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Home News  Three years later, the battle continues over affirmative action
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Wednesday, December 2,2009

Three years later, the battle continues over affirmative action

by Kyle Melinn

Arielle Bullard had every belief she could get into the University of Michigan. The senior at Cass Technical High School in Detroit mailed in her application during the 2006-2007 winter semester.


The 2.98 GPA student was told in the University of Michigan’s response letter that if she could get a 4.0, her application would be given "serious consideration."


Bullard, an African-American student, did just that and then scored a 26 on her ACT.


But that semester, Bullard’s school was forced to discontinue its program that gave additional admission points to black and Latino students. Her school ended the program because of the Michigan Civil Rights Initiative, a ballot proposal voters adopted in November 2006. Proposal 2, as it was known, added to the state Constitution an end to all "racial preference" and affirmative action-type programs in taxpayerfunded institutions.


Bullard’s application was ultimately rejected. Was it because of Proposal 2? There’s no smoking gun, but the implication is certainly there.


"I feel that Proposal 2 will intensify segregation and close doors that have barely been opened to me and other black and Latino students," Bullard said.


Bullard and several other black students took action by signing onto a lawsuit against the University of Michigan to get MCRI removed from the state Constitution. It wasn’t the first suit against MCRI.


In fact, the long legal road MCRI has traveled began on March 25, 2004.


On that date, Ingham County Circuit Court Judge Paula Manderfield ruled that putting the affirmative action-killing initiative on the ballot "flies in the face" of the state Constitution. Michigan’s governing document guarantees "equal protection under the law." It ensures that no person can be "discriminated against" because of race or color. MCRI was a proposal to ban any racial preference program in any state-taxpayer entity — be it a city government’s female recruitment program or the University of Michigan giving extra admission points to an African-American applicant.


Manderfield questioned: How can the state ban "preferential treatment" programs and guarantee equality when society’s treatment of minority populations is not equal? Therefore, she concluded, MCRI and the state Constitution are in conflict.


The initiative — bankrolled by Ward Connerly, who successfully baked similar language into California law — should not be put before Michigan’s voters, she said.


Civil rights groups across the state cheered. MCRI was dead … for a few months any way. Long enough to push MCRI off the 2004 ballot and onto the 2006 ballot. Since then, it’s been very much alive in Michigan.


Today, MCRI has been a part of our state’s Constitution for three years. Opponents are still trying to kill it in court, but their options are running out and so are their arguments. It’s been five and a half years since Manderfield’s 19-page decision.


Affirmative action defenders in Michigan are still looking for their second judicial victory.


Latest stop: U.S. Court of Appeals


Civil rights attorney George Washington spent Nov. 17 in Cincinnati in front of a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit. Joined by his legal partner, Shanta Driver, Washington laid out the argument that MCRI violates the 14th Amendment of the U.S. Constitution.


Washington argues Proposal 2 has made "second-class citizens" of blacks and Latinos. Michigan State University or Central Michigan University or any other state school of higher education can give special considerations to potential students based on their economic status, their military status or the names of their parents.


But not their race. That’s not right, Washington says.


"There
are large numbers of Latinos and blacks scattered in school districts
across this state and they are discriminated against just like the kids
from Detroit," Washington said. "We should be honest about this. We
have social problems. Our society has inequalities and we’ve had them
for years. We need to deal with it."


Many
legal observers believe Washington is tilting at windmills in
Cincinnati. This "political process" argument didn’t work for
affirmative action defenders attempting to repeal California’s Prop.
209, an initiative functionally identical to MCRI, or for anyone else.


Washington
is keeping his head up. He said he believes at least two of the three
judges were at least sympathetic to his arguments. It’s possible they
agree that a majority of voters cannot take away rights of a minority
in the United States, regardless of whether it was 58 percent of the
voting population (like it was in Michigan) or not.


