The University of Michigan saved race-based affirmative action in university admissions for the entire nation when the Supreme Court took its side in the 2003 case Grutter v. Bollinger. But Michigan itself may soon outlaw the practice in public-university admissions and in public-sector hiring. On October 31, the Michigan Court of Appeals approved an anti–affirmative action referendum for the 2006 ballot -- despite what may have been some underhanded tactics on the part of the referendum's promoters.
In a 5-to-4 vote in June 2003, the U.S. Supreme Court favored the University of Michigan in one of two lawsuits against its policy of favoring African-Americans, Hispanics, and Native Americans in admissions. In Grutter, the court held that diversity was indeed a compelling state interest, and thus it could not take a sweeping blow against a practice that served that interest. A defeat that day would have meant the end of affirmative action in American public universities.
That fall Ward Connerly, the former University of California regent responsible for organizing California's Proposition 209, which outlawed affirmative action in government institutions and public universities, came to Michigan to mount a similar campaign. Working with local conservative activists along with people like Carl Cohen, the Michigan philosophy professor who went searching a decade ago for rejected white applicants to the university as test cases to fight the university's policy, Connerly helped form the Michigan Civil Rights Initiative (MCRI), a group that circulated a petition to put a referendum on the statewide ballot that would outlaw the consideration of race in admissions and hiring in public institutions.
According to Chetly Zarko, the campaign's treasurer, the MCRI collected over 500,000 signatures from registered voters in Michigan, enough to put the question on the 2006 ballot. However, in July 2005, the state's board of canvassers refused to certify the petition, keeping it off the ballot until now, because the board concluded that many of the signers did not understand what effect the ballot would have. Among the board's concerns were allegations that the MCRI purposefully misled the voters who signed the petition.
The lawyers representing the Coalition to Defend Affirmative Action by Any Means Necessary (BAMN) found evidence of unethical activity on the part of the MCRI and brought it before a state court. "While shopping at a CVS on Jefferson near Mt. Eliot in Detroit, I was solicited to sign a petition purportedly as a pro affirmative action initiative in opposition to the Michigan Civil Rights Initiative," wrote Robert Ziolkowski, a judge for Michigan's Third Judicial Circuit Court, in a 25-page affidavit. Many other individuals cited in the affidavit said that operatives from the MCRI fooled people, especially minorities, into signing the petition by saying that it was going to protect affirmative action.
Some activists believe that the language of the ballot initiative is very misleading as well. "[The MCRI] cribs from the Civil Rights Act of 1964 and adds a phrase banning 'preferential treatment,'" says Ben Royal, a member of BAMN. "MCRI circulators never told any voters that Michigan already has a civil rights clause in its constitution, and that the purpose of this amendment was specifically to ban affirmative action."
In its defense, the MCRI argues that the changes would not outlaw affirmative action completely. "What will be continued are all the efforts to treat citizens -- including minorities -- fairly, which are not preferential," Cohen says, referring to "the efforts of the Equal Employment Opportunity commissions, for example, the re-examination of examinations for employment to determine if they are relevant or really devices to screen out minorities, the efforts to eliminate unfair lending practices and unfair housing practices, and so on." "Affirmative action in that honorable sense will not end," Cohen stresses.
The court's latest decision is a major victory for the MCRI. BAMN's lawyers have plans to appeal the decision to the Michigan Supreme Court, but a schedule has yet to be disclosed.
Many affirmative action supporters fear that the ballot measure will pass if it remains on the 2006 ballot. According to Zarko, some polls show that a majority of the state already favors the MCRI. If the referendum survives the challenges, then, Michigan's victory for promoting diversity in higher education at the Supreme Court will be erased.
Ari Paul writes frequently about politics and religion. His articles have appeared in In These Times, Z Magazine, and openDemocracy.net.
