The state of Wisconsin, which used to continually espouse a
fundamental ideal of social progress, has begun to charter a new course that
follows the lodestar of tradition and status quo. Worst of all is that the
vessel of choice has become our state constitution.

On Monday, Sen. Glenn Grothman, R-West Bend, said he plans
to introduce legislation that would lead to a constitutional amendment banning
affirmative action in the state. His proposal is similar to the Michigan ban
that became law last year after 64 percent of voters agreed to ban the practice
in university admissions and public hiring policies.

This is not the first time Mr. Grothman has stated his
desire to have affirmative action banned in the state, but it is the first time
he has proposed legislation that could lead to a constitutional amendment. And
in light of the 2006 constitutional ban on gay marriages and civil unions,
residents of this city ? or at least students on this campus ? should have
sirens and red, flashing lights going off in their heads at the first mention
of another constitutional amendment that does not have the word ?Frankenstein?
anywhere in it.

The constitution, state or federal, should never be used to
entrench the status quo in the face of change.

Before any amendment ever comes to the Senate floor or to
our ballots, legislators and citizens are obligated to consider a wide range of
consequences when the stakes are so high. For this reason, and in light of Mr.
Grothman?s proposal, we owe it to ourselves to assess the exceedingly important
and relevant case in Michigan.

Yesterday, when discussing his proposal in relation to the
Michigan ban, Mr. Grothman asked me ?Do you think to yourself, Andy, when
you?re talking to a girl you?re interested in, ?Hmm, I wonder if she?s a
quarter Cuban?? No, you don?t. You treat everyone the same, and that?s how it
should be in the lawbooks, too.?

Well, I?m actually not so sure about that Mr. Grothman, and
neither are many attorneys and civil rights groups across the country. Let us
consider the claims of the ACLU and NAACP attorneys representing plaintiffs in
a lawsuit aimed at challenging the federal constitutionality of the recently
passed ban in Michigan.

The fundamental claim made by the attorneys opposing the
Michigan ban, specifically ACLU attorney Marc Rosenbaum, is that by denying
admissions offices the ability to take into account factors of race and
ethnicity when making admissions decisions, the ban is violating the equal
protections clause of the 14th Amendment of the U.S. Constitution.

The equal protections clause reads as follows: ?No state
shall make or enforce any law which shall? deny any person within its
jurisdiction the equal protection of the laws.?

More specifically, Mr. Rosenbaum?s primary argument is that
by singling out race and gender as factors no longer permissible to be taken
into account, an oppressive race-based classification has been made, which
appropriately gives rise to an equal protections-violation claim.

The claim asks, why should an applicant be given special
consideration for his or her ability to play tuba, to play volleyball or
because he or she comes from a remote area of the state, yet not have special
consideration be given to factors of identity as fundamental as race or gender?

To quote NAACP Detroit Branch general counsel Butch
Hollowell, ?What [the ban] does is it acts like a giant pair of scissors, and
it says ?we?re going to make you cut away a piece of your identity.??

The ban on affirmative action is being argued against on the
grounds that removing race from the realm of permissible criteria is itself a
race-based classification, which would mean it has grounds to be argued under
the equal protections clause.

And this may be true, but here?s why the claim won?t stick
in either Federal Court in Michigan or the U.S. Supreme Court: The 14th
Amendment permits affirmative action, but nowhere does it, or any credible
court decision, say that it is required. Therefore, the voters in Michigan had
every right to ban it.

We must also consider the highly publicized 2003 Supreme
Court case Grutter v. Bollinger that upheld the right of admissions offices to
use race as a factor when assessing students if they so choose, as long as
race, and other extracurricular factors, are not assessed in a quantifiable
point system.

In the court’s ruling, Justice Sandra Day O’Connor’s
majority opinion held that the U.S. Constitution ?does not prohibit the law
school’s narrowly tailored use of race in admissions decisions to further a
compelling interest in obtaining the educational benefits that flow from a
diverse student body.?

Yet the Michigan state Legislature and the people of
Michigan decided this shouldn?t be, and the affirmative action ban in question
was passed.

However, this should not be a deciding factor in assessing
Mr. Grothman?s proposal. The fact that it is constitutional does not
necessarily make it good policy. What the likely pending ruling neglects is
that it will leave open the possibility for ensuing lawsuits to force
jurisprudence that would drastically change, and severely limit, the factors a
state university could take into consideration when assessing applicants.

Imagine there is a white, male student who has a good GPA
and good test scores, but has never engaged in any extracurricular activities
and decided not to do the optional personal essay portion of his application.
If he were denied admission while another student with an equal or lower GPA or
test scores was admitted because of the deciding factor of his noteworthy
extracurriculars (say he was city council president in his hometown, for
example), the denied student would have grounds for litigation.

If the entirety of an individual is not allowed assessment
in the admissions process ? in this case the qualities of race and gender
because of a state ban on affirmative action ? then the equal protections
clause will have no grounds to protect any other curricula for consideration
outside of academic merit. The end result will be an admissions process for
public universities comprised of entering your GPA and your test scores into an
equation that will immediately determine your admission status.

If Wisconsin voters did not have the foresight to see the
consequences of a ban on gay marriage, one can only hope they would have the
foresight to see what a ban on affirmative action could result in.

So when I came to Mr. Grothman yesterday consumed with
questions about the reach of the equal protections clause, the consideration of
substantive equal protection and the fate of public university admissions as we
know them ? all hinging on the possibility of his proposal actually becoming
part of our state constitution ? I expected nothing less than a reflective and
thoughtful rationale. What I got was anything but.

 ?Proponents of affirmative action just want to justify
their existence. It?s absurd,? Grothman told me. ?Just a bunch of affirmative
action bureaucrats looking for a job, advancing their racist agenda.?

Now I am not making an argument for or against affirmative
action ? what I am doing is making an argument against the growing trend of
impulsiveness in our lawmakers? decisions to codify and moralize a social
posture without taking into account the likely consequences.

The U.S. Constitution and the Wisconsin Constitution will
never be amended to require affirmative action policies in government hiring or
university admissions. Yet a ban on these practices would inhibit the basic
First Amendment interest of a university to decide the makeup of its incoming
classes and how best to educate its students, as upheld in Grutter.

And certainly, there is almost no chance of Mr. Grothman?s
proposal passing through the Democratic-controlled state Senate. But at the
same time, there is almost no chance of Mr. Grothman being unseated from his
position in the Senate in the next 20-25 years either.

As Colorado, Missouri, Oklahoma, Arizona and Nebraska vote
on bans of affirmative action this November, let us not forget that eventually,
the political winds in Wisconsin will change. When they do, we owe it to
ourselves to be ready.

Andy Granias ([email protected]) is a junior majoring in political science
and philosophy.