By Kevin Mooney — In his amicus brief challenging the legality of a state constitutional amendment that bans race and gender preferences, California Governor Jerry Brown cites the 2003 U.S. Supreme Court Grutter v. Bollinger decision to make his case. Brown also invokes the same “political-structure doctrine” litigants used to overturn Proposition 2 in Michigan. The governor also appears set sign off on a bill that would reinstate preferential policies; a move that is certain to spark additional legal challenges.
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. The two Clinton appointees who formed the majority opinion, 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.
But, Jennifer Gratz, the executive director of the MCRI, points out that opponents of race-neutral initiatives have always misconstrued and misinterpreted Justice Sandra Day O’Connor’s majority opinion in Grutter.
“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 explained. “She certainly did not mandate the use of preferences and made it clear that over the next 25 years following this decision race should ultimately cease to be a factor.”
O’Connor also ruled that law schools should make a “good faith” effort to adopt race neutral alternatives capable of yielding a diverse student composition. In addition, she encouraged other states to follow the example set by universities in California, Florida and Washington State, which all had state laws prohibiting race preferences at the time of O’Connor’s ruling.
In other words, Gov. Brown’s premise is flawed right from the get go because the same Supreme Court decision he cites also points to California’s Proposition 209 as a model for what every state should be doing; in point of fact this is what has happened. Washington State, Michigan and Nebraska have all passed constitutional amendments that outlaw preferences.
But an organization that describes itself as Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), continues to pursue lawsuits aimed against the initiatives in California and Michigan. Ward Connerly, the former University of California regent, who lead the charge for Prop. 209 would welcome a new Supreme Court case, but sees it as unlikely at this point. The California Supreme Court and the Ninth Circuit Court of Appeals have already ruled in favor of Prop. 209. Moreover, the full Sixth Circuit has accepted a petition from Michigan Attorney General Bill Schuette for a rehearing en banc (in full), which is expected early next year. Schuette expects to prevail before the full court and for Proposition 2 to remain in full effect.
“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,” said Connerly, who now heads up the American Civil Rights Institute (ACRI) . 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.”
Gratz, who also the plaintiff in the separate 2003 Gratz v. Bollinger U.S. Supreme Court decision that struck down race preferences at the University of Michigan’s undergraduate school, commented on the most recent Sixth Circuit ruling.
“The lawsuits in California and Michigan are Orwellian in that BAMN is now arguing that it is discriminatory to not have race-based preferences,” she said. “In other words, universities have to treat people unequally based on race, in order to treat people equally based on their race, that’s what the lawsuits say.”
The “Royal Court” should not be permitted to overrule the will of people and turn the equal protection clause “upside down,” Gratz added.
Assuming the full sixth circuit rules in favor of the Michigan amendment, it will add further impetus to a new initiative on the ballot for Oklahoma voters to approve in 2012 that also bans preferences and set asides.
Kevin Mooney is a contributing editor to Americans for Limited Government.