Look
at the facts. Since this "legalized discrimination" was enacted, the
University of Michigan has seen a 27 percent drop in undergraduate
admissions of blacks and Latinos and nearly a 33 percent drop in law
school admissions. Wayne State University has 64 percent fewer blacks
and Latinos in its medical school, according to Washington.


"It’s
like many years ago when James Meredith couldn’t get into the
University of Mississippi because of open desegregation," Washington
said. "Now it’s a more subtle version. Now, it’s accomplished through
test scores, where you went to school, who your parents are. The
results are the same. We just need a court order to let these programs
resume."


But
Washington’s legal team has bounced this type of argument off the
federal courts before in separate motions and hasn’t been able to get
any traction. The courts at all levels have ultimately said (in the
simplest form) that MCRI guarantees legal equality regardless of gender
and race. So do the state and U.S. Constitution.


If
there’s a chance for the Coalition to Defend Affirmative Action, which
includes By Any Means Necessary, the ACLU and the NAACP, it’s this
three-judge panel of the U.S. Court of Appeals for the Sixth Circuit.
Two of the three judges — Martha Craig Daughtrey and Guy Cole — are two
Bill Clinton appointees. The third, Julie Smith Gibbons, was appointed
by George W. Bush.


Clinton,
however, also appointed the federal judge, David Lawson, who sided in
favor of MCRI on March 18, 2008. And even if affirmative action
supporters are successful, the decision can be reviewed by the full
14-member Sixth Circuit Court of Appeals. The panel has an 8-6
Republicanappointed majority.


Michael
Rosman, the lead attorney for the Center for Individual Rights, a
conservative public interest law firm in D.C., thinks its chances are
"pretty slim."


The
appellate court will have to rule that the Michigan Constitution and
the U.S. Constitution are in conflict, and toss MCRI into the trash. If
it were to do that, the court would be taking the opposite road of the
Ninth Circuit Court of Appeals, which upheld California’s Prop 209.


In
that scenario, Rosman said it’s highly likely the U.S Supreme Court
will want to take a look at this MCRI case, titled Coalition to Defend
Affirmative Action v. The University of Michigan.


Washington
likes the case’s chances at the U.S. Supreme Court. Justice Anthony
Kennedy, universally considered to be the court’s swing vote, does not
agree that the U.S. Constitution is color blind.


"He
recognizes that there are racial disparities in education and that
government has a right to take that into account," Washington said.


Rosman is not of the same mind. Does he think affirmative action defenders are bringing forth a flimsy case?


"Flimsy is a strong word. I just don’t think it’s going to Rosman win," he said.


Killing MCRI an ’uphill climb’


In a brief filed with the U.S. Court
of Appeals, Rosman pointed out that in denying an earlier motion in the
case, this same court said affirma- Cox tive action supporters "face an
uphill climb" in "contending that the Equal Protection Clause compels
what it presumptively prohibits."


In other words, the 14th Amendment bans discrimination based on race and gender. MCRI
reads that everybody Manderfield regardless of race, sex and ethnicity
should be treated the same. Arguing that the two goals are different is
difficult.


If it
can be done, the Coalition to Defend Affirmative Action would need to
argue that MCRI is hurting, not helping, establish equal protections,
Washington said Wayne State University Professor Robert Sedler.


In
the last 40 years, the U.S. Supreme Court decisions has twice thrown
out state laws singling out minorities as a demographic group under the
cover of creating equal situations. This happened, Sedler said, in a
1969 fair housing case in Akron, Ohio, (Hunter v. Erickson) and a 1982 busing case from the state of Washington (Crawford v. Board of Education).


Sedler declined to make a prediction on what the Sixth Circuit would do, but said he could see a scenario where MCRI could fall.


Rosman
disagrees. He said both cases Sedler quotes made it more difficult for
minorities to obtain protection from discrimination through a political
process of law making. In this case, Proposal 2 of 2006 makes it more
difficult for minorities to obtain racial preferences through a
political process of law making.


To prove his point, Rosman quoted Lawson’s ruling.


