Michigan’s Proposal 2 is unconstitutional, unfair to Latino students

By Raul A. Reyes, NBCLatino

The Supreme Court will hear arguments in Schuette vs. Coalition to Defend Affirmative Action.  Michigan Attorney General Bill Schuette is challenging a court ruling that voided a state ballot measure known as Proposal 2.  It prohibited public colleges and employers from giving preferential treatment to anyone based on race, sex, ethnicity, or national origin.  Proposal 2 passed with the support of 58 percent of voters in 2006, but was later overturned by an appeals court.  Now the high court will decide if the law is constitutional.

Proposal 2 was rightfully struck down because it violates the Equal Protection clause of the Fourteenth Amendment. Rather than promoting fair outcomes, it makes it harder for Latinos and African-Americans to access higher education.  It also constitutes a suspect rearranging of the political process.

To be clear, Schuette is technically not an affirmative action case.  Instead, it challenges the ban on affirmative action.  This distinction is important, just as Schuette is important to Latinos.  Although affirmative action began in the 1960s to help African-Americans fully integrate into society, today Hispanics are the largest group that qualifies for affirmative action preferences.

Proposal 2 is legally unsound because it violates the Equal Protection clause.  It creates two classes of applicants: those who can talk about their identity, and those who cannot.  Proposal 2 bans any consideration of race, sex, ethnicity, or national origin in college admissions.  So university officials cannot give weight to essays by applicants mentioning their heritage, sexuality, or gender-specific experiences.  Given that these subjects are staples of admissions essays, college officials are charged with the impossible task of ignoring certain aspects of prospective students’ lives.  Proposal 2 has the additional effect of removing authority over admissions from those who know it best and giving it to the state.  This contradicts the Court’s “political restructuring doctrine,” which says that a law is unconstitutional if it reallocates political power in a way that puts a burden on minority groups.

Proposal 2’s supporters say it produces better educational outcomes because it promotes fairness.  But Bloomberg Businessweek reports that African-American and Latino enrollment at the University of Michigan has already dropped in the aftermath of the measure.  African-American enrollment is down by about 30 percent at the college and law school.  Hispanic enrollment went from 5.3% in 2006 to 3.9% in 2012.

Similar outcomes were seen in California, which in 1995 banned the use of affirmative action in admissions; African-American and Latino enrollment at the University of California then plummeted.  No wonder that the National Council of La Raza, Mexican American Legal Defense and Educational Fund, and National Association of Latino Elected and Appointed Officials have all signed a brief urging that Proposal 2 be thrown out.

Latinos already face hurdles in accessing higher education.  While record numbers of Hispanics are attending college, studies by Georgetown University and Stanford University show that Latinos are not attending the more selective colleges (such as the University of Michigan).  Measures like Proposal 2 only make it harder for Hispanic students to get into these top-tier schools.

Yes, Proposal 2 was the result of a popular vote.  That doesn’t make it right.  The lower court noted irregularities and deceptive practices in the process to get it on the ballot.  It passed along racially polarized lines; 64 percent of whites supported it, while 86 percent of African-Americans were against it.

Recent history has shown that the ballot box is not always the best place to make public policy.  Look at California’s Proposition 8 (2008), which banned same-sex marriage and led to widespread outrage before being voided by the Supreme Court.

Proposal 2 is not good for students, Latinos, or Michigan’s public university system.  The Supreme Court should affirm the lower court ruling striking it down.

This article was first published in NBCLatino.

Raul A. Reyes is an attorney and member of the USA Today Board of Contributors.