[Ed. note: Kary Moss, the executive director of Michigan's ACLU, has not accepted Prof. Carl Cohen's invitation to dinner and debate in Ann Arbor. However, she has been active in the statewide battle, making claims such as those below. The Q & A concerning the MCRI are from an ACLU handout;* the affirmative action essay** is the organization's central study piece for its supporters. Cuirtis Crawford]
is the so-called "MCRI?"
MCRI hurts Women
MCRI hurts Minorities
MCRI hurts the Michigan Economy
MCRI hurts Michigan
Opposes the MCRI?
with the ACLU, is working against the M.C.R.I.?
Affirmative action was put into law in the 1960's, but its roots stretch as far back as the 1930's when U.S. Supreme Court Justice Harlan Stone wrote that "discrete and insular minorities," including both people of color and women, required heightened protection by the courts to correct discrimination. (United States v. Carolene Products) In 1954, the Supreme Court finally overturned the "separate but equal doctrine" and ordered integration of public schools in the landmark Supreme Court case, Brown v. Board of Education, and the forthcoming Civil Rights movement pressured the government to finally integrate public schools. In 1964, President Johnson signed the Civil Rights Act into law. The Act, first envisioned by President Kennedy, outlawed the blatant racism plaguing America's public and private institutions, and opened the door for equal opportunity and affirmative action programs for minorities, women and others who had, for too long, been held back by law and custom.
Before affirmative action, opportunities for government and corporate employment, government contracts, and college, particularly graduate and professional schools were limited. In 1972, Title IX brought about more equality for women in education and athletics, mandating equal funding for both men and women in every area of public education. For the first time, women and minorities were, in large numbers, becoming lawyers and doctors, business executives and business owners.
Yet only two-and-a-half decades after segregation was formally erased from American law, opposition to affirmative action and equal opportunity programs was on the rise and the gains made by the civil rights movement in the 60's were in jeopardy. In 1978, a divided U.S. Supreme Court narrowed the scope of affirmative action in higher education. The Court held that quotas were unconstitutional, but ruled that the use of race in determining university admission (as one of a broad body of factors), was constitutional in order to achieve a diverse student body. Bakke v. University of California Board of Regents Shortly after that decision, affirmative action programs that had been designed to empower minority and women-owned business, by giving them government contracts, were also cut. In 1996, the Fifth Circuit Court (in Hopwood v. Texas) abolished affirmative action in college admissions in Texas, Mississippi and Alabama.
Opponents of affirmative action and equal opportunity began fighting the war against it on another front, as well: state-sponsored referendums. While affirmative action was being gradually narrowed by the courts, opponents began introducing state initiatives to sidestep the authority of the Supreme Court. In 1996, a state ballot initiative, led by California businessman Ward Connerly, known as the "California Civil Rights Initiative" or Proposition 209, effectively abolished affirmative action and equal opportunity programs in public employment, higher education, outreach and government contracting. However, in 1997, the City of Houston, Texas rejected a proposal to ban affirmative action. But two years later, a similar initiative to California's Prop 209 was passed in Washington State (Initiative 200).
The impact of these initiatives was extremely destructive and affected, not only women and people of color, but all citizens alike. Programs that fell under the auspices of Prop 209 in California included gender-specific programs, such as breast, cervical and prostate cancer screenings, prenatal programs and domestic violence programs for women outreach programs used by college and universities to ensure diversity on campus; and scholarships, fellowships and grants targeting women and minorities to help them stay in school and prepare for the job market. Even those who voted in favor of Prop 209 were concerned about its consequences. Understanding its negative impact, in 2003 Californians resoundingly voted against a second Connerly-led initiative, the Racial Privacy Initiative (RPI), a measure intended to further broaden the scope of Prop 209. The failure to pass the RPI was a serious blow to Connerly and his supporters.
Following the 2003 U.S. Supreme Court decision on the University of Michigan Law School case in favor of affirmative action programs as a means to ensure diversity (Grutter v. Bollinger ), with the court ruling that race can be considered as one of body of factors in higher education admissions, Connerly and his supporters looked to Michigan as their next target. Only days after the Court decision, Connerly and Jennifer Gratz, the plaintiff in a similar lawsuit against the U of M Undergraduate school, launched the so-called "Michigan Civil Rights Initiative" (MCRI), which has taken more than three years to get on the ballot. In January 2006, the Michigan Civil Rights Commission held a public meeting, to hear testimony from individuals, many of whom were indigent and African American, who believe they were intentionally defrauded by MCRI solicitors who were paid for collecting the necessary number of signatures to get the measure on the November ballot.
In spite of great controversy and allegations of voter fraud, the Michigan Board of State Canvassers ruled to put the proposed amendment to the Michigan Constitution on the November 2006 ballot when it will be put before Michigan voters to decide.
[Professor Cohen's response to the ACLU position is here.]