Affirmative action’s still kicking, but so is its nemesis, Ward Connerly

To this day, affirmative action as public policy–giving qualified minorities a chance to compete for college admissions, public jobs, and contracts–is not just a sentimental throwback. It remains the noble, magnanimous, and right thing to do.

But in a time with 14 million unemployed, few jobs in general, and extreme cutbacks on campuses, any talk of affirmative action these days seems muted at best, if not purely academic.

At least that was the case until July 1.

That’s when the U.S. Court of Appeals for the 6th Circuit breathed life into the issue and ignited the hot button by declaring Michigan’s anti-affirmative action law unconstitutional and a violation of the Equal Protection Clause of the 14th Amendment.

It was a great victory for the plaintiffs (led by the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN)). They’re the groups that continue the fight to reverse the trend started in 1996 when Ward Connelly, a wealthy Californian of mixed-race heritage, took it as his personal mission to end affirmative action in the U.S. one state at a time.

If the creation of anti-affirmative action initiatives to outlaw the practice is a kind of modern civil rights horror story, then Connerly is clearly the movement’s Dr. Frankenstein.

Starting with California’s Prop 209 in 1996 and through Michigan’s Proposal 2 in 2006, Connerly-led voter initiatives triumphed in four states and established state constitutional amendments that would appear so insurmountable as to preserve in perpetuity Connerly’s sense of the ideal: a colorblind process for public university admissions, jobs and contracting.

But according to the 6th Circuit, that strategy was precisely Connerly’s undoing.

Using the initiative process and seeking changes in state constitutions may have satisfied Connerly’s zeal, but it also unfairly changed the process by which affirmative action advocates could fight back.

In a 2-1 decision, the court said: “Had those favoring abolition of race-conscious admissions successfully lobbied the universities’ admissions units, just as underrepresented minorities did to have these policies adopted in the first place, there would be no equal protection problem.”

Instead the court cited two previous Supreme Court rulings: Hunter, which dealt with the reversal of a fair housing ordinance in Akron, and Seattle, which involved busing for school integration, to establish that an equal protection violation had occurred when the political process has been unfairly altered.

Said the court: “Because less onerous avenues to effect political change remain open to those advocating consideration of non-racial factors in admissions decisions, Michigan cannot force those advocating the consideration of racial factors to go down a more arduous road than others without violating the Fourteenth Amendment.”

As the court implied, Michigan’s Proposal 2 created two roads, separate and unequal.

Michigan’s attorney general Bill Schuette said he would appeal through a formal request to have the full court consider the case en banc.

The coalition attorneys remain undaunted. “I think we can defend this victory,” said attorney George V. Washington by phone, who added that an en banc hearing in Michigan could force the 9th Circuit to do the same later this year in a case challenging the impacts of Prop 209 in California. “We’re gearing up for a fight in Michigan and in California in the fall,” he said.

Meanwhile, Connerly, who no longer has operations in Michigan, does have Jennifer Gratz, the lead plaintiff in one of the original cases that challenged Michigan’s affirmative action policies. Now a deputy with Connerly’s American Civil Rights Institute in Sacramento, Gratz reportedly called the ruling “insanity.”

Connerly, who has recently broken ranks with conservatives by supporting gay marriage, prison reform, and comprehensive immigration reform, remains passionately against affirmative action and the 6th Circuit’s ruling.

“To say the Michigan law alters the political structure is just fundamentally wrong,” he said in a phone interview. “Minorities have more ability to change this than ever. In California, blacks and Latinos constitute close to a majority…They can change things based on political strength.”

But that’s not the case in Michigan, where the electoral numbers are different from California. Coalition attorney Washington pointed out the numbers that concern him. Since Proposal 2’s passage, underrepresented minorities have dropped anywhere from 25 percent to 55 percent in the undergraduate and graduate colleges at the University of Michigan.

I asked Connerly about that. In a world without affirmative action, do we just live with that kind of inequality?

“I’m afraid so,” said Connerly. “If we say we want every person to have an equal chance to compete and be selected on his or her merits, you can’t come to the conclusion that this outcome is less desirable than I would like.”

Connerly says his ideal isn’t necessarily a colorblind world, but color irrelevant. “Especially in the public sector, we don’t want the government taking on color, or where are ancestors came from to be taken into official consideration…Color irrelevant more clearly denotes the reality of what many of us believe and where our society is going to go…the question is should the government use those factors when it makes a decision on who to hire and who to admit to college and to whom to award a contract.”

Connerly’s in it for the long haul.

But thankfully for the sake of real equality, so too are the supporters of affirmative action.

You can read the 6th Circuit decision in Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN), et al. v. Regents of the University of Michigan, et al. here.

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Emil Guillermo is an independent journalist/commentator. Updates at Follow Emil on Twitter, and like his Facebook page.

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