July 13, 2009

Does the Equal Protection Clause require the government to treat people differently?

By Does the Equal Protection Clause require the government to treat people differently?

Author: Joshua Thompson

HUH?  Does the Equal Protection Clause require that blacks and whites (or Asians and Latinos) be treated differently?

Does the Equal Protection Clause…

Equal.  Differently?

So argue the plaintiffs in the 6th Circuit case of Coalition to Defend Affirmative Action v. Regents of the University of Michigan.  So argues San Francisco in their amicus curiae brief to that same court.  So argues San Francisco in their briefing to the California Supreme Court in Coral Construction, Inc. v. City and County of San Francisco.

For example, in their amicus curiae brief in the Sixth Circuit, San Francisco writes:

"But if minorities receive equal access to the political process to pursue beneficial legislation, as [the Equal Protection Clause] require[s], then they will soon be able to seek ameliorative, race-conscious school assignment and admissions policies to halt the damage." 

There is a lot that is troublesome with that sentence.  For example San Francisco's assertion that preferential treatment is "beneficial," or that Proposition 209 has caused "damage."  We can leave those points for another day, but for now, what is San Francisco saying about the Equal Protection Clause? 

The first clause of San Francisco's sentence reads: "But if minorities receive equal access to the political process to pursue beneficial legislation…."  Is San Francisco saying that under Propostion 209, only white males have "access to the political process to pursue beneficial legislation?"  Of course, that would be absurd.  Proposition 209 prohibits government from granting beneficial legislation to anyone on the basis of race or sex.  Thus, San Francisco must be arguing that both whites and minorities must be able to "pursue" equally.

Proposition 209, by its own terms, does not affect anyone's, white or black, ability to pursue, anything.  Proposition 209 only applies to action taken by the government.   How about the ability to "pursue beneficial legislation?"  Again, everyone can pursue beneficial legislation, and Proposition 209 will have no effect on that pursuit, but if the government grants race- or sex-preferences or discriminates on the basis of race or sex, then Proposition 209 comes in to invalidate that governmental enactment. 

Thus, when San Francisco wrote, "But if minorities receive equal access to the political process to pursue beneficial legislation….", what it really meant was, "If government can enact beneficial legislation…."

What then does San Francisco mean by "beneficial legislation?"  Well, they tell us in the second clause of the sentence, namely, "ameliorative, race-conscious school assignment and admissions policies."  "Ameliorative" can be thrown out right away for a couple of reasons.  First, Proposition 209 doesn't affect court orders remedying intentional discrimination.  Second, San Francisco argues for preferential treatment for persons of a particular skin color regardless of past instances of discrimination.  San Francisco doesn't seek ameliorative race-conscious action, but rather preferential race-conscious action.

That leaves us with "race-conscious school assignment and admissions policies."  Which, for the first time in this sentence, is exactly what San Francisco means.  Yet, it was race-conscious school assignment and admissions policies that were invalidated under the Equal Protection Clause in 1954 in Brown v. Board of Education, and again, in 2007, in Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1.  "Race-conscious, school assignment and admissions policies," are the exact type of policies that are regularly invalidated under the Equal Protection Clause.

Let's recap.  Now San Francisco's sentence reads:  "But if government can enact race-conscious school assignment and admissions policies, as the Equal Protection Clause requires."

Or: "The Equal Protection Clause requires the government to enact race-conscious school assignment and admissions policies." 

Or: "The Equal Protection Clause requires the government to treat people of different races, differently."

Absurd. 

Fortunately, this argument has been rejected by every court that has ever heard it.  In response to the same argument, the Ninth Circuit Court of Appeals wrote, "The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits. The Eastern District of Michigan court recently wrote, "It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment."

Now it's the Sixth Circuit's turn to tell us what should be obvious to a first grader:  The Equal Protection Clause does not require government to treat people differently because of their race.

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