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.
Donate to EJS or attend one of our events so thatwe can continue our important work

Sixth Circuit to hear Michigan affirmative action case en banc

Lexology.com
Squire Sanders & Dempsey
Bruce A. Khula
USA
September 12 2011

On September 9, 2011, the Sixth Circuit voted to rehear en banc the panel decision in Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (6th Cir. Nos. 08-1387, 08-1389, 08-1534, 09-1111) (PDF). With Judges Kethledge and McKeague having recused themselves, the Court voted (PDF) to vacate the panel decision, stay the mandate and set the matter for rehearing by the entire Court. In a subsequent order, the Court established appellants' briefing due on October 11, 2011, with briefing by the appellees due on December 12, 2011. A date for oral argument has not yet been set.

Full Story: http://www.lexology.com/library/detail.aspx?g=0f2e05ce-58b9-4cd8-8ed8-163c448ae185

Race-based affirmative action in peril

US NEWS

Published: Aug. 7, 2011 at 3:30 AM
By MICHAEL KIRKLAND



WASHINGTON, Aug. 7 (UPI) -- Two cases are pushing affirmative action toward the U.S. Supreme Court again where simple arithmetic suggests it might snap like a board under too much pressure.

The high court ruled on race-based affirmative action in two landmark cases in 2003. Then, like now, the court was divided into a conservative bloc and a liberal bloc, with two members, Justices Sandra Day O'Connor and Anthony Kennedy often forming the swing votes



Read more: http://www.upi.com/Top_News/US/2011/08/07/Under-the-US-Supreme-Court-Race-based-affirmative-action-in-peril/UPI-25071312702200/#ixzz1UiTpLXID

Editorial: A victory for college diversity

The Denver Post
We agree with a federal court ruling that overturned a Mich. ban on affirmative action, but this issue isn't going away. Posted: 07/06/2011 01:00:00 AM MDT


A federal court decision last week overturning a Michigan ban on affirmative action is a victory for those who see value in considering diversity in college admissions.
It's clear that such sensitivities are important to Coloradans — who voted down a similar ban in 2008 — and to state university officials, who have been working hard to increase minority representation on their campuses.
We're hopeful the Michigan decision, which assuredly will be appealed, will withstand further scrutiny.
We have long favored the policy in Colorado allowing race and gender of applicants to be a consideration in a small portion of college admissions.

Read more: Editorial: A victory for college diversity - The Denver Post http://www.denverpost.com/opinion/ci_18413304#ixzz1STZETUVF

Steps Forward and Back for Affirmative Action

The Chronicle of Higher Education
July 5, 2011, 2:21 pm
By Richard Kahlenberg

Last week, a federal appeals court panel struck down a 2006 Michigan voter initiative amending the state constitution to ban racial and ethnic affirmative action. By 2-1, a panel of Sixth Circuit judges found that the voter ban “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”
An effort to ban affirmative action by lobbying college-admissions committees would have been permissible because minority advocates could seek to overturn such decisions, the court said, but changing the state constitution violates the federal constitution because the only recourse for minority advocates is to alter the state constitution—a formidable task.

Full Story: http://chronicle.com/blogs/innovations/steps-forward-and-back-for-affirmative-action-2/29773

Editorial: A mistaken ruling on affirmative action: State law is bad policy, but not unconstitutional

Detroit Free Press
1:48 AM, Jul. 3, 2011

Like many who believe that the thoughtful application of affirmative action policies has advanced the educational interests of all students, we were dismayed when, in the 2006 general election, Michiganders voted to ban the consideration of race and gender in college admissions.
But it is quite a leap from our conviction that banning affirmative action was bad policy to the contention that such a ban is unconstitutional.

