discriminate on the basis of race since the 1960’s.  He stared at me. “That’s like saying you take two sprinters, one who has been training for weeks and another who has been shackled in the basement for years. So you take the guy out of his shackles, lead him to the starting line, and say, okay!  Let’s race. Level playing field. Let’s go!" That, Mayor Young told me, was why you need affirmative action.

Yet it has been close to half a century since any legal discrimination was in fact outlawed. But still, not all schools or educations or backgrounds are the same. You can argue that part of the mission of the University of Michigan is to educate and lift up all of this state. The U of M is a public school, after all. Michigan taxpayers established and still help support it.

Since we outlawed affirmative action, the number of African-American students on the Ann Arbor campus has fallen sharply, both in percentage terms and absolute numbers. Fewer than five percent of students on the main campus today are black, in a state where blacks make up 14 percent of the population. That doesn’t sound even close to fair or equitable. Nor does it sound a good way to make this state competitive for the next century.

And incidentally, if I had produced children, they would in fact get special consideration for admission under a different form of preferential treatment, even though they would have been of white Anglo-Saxon Protestant heritage. That’s because I am an alumnus. Try explaining why that is fair.

And since virtually every African-American in this country has some white ancestry -- and many of us whites are also mixed -- attempts to define “race” are biologically absurd.

The University of Michigan is governed by a board elected by a statewide vote. I hope the court rules that setting admissions policies is their proper role.   

Jack Lessenberry is Michigan Radio’s political analyst. Views expressed in the essays by Lessenberry are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.

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