CNNSI’s Mike Fish argues that, if the Supreme Court rules racial preferences in higher ed admissions unconstitutional, all preferences–especially those for gifted athletes–should be eliminated. He is correct in his conclusion, but wrong in his argument. The issue before the Supremes in the Michigan cases is whether giving bonus points solely on the basis of race violates the 14th Amendment to the Constitution, the relevant portion of which reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This Amendment was passed in 1868 with the express and primary purpose of ending state-based racial discrimination, which the former slaves freed by the 13th Amendment three years earlier were experiencing. That categorizing students who apply to a state university by race and awarding points (as oft noted elsewhere, 20 points on a 150 point scale, whereas a perfect SAT score is only worth 12 points) to target racial groups denies equal protection of the laws to all other racial groups is beyond dispute. Does the 14th or a later Amendment have an “unless denying such protection promotes diversity or some other grand public purpose” exception? I have been unable to locate one; although it is conceivable some Justices may spot it lurking in a penumbra emanating from another right.

So, while it may be a bad idea for people whose daddies went to Michigan to get special treatment or to give preferences to blue chip athletes, piano prodigies, master debaters, Junior Miss winners or people named Elmer, it is not unconstitutional. The Michigan body politic is free to do as it pleases without interference from the Federal government in all these cases. Race is a special category.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.