Full Story: http://www.freep.com/article/20110703/OPINION01/107030465/Editorial-mistaken-ruling-affirmative-action-State-law-bad-policy-not-unconstitutional?odyssey=modnewswelltextFRONTPAGEp

Court reinstates Michigan affirmative action

The South End
Michigan attorney general says he plans to fight ruling
By EMILY MORMAN The South End

Affirmative action is once again legal in Michigan’s public colleges and universities.
The United States Court of Appeals for the Sixth Circuit ruled July 1 that Proposal 2, which banned race, gender, ethnicity or national origin from being considered in public university admissions, public employment or public contracting, is unconstitutional.
It’s a tremendous victory for literally thousands of black, Latino and Native American students who never would have had the chance to go to the University of Michigan or its graduate schools or Wayne State’s graduate schools or Michigan State’s graduate schools if this proposal had remained in effect,” said BAMN attorney George Washington at a press conference July 1.

Full Story: http://thesouthend.wayne.edu/index.php/article/2011/07/court_reinstates_michigan_affirmative_action

Proposal 2 challenge continues

Detnews.com
Last Updated: November 17. 2009 10:52AM
Laura Berman

Three years after Michigan voters approved Proposal 2, the constitutional amendment that ended the use of affirmative action in college admissions, lawyers are set to argue in a federal appeals court that the new law is unconstitutional.
And while you might not want to bet big on the challengers -- they lost an opening round in U.S. District Court -- their case is intriguing.
The ACLU is representing 18 students and faculty members at the University of Michigan in its lawsuit against the state of Michigan, saying that Proposal 2 violates the Equal Protection Clause of the 14th Amendment. The new law makes any effort to reinstate affirmative action laws difficult -- creating an undue burden on minorities who would benefit from such laws, they argue.
What's clear, and unsurprising, is that Proposal 2 has cut into African-American enrollment at state universities, especially at the University of Michigan, the state's most selective school. While the law hasn't had an impact on gender or some minorities, Native American and African American admissions are down at U-M and some other state universities.

Full Story: http://www.detnews.com/article/20091117/OPINION03/911170342/Proposal-2-challenge-continues

U-M African-American enrollment increases in wake of Prop. 2

BY ROBIN ERB
FREE PRESS EDUCATION WRITER
October 20, 2008

Nearly two years after Michigan voters banned the use of affirmative action in college admissions, University of Michigan’s incoming class shows a marked increase of African-Americans — even at a time it has also shrunk the size of its freshman class.
The reason?
Targeted recruitment of underrepresented minorities, said senior vice provost Lester Monts.
“Proposal 2 doesn’t prohibit targeted outreach,” Monts said. “You can target high schools, you can target neighborhoods, and you can even target minority groups,” he said.
Meanwhile, other minority groups lost ground and the portion of white freshman from the United States increased slightly from 65.2 % of the freshman class of 5,783 to 68.5 %.
According to numbers released today, the numbers of African-American students grew from 334 to 374, an increase of 12% at the same time the university, fearing its freshman class had grown too much over the years, thinned its class this year from 5,992 to 5,783.
U-M was ground zero for the debate over Proposal 2 in 2006 because it openly considered race in its admissions process. The measure, passed in 2006, went into effect in January 2007 and — halfway through the admissions process for the fall 2007 class — admissions officers had to stop considering race or gender as a factor.
Opponents of Proposal 2 feared sharp declines in enrollment of underrepresented minorities, but proponents had called the use of affirmative action considerations unfair, saying universities can find other ways to diversity their student bodies.
University officials have said they have been in good position to search for diverse applicants because its admissions process had become increasingly sophisticated over the years, asking candidates things like: Do you work to support your family? Are you a first-generation college student? Do you have dependent children?
They also target specific areas of Michigan.
[To read the entire story, go to: http://www.freep.com/article/20081020/NEWS06/81020072/-1/rss07 ]

After Proposal 2, Grand Valley State University minority freshmen enrollment falls 30 percent

MLive.com
by Nardy Baeza Bickel The Grand Rapids Press
Tuesday September 09, 2008, 7:32 AM

