Legal Experts: Michigan’s Proposal 2 likely to hold up November 10, 2006Posted by C.A.R.D in affirmative action, Amendment, ballot, California, Card, Citizens Against Racism and Discrimination, Lawsuit, Racism, Racist, Vote.
Studying California’s ban, they say legal challenges by pro-affirmative action groups expected to fail. Friends and foes of Proposal 2 are gearing up for a contentious legal battle, but ultimately the new amendment to ban government affirmative action will prevail in court, legal experts say.
One pro-affirmative action group has already filed a lawsuit alleging the law violates the U.S. Civil Rights Act and the equal protection clause of the U.S. Constitution and the University of Michigan is expected to file another.
“Although I was personally against the passage of Proposal 2, the odds of this lawsuit being successful seem remote,” said Lawrence A. Dubin, a law professor at the University of Detroit Mercy School of Law.
California voters passed in 1996 Proposition 209, a nearly identical ballot initiative to Proposal 2, which 58 percent of Michigan voters approved Tuesday.
At first a lower court deemed the California measure unconstitutional, but in 1997 the U.S. Ninth Circuit Court of Appeals unanimously declared the measure lawful and allowed it to take effect.
Nearly a decade later, Prop 209 lawsuits are still ongoing. However, they tend to be narrow in scope, such as anti-affirmative action groups challenging a particular school district or city’s outreach or contracting programs.
The Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), which has challenged Proposal 2 in Michigan, is not deterred.
It alleges that the amendment would prevent the state from following the Civil Rights Act of 1964, which mandates the elimination of polices that have the intent or effect of discriminating against people on account of their race, gender and ethnicity.
Jamin Raskin, a law professor at American University Washington College of Law in Washington, said the case most helpful to BAMN is the 1996 U.S. Supreme Court decision in Romer v. Evans.
That case involved a 1992 referendum in Colorado that amended the state constitution to ban laws and ordinances that prohibited discrimination on the basis of sexual orientation.
The Supreme Court ruled that Colorado’s laws put gays in the position of not being able to get protections that others could. BAMN argues that the Michigan constitutional amendment, though of an entirely different nature, similarly singles out blacks and women.
“It’s tough to argue that affirmative action is constitutionally compelled,” said Raskin.
Roger Clegg, president of the Center for Equal Opportunity, disagreed.
“Challenges like this were thrown around in California and they were all rejected,” said Clegg, whose group opposes affirmative action. “I would expect them to be rejected here.”
No doubt, Michigan’s political and legal climates are different from California’s. Then- California Gov. Pete Wilson was an ardent supporter of Prop 209, unlike Gov. Jennifer Granholm, who opposed Proposal 2.
When Prop 209 emerged victorious from federal court, Wilson urged California’s Legislature to repeal some 30 state programs the he believed violated the law.
Among them were pre-college outreach programs, such as SAT preparation for low-income and minority students, the California Summer Science and Technology Academy, designed to help high school students, particularly females and minorities, to participate in university-based research programs; minority- and women-owned business contracting requirements and scholarships to college students that take race, ethnicity or gender into account.
Now it is up to Granholm and Attorney General Mike Cox to enforce the law of the state.
On Thursday, Granholm signed an executive order directing the Civil Rights Commission to investigate the impact of Prop 2 on the state, said Granholm’s spokeswoman Liz Boyd.
The review, which would identify state programs that could be affected, will be complete before 90 days.
Barring a court injunction, Proposal 2 will take effect Dec. 22. It bans discrimination or use of racial preferences in government hiring, contracting and university admissions.
Because the term “preferential treatment” is not clearly defined, it is open to interpretation, legal experts say. Michigan courts will likely be left with the job of defining and clarifying the law, according to Michelle Crockett, an attorney with Miller, Canfield, Paddock and Stone.
“It is likely that there will be numerous lawsuits filed in the near future which will ultimately test the breadth of the amendment and its impact in Michigan,” Crockett said.
Compared to California, the state of Michigan has fewer programs that use race, gender and ethnic preferences, experts say.
The largest state scholarship — the Michigan Merit Award — is based on passing the MEAP standardized test.
Likewise, the state doesn’t use preferential treatment in hiring and promoting in the Michigan State Police. It doesn’t employ a women- and minority-business set aside program, aside from the Michigan Department of Transportation.