Saturday, December 5, 2009
Three years later, the battle continues over affirmative action
Three years later, the battle continues over affirmative action in Detroit:
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."
by Kyle Melinn