ALLENDALE TOWNSHIP -- While Grand Valley State University's incoming class is the largest in the college's history, those figures show a steep drop in the number of incoming minority students.
This fall, 380 minority freshmen enrolled at GVSU, compared to 540 last year -- a 30 percent decline. Total freshman enrollment is 3,856.
The number of Asian freshmen enrolling dropped from 157 last year to 77 this year, blacks from 230 last year to 179, and Hispanics from 129 last year to 104.
"It's unacceptable, disappointing, but not unexpected," GVSU President Thomas Haas said. "Proposal 2 really has created this new reality for us."
While GVSU never used racial preferences in its admissions, Proposal 2 -- which banned such preferences statewide -- forced administrators to eliminate their favorite recruitment tool for highly qualified minority students: the Bert Price Awards scholarships.
The awards offered four-year, full-tuition scholarships for minority students who met strict academic requirements. In 2006, $5.7 million was awarded to about 825 minority students.
That's pretty generous compared to the financial aid recruiters were able to offer this year's freshmen: $3,000 a year for those coming from certain urban schools.
"That's significantly different than having full tuition. It's a different price tag," Vice Provost Lynn Blue said.
"Families are wanting to make an effective decision and one of them is, 'How can I afford to pay for this?'"
GVSU senior Ebony Cross, 21, of Detroit, agreed. [To read the entire story, go to: http://www.mlive.com/grpress/news/index.ssf/2008/09/after_proposal_2_grand_valley.html ]

Imagine Fund will offer race and gender-based scholarships in response to 2006 anti-affirmative action law

Kalamazoo Gazette
Wednesday, August 20, 2008
BY PAULA M. DAVIS

KALAMAZOO -- A new organization called The Imagine Fund plans to offer college scholarships beginning in fall 2009 that will consider an academically qualified student's race, gender or other characteristics.
Considering race or gender in awarding a scholarship is a practice that in late 2006 was banned at the state's public universities and colleges.
The private nonprofit -- established in 2007 and now beginning its first public fundraising campaign -- was formed in response to that voter-approved measure outlawing some forms of affirmative action in Michigan.
``The Imagine Fund was conceived, quite frankly, because a small group of us were very concerned, angry, annoyed at the passage of Proposal 2,'' Nanette Reynolds, The Imagine Fund president, said Tuesday in a meeting with Kalamazoo Gazette staff.
Organizers worry Proposal 2 limits access to higher education for some and ultimately hurts the state.
``At a time when the economy is really suffering is not the time to pull back on financial aid for qualified students,'' said Diane M. Purgiel, the organization's vice president of development.
Members of the founding board of directors include former state officials, such as David Hollister, former director of the Michigan Department of Labor and Economic Growth. Its ``honorary adviser'' is Mark Murray, one-time president of Grand Valley State University and now Meijer Inc.'s chief executive. [To read the entire article, go to: http://www.mlive.com/news/kzgazette/index.ssf?/base/news-30/1219243809214310.xml&coll=7 ]

University of Michigan president pledges to make campus environment welcoming for minority students

MLive.com
May 1, 2008

"We'll do whatever it takes within the law - we follow the law - we'll do whatever it takes to create the kind of environment that will be a great experience," Coleman told the audience of about 100 people, mostly black, on Wednesday evening.
Invited to talk about higher education after Proposal 2, Coleman said the university has continued to refine and step up its recruitment efforts. But she said it needs support from the community to encourage students to apply, and if they are accepted, to enroll at U-M.
"We give every student applying to the university the opportunity to tell us what is special about you," said Coleman, during the talk at the Charles H. Wright Museum of African American History.
Approved by voters in November 2006, Proposal 2 barred consideration of race or gender in higher education, forcing the university to alter its admissions process and replace some scholarships.
Since then, U-M hired more admissions staff to help pore over applications. It has added programming at its Detroit Center on Woodward Avenue to increase its ties to Detroit, and a student group uses the center on Saturdays to offer SAT and ACT test-prep to local high schoolers, said Coleman.
As they have in previous years, faculty, students and Coleman have personally called admitted students to persuade them to enroll. Coleman said this year her entire executive team made phone calls.
Reporter Dave Gershman can be reached at 734-994-6818 or mailto:dgershmanr@annarbornews.com.And Coleman said the use of software from the College Board called DescriptorPLUS - which includes demographic and socio-economic data on neighborhoods and high schools across the country - has let the university better focus its outreach visits to high schools that haven't historically sent many students to the university. A director will be named next week for a new center on campus to support K-12 partnerships and increase the number of students interested in applying to the university.
Proposal 2 took effect midway through the admissions cycle of the freshman class that arrived on campus last fall. That class had 334 black students, four more than the previous year. But because the overall class size was larger, black students made up 5.8 percent of the class, the smallest proportion of black freshman dating back to at least 1998.
Later this month, U-M is expected to give the first clue to the demographics of the next freshman class when it releases information on students who've paid deposits to reserve a spot for next fall.
Katrina Carter of Detroit, one of the audience members, said the university is doing what it can to recruit minority students. "It's good to hear that it's an ongoing process and to kind of engage the community," she said. http://blog.mlive.com/annarbornews/2008/05/university_of_michigan_preside.html

