The Michigan Civil Rights Commission Strikes (Out) Again

If anyone wanted to film a comedy about Proposal 2 in Michigan, the Michigan Civil Rights Commission would deserve a leading role. Today’s episode would begin with the Commissioners waking up, walking outside, looking up, and realizing with a shock that, despite the passage of Proposal 2, the sky has not fallen.

In fact, after three months of “research” ( I use the term loosely, for some reasons we’ll see in a moment), the MCRC has in fact decided that the impact of Prop. 2 is rather limited — only 8 of 45 programs they studied seem to be affected. And the MCRC has finally noticed, for the first time, that Prop. 2 banned only affirmative action programs that involved racial, ethnic, or gender preferences.

Despite dashes of realism, however, the overall impact of the MCRC’s report to the governor on the impact of Prop. 2 is humorous, perhaps especially because the humor was unintended. Here are two among many examples:

First, citing Grutter, the Commission states ponderously (in the second point of the Executive Summary):

There is legal precedent from the U.S. Supreme Court that race and sex may be used as one of a number of factors in the state’s decision-making process, if the objective serves a compelling state interest, such as diversity in higher education, and is narrowly tailored to achieve the objective sought. We do not believe that Proposal 2 has overturned the referenced U.S. Supreme Court precedent.

Of course it didn’t, as any dolt would know. Grutter held that a state may, in certain carefully circumscribed situations, use narrow tailored race preferences. It did not hold that a state must use them, and thus a state constitutional amendment barring racial preferences has no conflict with the U.S. Supreme Court ruling in Grutter or other cases.

My second example is, if you can believe it, even better. Here is the Commission’s tenth point in its Executive Summary:

Under President Lyndon B. Johnson’s September 28, 1965 Executive Order No. 11246, (Attachment 3) the U.S. government has mandated diversity in employment for federal contractors, including state agencies, doing contractual work for a federal agency, if that contractor or subcontractor receives over fifty thousand dollars ($50,000) in federal funds for contractual work, and has over fifty (50) employees. This federal diversity requirement is not nullified or invalidated by Proposal 2.

Attachment 3 does not appear with this document online, but here is the full text of Executive Order 11246. I see there what the Commission obviously did not, the Order’s requirement that all government contractors “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” [Emphasis added]

What I don’t see in Executive Order 11246 is any “mandated diversity” or “federal diversity requirement.” Do you?

UPDATE

Jennifer Gratz, former executive director of the Michigan Civil Rights Initiative who led the fight for Prop. 2, emails:

I can’t believe that this commission has any credibility. This is the same organization that said because we were not saying that “MCRI ends all forms of affirmative action and equal opportunity” we were misrepresenting the issue to such an extreme that it could only be “fraud.” Now all of a sudden what we were saying was right all along … the only people who misrepresented the issue were our opponents, but I bet the media won’t print that.

I bet they won’t, either. With some exceptions, like the fair and balanced Michigan Information & Research Service newsletter (subscription only), which ran an article yesterday on the MCRC report. The article reported on some of the comments from the public at the MCRC meeting releasing the report, including one from a frequent commenter here:

Chetly ZARKO, the former treasurer and media director for the MCRI, spoke. During his remarks, he was openly critical of the Commission and the “secret process this Commission used in developing this report and the illegal process the Commission used to investigate fraud last year.”

Zarko argued that the Commission essentially flip-flopped its position from one year ago when they argued all programs dealing with gender or ethnicity would be barred under Proposal 2.

“This Commission made it very clear during the hearing process that everything was going to be impacted [by MCRI] and the sky is falling,” Zarko said. “I think you’re right to say that this doesn’t impact all programs. I think you’re right to say that diversity is valued. We’ve been saying that all along.”

It’s clear that Prop. 2 will not cause the sky to fall on civil rights in Michigan. But if something heavy should fall on the Michigan Civil Rights Commission, the whole state would be better off.

UPDATE II [8 March 4:35PM]

In its article today, by Lauren Smith, The Chronicle of Higher Education quotes, without comment, some of the inanities in the MCRC’s report.

For example:

Proposal 2 poses a similar challenge to Title VI of the Civil Rights Act of 1964, which prohibits programs and institutions that receive federal assistance from discriminating on the basis of race, color, or national origin. “In certain circumstances,” the report says, “federal agencies have the discretion to promulgate regulations that require affirmative action and pass these requirements on to universities or other recipients of federal funds.”

Here is the relevant wording of Title VI, which I’ve cited too many times to link (a few: here, here, and here):

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance

And Michigan’s Proposal 2? It would

ban 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.

So, a constitutional amendment that bans “preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin” presents “a challenge” to a federal law that bans discriminating against anyone “on the ground of race, color, or national origin”?

