Taking affirmative action off the table

Before Abigail Fisher, there was Jennifer Gratz and Barbara Grutter. 

Until this past Monday, affirmative action’s fate was thought to hinge squarely on the anticipated Fisher v University of Texas opinion. The nine justices of the Supreme Court are currently deliberating that case, launched by a plaintiff rejected by the flagship Austin campus.

Recently, however, the Supreme Court announced that it would also review a case involving the statewide referendum that abolished affirmative action within Michigan in 2006. Following the landmark Gratz and Grutter v University of Michigan Supreme Court decisions in 2003, which upheld affirmative action as a means of promoting student diversity, opponents moved to eliminate it altogether by way of popular referendum.   

Ward Connerly and Gratz, the named plaintiff in the landmark 2003 Supreme Court decision, led these opponents. Approximately seven years after the duos – whom along with Abigail Fisher comprise the most prominent faces of the anti-affirmative action movement – spearheaded the ban toward a 58-42 percent victory at Michigan’s ballot boxes, the Supreme Court will review its legality after it releases its decision on Fisher (which is expected as soon as this week). 

Racism by referendum

After the Supreme Court upheld affirmative action as a constitutionally permissible means to enhance diversity in American colleges and universities, Ward Connerly launched statewide referenda to do away with it entirely within the court of public opinion. Affirmative action was abolished by referendum in California in 1998, and subsequently in Washington, Nebraska, and Michigan.

Connerly adopted a template strategy to mobilise popular support against affirmative action in each of these states. First, he deceptively titled the ban the “Civil Rights Initiative”, which connoted a pro-affirmative action stance and harkened the imagery of its namesake, the Civil Rights Movement.

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Second, Connerly solicited signatures and support within indigent, immigrant-heavy, of colour communities in the states. Exploiting the historic support of civil rights policies within these communities, which rank among the principal beneficiaries of affirmative action, was integral to the grassroots strategy. Connerly also employed unscrupulous signature gatherers who often lied to people about the aims of the initiative and when that failed, invented the names and signatures of voters. These tactics, combined with the deceptive title of the ban, facilitated the en masse defrauding of voters.

Third, the referenda campaigns capitalised on the caricatured stereotype of affirmative action held by many, particularly in white communities. Proponents of the bans pushed affirmative action as “quotas for blacks”, “preferences for minorities”, and “reverse discrimination”. These representations amounted to full-fledged lies, particularly since quotas were abolished in 1978 in the University of California v Bakke, and research documents that white women comprise the lead statistical beneficiaries of affirmative action. 

Michigan, one of the nation’s most segregated and economically dire states, was ripe for this “racism by referendum” strategy in 2006.           

‘The Michigan Civil Rights Initiative’

8 Mile Road is far more than merely the divider between Detroit and its affluent northern suburbs. It segregates white from black and brown. It stands as a socioeconomic Maginot Line separating Michigan’s 1 percent from its 99 percent. 

Connerly and Gratz vilified affirmative action as an affront to meritocracy when speaking to voters north of 8 Mile. However, misrepresented to the State’s growing indigent, disgruntled, black and brown citizens that the “Michigan Civil Rights Initiative (MCRI)” would enhance their opportunities in education and employment.

MCRI pushers were ubiquitously stationed throughout Michigan’s minority enclaves. By time the referendum was up for vote in Michigan 2006, a considerable majority of affirmative action supporters still believed that the proposal sought to safeguard, instead of eliminate, affirmative action. 

Despite the efforts of the African-American Policy Forum, the ACLU, and One United Michigan, the en masse deception carried out by Connerly and his cadre could not be reversed before voters took to the polls. By a margin of 58 percent to 42 percent, affirmative action was abolished in Michigan. 

Michigan’s re-entry in the affirmative action debate

This past November the 6th Circuit Court of Appeals invalidated the Michigan affirmative action ban. The decision was a surprise, and the Supreme Court’s granting of certiorari even more unexpected.

The Court of Appeals’ decision did not rest on the deceptive tactics used by Connerly and Gratz to secure the MCRI’s success in the polls. Rather, the Court’s decision rested on the prohibitive impact it had on affirmative action supporters’ lobbying efforts. In addition to re-segregating Michigan’s public universities and further limiting public employment opportunities for the State’s communities of colour, the MCRI stripped affirmative action supporters of the opportunity to lobby lawmakers and university officials to adopt more inclusive admissions policies.

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The Court found that this lobbying restriction “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.” 

Thus, enter a new twist in the affirmative action debate. The 2003 Grutter decision marked that affirmative action’s rehabilitative mission was “unconstitutional”, and the forthcoming Fisher decision was anticipated to threaten affirmative action’s last legal leg – its facilitation of campus diversity. 

However, Michigan’s re-entry into the supreme debate poses new hopes and new threats for states, like Michigan, where affirmative act has been abolished by referendum. Moreover, it has broader implications for a variety of contexts, including those states where gay marriage, for example, has been abolished by popular initiative.

Stacking the political deck via referendum

Referenda like Michigan’s anti-affirmative action initiative place minority rights, such as access to a university education, up for popular vote. Not only does this function to abolish the policy, but it also makes it nearly impossible to challenge to decision of the majority, as these referenda often result in changes to a state’s constitution. Given the expense of waging a statewide initiative campaign, these referenda effectively lock in discriminatory policies for generations to come.

In states like Michigan and California, this has meant that year after year, enrollments of students of colour continue to decline and yet the most effective policy mechanism to facilitate racial inclusion, affirmative action, is not an option for debate, let alone implementation. Indeed, even the most basic conversations regarding race in these institutional settings are often discouraged or delegitimised as a result of these discriminatory initiatives.

Moreover, the profound silence by lawmakers on issues of racial equity in higher education in states like Michigan and California is almost deafening. Lawmakers are loath to press for policies that will ensure racial inclusion in public institutions because of the cost of defending them in court when challenged by Ward Connerly and his backers.

In sum, the initiative process, left unchecked, effectively creates a discriminatory policy and insulates it from challenge at every level.

Given these dynamics, the significance of the decision by the US Court of Appeals for the 6th Circuit in striking down Michigan’s anti-affirmative action initiative cannot be overstated. It protects the right of communities of colour to be engaged in the political process, where they have historically been shut out. It mandates that the voices of communities of colour on questions of inclusion and justice be heard on an equal basis with their opponents.

Against this backdrop, the Supreme Court’s decision to review the case is troubling to say the least. Should the Supreme Court reverse the 6th Circuit’s judgment, discriminatory initiatives passed majorities in states across the country will be difficult to challenge, whether dealing with issues such as affirmative action, immigrant access to public institutions or gay marriage. 

Without access to the political process in places like Michigan and California, policies like affirmative action will remain permanently off the table for debate or discussion and our institutions will remain walled off to many promising students of colour.

Equal access to coveted college and university seats may not only be wholly eliminated, but the very democratic institutions whereby programmes are fought for may be denied for proponents of affirmative action.

The Supreme Court may take affirmative action off the table with Fisher, and a reversal of the Michigan case may strip civil rights activists from their very seat at the table.

Priscilla Ocen is an Associate Professor of Law at the Loyola Los Angeles School of Law. She worked with the African-American Policy Forum against the Michigan Civil Rights Initiative in 2006.

Follow her on Twitter: @blactivist

Khaled A Beydoun is the Critical Race Studies Fellow and Faculty at the UCLA School of Law. He helmed the African-American Policy Forum’s and the ACLU’s effort against the MCRI in 2006.

Follow him on Twitter: @Legyptian