• Tyranny of the majority overcome in Michigan
• “Thousands of talented Black, Latino and Native American students now have chance to receive education at the state’s finest universities”
By Diane Bukowski
DETROIT, July 1 — In a stunning and long-thirsted for victory against the forces of reaction in this country, a three-judge panel of the U.S. Sixth Circuit Court of Appeals declared Michigan’s Proposal 2 unconstitutional July 1, paving the way to re-instate affirmative action programs in the state.
Michigan voters passed Proposal 2, a state constitutional amendment, in Nov. 2006. It struck down all programs in public educational institutions granting “preferential treatment . . . to any individual or group on the basis of race, sex, color, ethnicity or national origin.”
That included not only students, but workers and businesses contracting with the institutions. Nine out of ten Black voters voted against Proposal 2, but it passed by 58 percent because white voters supported it two to one.
“This decision means that thousands of talented Black, Latino and Native American students will now have a chance to receive an education at the state’s best universities,” said attorney Shanta Driver, who is National Chairperson of the Coalition to Defend Affirmative Action By Any Means Necessary (BAMN), the plaintiff in the case. “It is a great victory for the new civil rights movement.”
Driver and attorneys George Washington and Monica Smith spoke at a press conference in their downtown Detroit law offices July 1. They said the Sixth Circuit essentially ruled that Michigan could not prevent minorities from seeking admission programs that benefited them while allowing other groups, including children of alumni, athletes, and those scoring good grades in privileged high schools, to seek their own admission programs.
BAMN has a similar lawsuit pending in the Ninth Circuit against California’s Proposition 209.
“This puts affirmative action back on the national agenda,” Washington said. “The Sixth Circuit’s decision today applies to Proposition 209 and means that the Ninth Circuit has to reexamine its 1996 decision upholding 209.”
The 2-1 decision by the Sixth Circuit, authored by Judge Ransey Cole, Jr., was bold and unequivocal. (Click on Prop 2 DECISION_BY_SIXTH_CIRCUITto read the full decision.)
“Our task is to determine whether Proposal 2 is constitutional under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution,” Cole wrote. “Fortunately, the slate is not blank. The Supreme Court has twice held that equal protection does not permit the kind of political restructuring that Proposal 2 effected. . . . we find that Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities. Accordingly, we REVERSE the district court’s grant of summary judgment for the Defendants-Appellees and order the court to enter summary judgment in favor of the Plaintiff-Appellees.”
The Sixth Circuit also denied motions by the presidents and boards of the University of Michigan, Wayne State University, and Michigan State University to be dismissed as defendants, in effect ordering them to restore their affirmative action programs.
Cole wrote that two previous Supreme Court decisions, Seattle, 458 U.S. at 467, and Hunter, 393 U.S. at 393, clarify that equal protection of the law is also “an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities . . . . an electoral minority is by definition disadvantaged in its attempts to pass legislation.”
He thereby shot down arguments by the State Attorney General that people of color in Michigan could overturn the law by conducting their own referendum campaign.
In effect, he took a page straight out of The Tyranny of the Majority, Fundamental Fairness in Representative Democracy, by Lani Guinier, former candidate for head of the U.S. Justice Civil Rights Department. She proposes alternative scenarios for an electoral process that inherently disadvantages citizens in “minority” groups, who will always lose in a racially-charged climate.
Washington, Driver and Smith said the BAMN court victory resulted from years of struggle by hundreds of .thousands of people, beginning with a 2003 march of 50,000 on the U.S. Supreme Court, when the Court was about to hear two lawsuits challenging the University of Michigan’s affirmative action programs.
Smith entered Wayne State’s law school in 2006 just before Prop 2 passed, and graduated in 2009.
“There were 22 Black students in my class [a total of 145 students graduated in 2010 according to WSU law website],” Smith said. “The next year that number dropped to 11. We have been fighting for years for equality, for the right to live up to our full potential. I graduated from Cass Technical High School, which was 95 percent Black, and I faced many kinds of discrimination at Wayne State, but I passed the bar on my first try. The reason we are victorious now is because we built a movement, we showed our opponents that we do have the power and we will win!”
Driver added, “As we watch the rise of the new Jim Crow, this victory is really sweet. Affirmative action programs were always desegregation programs. We saw the most dramatic effects of Proposal 2 in law schools and medical schools. WSU’s medical school used to rank among the best in the country in graduating Black doctors. Their numbers dropped dramatically after Prop 2 passed. At UM’s law school, there was a 75 percent drop in the number of Black and Latino students. We had seen it happen in California with Proposition 209, and we knew it would happen here.”
Michigan’s Attorney General Bill Schuette said in a statement that he will appeal the ruling through a formal request for rehearing enbanc (with the full U.S. Sixth Circuit Court). He claimed Proposal would remain in force pending their decision.
He cynically called Proposal 2 “The Michigan Civil Rights Initiative” (MCRI), the name used by the group which put it on the ballot, led by California regent Ward Conerly and financed by millions in donations from right-wing foundations. BAMN battled to keep the proposal off the ballot, gathering numerous affidavits from witnesses indicating that its petition gatherers were telling signers that it supported affirmative action.
“MCRI embodies the fundamental premise of what America is all about: equal opportunity under the law,” said Schuette. “Entrance to our great universities must be based upon merit, and I will continue the fight for equality, fairness and rule of law.”
But BAMN’s attorneys welcomed the opportunity to broaden the struggle. They said if the case ends up at the U.S. Supreme Court, they will mobilize millions more across the U.S. in support of affirmative action.
“Schuette and Michigan’s Governor Rick Snyder are standing in the schoolhouse door just as George Wallace did in Mississippi,” Washington said.
The attorneys also stressed the necessity of building a movement for fully-financed, free public education at all levels.
Smith recently coordinated the battle to save Catherine Ferguson Academy, a Detroit Public School which garnered national attention because it educates teen mothers and their children as well. On June 16, CFA achieved a partial victory, when the district announced the school would remain open as a charter.
Most of the Detroit Public School system has been decimated. Over half of its schools have closed during two state take-overs since 1999, thousands of Detroit resident teachers and support staff have lost their jobs, and private contracts have been doled out to wealthy corporations like candy.
Under state law, Detroit Public Schools students receive approximately $7,600 in state per-pupil aid, while students from wealthy suburbs like Birmingham and Bloomfield Hills receive approximately $12,000.
Smith said the effect on Detroit’s youth has been disastrous, and along with the ban on affirmative action further limits their opportunities to achieve their full potential by attending college and securing well-paying jobs to support their families.
Go to www.bamn.com for more information on the group’s national struggles; Monica Smith can be reached at 313-585-3637,