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The End of Affirmative Action?

Policies that give preferential treatment based on race and sex are under fire in states across the country.

2:00 PM, Oct 10, 2011 • By KEVIN MOONEY
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Opponents of state ballot initiatives that outlaw race and gender based affirmative action programs have vowed to take their fight all the way to the U.S. Supreme Court. Ward Connerly, the former University of California Regent who was the galvanizing influence behind Proposition 209, which amended that state’s constitution to prohibit preferential policies, would welcome that challenge.

On July 1, a three-judge panel on the Sixth Circuit Court of Appeals ruled that the anti-discriminatory language included as part of the Michigan Civil Rights Initiative (MCRI) actually violated the amendment’s equal protection clause and must therefore be overturned. Like Proposition 209, MCRI is built around a state constitutional amendment that prohibits preferential policies.

It reads as follows:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

Similar amendments have also passed with substantial approval in Washington State, Arizona and Nebraska. In Florida, Gov Jeb Bush instituted his own anti-discriminatory program, which Connerly’s civil rights group labels “a step in the right direction.” Next up for voter approval in 2012, is the Oklahoma Civil Rights Initiative (OKCRI).

The two Clinton appointees who formed the majority opinion on the Sixth Circuit, R. Guy Cole Jr. and Martha Craig Daughtrey, declared MCRI, widely known as Proposal 2, to be unconstitutional because it alters the state’s political structure in a manner that unduly burdens racial minorities. Cole and Daughtrey cited two previous U.S. Supreme Court decisions, Washington v. Seattle School Districts (1982)  and Hunter v. Erickson (1969) to bolster their opinion. In her dissent, Judge Julia Gibbons ruled that the “political restructuring theory” used by the majority did not hold in the Michigan case and that voters operated well within constitutional parameters.

Judge Gibbons also noted that in its 2003 Grutter v. Bollinger decision, the U.S. Supreme Court made it clear that racial considerations within college admissions should be phased out over time and that the “ability to fashion a time limit” resides  primarily with state level actors; not the judiciary.  Grutter v. Bollinger upheld affirmative action admission policies at the University of Michigan Law School in a narrow 5-4 ruling, but at the same time, all nine justices concurred that the use of quotas and outright racial balancing was unconstitutional. In the concurrent Gratz v. Bollinger, ruling the justices ruled against the point system the university used in its undergraduate program.

Blended together, there is no escaping the antipathy expressed by the majority of justices in the 2003 University of Michigan rulings. Even so, the pressure groups lined up in opposition to MCRI and Proposition 209 continue to misconstrue Justice Sandra Day O’Connor’s majority opinion in Grutter, which attached strict provisos to the use of race, Jennifer Gratz, the executive director of the MCRI explained in an interview.

“While it’s clear that O’Connor favored a holistic approach that included race, she also said it was acceptable for voters in states to make preferences unconstitutional,” Gratz said. “She certainly did not mandate the use of preferences and made it clear that over the next 25 years following from that decision that race should ultimately cease to be a factor.”

Gratz, who now serves as the top researcher with Connerly’s American Civil Rights Institute (ACRI), was also the lead plaintiff  in Gratz v. Bollinger. She expects race-neutral policies to prevail over time despite well-funded, well-coordinated opposition.

The key instigator here behind the legal challenges is an aggressive, leftist group  known in full as the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), which came together in response to Proposition 209. The Detroit law firm of Scheff & Washington, where George Washington and Eileen R. Scheff are listed as partners, is responsible for crafting BAMN’s lawsuits.

Gov. Jerry Brown (D-Calif.) recently filed an amicus brief backing up a new BAMN legal challenge to Proposition 209 that is now before the 9th Circuit Court of Appeals. He also appears poised to sign off on Senate Bill 185, which would allow for universities to “consider race, gender, ethnicity and national origin, along with other relevant factors, in undergraduate and graduate admissions.” But it would seem that Gov. Brown faces a step legal climb since the full Ninth Circuit Court of Appeals and the California Supreme Court have already ruled in favor of Proposition 209. Moreover, Connerly has  vowed to file suit if SB 185 becomes law.

Back in Michigan Bill Schuette, the state’s attorney general, has forcefully entered the fray on behalf of MRCI, also known as Proposal 2, and  is confident the constitutional amendment will remain in effect and that the three judge panel will be overruled. He has successfully petitioned the Sixth Circuit for a rehearing en banc (in full), which he expects to take place early next year.

“The three judge panel turned the 14th Amendment upside down and inside out with an absurd ruling,” Schuette said in an interview. “Those judges are saying that it is unconstitutional to require race-neutral and gender-neutral decision-making when someone is knocking at the door of an educational institution with the ambition to further their talent and skills. We are talking about an effort to pervert the meaning of the 14th Amendment and I’m delighted we will have the full court hear the case. I like the position we are in now.”

As America becomes increasingly multi-racial, it is becoming less clear which ethnic groups are in the majority and which are in the minority, especially in California, Connerly points out. Consequently, he anticipates that the U.S. Supreme Court will continue to become more reflective of the nation’s colorblind sentiments in its jurisprudence.

“I know the opposition has this idea that it has struck pay dirt with this ruling [from the Sixth Circuit], but if this case were to go to the Supreme Court I believe would get the ruling we have long desired and that Grutter decision would be overturned,” Connerly said. I think we are on track to win this battle for colorblind policies in the fullness of time, but that’s not to say any of this will be easy. When it comes to race, nothing is surprising and nothing is unbelievable because we find there are groups out there fighting to maintain race preferences `by any means necessary,’ and with very extreme tactics.”

Kevin Mooney is an investigative reporter with the Pelican Institute for Public Policy in Louisiana.

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