BAMN E-MAIL - 1/15/2008
BAMN Press Release
SAVE THE DATE FEB. 6th to Protest and Pack the Court Hearing
On Monday, January 7, 2008, BAMN submitted its brief to U.S. District Court Judge David Lawson explaining why a full trial in Coalition to Defend...(BAMN) v. Regents of the University of Michigan is absolutely essential in deciding whether or not Proposal 2, the ban on affirmative action in Michigan, is constitutional. The defendants in the case, including Michigan Attorney General Michael Cox, and Intervenor Eric Russell, as well as co-plaintiffs from the ACLU have requested summary judgement – i.e. a ruling without a trial.
Oral arguments will be heardon Wednesday, February 6, 2008 at 3pmin Federal District Court, (Shelby between Fort and Lafayette – Detroit, Michigan) Judge Lawson's Courtroom
"The question of whether or not we get a trial will completely determine whether or not we win or lose in the higher courts," said Shanta Driver, BAMN attorney. "Several members of the Sixth Circuit have already expressed their hostility to affirmative action programs, pre-judging them as 'preferences' for minority students. Only with a full trial can we prove that, contrary to being a 'preference,' affirmative action programs are the only effective anti-discrimination measures ever found that can desegregate our nation's universities."
A trial in this case will determine whether the standards of Plessy v. Ferguson will be restored, i.e. whether there is a legal ban on all desegregation measures.
The factual disputes in the case are (1) whether affirmative action programs are the only means for keeping the universities desegregated, (2) whether the universities' admission criteria without affirmative action are irremediably discriminatory against black, Latina/o, and Native American students, (3) whether Proposal 2 was an intentional attempt to exclude minorities from the state's universities, and (4) whether Proposal 2 has relegated racial minorities to a Jim Crow procedure for securing relief from the discrimination that they otherwise will face in university admissions.
"The entire argument of the opponents of affirmative action is built on two myths. The first myth is that racial discrimination has decreased so dramatically that minorities can compete under the existing criteria if only they work harder. The second myth is that the existing admissions criteria are racially neutral," continued Ms. Driver.
The opponents of affirmative action used the code word "preference" to appeal to white people's fears of being displaced by the growing minority populations of this nation. The sole support for Prop 2 came from white voters. Comprising 87 percent of the electorate, white voters approved Prop 2 by a two-to-one majority. Black voters rejected it by a nine-to-one majority.
From Andrew Johnson's veto of the Freedman's Bill through the segregationists' opposition to the Civil Rights Act of 1964, the opponents of integration have always called a change in the existing (and discriminatory) state of affairs a "preference."
But in Brown v. Board of Education and in the legion of cases that followed it, the Supreme Court insisted that in cases of racial discrimination the courts must look at reality and not at the verbal formulas used to justify that reality. Unlike the Sixth and Ninth Circuit panels that expressed approval for Proposal 2 and Proposition 209 based upon their linguistic analysis of the terms "equal" and "preference," Brown did not compare the language of the Equal Protection Clause with the language "separate but equal." On the contrary, it held that the constitutional legitimacy of "separate but equal" could only be decided by considering the actual effects of segregation on minority students "in light of [public education's] full development and its present place in American life..."
In the deposition taken by BAMN on October 24, 2007, Connerly said that he knew before proposing Proposal 209 in California that the California K-12 educational system was highly unequal and that this contributed to the lower adjusted grade point averages of black, Latina/o and Native American applicants to the University of California. He admitted that white students are given an advantage when test scores are used in an admissions system that does not consider race. Connerly also admitted that he knew beforehand that Proposal 2 would drive down the number of minority students at selective schools—and that there was nothing the admissions officers could do to stop it. Moreover, he admitted, that was the result he wanted—in order to administer what he called "tough love" to minority students. (Get the transcript of the Connerly deposition here.) BAMN believes that all these admissions make clear that Proposal 2 was an intentional effort to drive underrepresented minorities out of the University of Michigan and the state's graduate and professional schools.
The Supreme Court has held repeatedly that the Fourteenth Amendment prevents a white majority from (1) passing laws that intentionally exclude racial minorities from education, or (2) imposing more onerous political burdens on racial minorities when they attempt to win passage of programs that they hope will eliminate or lessen the problems caused by racial discrimination.
"Proposal 2 has placed black, Latina/o and Native American residents in the jaws of a vise. They cannot secure admission to the universities as long as Proposal 2 exists—but they also have no possibility whatever of repealing Proposal 2. This situation is neither just nor socially tenable," said George Washington, BAMN attorney.
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