Judge upholds Prop 2, dismisses suit

FREEP.com
DAVID ASHENFELTER • FREE PRESS STAFF WRITER • March 18, 2008

A federal judge today dismissed a lawsuit challenging the constitutionally of Proposal 2, the Michigan Civil Rights Initiative that banned race and gender affirmative action in university admissions and government and public school hiring and contracting. "We agree with judge's decision," Rusty Hills, spokesman for Michigan Attorney General Mike Cox said today after U.S. District Judge David Lawson dismissed a lawsuit brought by high school and college students who said they were harmed by the proposal, which Michigan voters passed in 2006 by a 58% to 42% margin.
"We're glad to see the federal court upheld the will of the people," Hills added. "The attorney general supported Proposal 2 from its very inception."
A lawyer for the plaintiffs vowed to appeal.
"We're appealing immediately," said Detroit lawyer George Washington. "We don't think in the 21 Century that laws should be passed that are intended to have the effect of excluding black and Latino students from the universities in this state.
Contact DAVID ASHENFELTER at ashenf@freepress.com.
http://www.freep.com/apps/pbcs.dll/article?AID=/20080318/NEWS06/80318067

Statement from LDF Director-Counsel and President Ted Shaw regarding Cantrell v. Granholm.

February 6, 2008
Statement from LDF Director-Counsel and President Ted Shaw regarding Cantrell v. Granholm.

On Wednesday, February 6, oral arguments were heard in Cantrell v. Granholm, a lawsuit filed by the NAACP Legal Defense and Educational Fund (LDF), the ACLU, and the Detroit State Conference of the NAACP challenging Proposal 2 in Michigan. Proposal 2 effectively denies access to higher education for people of color who are applying to the state's public universities. Unfortunately this is part of a national assault on efforts to provide access to higher education for students of color. "Proposal 2 is a wolf in sheep's clothing, cutting off the pathways towards a higher education for many students of color. As the Supreme Court held in Grutter, which upheld efforts to ensure equal opportunity at the University of Michigan: 'effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized.' If left in place, Proposal 2 would curtail the participation of students in Michigan's institutions of higher education." "Some claim that we've moved beyond race in our nation, but this case is a stark reminder that issues of race still matter, especially when equal opportunity is not being afforded to all. Here, Proposal 2 fundamentally alters the structure of Michigan's political process so that the only way to achieve the 'dream of one nation, indivisible' in higher education is to amend the State's Constitution." "The Supreme Court has long held that such barriers violate the Fourteenth Amendment's guarantee of equal protection of the laws. The Court should uphold these core constitutional principles and strike down Proposal 2." http://www.naacpldf.org/content.aspx?article=1243

U-M president reaches out to Detroit students Talk sets welcoming tone, demystifies entry process

