Last week, affirmative action advocates won a victory when the U.S Court of Appeals for the 6th Circuit declared the Michigan’s 2006 ban on affirmative action, the referendum titled Proposal 2 or the Michigan Civil Rights Initiative, unconstitutional. The 2-1 ruling by the court reverses an earlier ruling by U.S. District Judge David Lawson, who upheld the constitutionality of Proposal 2.
In its reversal, the Court of Appeals stated that Proposal 2 “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities,” or in essence, the fact that white Michiganders voted to impose a law that affected minorities primarily, was unfair.
While this ruling will probably be ruled up by the full 6th Circuit, and if need be, by the United States Supreme Court, where the conservative majority is expected to uphold the precedent banning affirmative action, the reasoning for the overturning is what is probably the most interesting aspect of ruling. Are African-Americans, Latinos and other racial minorities unduly hurt by the referendum process, when the public policy is focused on them?
The referendum process allows for citizens to petition to place legislation on the ballot to overturn laws already passed by the legislature. Some of the most famous referendums which targeted minorities originated in California, with the 1994 ballot initiative Proposition 187, which sought to prevent illegal immigrants from using state social services like health care and public schools; and the 1996 anti-affirmative action Proposition 209, lead by anti-affirmative action advocate, and former University of California regent, Ward Connerly.
Connerly, a conservative black Republican, began his crusade against affirmative action by targeting its use in the admissions to the University of California system. His argument was that Asians were underrepresented, while African-Americans and Latinos were overrepresented due to affirmative action, which he considered to be racist.
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Proposition 187 was eventually ruled to be unconstitutional because it infringed on the federal government’s power to restrict immigration, which meant that states couldn’t enact their own legislation. Proposition 209, however, has been upheld by the courts as constitutional, and became the tip of the spear for Connerly, who tried to create anti-affirmative action referendums around the country, culminating with Michigan’s Proposition 2.
During the campaign for Proposition 2, the Ku Klux Klan announced its support for the referendum, causing Connerly to remark, “If the Ku Klux Klan thinks that equality is right, God bless them. Thank them for finally reaching the point where logic and reason are applied, instead of hate.” Proposal 2 passed 58 percent to 42 percent, and critics stated that it was in essence, a repeal of the 1964 Civil Rights Act.
While the 6th Circuit Court’s ruling may be appealed and reversed, it sets up an important discussion about whether legislation that specifically targets African-Americans and Latinos, can be constitutional policy, particularly when the policy is voted upon by an overwhelmingly white majority. In other words, can racial minorities be protected from legislation implemented by the white majority, particularly when the legislation is supposedly “race neutral” by its advocates, but takes away rights from one group?
Shanta Driver, the attorney who brought the lawsuit against Michigan, believes the argument that minorities are harmed disproportionately, and is now turning her attention to California’s Prop. 209, where she’s filing a lawsuit with the 9th U.S. Court of Appeals in an attempt to strike down the law.
So while many thought the affirmative action debate was fading into the distance as public policy, a unique argument about the fairness of the referendum process when it comes to policy directed at minorities, just may bring it back to the fore, and may be the reason why affirmative action comes back as law.