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