I’m now standing in a very crowded Apple Store in a very crowded mall and so don’t have much time, but I wanted to note, preliminarily (since I’m sure I’ll have more to say about it), that the ACLU and NAACP are among the plaintiffs in what, from this description, is a very weird suit against Michigan’s new constitutional amendment (Proposition 2/MCRI) banning racial, ethnic, and gender discrimination.
DETROIT – December 19 – Filing a lawsuit today on behalf of 19 students, faculty and applicants to the University of Michigan, a coalition of civil rights groups including the American Civil Liberties Union and the NAACP, are asking a federal court to declare that the newly passed Proposal 2 has not changed the Supreme Court’s view, stated as recently as 2003, that it is constitutionally permissible for universities to consider race and gender as one factor among many in university admissions.
“We are pleased to be able to represent current students and faculty, as well as prospective students, in a case that will be the first to evaluate exactly what Proposal 2 means in this state,” said Kary Moss, Executive Director of the ACLU of Michigan. “The recent decisions by the United States Supreme Court made clear that it is entirely within the law for universities to consider race or gender as one of many criteria in selecting their student body. Proposal 2 should not change that.”
The lawsuit, filed in U.S. District Court in Detroit, asks the court to issue a “declaratory ruling” explaining that Proposal 2 does not ban programs that use race or gender as part of the decision-making process in any manner whatsoever. Such a construction of the language of Proposal 2 would place an unconstitutional burden on the ability of protected groups to advance their interests and rights while leaving other members of the community free to advance theirs without any similar burdens.
There must be more to it than this, musn’t there? What is the point of asking a district court judge to declare that the Supreme Court has not changed its mind about what is “permissible”? And when did “permissible” become “mandatory”? That is, when the Court says a state may do something, does it really mean that it must, the state’s own constitution notwithstanding?
It sounds like these plaintiffs are asking a federal judge to “construe” the words of a state constitution so that they don’t mean what they clearly say. But I guess that wouldn’t be the first time courts have “construed” civil rights provisions that way….
The complaint can be found here, but I don’t have time to read it now. Stay tuned.
UPDATE [20 Dec.]
I’ve now had a chance to take a look at the ACLU/NAACP complaint, and it’s not a pretty sight. Indeed, the first two sentences of the complaint are what is at best a muddled misstatement based on a misquote:
1. On Tusday, November 7, 2006, Michigan voters passed Proposal 2, amending the state Constitution to “[b]an public institutions from using affirmative action programs that give preferential treatment to groups or individuals based on their race.” Proposal 2 does not ban programs that use race as part of the decision-making process in any manner whatsoever. Such a construction of the language of Proposal 2 places an unconstitutional burden on protected groups’ ability to protect their rights and would cause immediate and lasting harm.”
I don’t know what the second sentence means. If it were true that Prop. 2 did no ban “programs that use race as part of the decision-making process in any manner whatsoever,” then it’s not clear what the ACLU/NAACP’s objection to it is.
But of course it does ban some programs, but the quotation in the first sentence dealing with it what it does ban is so incomplete as to be misleading. Compare the ellipsis-less quote above what the actual text of the operative part of Prop. 2, which states clearly that if passed it would:
[b]an public institutions from using affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes.
Preferential treatment based on race, in short, is but one of the varieties of state-sponsored preferential treatment that Prop. 2 bans.
It is the bizarre claim of this complaint that Proposal 2 commits discriminatory disparate treatment against certain groups because it
would single out specific categories — race, sex, color, ethnicity, and national origin — and place on actions related to those categories greater burdens than exist on government action unrelated to race, sex, color, ethnicity, or national origin. Such disparate treatment on the basis of race, sex, color, ethnicity, or national origin is, and for nearly three decades has been, a textbook violation of Equal Protection principles.
It’s hard to know whether to laugh or cry at this claim. What the ACLU, NAACP, Laurence Tribe, and other worthies assert, with an apparently straight collective face, is that treating discrimination based on race, ethnicity, and gender in a different manner from other forms of discrimination (say, for or against peanut farmers or athletes) is to commit an unconstitutional form of discrimination.
In other words, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 banning racial discrimination — indeed, all civil rights acts that ban discrimination based on race or ethnicity or sex — are unconstitutional because they single out race for special treatment!
The same arguments were trotted out against Proposition 209 in California the day after it passed, and even the Ninth Circuit rejected them, virtually laughing them out of court:
To hold that a democratically enacted affirmative action program is constitutionally permissible because the people have demonstrated a compelling state interest is hardly to hold that the program is constitutionally required. The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits…. It would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it. [Citations omitted]
UPDATE II [21 Dec.]
Chetly Zarko is even more upset with this brief.
The period after race in the brief is a disgusting twisting of even the ballot summary. Indeed, I propose that it could be sanctionable misconduct on the part of the attorney signing the brief.
Well, I read the interesting parts of the complaint (skimming very lightly over a passel of plaintiffs’ biographies). The ACLU has a lot of chutzpah–if the court rules for plaintiffs it will also declare the 1964 Civil Rights Act unconstitutional by implication!
