Michigan Civil Rights Initiative

MCRI's executive director Jennifer Gratz

Ward Connerly

The Michigan Civil Rights Initiative (MCRI), or Proposal 2 (Michigan 06-2), was a ballot initiative in the U.S. state of Michigan that passed into Michigan Constitutional law by a 58% to 42% margin on November 7, 2006, according to results officially certified by the Michigan Secretary of State. By Michigan law, the Proposal became law on December 22, 2006. MCRI was legislation aimed at stopping the preferential treatment of minorities (by race, color, sex, or religion) in getting admission to colleges, jobs, and other publicly funded institutions. It was decried by some opponents as a repeal of the 1964 civil rights act.^[1]

The United States Court of Appeals for the Sixth Circuit overturned MCRI on July 1, 2011.^[2] Judges R. Guy Cole Jr. and Martha Craig Daughtrey said that "Proposal 2 reorders the political process in Michigan to place special burdens on minority interests." Michigan Attorney General Bill Schuette said he will appeal the court ruling.^[3]

Actual Text of Amendment

The ballot initiative amended the Michigan Constitution to include a new section (Section 26 of Article I)^[4]:

Civil Rights.

1. The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district 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.
2. 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.
3. For the purposes of this section "state" includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.
4. This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.
5. Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.
6. The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Michigan anti-discrimination law.
7. This section shall be self-executing. If any part or parts of this section are found to be in conflict with the United States Constitution or federal law, the section shall be implemented to the maximum extent that the United States Constitution and federal law permit. Any provision held invalid shall be severable from the remaining portions of this section.
8. This section applies only to action taken after the effective date of this section.
9. This section does not invalidate any court order or consent decree that is in force as of the effective date of this section.

Proposal 2's constitutionality has been challenged in federal court. On 21 March 2008 however, Judge David M. Lawson of the United States District Court for the Eastern District of Michigan dismissed a case filed by plaintiffs challenging the constitutionality of Proposal 2. Judge Lawson held that Proposal 2 does not violate the United States Constitution.Opinion

Background

The most recent legal challenge - a request for a short-term delay by three Michigan universities and an advocacy group (BAMN, see below) - was denied review by the United States Supreme Court on January 19, 2007.^[5] The request was an appeal from a December 29, 2006 Court of Appeals ruling overturning a December 19, 2006 district court "settlement" agreement that would have allowed a six-month delay in enforcement only as it related to university admissions. The universities requested this delay because they had substantially completed the admissions determinations for the upcoming enrollment period, which would result in potential unfair treatment for students applying after the Initiative was passed.

The subject of the proposal has been hotly debated, with the very definition of what it encompasses at the center of the controversy. Proponents argue that it bans programs in public hiring, public employment, and public education that "give preferential treatment to" or "discriminate against" individuals on the basis of race, gender, ethnicity, or national origin. Opponents argue that Proposal 2 bans all affirmative action programs in the operation of public employment, education, or contracting.

Proponents cite the 1964 Civil Rights Act and the "Equal Protection" clause of the 14th Amendment that forbids the United States or any state from denying "equal protection of the law" to any citizen as models for the proposal. It is a near copy of similar initiatives passed in California (Proposition 209) and Washington (Initiative 200).

During the early debate about the proposal shortly following the collection of signatures (508,282 submitted January 6, 2005), the Michigan Civil Rights Commission, a governmental body charged with investigating civil rights violations in the state of Michigan, concluded an investigation of MCRI and asserted that supporters of the MCRI had committed widespread and systematic racially-targeted fraud in their petition campaign to secure ballot access.^[6][7] The proponents of the initiative issued a multi-page refutation of the report, including a notation that it was never signed by the Commission and alleging misconduct by the Commission itself.^[8]

In September 2006, after opponents filed a federal lawsuit against the MCRI alleging fraud in the collection of petition signatures, a federal judge in Detroit found that some voter fraud had in fact taken place but denied an injunction to have the initiative barred.^[9][10]

