Civil Rights Groups Join Equal Justice Society in Brief Urging Court to Strike Down Anti-Equality Law in Michigan

Civil Rights Groups Join Equal Justice Society in Brief Urging Court to Strike Down Anti-Equality Law in Michigan
Equal Justice Society Press Release

Download a PDF of this release Download a PDF of the amicus brief

SAN FRANCISCO (November 3, 2011) - The Equal Justice Society and more than a dozen other civil rights organizations this week filed an amicus brief in the U.S. Court of Appeals for the Sixth Circuit, urging the court to strike down Michigan's anti-equality Proposal 2 as unconstitutional.
In its brief, EJS argues that Proposal 2 violates the Equal Protection Clause of the 14th Amendment of the Constitution by creating procedural barriers for people of color.
"Since its founding, certain interests in America have tried to restrict access to the political process," said Eva Paterson, President of the Equal Justice Society. "First only white male landowners could vote. The franchise was expanded after the Civil War but women could not participate. Now we see many states erecting barriers to voting that may appear harmless, but are designed to keep voters of color from helping shape their political destinies. The national civil rights community speaks in one strong voice in opposing these measures, including Michigan's Proposal 2."
Several organizations joined EJS in signing the brief: the California Voting Rights Institute, Public Advocates, LatinoJustice PRLDEF, the Asian American Legal Defense and Education Fund, the National Women's Law Center, Chinese for Affirmative Action, Worksafe, South Asian Network, the Association of Asian American Attorney and CPA Firms, the Council of Asian American Business Associations, Equal Rights Advocates, and the Asian American Justice Center and the Asian Pacific American Legal Center, the latter two both members of the Asian American Center for Advancing Justice.
Michigan voters passed Proposal 2 in 2006, amending the state's constitution to prevent the state government from advancing equal opportunity by considering race, sex, color, ethnicity, or national origin. In March 2008, a federal district court judge upheld the law, but the decision was reversed this July by an appeals court panel. The case is now under consideration by the full Sixth Circuit Court of Appeals.
"We stand with our civil rights allies in opposing Proposal 2 and other similar laws that exclude racial minorities and women from the political process," said Allison Elgart, Supervising Attorney at the Equal Justice Society. "When people of color have to amend the state constitution just to have their interests represented, the law is not protecting their right to equal protection under the law, and the court should step in."
"Proposal 2 is the most recent example of a voter initiative that restructures the political process in a non-neutral way and places special burdens on racial minorities who want to lobby for race-conscious admissions processes," reads the brief. "Voting changes and requirements that disproportionately impact racial minorities and provide them less opportunity than others to participate in the political process and effectuate their choices are violations of the Equal Protection Clause."
The brief cites several reasons why Proposal 2 violates the Constitution:
The law impedes participation in the political process by people of color. After Proposal 2 passed, advocates of race-conscious admissions policies can no longer lobby admissions committees or university administrators. Their only recourse is to launch another statewide initiative, a costly process that could take years to see through to its conclusion. Advocates for other considerations in the admissions process do not face the same burden and are free to continue lobbying admissions committees without structural limitations.
People of color have historically faced hurdles that hinder participation in the political process. Participation in the political process by people of color in the past has been thwarted by literacy tests applied differently to distinct racial groups, electoral redistricting that disfavored racial minorities, and more recently by states that have established seemingly innocuous voter requirement laws that often result in racial exclusion and vote suppression. Courts have found these seemingly "neutral" laws unconstitutional if their purpose is to impede participation by people of color in the political process. Proposal 2 falls into this category.
Proposal 2 is a modern reincarnation of white primaries, literacy tests, and redistricting. Like voting, lobbying to change the admissions processes in Michigan is a way for people of color to participate in governance. The Equal Protection Clause "guarantees racial minorities the right to full participation in the political life of the community," and therefore requires that every group has equal opportunities to participate in the decision-making process, particularly in the context of public education. Proposal 2 prevents the full participation by people of color in the decision-making process regarding admissions.
The case should be fully briefed before the Sixth Circuit Court of Appeals by the end of the year and the Sixth Circuit will then set a hearing date.
Download a PDF of this release Download a PDF of the amicus brief
The Equal Justice Society is a national legal organization focused on restoring Constitutional safeguards against discrimination. We aim to achieve a society where race is no longer a barrier to opportunity. We use a three-pronged approach - combining legal and policy, Grand Alliance and communication strategies - to reverse those laws and policies that erode the protections guaranteed by the 14th Amendment of the Constitution.
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Calif. Attorney General Says Prop. 209 Unconstitutional in Some Cases