Plaintiffs do have some precedent on their side, though it would be easy enough to distinguish it. I think all of plaintiffs’ precedents are nasty decisions like Seattle School District No. 1 (1982) (electorate may not forbid racially-motivated busing).
I was surprised to see that plaintiffs did not cite to Romer v. Evans (1996), which stands plainly for the proposition that a statewide electorate may not repeal any preferences minorities may have obtained from local authorities.
Plaintiffs argument that a prohibition against discrimination is itself discriminatory calls to mind a recollected line from the case upholding California’s Prop. 209:
If merely asserting this argument does not refute it, then the Equal Protection Clause teeters on the brink of incoherence.
Michigan Attorney General Mike Cox has completely flip flopped in his support for Proposal 2 and his promise to defend it. He cut a deal that delayed enforcement of Prop 2 until July and, probably, forever.
Mark, it wasn’t exactly a well-drafted complaint; they managed to leave some diversity (no pun intended) jurisdiction language in there. (Plaintiffs and defendants are citizens of different states? I don’t think so.)
Seattle School District is a bad decision — a horrid decision, which essentially says that the Equal Protection clause violates itself — but as you say, distinguishable. (Of course, the easiest distinction is that Marshall, Brennan, and Blackmun aren’t on the court anymore.) In any case, even the Ninth Circuit rejected similar arguments; I don’t think they’ll be any more successful here. The point of this suit here is simply to drain funds and energy from the anti-discrimination movement.
One clarification: Romer stood for the proposition that a statewide electorate may not repeal antidiscrimination measures — not preferences — minorities obtained from local authorities.
I disagree with Bill Hancock that Attorney General Mike Cox’s decision amounts a “flip flop” or that Proposal 2 will never be enforced as a result of the limited settlement of that issue. Indeed, it gives Mike more time to defend against the ACLU, BAMN, and the other morons out there, and removes the universities from the field. And there is a modest argument that the process began advertised one way and should continue through its advertised period, although I don’t see it as necessary to defend every aspect of U-M’s argument or thoroughly lying brief to acknowledge that trivial fact.
For more details of the internal (to our movement) argument about Cox’s deal, see the last five or so entries to my blog.
Chet
“It’s hard to know whether to laugh or cry at this claim.”
At the risk of sounding simplistic, John’s remark pretty much wraps up my attitude toward entertaining preferentialists as serious and principled opponents. They are not.
The Michigan universities sued for a delay in the implementation of Prop 2 claiming that immediate implementation violated the institution’s academic freedom rights under the First Amendment and that implementation of Prop 2 on the constitutionally prescribed 45 day timetable was too hard to do and thus unfair to the universities and to applicants.
The Michigan Attorney General, Mike Cox, stipulated to this nonsense with the state universities. He agreed with the universities, the Governor, and BAMN to delay implementation of Prop 2 for six months. In so doing he necessarily had to concede the universities’ First Amendment argument.
The relief the universities sought, which is the relief the AG stipulated to allow, cannot in any principled way be separated from the legal argument underlying it.
The Center for Individual Rights (CIR) is trying to have this unconstitutional delaying order set aside. The CIR brief makes very short work of the universities’ central argument and, by implication, the Michigan AG’s craven capitulation of principle:
“Prior to this motion [by the universities], most people understood the Bill of Rights of the United States Constitution, as incorporated into the Fourteenth Amendment of the United States Constitution, as protections for the people against the states. The University Defendants now claim that the First Amendment is a bludgeon that can be used by state entities against the people. It is not…”
http://www.cir-usa.org/legal_docs/bamn_v_granholm_opi.pdf
The CIR brief is must reading for any who are interested in this issue. But reading it should leave Michiganders asking this question – how come our Attorney General is not making these arguments?
If the ACLU’s and NAACP’s argument about educational institutions’ First Amendment rights were made in 1962, would James Meredith have been denied admission to the University of Mississippi under their theory?
According to plaintiffs, segregation should be legal for the spurious benefits homogeneity brings. If diversity promotes a recognition of differences, it seems homogeneity promotes a shared sense of community. Only scoundrels would be against promoting a sense of shared community.
It seems a downright shame that in the 1960’s, constitutional concerns about equal access trumped the educational benefits that flows from the ability to design one’s own demographics.
Bill,
The most compelling argument CIR makes is that U-M could have, but chose not to, filed a motion in state court immediately after the election for a declaratory ruling on the meaning of Proposal 2.
That almost convinces me. Its a thought I had in a different frame of context (regarding why BAMN, the ACLU, and anybody is in federal court first, since no state court has “wrongly” (in federal terms) “interpreted” anything, but of course, the reason is tactical). It however can’t convince me that Cox acted in bad faith. It just suggests to me that there is a good argument for the road CIR is headed down.
[…] which itself has not been above emulating Humpty Dumpty on a number of occasions, virtually laughed the identical argument out of court in rejecting a challenge to California’s Prop. 209, on which Michigan’s Prop. 2 was […]