First Federal Lawsuit Against MCRI

Oral arguments in a federal lawsuit charging MCRI and the State of Michigan with violating the Voting Rights Act of 1965 were heard on August 17, 2006 with attorneys presenting their closing arguments on the morning of August 18, 2006. The case was heard by U.S. District Court Judge Arthur Tarnow, who promised to rule on the matter by September 8, 2006, to give officials enough time to print up the ballot. During the first day of the hearing, hundreds of protesters picketed outside the courthouse chanting among other things, "Racist fraud, hell no! MCRI has got to go!"^[11][12] The lawsuit was filed by Operation King's Dream, Detroit Mayor Kwame Kilpatrick, Detroit City Council, American-Arab Anti Discrimination Committee, Michigan Legislative Black Caucus, Keep the Vote No Takover, AFSCME Locals 207, 312, and 2920, and UAW 2200 as well as several individual voters.^[13] Michigan Governor Jennifer Granholm submitted an amicus brief in support of the plaintiffs.^[14]

On August 29, 2006, the case was decided with Judge Tarnow, a Democratic judicial appointee, refusing to remove the initiative from the ballot.^[10] However, Judge Tarnow declared that "MCRI engaged in systematic voter fraud by telling voters that were signing a petition supporting affirmative action." However, because the case was not decided on these grounds, this statement is legally characterized as "dicta"--judicial commentary that is not relevant to the outcome of a case. Tarnow also found the testimony of Jennifer Gratz (MCRI's executive director) in the court to be evasive and misleading. His stated reason for refusing an injunction to remove the MCRI from the ballot was the MCRI "targeted all Michigan voters for deception without regard to race." He ruled that the Voting Rights Act was not violated because it "is not a general anti-voter fraud statute, but rather prohibits practices which result in unequal access to the political process because of race."

Luke Massie, national co-chair of the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights & Fight for Equality By Any Means Necessary (BAMN) announced that the plaintiffs would appeal Tarnow's decision to the U.S. 6th Circuit Court of Appeals, saying "It makes no sense to conclude there was fraud and allow the vote to go forward." The 6th Circuit rejected the appeal in mid-September.^[15]

Voting and Poll Results

On November 27, 2006, Proposal 2 was certified officially by the Michigan Secretary of State to have passed by a margin of 58% to 42% (2,141,010 "Yes" votes to 1,555,691 "No" votes).^[16] The last reported poll of October 15, by The Detroit News, showed MCRI to have up to a 50-41 lead. In another Free Press-Local 4 Michigan poll conducted by Selzer & Co. Inc. of Des Moines between October 8 to October 11 of 643 likely voters, it was shown that 41% were in favor of the MCRI, while 44% opposed the measure, and 15% of the voter poll were undecided. The poll had a margin of error of 3.9% making the poll a statistical dead-heat. Another poll, from mid-September 2006, showed MCRI was up 48-37 with 15% undecided, with the pollster admitting that his previous polls had not used the exact language of the proposal until the Sept. poll. The entire polling process highlighted an ongoing debate about the scientific value of modern phone polling on questions of race or controversial social issues where the polled members of the public may be "embarrassed" by social desirability bias to give a truthful response about their intended vote for fear that they will be identified. The effect, which was predicted by several Michigan political consultants and even some pollsters themselves, represents a new concern in polling accuracy.

Board of Canvassers Meeting

In July 2005, the Michigan State Board of Canvassers declined to certify the MCRI proposal for Michigan's November 2006 ballot after hearing allegations that a significant number of signatures were obtained by telling supporters of affirmative action that the petition was likewise, in support of affirmative action. Counter-allegations were made by MCRI supporters that the allegations were fabricated and that the Board of Canvassers' decision-process itself was being improperly influenced by politics because Michigan Democratic Party Chairman Mark Brewer was "giving orders" to the two Democrat-appointed members of the Board, and backed up by the linked videotape shot by MCRI Treasurer and publisher Chetly Zarko.^[17] Despite the deadlocked vote by the Canvassers and their inability to certify the petition as a result, in October of the same year the Michigan Court of Appeals ordered the board to certify the petitions.

