Peter Schmidt, Chronicle of Higher Education, Nov. 17, 2006
Michigan promises to again be the focus of intense legal wrangling over affirmative action as a result of last week’s passage of a state ballot proposal that bans public colleges and other state agencies from using preferences to promote diversity.
The measure, which appeared on the ballot as Proposal 2 and was known as the Michigan Civil Rights Initiative, amended the Constitution of the Great Lakes State to prohibit state agencies and institutions from operating affirmative-action programs that grant preferences based on race, color, ethnicity, national origin, or gender. Its passage comes just three years after the U.S. Supreme Court upheld the consideration of race in college admissions in two landmark cases involving the University of Michigan at Ann Arbor.
Unofficial election results showed that Proposal 2 passed with about 58 percent of the vote, a large enough majority to convince its backers that similar campaigns would succeed in other states. It was resoundingly approved despite being up against a much-better-financed opposition campaign that enlisted much of the state’s economic and political establishment. The margin of support was especially impressive considering that Democrats, who generally are much more supportive of affirmative action than Republicans, made a good enough showing at the polls to win most key elections.
“This obviously was a dramatic victory,” said Ward Connerly, a prominent critic of affirmative action who helped advise the Proposal 2 campaign. Calling Michigan “a very tough state” partly because of its strong Democratic Party, Mr. Connerly said, “If we can win in Michigan, I think we can win anywhere.”
Michigan is the third state in the nation to approve such a ballot initiative in the last decade. Similar measures were adopted by California in 1996 and by Washington State in 1998. Michigan’s Proposal 2 passed by a larger margin than the California measure did and received about as much support from voters as the Washington State ballot initiative, despite being up against opposition that was much better financed and better organized than that faced by either of the West Coast campaigns.
Opponents of Proposal 2 were disappointed but stuck to their guns. At a news conference held the day after the election, Mary Sue Coleman, president of the University of Michigan at Ann Arbor, said she had directed the university’s lawyers to give their “full and undivided support in defending diversity,” and vowed to “immediately begin exploring legal action concerning this initiative.”
A separate legal challenge to Proposal 2 was filed last week by an organization that had fought hard in the federal courts and before state election officials to keep the measure off the ballot. The group, called the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (and commonly referred to as BAMN), argued in its lawsuit that Proposal 2 is discriminatory because it will result in the denial of equal opportunity to blacks, Hispanics, and women.
The Michigan Civil Rights Initiative Committee, the campaign organization that sponsored Proposal 2, has asked the Sacramento-based Pacific Legal Foundation to defend the measure against legal challenges. The Pacific Legal Foundation has experience in such matters: It successfully defended Proposition 209, California’s ban on racial preferences, against a challenge similar to the one BAMN is mounting against Proposal 2, and also sued to force state agencies in California to comply with the measure.
Looking ahead to any potential legal battle over Proposal 2, Alan W. Foutz, a lawyer with the Pacific Legal Foundation, said, “We think that most of the arguments to be hurled at it already have been thoroughly vetted and rejected by the courts.”
A Black or White Choice?
In an interview on election night after results made it clear that Proposal 2 had won, Jennifer Gratz, who led the campaign for the measure as executive director of the Michigan Civil Rights Initiative Committee, said that “people in Michigan stood up to the establishment, and the principle of equal treatment under the law prevailed today.”
Almost the only voting precincts in the state where Proposal 2 lost were in Detroit, which is predominantly black, and in areas around Michigan State University and the University of Michigan at Ann Arbor, where student groups campaigned heavily against the measure. Proposal 2 received solid support in most other parts of the state and, tellingly, garnered 57 percent of the vote in Oakland County, which was regarded as a key battleground because it includes several affluent, and heavily liberal, Detroit suburbs.
In attempting to keep Proposal 2 off the ballot, foes of the measure had alleged that it was deceptively worded. Because the measure calls for public institutions to be prohibited from engaging in racial, ethnic, and gender discrimination, it reads like a document that might be put forward by the same feminist and minority-advocacy groups that actually were deeply opposed to it.
An exit poll of 3,000 voters conducted for The Detroit News found stark race- and gender-based divisions on how Michigan residents viewed the measure. A solid majority of men supported it, while a solid majority of women were opposed.