Equal Justice Society
Posted by Keith Kamisugi on Wednesday, April 22, 2009
UPDATE: Article by the San Francisco Chronicle’s Bob Egelko

California State Attorney General Jerry Brown today filed a brief (PDF) with the state Supreme Court today opining that article 1, section 31 of the California Constitution (Prop. 209) is unconstitutional as applied in certain circumstances.
The letter brief was filed in response to the Supreme Court’s request for an opinion regarding Coral Construction v. City and County of San Francisco, a case pending before the Court concerning whether San Francisco’s attempt to remedy longstanding exclusion of minority- and women-owned businesses in its public contracting violates article I, section 31.
The letter stated: “To the extent that the prohibitions against race- and gender-based discrimination in article I, section 31 of the California Constitution (hereafter referred to as section 31) are aligned with the prohibitions enforced under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, section 31 is constitutional.
“However, to the extent that section 31 is interpreted more broadly to bar race- or gender-conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause of the federal Constitution, pursuant to Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457 (Seattle) and Hunter v. Erickson (1969) 393 U.S. 385 (Hunter). To that extent, section 31 would create an unequal political structure based on race and gender that is not narrowly tailored to achieve a compelling governmental interest.”
“It is unclear precisely what governmental interest section 31 was intended to serve,” the letter also stated. “If it is the interest in protecting all Californians from discrimination based on race or gender, that is concededly a compelling governmental interest. However, there appears to be no factual basis to support a governmental interest in denying preferences that are permissible under the Fourteenth Amendment.
“Ironically, by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, section 31 seems to accomplish the very evil it purported to eliminate, viz. racial and gender discrimination.”

Full Post: http://www.equaljusticesociety.org/2009/04/calif-attorney-general-says-prop-209-unconstitutional/

Bar Exam Data Debate About Privacy, Not Affirmative Action

Equal Justice Society
By Anthony Solana, Jr. and Sara Jackson

A Sept. 17 Times editorial characterizes a UCLA law professor’s request for the confidential data of state bar exam takers as a debate over affirmative action.Proponents of equal opportunity do not fear Prof. Richard Sander’s hypothesis that affirmative action puts Black law students in institutions where they are doomed to fail. Our opposition to his specific request for bar exam data is rooted in the protection of exam takers’ privacy and compliance with the law.The Times editorial dismisses these concerns as “spurious” and then provides no explanation to support that view. Instead the Times advances Sander’s and the California First Amendment Coalition’s attempts to convert this into a controversy over affirmative action because their anti-privacy arguments have no merit.For example, Sander wants exam takers’ undergraduate and law school GPA, LSAT as well as bar scores – even though individuals who take the bar cannot access these scores themselves.The State Bar cannot disclose information provided by exam applicants, irrespective of its relevance in a public policy debate, because state and federal law precludes its disclosure absent consent. One’s private records do not become public records, accessible to anyone, simply because a person applies to take a state exam and becomes part of a database.It is on these legal grounds that the State Bar Board of Governors voted unanimously to deny Sander’s request and why many prominent lawyers support the Bar’s protection of bar exam takers data. In a Nov. 7, 2007, letter to the State Bar president and chair of the Bar’s Regulations, Admissions & Discipline Committee, 28 lawyers and leaders of bar organizations, both local and statewide, wrote:“The State Bar holds the confidential information of Bar applicants in trust. It is not at liberty to divulge these applicants’ confidential information because they have a right to privacy in this information and a right to due process with respect to its disclosure.”Sander's research design solves neither the problem of consent nor the problem of privacy. Given the current demographic makeup of many of California’s top law schools, simply removing names and other identifying characteristics does not ensure the confidentiality of all applicants.At UC Berkeley and UCLA Law Schools, several classes have had 10 or fewer Black students since the adoption of Proposition 209. Small numbers of Black students in a class are typical of some private law schools as well. Under such circumstances, even “anonymized” data can still render persons easily traceable, and in such cases the law prohibits disclosure of academic records without consent. As Dean Larry Kramer of Stanford Law School stated in a letter to the State Bar on this issue last year: “[t]he use of these records envisioned by the Sander team would violate FERPA [the Family Education Rights and Privacy Act of 1974].”The disclosure of such educational records presents a serious legal question, not fairly characterized as “spurious.”And to the extent that the issue of political motivation or orthodoxy is invoked, it surely should be considered with respect to all sides. After all, Sander’s research is funded by a $1 million grant from the conservative Scaife Foundation $1.2 million grant from the Searle Freedom Trust and enjoys the full support of all of the conservatives now in control of the U.S. Civil Rights Commission, including Gail Heriot—one of the authors of Proposition 209. That Sander has a right to advocate his position is undeniable. He doesn’t have the right to acquire personal and confidential information of bar exam takers when the law mandates otherwise. Anthony Solana, Jr., is president and chairperson of For People of Color, Inc. Sara Jackson is the Equal Justice Society Judge Constance Baker Motley Civil Rights Fellow. For more information on this issue, visit www.equaljusticesociety.org.