On December 14, 2005, in Lansing, Michigan, while attempting to comply with that court order to certify the petitions, the board's four members were scheduled to make the final vote to certify the petitions for the November ballot. However, the meeting attended by hundreds of Detroit high school students. The crowd began to shout "No voter fraud," until they became so loud that the members left the room adjourning until 2pm. Chanting, "They say Jim Crow! We say hell no!," the emotion-surged crowd of students continued until a table was overturned in the commotion and the Lansing police came in to control the situation. Opponents of MCRI labeled their own conduct "civil disobedience" while proponents argued it crossed the line into outright violence and intentional intimidation.^[18] Video of the situation can be seen here.^[19]

After the protest, the election panel again failed to certify the petitions with a vote of 2-1, falling short of the required three votes. Republican board members Katherine Degrow and Lyn Banks voted in favor with Democrats Paul Mitchell voting no and Doyle O'Connor not voting.

The meeting received considerable media attention because of the protest. In the months following the controversial board meeting, both Mitchell and O'Connor resigned from the board and were fined $250 on contempt of court charges.^[20] O'Connor later testified against the MCRI at the August 17 federal court hearing, relaying how he had witnessed two African-American women circulating the anti-affirmative action petition in Detroit telling signers that it was in support of affirmative action. Proponents counter this claim by arguing that O'Connor, as a member of the Board of Canvassers, had failed to offer this testimony during Board meetings and waited until after the Board had decided and a lawsuit begun to relay his alleged testimony. Proponents suggest that O'Connor had a clear conflict of interest as a first-hand witness, and that he unethically failed to relay that information to the rest of the board and to MCRI officials and recuse himself from the decision-making process, and that his testimony as a result is simply not credible given that he waited so long to relay it.

"Preferential Treatment"

Proponents of the MCRI claim that the initiative will make illegal only those programs and policies, affecting university admissions, public employment, and contracting, that grant "preferential treatment" based on gender, race, or ethnicity. These claims were disputed by some opponents who cite California's Proposition 209, alleging that the language of that proposal outlawed "all affirmative action policies" and programs, and MCRI's language is nearly identical. Proponents counter this argument by arguing that while MCRI is nearly identical to California's amendment, neither MCRI or 209 outlawed "all" or any "affirmative action." They point to programs such as California's use of socio-economic indicators, outreach targeted at the 150 lowest scoring high schools, and traditional anti-discrimination enforcement as some among many race-neutral types of "affirmative action". On March 7, 2007, however, the Michigan Civil Rights Commission, which had previously fought against Proposal 2, issued a report at the behest of the Governor, taking the position that Proposal 2 did not eliminate "all" affirmative action. In their summary of a 63 page report, Linda Parker, chair of the Commission, now agreed with Proposal 2 advocates, "With this Report, the Commission and Department confirm that Proposal 2 does not mean the end of equal opportunity or diversity in Michigan,".^[21] The Report explicitly cites the difference between "preferential treatment" and "affirmative action". Proponent of Proposal 2, Chetly Zarko, argued that this "flip-flop" ^[22] by the Commission not only proved MCRI was correct all along about the legal issues and difference, but that it disproved the Commission's report alleging "fraud" in signature-collection since the Commission had previously alleged in its June 2006 fraud-allegation report that petitioners should have used the words "affirmative action" in their presentation,.^[23][24]

Post Election

Although the people of the state of Michigan banned all affirmative action programs based on race, nationality or gender by a significant majority, many groups have challenged the rule of this binding constitutional legislation.

