Tracy Samilton

BAMN apparently relies on the 2003 Grutter decision, but Justice O’Connor, the author of the Grutter decision, publicly stated soon after Proposal 2 passed that it was “entirely within the right and privilege of voters” to enact it, as John Fund noted in his November 20 column, “Preferences Forever?”, for The Wall Street Journal’s online OpinionJournal.

The Sixth Circuit’s decision not to block Proposal 2, which was overwhelmingly approved by Michigan voters, does not conflict with other precedents, or create any circuit split.

Indeed, the Ninth Circuit rejected a challenge to California’s Proposition 209, on which Michigan’s Proposal 2 is modeled, in the 1997 case of Coalition for Economic Equity v. Wilson.

Three Michigan state colleges now argue that “universities have a right, grounded in the First Amendment, to select their students” however they choose.

(BAMN has publicly made the same argument, but has also claimed, contradictorily, that state colleges have no right to use any admission criterion that has the side-effect of reducing minority enrollment. So, according to BAMN, the First Amendment leaves state colleges free to do whatever BAMN wants, but nothing that BAMN opposes).

The Michigan state colleges’ argument that state law cannot place checks on how they select students is absurd. The state colleges are simply arms of the state of Michigan, under both state law and federal constitutional law (such as the Eleventh Amendment).

State laws often dictate how state colleges select their students, such as by mandating preference for in-staters, students who graduate in the top 10 percent of their class, students from underrepresented regions, or members of Indian tribes.

Federal law bars certain forms of “preferential treatment” for illegal aliens, see 8 USC 1623, even though some state college admissions staff believe that undocumented immigrants enhance “diversity.”

Moreover, like Michigan’s Proposal 2, state laws often restrict state colleges’ ability to select students by banning discrimination, including many kinds of discrimination not prohibited by federal law, and discrimination based on characteristics not covered by federal law.

Grutter v. Bollinger (2003) does not support the colleges’ argument against Proposal 2.

Grutter found a compelling interest in using race in college admissions under certain circumstances to promote “diversity.” It was based partly on academic-freedom traditions that are, in turn, rooted partly in the First Amendment.

But the fact that Grutter may have found a valid INTEREST in using race does not mean it found a RIGHT to use race.

The First Amendment exists to protect citizens against the government, not the government against citizens. That is why the courts have repeatedly held that government agencies, such as state universities, don’t have First Amendment rights. See, e.g., CBS v. DNC, 412 U.S. 94, 139 (1973) (concurring opinion); Warner Cable Communications, Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir. 1990); NAACP v. Hunt, 891 F.2d 1555, 1565 (11th Cir. 1990); Student Government Ass’n v. Board of Trustees, 868 F.2d 473, 481 (1st Cir. 1989); Estiverne v. Louisiana State Bar Ass’n, 863 F.2d 371, 379 (5th Cir. 1989).

This distinction between interests and rights has been made time and again by the courts, by finding compelling First Amendment interests even when there is manifestly no right protected by the First Amendment.

For example, private employers rightly aren’t limited by the First Amendment, since the Supreme Court has emphasized “that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state.” Hudgens v. NLRB, 424 U.S. 507, 513 (1976). But the Supreme Court has nevertheless observed that “statutory or common law may in some instances extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others.” Id.

Thus, in Novosel v. Nationwide Ins. Co., 721 F.2d 894, 899 (3d Cir. 1985), an appeals court, while recognizing that the First Amendment itself doesn’t limit private employers, nevertheless allowed an employee to sue a private employer under state common law for his discharge for publicly speaking out, because “the protection of an employee’s freedom of expression” involves a “compelling” “societal interest.”

Similarly, in Corry v. Stanford University (1995), a state trial judge upheld a state law that provided students at private colleges with the same rights that they would enjoy at state universities, even though students at private colleges have no free speech rights, because the state had a strong interest in protecting free expression on private college campuses.

Keep in mind that the Grutter decision involved Title VI of the Civil Rights Act, which regulates both private and public colleges alike, not just the Fourteenth Amendment, which regulates public colleges only.

Private colleges, unlike public colleges, presumably do have academic freedom “rights” (as opposed to just “interests”) and thus it made sense for the Supreme Court to limit the reach of Title VI so as not to intrude upon colleges’ academic freedom. But while academic freedom may be a “right” for private colleges, it is merely an “interest” for state universities, which, as state actors, do not have First Amendment rights (as opposed to interests).

Since state universities have, at most, a First Amendment-related interest in using race to promote diversity, rather than an enforceable right to do so, the voters of Michigan can adopt a state constitutional provision, such as Proposal 2, that bans using race, without violating any rights held by the Universities.

The Grutter decision conferred on state universities no “rights” to use race, as it made clear by pointing out that university racial preferences must contain sunset provisions that will terminate the use of race within 25 years. First Amendment “rights” don’t have expiration dates.

The Grutter decision also pointed out that some states, such as California, already ban state colleges from using race in admissions, without expressing any disapproval of that fact. That is hard to reconcile with the Michigan colleges’ claims that they have a vested right to use race.

Moreover, even under Grutter, a college’s leeway in using race is not unlimited. In Grutter’s companion case, Gratz v. Bollinger (2003), the Supreme Court struck down the University of Michigan’s undergraduate admissions policy on the very same day that it issued its Grutter decision.

Indeed, the Supreme Court has struck down more race-conscious admissions policies than it has upheld, including its 1978 Bakke decision declaring unconstitutional the admissions policy used by a University of California Medical school.