Fox News regular Hans von Spakovsky used a recent U.S Court of Appeals decision striking down Michigan's affirmative action ban as an opportunity to denigrate the "modern 'civil rights' movement" and misrepresent the Sixth Circuit decision as "abusive activism." Contrary to von Spakovsky's claims in the National Review Online, the appellate decision that found the process behind the ban unconstitutional is based on U.S. Supreme Court precedent.
Repeatedly discredited von Spakovsky is infamous for continuously stressing in the right-wing media the prevalence of voter fraud, despite a dearth of evidence. On November 16, he took on equal protection jurisprudence in the National Review Online and criticized the "continued legal decay" of the Sixth Circuit appellate court and its "liberal activists." His scorn was in response to the recent decision of this federal court of appeals which - for the second time - declared that the 2006 Michigan ballot initiative that passed a constitutional amendment banning affirmative action was an unconstitutional restructuring of the state political process. As reported by SCOTUSblog's Lyle Denniston:
By imposing a total ban on any consideration of a race-based education policy, the main opinion said, the majority of voters who opposed affirmative action created a situation in which they not only had won on a policy point, "but rigged the game to reproduce [their] success indefinitely." Minorities are not guaranteed that they will win when they enter into political policy debates, the opinion stressed, but they must not be put at a special disadvantage in seeking policies that they favor and that will benefit them in particular.
The Circuit Court majority opinion, written by Circuit Judge R. Guy Cole, Jr., relied explicitly upon two Supreme Court rulings, both based on the same "political process" reasoning used by Judge Cole. The first was Hunter v. Erickson, a 1969 decision striking down a move by voters in Akron, Ohio, to change the city charter to make it much harder for city officials to adopt any housing policy to benefit racial minorities. The second was Washington v. Seattle School District No. 1, a 1982 decision striking down a voter-approved statewide law that bar the use of busing to achieve racially integrated public schools.
Other conservative media reporting has at least acknowledged that the ACLU and NAACP based their successful challenge to Michigan's ban - known as "Proposal 2" - on Supreme Court precedent. Forbes, although it wrote in opposition of the holding, recognized such precedent but theorized it "would probably be treated differently by the Supreme Court today" because there are likely four justices currently opposed to all affirmative action. Unfortunately, Forbes also misrepresented the opinion as holding "minority groups are entitled not just to equal protection under the laws, but special measures designed to correct past discrimination."
In fact, the winning argument and opinion explicitly did not turn on the constitutionality or "entitlement" of affirmative action, but rather on the restructuring of a state political process to the specific detriment of a racial minority. As reported by The New York Times:
[The decision] was not based on racial discrimination, but rather on a violation of the 14th Amendment's guarantee of equal protection. The ban, the court said, unfairly placed a special burden on supporters of race-conscious admissions policies.
People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college's governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but to undertake the "long, expensive and arduous process" of amending the state Constitution.
"The existence of such a comparative structural burden undermines the equal protection clause's guarantee that all citizens ought to have equal access to the tools of political change," said Judge R. Guy Cole Jr., writing for the majority.
Von Spakovsky, however, did not bother to analyze this reasoning or acknowledge Supreme Court precedent in his condemnation of the Sixth Circuit's "duplicitous legal reasoning." Instead, he summarily relied on the dissent's assertion that the holding was an "extreme extension" of civil rights law and concluded:
The Sixth Circuit's decision shows just how far the modern "civil rights" movement and their supporters in the judiciary have gone in adopting the arguments and actions of the discriminators and segregationists of prior generations. Their support for racial discrimination makes them indistinguishable.