On November 8, 2006, BAMN called a press conference announcing that they had launched a second lawsuit against Proposal 2 in conjunction with United for Equality and Affirmative Action and Rainbow/PUSH Coalition, claiming that it violates both the Equal Protection clause of the Fourteenth Amendment and the First Amendment as affirmed by the Supreme Court decision, Grutter v. Bollinger.^[25]

That same day, about 2,000 students gathered on the diag at the University of Michigan where University President Mary Sue Coleman gave a speech in which she promised U-M would go to court to defend its efforts to promote diversity, even though the people of Michigan had voted against affirmative action. Two weeks later, on November 21, Grand Rapids Mayor George Heartwell said he was considering having the city file a federal lawsuit to overturn Proposal 2.^{[citation needed]}

On December 19, U.S. District Court Judge David Lawson ruled that the state's three largest public universities—the University of Michigan, Michigan State University, and Wayne State University--could delay implementation of Proposal until July 1, 2007.^[26] The universities had filed a lawsuit seeking the delay, charging fairness in admissions, in response to BAMN's lawsuit in which all three universities were named as defendants. The Center for Individual Rights has asked the U.S. Sixth Circuit Court of Appeals to overturn Judge Lawson's ruling and force the universities to adhere to the ban on affirmative action immediately.^[27]

On December 29, a 3-judge panel of the 6th US Circuit Court of Appeals lifted Judge Lawson's injunction granting the 3 universities the July 1 implementation delay and ordered them to implement Proposal 2 immediately.^[28]

The city of Lansing has also filed a lawsuit to delay implementation of Prop 2 until July 2007.^[29] In Detroit, Matt Allen, a spokesman for Mayor Kwame Kilpatrick said the city illegally "will continue doing business as it has been" in spite of the state-wide ban on affirmative action.^[30]

Another lawsuit has been filed in federal court by the NAACP and the ACLU to block the ban on affirmative action.^[31]

On January 4, 2007, the Center for Individual Rights filed a lawsuit in Washtenaw Circuit Court, asking a judge to order the University of Michigan to immediately comply with Proposal 2, and abandon their affirmative action programs.^[32] The case was resolved on January 29 when Eric Russell, whom the Center for Individual Rights was representing voluntarily withdrew the lawsuit.^[33]

Jan. 9-10: BAMN held a press conference at Cass Tech High School in Detroit announcing that their appeal of the Federal Appeals Court decision overturning the delay of the ban on affirmative action. The next day, after placing holds on admissions, the University of Michigan announced that they will comply with the ban on affirmative action. Hours later, Supreme Court Justice John Paul Stevens responded to BAMN's appeal of the 6th U.S. Circuit Court of Appeals decision overturning the delay of Proposal 2's implementation and ordered all briefs due by January 17. U-M, Wayne State, MSU, and Michigan Governor Jennifer Granholm all filed briefs in support. Michigan Attorney General Mike Cox urged Stevens to deny the injunction. On January 19, the Supreme Court denied BAMN's appeal without comment.

On Thursday, February 15, BAMN submitted 2,000 petitions to the Board of Regents of the University of Michigan demanding that there be no drop in minority enrollment. The following Tuesday, on February 20, the Michigan Student Assembly, the elected student government of U-M passed a resolution demanding that there be no drop in underrepresented minority student enrollment.

On Friday, July 1, 2011, the Federal Sixth Circuit Court of Appeals held the amendment unconstitutional on the grounds that it “reorders the political process in Michigan to place special burdens on minority interests,” and thus violates the 14th Amendment.

On Thursday, November 3, 2011, the Equal Justice Society and more than a dozen other organizations announced that they had filed an amicus brief in the U.S. Court of Appeals for the Sixth Circuit, urging the court to strike down Michigan’s anti-equality Proposal 2 as unconstitutional. The brief authors argue that Proposal 2 violates the Equal Protection Clause of the 14th Amendment of the Constitution by creating procedural barriers for people of color.

Effects

On Friday, February 16, 2007, the University of Michigan released admissions data showing that, in a period that includes the time after Proposal 2 was implemented, minority admissions of primarily lower test scores declined 25% from the same period a year before. The data also show that in the period immediately before Proposal 2 was implemented, minority admissions was up 55% from the same period in 2006. A spokeswoman for the university, Julie Peterson, has said that since the numbers aren't final and since so many minority students applied early, the drop cannot necessarily be attributed to the amendment itself.^{[citation needed]}

Notable Endorsers

Notable endorsers of the MCRI include:

