Michigan on the Merits
Eastland, Terry
Michigan on the Merits The popular issue politicians love to hate. by Terry Eastland In 2003, when the Supreme Court upheld the use of race and ethnicity in the admissions policy of the University...
...We need all kinds of players on our team, and we need all kinds of students on our campus if we are going to be successful in building the Michigan of tomorrow...
...Gratz recognized that the net effect of the two rulings was to leave substantial room for state authorities to continue taking race and sex into account in the allocation of limited opportunities, such as places in an entering class or jobs in the department of motor vehicles or contracts to build a highway...
...You think Tom Izzo recruits and plays "all kinds of players"—point guards, shooting guards, forwards, centers—on any basis other than merit...
...There were lawsuits, and there was bureaucratic delay...
...Under the Michigan cases, there would seem to be such a right, but the means by which it is exercised would hardly seem to enjoy protection...
...Let's see . . . 2003 plus 25 is 2028...
...Yet few predicted that Proposal 2, as it was called, would win big...
...They passed a ballot measure amending the state constitution to outlaw racial preferences in public education, employment, and contracting...
...That's a landslide...
...Of course, there are other theories as to why the measure prevailed— chiefly that it was sold on false pretenses, as protecting affirmative action while banning preferences, when in fact it would do away with all affirmative action, which is, in this view, inherently preferential...
...Only by adding the nondiscrimination principle to the Michigan constitution could the issue be resolved...
...So did major corporations, including the automakers, and so did the unions...
...Proposal 2 is scheduled to enter the Michigan constitution on December 22, but before then some court could issue a temporary restraining order...
...Only one prominent statewide officeholder, the attorney general (a Republican), endorsed it...
...And maybe the voters had made up their minds about that years ago, when the Michigan cases were litigated up to the Supreme Court...
...And it won even though Connerly and Gratz were subjected to some pretty mean attacks (one group called them "racist...
...When might that be...
...Naturally, the Democrats opposed it...
...Michigan is now the third state where voters have used an initiative process to bar public authorities from granting preferential treatment to any individual or group on the basis of race, ethnicity, or sex...
...The state GOP treated the measure like the plague, with Dick DeVos, the (losing) Republican candidate for governor, on the record against it...
...But it isn't required to use them, as the opinion also made clear...
...The welcome continued—in the form of efforts to keep the Michigan Civil Rights Initiative from getting its measure on the ballot...
...At that time, preferential treatment and the discrimination it entails were conspicuously before the people of Michigan...
...A state may use preferences in the way permitted by the O'Connor opinion...
...So did higher education...
...Maybe a majority thought it the right principle for the state to follow...
...by Terry Eastland In 2003, when the Supreme Court upheld the use of race and ethnicity in the admissions policy of the University of Michigan Law School, Justice Sandra Day O'Connor stated in her opinion for the Court that a core purpose of the Fourteenth Amendment was "to do away with all governmentally imposed discrimination based on race...
...Not a few neutral observers saw the campaign for Proposal 2 as weak and fated to lose...
...And it won over the opposition of everyone who was anyone in Michigan...
...Even so, the measure won, resoundingly...
...Connerly and Gratz formed a group they called the Michigan Civil Rights Initiative to promote such an amendment, and Gratz became its executive director...
...So did well-known clergy...
...Even "a lawful [race-based] policy . . . must have a logical end point...
...The First Amendment argument, which is new, maintains that public universities have a First Amendment right to determine their academic standards and the criteria for admission...
...So why did it win...
...I know what it takes to build a team," said Tom Izzo, the coach at Michigan State, "and that is diversity...
...No such thing has happened in California in the ten years since its initiative was passed...
...Then, once the measure was finally destined for a vote, state election officials decided to describe Proposal 2 on the ballot as banning "affirmative action"—a term not found in the text of the initiative...
...It was "a full-time job," she told me, the culmination of "a ten-year battle...
...Terry Eastland is publisher of The Weekly Standard...
...When the longtime House Democrat John Din-gell heard that Connerly had entered his state to help organize the no-preference effort, he wrote the businessman a letter advising, "The people of Michigan have a simple message to you: go home...
...Voters favored the initiative by 58 to 42 percent...
...She was right—again...
...The measure won even though MCRI was outspent eight to one by the leading opposition groups...
...Now, the courts may get involved...
...Connerly, his smile evident, responded by thanking Din-gell for "such a warm and hospitable welcome to Michigan...
...Even basketball coaches at the most prominent state universities got into the game...
...A group that goes by the name By Any Means Necessary, or BAMN, already has filed in federal court alleging that the measure is preempted by federal civil rights law and violates both the Equal Protection Clause and, with respect to higher education, the First Amendment...
...And in 2003, shortly after the Supreme Court not only sustained race-based admissions at the University of Michigan Law School but also, in a companion case, overturned a more blatantly discriminatory policy at Michigan's undergraduate school, Connerly received a phone call from Jennifer Gratz, the lead plaintiff in the latter case...
...Not even Jennifer Granholm, the incumbent Democratic governor re-elected last week, did as well...
...The notion that the federal civil rights statutes and the Constitution actually require a state to discriminate has been tried before— against the California Civil Rights Initiative—and it failed...
...Maybe the reason was the principle of nondiscrim-ination it sought to enact...
...The group was unable to get the initiative on the ballot in 2004, as originally planned...
...But this past Tuesday—22 years early, you might say—the people of Michigan went ahead and provided an "end point" to the very policy the O'Connor majority approved...
...But already it deserves notice—far more than it's had since last Tuesday...
...We expect," she said, "that 25 years from now the use of racial preferences will no longer be necessary...
...And the University of Michigan—in-stead of moving to comply with the law—is considering a lawsuit, probably on First Amendment grounds...
...So the story of Proposal 2 may have more chapters...
...In the campaign for Proposal 2, former plaintiff Jennifer Gratz served to remind Michiganders of the issues at stake in those cases...
...California was the first, in 1996, and Washington followed two years later...
...California businessman Ward Con-nerly helped lead both those earlier efforts...
...Connerly contributed $500,000 of his own money...
...Still, the likelihood of success on the merits in these cases seems slight...
...Connerly and Gratz didn't exactly have an easy time of it...
...Opponents hoped that voters would see the measure as outlawing seemingly benign "affirmative action" and vote no...
...Polls leading up to Election Day gave neither side a clear edge...
...Opponents also tried to confuse the issue by shifting the debate away from preferential treatment, claiming, for instance, that the measure would end all state-sponsored health care that is sex-specific, such as screening for breast and cervical cancer...
...She was, as one lawyer for the initiative effort put it to me, "a walking billboard" for what the measure was about...
...I had said all along that the people of Michigan would pass this overwhelmingly," says Gratz...
Vol. 12 • November 2006 • No. 10
