Panel Tells Mich. How To Bypass Prop 2

Marisa Schultz, Detroit News, March 5, 2007

A report by the Michigan Civil Rights Commission released Wednesday offers a roadmap for skirting Proposal 2 rather than a guidebook for complying with the new law, say critics, one of whom threatened to sue if the state follows the panel’s recommendations.

“I have a fear that you are going to try to use this to circumvent Prop 2 and the will of the people,” Chetly Zarko, a former communications director for the Michigan Civil Rights Initiative committee, the group that got Prop 2 on the ballot, told the commission. “We will be watching you.”

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The long-awaited 66-page report, approved unanimously Wednesday, found that Prop 2 doesn’t ban all affirmative action programs and that outreach efforts to certain minority groups are OK, as long as they’re not exclusively to those groups. Just eight out of 45 state programs reviewed by the commission have potential conflicts with Proposal 2, but the commission suggested language changes to expand programs.

The most controversial finding of the report, however, centers on a little-known exception to Proposal 2 that sanctions affirmative action programs if they are necessary for eligibility for federal funds.

Federal funds seen as a boon

The commission recommends that state agencies go after federal funding that has affirmative action requirements. In fact, the commission plans to compile a list of all the federal programs that have affirmative action requirements. The list will be circulated throughout state government, and departments are advised to see if they could be eligible and then comply with affirmative action requirements.

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Meanwhile, the report found that a major program at the Michigan Department of Transportation that grants preferential treatment to women and minorities in road contracts is permissible under the new law.

“We will be in court pretty soon if they try to implement that recommendation,” said Ward Connerly, a former University of California regent who is a major backer of Proposal 2 and California’s similar Proposition 209.

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Connerly argues the federal government may require affirmative action efforts, such as outreach, but that doesn’t mean preferential treatment. If MDOT continues using set-asides, Connerly says he’ll sue to enforce Prop 2.

However, transportation officials—and now the Michigan Civil Rights Commission—have said the program is a federal requirement. Millions of dollars for Michigan roads would be at risk without it.

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Strings attached

It’s clear that some federal programs require states to participate in affirmative action programs to receive money, said Jonathan Weinberg, a professor at Wayne State University Law School.

“The trick is not just to land (a federal contract), it has to be one that’s tied to affirmative action requirements,” said Weinberg, an expert on constitutional law. “The problem there is the federal government isn’t a big fan of imposing those requirements, so I don’t know how many programs there actually are that have those sorts of strings attached to them.”

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The report has been handed over to the governor.

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