• Michigan Association of Scholars.
• National Association of Scholars.
• Ward Connerly: California businessman who led similar campaign in California with Proposition 209.
• Jennifer Gratz: executive director of the MCRI, plaintiff in the Supreme Court case Gratz v. Bollinger.
• Barbara Grutter: plaintiff in Grutter v. Bollinger, co-chair of Towards a Fair Michigan.
• Michigan Attorney General Michael (Mike) Cox.
• Michigan State Representative Leon Drolet: steering committee chair of MCRI.
• William B. Allen: Michigan State University political science professor, co-chair of Towards a Fair Michigan.
• Dr. Carl Cohen: University of Michigan philosophy professor.
• Chetly Zarko [3]: former Treasurer/Director of Media, MCRI, political consultant.
• Doug Tietz: MCRI campaign manager, former U-M YAF Chair.
• Greg Creswell: Libertarian Candidate for Governor of Michigan.
• Reverend Jerry Zandstra: Republican primary candidate for US Senate, Michigan.
• Howard Schwartz: Professor, Oakland University.
• Arthur White: Professor, Western Michigan University.
• Council of Conservative Citizens.
• Libertarian Party of Michigan.

Opposition

Notable opponents of the MCRI include:

• One United Michigan
• National Association for the Advancement of Colored People (NAACP)
• Former Michigan Governor Jennifer Granholm
• Former Michigan gubernatorial candidate Dick DeVos
• Former Detroit Mayor Kwame Kilpatrick
• By Any Means Necessary (BAMN)
• Grand Rapids Mayor George Heartwell
• Jesse Jackson and the Rainbow/PUSH Coalition
• Association of Michigan Universities (AMU)
• Michigan Civil Rights Commission
• Al Sharpton
• Detroit City Council
• American-Arab Anti Discrimination Committee (ADC)
• American Civil Liberties Union (ACLU)
• Detroit Federation of Teachers
• Arab American Institute
• Green Party of Michigan (GPMI)
• Socialist Party of Michigan (SPMI)