Notes on the Right: Connerly's Super Tuesday

By Lee Cokorinos
for the Equal Justice Society
Summer 2007

November 2006, when Ward Connerly scored his first state ballot initiative victory against affirmative action in eight years with a lopsided 58-42 percent win in Michigan, speculation has been rife over where he and his wealthy backers would next turn their attention.

In a speech to the Heritage Foundation in March, Connerly declared his intention to expand on the Michigan win by organizing a multi-state “Super Tuesday for Equal Treatment,” calling it “the most high stakes effort that we will ever engage in.”

At the Heritage briefing, Connerly said he would be choosing five states to target from a list of nine, but subsequently cut the number to four. He may have run into difficulty finding the resources and well-connected in-state supporters needed to sustain a coordinated campaign across such a wide field.

In late April, at a high profile event in Denver, Connerly finally declared his intention to target Colorado, Missouri, Oklahoma and Arizona with simultaneous initiatives on November 4, 2008. Campaign announcements in the other three states followed. If passed by the voters, these referenda, using identical ballot language, would outlaw state-level affirmative action policies on race and gender in public education, contracting and employment.

The Supreme Court: A “Speed Bump”Connerly has sought to present his initiative as a grassroots effort, a mischaracterization repeated by the Christian Science Monitor. But this is no grassroots movement. The main supporters of his “Super Tuesday” campaign come from the same cozy circle of well-funded conservative political operatives who have been backing the national assault on diversity policies since the early 1990s. In his Heritage talk, Connerly referred to them as “our own vast right wing conspiracy.”

Connerly told his audience that he has formed a twelve member “working group” to “fashion a national campaign” to overturn the “diversity rationale” that the Supreme Court applied in upholding affirmative action at the University of Michigan. Chastising his colleagues for taking too timid an approach to overturning Grutter, Connerly has declared that “a negative court decision should be regarded as merely a speed bump.”

The working group for “Super Tuesday,” which is being run under the umbrella of Connerly’s American Civil Rights Coalition, includes, among others, Linda Chavez and Roger Clegg of the Bradley foundation-funded Center for Equal Opportunity. Clegg has been working for several years on a project to uproot state legislation and regulations that attempt to secure diversity in education, contracting and employment. Peter Kirsanow, a member of the U.S. Commission on Civil Rights and National Labor Relations Board, was also named by Connerly as being part of the group; as was Manuel Klausner, co-author of California’s Prop 209 and immediate past chair of the Federalist Society’s Free Speech and Election Law Practice Group.

Other members include Terry Pell of the Center for Individual Rights, also funded by Bradley, which litigated the University of Michigan cases for lead plaintiff Jennifer Gratz (now director of state and local initiatives for Connerly); and John Carlson, the Seattle talk radio host who spearheaded I-200, the 1998 initiative banning affirmative action in Washington State.

Abigail Thernstrom, a member of the U.S. Commission on Civil Rights, is also in the working group. Thernstrom has been waging academic warfare against diversity policies and serves on the boards of both the Center for Equal Opportunity and Clint Bolick’s Institute for Justice.

Battleground StatesIn three of the four states targeted by Connerly, leading members of the anti-civil rights infrastructure established over the past two decades by the Right’s major foundations form the core of his support. [To read the entire story, go to: http://www.equaljusticesociety.org/newsletter_10/story2.html]