Is it necessary to allow preferential treatment based upon race in order to ensure equal protection under the 14th Amendment?

Question

Michigan Civil Rights Initiative (MCRI), or Proposal 2 (Michigan 06-2) was passed into Michigan Constitutional law by a 58% to 42% margin on November 7, 2006. The constitutional amendment outlawed preferential treatment by the state based on race, sex, color, ethnicity, or national origin.

(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

The Appelete Court struck down Proposition 2 as unconstitutional, because it of the political-process doctrine which would place an unequal burden on a student that wanted preferential treatment based upon race (the only option would be a state constitution amendment) as opposed to a the multiple ways of getting other factors considered for university admissions (lobby the admissions committee, petition the leadership of the university, influence the governing board, etc.). The dissenting opinions note though:

As the United States Supreme Court has observed, “[i]t would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.” Crawford v. Bd. of Educ., 458 U.S. 527, 535 (1982)

The Supreme Court heard arguments in court in October.

Is it necessary to allow universities to discriminate based upon race in order to ensure equal protection under the 14th Amendment?

Answer 1

The Supreme Court ruled in a 6 to 2 decision that Michigan can ban racial preferences in college admissions. SCOTUS ruled that the voters, not the courts, held the power to determine if affirmative action would be allowed in government decisions. Justice Kennedy's majority opinion notes:

There is no authority in the federal constitution or in the precedents for the judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in government decisions, in particular with respect to school admissions.

Answer 2

The Court did not say that color-blind admission is unconstitutional, although there may be a good case to be made for such a position. If there is evidence that a public college is already engaging in unconstitutional discrimination against African Americans, then yes it may be necessary to institute racial preference policies that counter that discrimination, so that on net the government is treating everyone equally as the constitution requires.

So sometimes "color-blind" policies on paper, in concert with discriminatory judgment in practice, might produce unconstitutional outcomes. There have been studies, for instance, where two identical applications are given to various employers and application is rejected more often when the applicant's name looks African American. Yet the employers' policies may not mention race at all. Analogous things might happen in college admissions.

But in any case, what the Court actually said is that if a student wanted a change in admissions policy at a public university, then the process that they would have to undergo in order to try to change the policy would depend on what the policy change they want is. If they wanted the university to take into account the fact that they're a child of alumni, they could just write a petition to the admissions committee. But if they wanted the university to take into account racial disadvantages that African American students faced, the process for trying to effect such a change would be to try to amend the state constitution again. So the government would be discriminating against people seeking changes based on the change they happened to want. It is this unequal treatment that the Court objected to.