References

1. ^ Cohen, Carl (2007). "The Michigan Civil Rights Initiative and the Civil Rights Act of 1964". "michigan Law Review". http://www.michiganlawreview.org/articles/the-michigan-civil-rights-initiative-and-the-civil-rights-act-of-1964. 
2. ^ Henry, LaToya; LEGAL AFFAIRS AND NATIONAL EDITORS (2011-7-1). "6th Circuit Court of Appeals Upholds Diversity in the State of Michigan, Reverses Lower Court Ruling". "PR Newswire". http://news.yahoo.com/6th-circuit-court-appeals-upholds-diversity-state-michigan-215608954.html. 
3. ^ Chambers, Jennifer; Robert Snell and Oralandar Brand-Williams (2011-7-1). [/State-to-fight-ruling-against-ban-on-race-in-college-admissions#ixzz1QttQPL3s "State to fight ruling against ban on race in college admissions"]. "The Detroit News". /State-to-fight-ruling-against-ban-on-race-in-college-admissions#ixzz1QttQPL3s. 
4. ^ Committee, MCRI (2004-2006). "Official Ballot Language". The Michigan Civil Rights Initiative Committee. http://www.michigancivilrights.org/ballotlanguage.html. 
5. ^ Egan, Paul (January 20, 2007). "High court slams door on delay of Prop 2". The Detroit News. http://www.detnews.com/apps/pbcs.dll/article?AID=/20070120/SCHOOLS/701200399. 
6. ^ Core, Harold (June 9, 2006). "Michigan Civil Rights Commission Calling on Supreme Court and Attorney General to Take Action Regarding MCRI Fraud". Michigan Department of Civil Rights. http://www.michigan.gov/mdcr/0,1607,7-138--145077--,00.html. 
7. ^ Bernstein, Mark. Mohammed Abdrabboh and George Wirth.Michigan Civil Rights Commission June 7, 2006 memo. "michigan.gov" (website).
8. ^ Michigan Civil Rights Initiative Committee.Report on Abuse of Power by Michigan Civil Rights Commission memo. "michigancivilrights.org" (website).
9. ^ United States Court of Appeals for the Sixth Circuit.Case No. 05-2258, Kilpatrick et al. vs. Land et al.. "bamn.com" (website).
10. ^ ^{a b} Driver, Shanta; Luke Massie (August 30, 2006). "Judge Tarnow finds: "the MCRI engaged in systematic voter fraud" – refuses injunction". BAMN. http://www.bamn.com/doc/2006/060830-prel-tarnow-refuses.asp. 
11. ^ Committee, MCRI (August 17, 2006). "Radical Pro-Racial Preference group Protests Outside Federal Courthouse in Detroit". The Michigan Civil Rights Initiative Committee. http://michigancivilrights.org/bamnvideo.html. 
12. ^ news, Action (2006). "Article". WXYZ TV. http://www.detnow.com/wxyz/nw_local_news/article/0,2132,WXYZ_15924_4923883,00.html. 
13. ^ TARNOW, ARTHUR (July 17, 2006). "OPERATION KING'S DREAM et al. vs. Connerly and Gratz" (PDF). UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION. http://www.bamn.com/doc/2006/060718-brf-inj-fedct.pdf. 
14. ^ The article requested can not be found! Please refresh your browser or go back. (C4,20060816,NEWS06,608160301,AR)
15. ^ http://www.sciencedaily.com/upi/index.php?feed=TopNews&article=UPI-1-20060911-17180500-bc-us-affirmative.xml
16. ^ Land, Terri Lynn.Election Results GENERAL ELECTION November 07, 2006, State Proposal-06-2: Constitutional Amendment: Ban Affirmative Action Programs. "michigan.gov" (website).
17. ^ Zarko, Chetly (July 20, 2005). "Put that camera away". Zarko Research & Consulting. http://chetlyzarko.com/essays/brewer.html. 
18. ^ The article requested can not be found! Please refresh your browser or go back. (C4,20051214,NEWS11,51214011,AR)
19. ^ Zarko, Chetly (December 15, 2005). "BAMN Goes Violent at Michigan Board of Canvasser's Meetin". Zarko Research & Consulting. http://chetlyzarko.com/essays/boc-12142005.html. 
20. ^ Lansing State Journal: The article requested can not be found! Please refresh your browser or go back. (A3,20060404,NEWS01,604040325,AR)
21. ^ Commission Press Release
22. ^ Panel: Most programs are legal - State
23. ^ Zarko, Chetly (May 21, 2007). "MIRS Report Captures ZR - Commission Dialogue. Commission Caught in Flip-Flop and Personal Unfairness Issue.". Zarko Research & Consulting. http://chetlyzarko.com/b2evolution/index.php?p=596&more=1&c=1&tb=1&pb=1. Retrieved 2008-02-27. 
24. ^ with audio Mp3 of meeting
25. ^ Microsoft Word - 2006.11.08 Amended complaint final.doc
26. ^ Court allows U-M, MSU, Wayne State to complete this year's admissions and aid cycle under current rules
27. ^ Detnews.com | This article is no longer available online
28. ^ [1]
29. ^ Detnews.com | This article is no longer available online
30. ^ [2]
31. ^ ACLU (December 19, 2006). "ACLU, NAACP File Lawsuit to Allow University of Michigan Admissions Programs to Continue". ACLU. http://www.aclu.org/racialjustice/aa/27742prs20061219.html. 
32. ^ Detnews.com | This article is no longer available online
33. ^ The article requested can not be found! Please refresh your browser or go back. (C4,20070131,NEWS06,701310303,AR)

External links

• One United Michigan (opposed to MCRI)
• MCRI proponents
• Equality Talk
• MichiganProposal2.org
• TAFM (Towards a Fair Michigan)
• BAMN
• Zarko Research & Consulting (blog of former Director of Media Relations for MCRI)
• John Rosenberg's Discriminations
• Why Voters Should Approve the Michigan Civil Rights Initiative

See also

• Affirmative Action
• Ward Connerly
• Gratz v. Bollinger
• Grutter v. Bollinger