The racial preferences vote in Michigan

My last column in The Boston Globe focuses on the Michigan Civil Rights Initiative, passed by voters on November 7, which outlaws racial preferences in the state.

DEPENDING ON who you talk to, the passage of Proposal 2 in Michigan last month was either a great victory for freedom and equal rights or a disastrous setback for minorities and women.

The ballot measure, known as the Michigan Civil Rights Initiative, attracted little national attention after 58 percent of voters approved it Nov. 7. Its language is simple: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

The initiative grew out of two Supreme Court cases challenging affirmative action programs at the University of Michigan. The plaintiff in one case, Jennifer Gratz, had failed to gain admission to the University of Michigan in Ann Arbor with a 3.8 grade point average, a score of 25 out of 36 on the college entrance test and a good record of extracurricular achievements. Later, Gratz learned that an African-American or Hispanic applicant with similar qualifications would have been guaranteed admission. She filed a lawsuit, Gratz v. Bollinger.

In 2003, the Supreme Court sided with Gratz, finding that the rigid racial classification system, which automatically awarded applicants 20 points for "underrepresented racial/ethnic minority identification" (compared to five points for outstanding leadership and service), was unconstitutional. However, in the related case of Grutter v. Bollinger, which addressed affirmative action at the university's law school, the court ruled that more flexible racial preferences were acceptable as a means to achieve diversity.

Yet, while the race-conscious criteria at the law school were less clearly defined, the results were just as obvious. Admissions data showed that for an African-American
applicant, the chance of being admitted was three to 50 times greater than the chance of a white or Asian candidate with similar test scores and college grades. Hispanics also benefited from preferential treatment.

Discouraged by the high court's decision to green-light such practices, Gratz took her cause to the ballot box. With help from Ward Connerly, the African-American California businessman who had led a successful fight to outlaw racial preferences in California and Washington, she founded the Michigan Civil Rights Initiative group.

In other circumstances, Gratz -- a woman who experienced discrimination and fought back -- would have been hailed as a feminist hero. Instead, some denounced her as a racist.

Yet many people, including such black writers as Shelby Steele and John McWhorter, argue that affirmative action has in fact become the new racism. Not only does it discriminate against those denied admission to universities, but it also tells its supposed beneficiaries that they cannot succeed under neutral standards. As McWhorter once told me in an interview, African-American culture is saddled with a legacy of racism that makes many young people view academic achievement as a "white thing." Under these circumstances, "the last thing you want is a policy that doesn't expect the best of its young people. Lower the bar, and you're encouraging them to only do as well as they have to."

Some affirmative action opponents have compared racial preferences to Jim Crow. It's an inflammatory parallel, to be sure. Yet consider one deeply ironic moment during the campaign against the initiative : At a fund-raising dinner, Detroit Mayor Kwame Kilpatrick declared, "We will affirm to the world that affirmative action will be here today, it will be here tomorrow and there will be affirmative action in the state forever." In 1962, it was Alabama Governor George Wallace who declared, "Segregation now, segregation tomorrow, segregation forever."

Two years later, segregation was outlawed by the historic Civil Rights Act. That act was never meant to enshrine racial preferences, only to guarantee equality. ffirmative action began as a system of outreach to ensure that minority candidates and women got an equal chance to compete. Today, it has become a system of well-meaning discrimination.

The Michigan initiative prevailed even though its supporters were outspent 2 to 1, despite opposition from both Governor Jennifer Granholm and her Republican challenger, Dick DeVoss. It won despite hysterical and deceptive ads that compared the proposal to Hurricane Katrina and Sept. 11, and despite false claims that the measure would end to public funding for breast cancer screenings.

The initiative's opponents have depicted this victory as the result of white men fighting to retain their privilege. But maybe it's really about Americans taking action to end a regrettable detour in the battle for true civil rights.

There is much more on the story. The morning after the iniative passed, University of Michigan president Mary Sue Coleman announced that the university would find some way to “overcome the handcuffs” of the new law, i.e. to get around it -- including possible legal action. Late last month the threat of legal action was dropped. Meanwhile, other Michigan schools such as Wayne State law school are considering experiments with "proxies for race," criteria that are explicitly designed to replicate racial preferences. At least one affirmative action supporter at Wayne State disagrees:

Laura B. Bartell, a professor of law, is a backer of affirmative action. But now that the state’s voters have disagreed, she said, the measure must be applied. She said she did not believe the consideration of past discrimination or tribal status could survive a court challenge. And she said that even if law professors believe in affirmative action, they need to follow the voters’ will. “I was a vocal opponent of Proposition 2, but it passed,” Bartell said. “We’re a law school. One of the things we teach our students is that they must comply with the law.”

What a radical notion.

The Michigan Civil Rights Initiative website is here, with many links to news stories and campaign ads.

Also relevant to this story: my 2001 Salon.com article, "Secrets and Lies," which examines -- using the University of Michigan as its prime example -- the ways in which racial preferences have spawned a culture of Soviet-like secrecy and deception about race and academic standards at elite universities. It is no accident, perhaps, that the campaign against Proposal 2 in Michigan was based on some outrageous lies as well, such as claims that the law would end public funding for domestic violence shelters and breast cancer screening. (In California, a similar law was used to challenge women-only domestic violence shelters. I happen to think that the lawsuit had merit -- I don't believe publicly funded domestic violence programs should discriminate on the basis of gender -- but the lawsuit did not succeed.)

Similar initiatives are now being considered in other states. Stay tuned for more news on this new civil rights movement.