Excuse me, but where is the “challenge”?

And again, from the Chronicle article:

The state constitutional amendment could also create problems for employers in adhering to another federal anti-discrimination regulation, known as Executive Order 11246, the commission said. That order requires employers with federal contracts or subcontracts that exceed $10,000 in one year to refrain from discrimination and engage in affirmative steps to ensure that applicants and employees receive equal employment opportunity. Institutions complying with Proposal 2, the commission said, risk having such contracts canceled or suspended in whole or in part, and may be declared ineligible for future government contracts if they are found to have failed to comply with the executive order.

As I mentioned in my original post above, here is the text of Executive Order 11246. It requires government contractors, you will recall, to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” [Emphasis added]

Excuse me again, but how does that (or any other language in the Executive Order) conflict with Proposal 2’s ban on preferential treatment based on race, ethnicity, etc.?

Finally, here’s my favorite from the fanciful Michigan Civil Rights Commission, as quoted with a presumably straight face in today’s Chronicle:

The amendment’s effects on higher education will eventually hurt the economy, according to the report. “In so far as educational attainment is strongly correlated with average earned wages, it is safe to presume that if all ethnic groups had the same educational attainment and earnings as whites, total personal income in Michigan would be approximately $3.9-billion higher, and the state would realize an estimated $1.4-billion in additional tax revenues.”

Yes, it is “safe to presume” that if everyone had the same income, everyone would have the same income. It is even “safe to presume” that if poor people were richer they would have more money and pay more taxes. The presumption, however, that either one of these astute observations has anything whatsoever to do with Proposal 2 suggests that the Michigan Civil Rights Commission is more like a summer stock version of Comedy Central than a source of legitimate public policy analysis.

Say What? (4)

  1. Chetly Zarko March 9, 2007 at 1:41 am | | Reply

    John,

    While waiting to speak, I indeed found myself laughing at several points.

    Nonetheless, the Commission issued a report (when I spoke I only had the opportunity to guage it based on its oral description) that lists a number of programs not affected that BAMN and/or One United Michigan (OUM) claimed were. Breast cancer is safe. Girls sports. On and on.

    I guess the Commission is saying t6hat BAMN and OUM committed fraud and MCRI told the truth.

    They obviously hope to use the federal issue to drive a phantom truck through that little crack. It’s a phantom though – very few federal preference requirements. And that’s the report’s central contradiction – it recognizes the narrowness of MCRI’s use of “preference” when it helps them, but they continue the interchangability of preference with “diversity” and “affirmative action” when the feds “require” it.

    There’s some other tricks in the wings – “preference” or “prefer” versus “consider”, something Mark Bernstein tried to cross-examine me on (I ended up using it against them). They’re suggesting “considering” race is legal through a complex iteration of word play.

  2. Chetly Zarko March 10, 2007 at 2:45 pm | | Reply

    Suspect math. That math you cite above suggests the state personal tax rate is 30 percent. It’s 4%. Even with sales tax on the spending of the income, it becomes 10%.

    I wonder if it they are including “federal tax” bounceback?

  3. David Nieporent March 14, 2007 at 3:41 am | | Reply

    One would think that the MCRC would at least pretend not to be a political body — but they don’t. In a report on an “Assessment of the Impact of Prop 2” we see statements like “As a candidate for Governor in the 2002 election, Michigan Attorney General Jennifer Granholm fended off what many observers characterized as unprecedented race-baiting political attacks from her general election opponent. She won the election, becoming Michigan’s first female Governor, campaigning with the theme “One Michigan.” It was a successful appeal for unity to the Michigan electorate.” What on earth is a statement like that doing in a state report?

    Did you catch the part where — in something that was supposed to be a neutral assessment — they suggested laundering federal money which (in their view) has race preference requirements attached to it throughout state programs so that they can justify using race preferences throughout state agencies under the “loss of federal funds” exception.

    They are, incidentally, the only people on the planet who don’t know what “preferential treatment” means.

    At least they don’t pretend to be strict constructionists; they argue that “judicial scrutiny” is “how our Constitution evolves in Michigan.”

  4. Chetly Zarko March 14, 2007 at 8:25 pm | | Reply

    David, I caught that, but it’s among so many priceless thing that…

    If you want to send me an analysis of the report, I can add it to the analysis I’m doing and send it to the Governor and media.

    You did miss something though – they do pretend to be constructionists (although not strict) at various times. On my website I have the audio of Mark Bernstein questioning me – making a “plain language” argument for “consider” being different than “prefer”. The report also refers to “plain language” tests and some things that might fall under constructionism, but it prefers (and considers) some of the other judicial scrutiny tests arguing that “preferential treatment” isn’t plain and is vague.

    A person could spend days finding all the holes in this piece of swiss cheese.

Say What?