Broken down by race, the results of the exit poll showed that at least 56 percent of the white respondents voted in favor of Proposal 2, but at least 86 percent of black and 69 percent of Hispanic voters cast ballots against it.
In terms of education level, the strongest opponents of the measure — with more than 6 out of 10 voting against it — were people at the extremes of the spectrum, who either had never earned a high-school diploma or had graduated from college and gone on to graduate or professional school. The strongest advocates of the measure were people whose educations had not progressed beyond a high-school diploma or some technical training.
Michigan is 81 percent white and 14 percent black, and ranks as one of the nation’s most segregated states. Political analysts had predicted that Proposal 2 would pass easily if the voting fell strictly along racial lines.
Opponents of Proposal 2 had concluded that their best hope of defeating the measure was by producing a high turnout among black voters and trying to sway women against it. The chief organization campaigning against the measure, One United Michigan, had warned in campaign advertisements that passage of the measure could threaten programs that help battered women and programs that provide screening for breast and cervical cancer — assertions that the measure’s backers strongly denied.
In the final weeks of the election, One United Michigan also ran a radio advertisement in which Sen. Barack Obama, Democrat of Illinois, urged people to vote against the measure, and the Rev. Jesse Jackson visited the state to campaign against it.
Jay Rosner has worked with both the University of Michigan at Ann Arbor and the University of California system as the executive director of the Princeton Review Foundation, a nonprofit organization devoted to helping more minority students qualify for admission to college. He said Michigan’s public colleges may have more difficulty than those in California did in maintaining diversity in the absence of racial and ethnic preferences in admission. Along with being intensely segregated, he noted, Michigan does not have nearly as large a minority population as California to try to draw upon to keep its numbers of minority students up.
A 2003 Chronicle analysis found that Michigan may have trouble achieving much diversity at its selective public colleges through “percent plans,” which provide automatic admission to students in the top of their high-school classes, because it has nearly 10 times as many overwhelmingly white high schools as overwhelmingly black high schools.
Detroit and the Supremes
As of this month, One United Michigan, which opposed the measure, had raised more than $4.6-million from various sources. More than a third of its money came from large corporate donors, such as the Ford Motor Company, the Dow Chemical Company, and Detroit’s Greektown Casino.
Among those lending support to the campaign on behalf of the measure was the Center for Individual Rights, an organization based in Washington, D.C., that has played a key role in legal challenges to race-conscious college-admissions policies in Michigan, Texas, and Washington State. It provided about $218,000 in in-kind donations to the Michigan Civil Rights Initiative Committee.
Mr. Connerly said he had received calls from people in other states, including Illinois, Massachusetts, Missouri, and Oregon, who were interested in undertaking similar campaigns.
The populist movement against racial preferences had largely been dormant since the late 1990s, when it became apparent that the Supreme Court was poised to take up the question of whether such preferences violated the U.S. Constitution’s equal-protection clause. The Supreme Court upheld the use of race-conscious admissions policies by colleges in two 2003 rulings involving the University of Michigan at Ann Arbor, but it has recently chosen to revisit the affirmative-action controversy by considering two cases involving the race-based assignment of students to public schools.
Boos and Cheers in Academe
Among those who cheered the passage of Proposal 2 was Stephen H. Balch, president of the National Association of Scholars, an organization that takes a traditionalist view toward academe and assisted the campaign on behalf of the measure. In an interview last week, Mr. Balch called the passage of Proposal 2 “an extinction event” for the explicit use of racial preferences by higher-education institutions.
“I cannot believe that there is anyone out there now in the higher-education establishment who does not realize that, at this point, if the same proposal were put before voters in the vast majority of states in this country, the voters would reject preferences,” Mr. Balch said.
The Law School Admission Council donated $250,000 to One United Michigan, while the Association of American Universities gave $7,500. The Association of American Medical Colleges donated $10,000 to the Leadership Conference on Civil Rights, a Washington-based coalition of civil-rights organizations, to help finance its efforts to defeat Proposal 2.
Darrell G. Kirch, president of the Association of American Medical Colleges, called the measure’s passage “a severe setback for Michigan’s citizens and medical schools.”
“Banning affirmative action,” Dr. Kirch said, “will strip medical educators of an important tool to increase diversity among tomorrow’s doctors.”