The Coalition to Defend Affirmative Action By Any Means Necessary (BAMN), famous for physically disrupting public meetings with the threat of violence, now makes the baseless claim that Proposal 2 violates the First Amendment and the Equal Protection Clause.

Their equal protection argument was already rejected as meritless in 1997, when the Ninth Circuit found that a similar challenge to California Proposition 209 (on which Michigan’s Proposal 2 was based) was groundless. See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).

Without any recorded dissent, the Supreme Court refused to issue a stay of that ballot proposition, rejecting a challenge to the Ninth Circuit’s ruling upholding Prop. 209.

BAMN’s other public argument against Proposal 2 is equally meritless.

BAMN has suggested publicly that Proposal 2 violates public colleges’ purported First Amendment “right” to set any admissions criteria they want, including using race in admissions.

(Any purported “right” by state colleges to set their own admissions criteria is hard to square with the reality that states often dictate admissions criteria to state colleges, such as mandating preference for in-staters, students who graduate in the top 10 percent of their class, or students from underrepresented regions of the state, or barring illegal aliens from admission).

Grutter v. Bollinger (2003) does not support BAMN’s claims.

Grutter was a Supreme Court decision which found a compelling interest in using race in college admissions to promote “diversity.”

The Grutter decision was based partly on academic-freedom interests that are, in turn, rooted partly in the First Amendment.

But the fact that Grutter may have found a First Amendment interest in using race does not mean it found a First Amendment right to use race, as the Center for Individual Rights (CIR) has pointed out.

As CIR notes, 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.” Using similar reasoning, other judges held that public policies reflected in a city ordinance could validly protect a private employee who testified at a public hearing. See Carl v. Children’s Hospital, 702 A.2d 159, 183 (D.C. 1997) (Schwelb, J., concurring).

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.

Note 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, 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 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.

Indeed, it is absurd that Michigan state colleges – which are treated by the Constitution’s Eleventh Amendment as arms of the state of Michigan, not separate entities – would even think of suing the State of Michigan to strike down a constitutional provision of their very own state.

(Of course, even before Proposal 2, a college’s ability to use race was not unlimited. The Supreme Court struck down more race-conscious admissions policies than it upheld, invalidating the University of Michigan’s undergraduate admissions policy in the 2003 Gratz case, and a University of California Medical school’s admissions policy in the 1978 Bakke case).

It’s also worth noting that Justice O’Connor, the author of the Grutter decision, publicly stated 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 courts should reject claims that state colleges have a “right” to racially discriminate against their students.