"Admission
at elite universities is a zero-sum enterprise, and programs that
prefer some students on the basis of race must do so necessarily at the
expense of other applicants not of the preferred race.


"The
guarantee of equal protection cannot mean one thing when applied to one
individual and something when applied to a person of another color,"
Lawson wrote.


Cox leading the charge


Technically,
the University of Michigan is the defendant in the case, but Attorney
General Mike Cox is riding herd for the defense in court. As it turns
out, Cox is the only one of the five Republican gubernatorial
candidates to have openly supported MCRI when it was put before the
voters in 2006.


Cox
spokesman Nick DeLeeuw said that regardless of where the attorney
general came down on Proposal 2 in 2006, there’s no political
motivation here.


More
than 2.1 million Michigan voters legally voted to make MCRI a piece of
the state’s Constitution. Cox views it as his role to protect the
Constitution.


DeLeeuw
batted away any insinuation that Cox was riding herd on MCRI to bolster
his conservative credentials with the conservative base in the months
leading up the Republican gubernatorial primary next August.


"It’s
his job as the state’s top law enforcement officer," DeLeeuw said. "The
people wanted Proposal 2, and when it’s challenged, the attorney
general needs to step in and defend it."


That
may be true, but that doesn’t mean the rest of state government needs
to follow. The Department of Civil Rights and the Governor’s Office are
two that are not.


Much
of the court’s focus on MCRI has been over the black or Latino student
whose admission into the University of Michigan hinges on whether extra
admission points are given based on race, said Dan Levy, law and policy
director of the state Civil Rights Department. The focus, he said,
needs to shift to making sure entire university classes are adequately
represented.


Major
corporations are hiring from diverse university campuses because they
see a benefit from it. Likewise, if a university see a benefit in
attracting more minorities into its student body, it shouldn’t be
deterred from making its own decision, Levy said.


"We
believe that when you’re talking about those few students on the cusp,
you’re ignoring the students who are choosing a university," he said.
"The majority should not be the ones telling the minorities which
rights they should have, and we don’t believe ’the majority’ should be
making universities’ decisions. The universities should make the
determination on its own."


The
Department of Civil Rights and its governing body, the state Civil
Rights Commission, has been involved since California’s Connerly,
former state Rep. Leon Drolet and Jennifer Gratz first started talking
about bringing MCRI to Michigan in 2004. Gratz, who had been denied
admission to the law school at the University of Michigan, was one of
the two plaintiffs in Gratz v. Bollinger, the 2003 case in which the
U.S. Supreme Court found that the school’s point system aiding
minorities was unconstitutional. The body took a more active approach
in late 2005 when Civil Rights commissioners began receiving complaints
about how MCRI petition circulators were allegedly misleading folks in
Detroit and elsewhere into signing the petition.


The
commission held several public hearings on the issue in 2006. They
concluded Proposal 2 supporters had fraudulently collected signatures
by telling registered voters the initiative permitted affirmative
action when the opposite was true.


As
a result, The state Board of Canvassers tried to keep MCRI off the
ballot, despite an order from the Michigan Court of Appeals, which then
bypassed the board and ordered the secretary of state to put it on the
ballot anyway.


Likewise,
when MCRI succeeded at the ballot box, affirmative action defenders
asked the courts to keep the initiative from going into effect until
they had exhausted all of their legal remedies. The courts, again, shot
them down.


But supporters are hoping this time will be different. They feel like this time it has to be different.


The
courts, once again, will need to come to the aid of the minority
populations after being dealt a tough break by the majority. At this
point, they have no other choice but to hope they hit a bull’s eye with
their last arrow.


"I
think we’re going to win," Washington said. "I don’t have a crystal
ball, but I believe we will prevail. … We can’t have universities that
are a majority white. It makes no sense. It’s not fair. It’s not
equality."


(Kyle Melinn is the editor of the MIRS newsletter. E-mail melinn@lansingcitypulse.com.)



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