The Supreme Court will soon issue a ruling in Schuette v. Coalition to Defend Affirmative Action by Any Means Necessary. A federal appeals court ruled that Michigan’s proposition two ballot initiative, (banning racial preferences in university admissions and hiring), violated the equal protection clause of the fourteenth amendment. The federal appeals court reasoned that the Michigan voters had significantly reordered the political process to disadvantage minorities. Attorney Mark Rosenbaum summed up the argument this way:

“This case is ultimately about whether minority students will be allowed to compete on the same playing field as other students. Right now, there are two separate playing fields with two separate rulebooks…..Minority students and those who support a diverse student body should not have to overturn a constitutional amendment to have their voices heard in the admissions process when everyone else can simply lobby the university.”

Contrary to what Rosenbaum and others claim, the law does not prevent racial minorities from “having their voices heard.” If racial minorities believe a particular admissions policy discriminates against them, they can lobby universities to change it. What they cannot do, under proposition two, is lobby universities for racial preferences in their favor.

If banning racial preference is discriminatory, then so is the Fourteenth Amendment. The Fourteenth Amendment bans discrimination on the basis of race, but not on the basis of being a farmer, a veteran, a manufacturer of solar panels, or most anything else. Banning racial preferences, while allowing other forms of preference, is precisely what the fourteenth amendment does.

In order to show that the law was discriminatory, the plaintiffs would have to show that due to legacy and other preferences, white students had on average lower grades and SAT scores. Also, they would have to show that the vast majority of white students benefited from these preferences, while the vast majority of minorities did not. If they could demonstrate this, they would be able to demonstrate that the law was gerrymandered to benefit whites at the expense of minorities.

The fact that the plaintiffs have not even attempted to demonstrate this proves how vacuous their argument really is. To uphold the decision of the federal appeals court to strike down proposition two would violate both logic and legal precedent. If justices Sotomayor and Ginsburg, side with appeals court, they have indicated that they don’t care about the law, but they see they’re job as enacting policies they deem wise.