Wednesday, January 23, 2008
BY DAVE GERSHMAN
The Ann Arbor News

DETROIT - After fielding questions about the intricacies of financial aid forms, study abroad programs and campus life at a forum in a Detroit church Tuesday, University of Michigan President Mary Sue Coleman called on a man in the back of the sanctuary.
He asked a trickier question: Why should a student choose U-M over a private, out-of-state university in the wake of the passage of Proposal 2, the Michigan constitutional amendment that banned consideration of race and gender preferences in public education.
Coleman replied that she is committed to maintaining access to U-M, and she compared the university to five others she has known during her academic career.
"I will promise you none of those schools holds the candle to the experiences that students get (at U-M) and (to) the degree of dedication that runs up and down the institution for equity and social justice in this society,'' she said to applause. "... And so that's what I would tell a student, why you should come to Michigan: We want you.''
The dialogue came during a forum on access to higher education that doubled as a minority student recruitment event at the Greater Grace Temple, one of the largest churches in Detroit. It was the eighth time since 2004 that Coleman has lent a personal touch to minority student recruitment efforts by visiting black churches across the state.
Coleman brought more than a dozen top administrators to provide detailed answers to questions from an audience of about 350 parents and teenagers. She talked about the supportive environment on campus that would allow students to reach their full potential.
"We help people find their way at Michigan,'' she said. "Even though it's a big university, we work hard to make it small and make those connections right away so that students can get into their comfort zone and have somebody to talk to, and go find out what it is that makes them just want to jump out of bed in the morning and be really excited.''
Getting the message out to prospective minority students that U-M is a welcoming place has been a priority for many years. After student demonstrations in the early 1970s when the percentage of black enrollment was in the low single digits, U-M administrators set 10 percent as a goal. Three decades later, U-M has not achieved it, despite several variations of affirmative action admissions methods, including the process adopted in 2003 after the U.S. Supreme Court ruled race could be considered as one of many factors in admitting students.
Then Michigan voters passed Proposal 2 in November 2006, forcing U-M to alter its methods again. It had to stop any consideration of race and gender preferences in admissions midway through the application cycle for the freshman class that arrived on campus last fall.
Although the 334 black freshmen who eventually enrolled was four more than the previous year, the overall numbers in the class also increased, making the black enrollment 5.8 percent. That was the smallest proportion of black students in a freshman class dating back to at least 1998.
[To read the entire article, go to: http://www.mlive.com/news/annarbornews/index.ssf?/base/news-26/120110293395850.xml&coll=2]

BAMN Files Legal Argument for a Full Trial on Michigan's Anti-Affirmative-Action Proposal 2

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.
www.BAMN.com

6th Circuit court says affirmative action appeal is moot

MLive.com (Michigan)
8/28/2007, 5:55 p.m. ET
The Associated Press

LANSING, Mich. (AP) — A federal appeals court on Tuesday rejected a challenge to letting Michigan voters decide an anti-affirmative action ballot proposal in November 2006, ruling that the issue is moot.
The 6th U.S. Circuit Court of Appeals in Cincinnati denied the appeal by opponents of the constitutional amendment despite agreeing that the measure "found its way on the ballot through methods that undermine the integrity and fairness of our democratic processes."
The three-judge panel, however, said the chance to keep Proposal 2 off the ballot "has long since passed." The measure, which was approved by voters, bans preferential treatment based on race and gender at public universities in Michigan.
Before the 2006 election, U.S. District Judge Arthur Tarnow in Detroit ruled that opponents proved the Michigan Civil Rights Initiative "committed voter fraud in obtaining signatures in support of the petition." But they did not prove the MCRI violated the federal Voting Rights Act by depriving minorities of equal access to the political process, he said.
The 6th Circuit later refused to grant an injunction to keep the anti-affirmative action proposal off the ballot.
On Tuesday, the appeals panel ruled that opponents of the measure wrongly tried to appeal on a different issue. Other lawsuits challenging all or parts of Proposal 2 continue in federal courts.
[http://www.mlive.com/newsflash/michigan/index.ssf?/base/news-46/118833811645130.xml&storylist=newsmichigan ]