MCRI amendment to Michigan's constitution
1: Why did MCRI fight to prohibit
2: Since the prior bans haven't blocked affirmative action,
Both puzzles have reasonable, though unexpected, solutions.
By Curtis Crawford *
Michigan's new constitutional amendment, sponsored by the Michigan Civil Rights Initiative, bans discrimination by the state, for or against anyone, on specified bases, in specified areas. The forbidden bases of discrimination are race, sex, color, ethnicity, and national origin. The forbidden areas are public employment, public education, and public contracting. Thus, the key provision: "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, and public contracting." [Emphasis added. The amendment is here in full.]
The Michigan Constitution, adopted in 1963, had already banned discrimination based on religion, race, color, or national origin. Its Article I is a declaration of civil and political rights, in 25 sections. High on the list is a general right to equal protection, paired with a specific right to nondiscrimination: "Section 2. No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights, or be discriminated against in the exercise thereof, because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation." [Emphasis added. The four clauses in the constitution that address discrimination are here.]
Notice that the right to nondiscrimination in the Michigan constitution is the paramount civil right, safeguarding all other civil and political rights. Persons shall not be denied any civil or political right, because of their religion, race, color or national origin. Moreover, they shall not be discriminated against, based on these factors, as to how fully they may exercise their rights. As the terms are used here, being denied a right would be like telling Rosa Parks, if she wanted to ride a state-operated bus, that she was not allowed. Being discriminated against in the exercise of a right would be like telling her she could ride, but only in a back seat. However, since both the denial and the discrimination are degrees of discrimination, it is simpler to speak of both as discrimination.
This right to nondiscrimination, like all the rights protected by it, belongs to everyone. In law, as well as in ethics, every right corresponds to a duty. If everyone has the right not to be robbed, there must be a corresponding duty not to steal. If everyone has the right not to be killed, there must be a corresponding duty not to murder. The legal duty that corresponds to the legal right not to be discriminated against is of course the legal duty not to discriminate, provided in Art I, § 2. But whose duty is that?
Constitutions give duties primarily to the state: i.e., to the state's government and to other state agencies. The duty not to discriminate, based on religion, race, color or national origin, is here a legal obligation of the state. A state could discriminate by enacting laws that do so, or in the conduct of government business. These and any other ways that Michigan might discriminate, based on religion, race, color or national origin, are summarily forbidden.
Thus, both Art I, § 2 of the existing constitution, and the new amendment (Art I, § 26), ban discrimination by the state, based on race, color or national origin. (The latter adds sex, and the former adds religion, as forbidden bases.) The scope of the amendment's prohibition, however, is much narrower. It covers only public employment, public education, and public contracting. In contrast, the nondiscrimination provision in I : 2 presumably covers not only these areas, but all state action, and all state legislation. Except for the addition of sex as a forbidden basis, the amendment bans no more-but a lot less-than the Michigan constitution had already banned.
Hence, our puzzles. Why sponsor an amendment to add bans on racial and ethnic discrimination that were already there? And, since the existing bans haven't blocked affirmative action by the state, why do defenders of such programs fear the amendment?
When describing the amendment, I omitted a phrase that occurs in it, but not in Art I, § 2. The amendment's command not to discriminate against, based on race, sex, color, ethnicity or national origin, is coupled with a command not to grant preferential treatment on the same bases. Many people believe that this second command would ban something (affirmative action?) that the first does not. I think this belief is mistaken.
The mistake can easily be demonstrated. To be proved: the command not to grant preferential treatment, based on race, color, or national origin, bans nothing not already banned by the command not to discriminate against, on these bases.
First, let's define the two key terms. In Merriam-Webster's 10th Collegiate Dictionary (1993), "discriminate" in this context means "to make a difference in treatment or favor on a basis other than individual merit. ( . . . in favor of your friends) (. . . against a certain nationality)." In the same dictionary, "preferential treatment" is not listed, but "preference" in this context means "the act, fact, or principle of giving advantages to some over others." These definitions are essentially the same as those in Webster's 3rd International Dictionary Unabridged (1961).
I use these definitions as follows: To discriminate against people based on their membership in some group is to treat them differently, disfavoring them, based on that membership. To give preference to people based on their membership in some group is to treat them differently, favoring them, based on that membership.
Now, suppose the basis of favorable treatment were not race, but residence. It is common practice for state universities to give preference to in-state applicants. Imagine, however, that some state forbids its public colleges to discriminate against applicants from other states. Would this ban on discrimination against non-state applicants, by itself, ban any preference for in-state applicants? Or would an additional ban, on the preference, be necessary?
Any advantage granted to in-state applicants produces an equal disadvantage to non-state applicants. This disadvantage is only relative: it doesn't lower the non-staters' scores in the admissions competition. Nevertheless, the disadvantage is real. The extra points for in-staters make it more likely that non-staters will lose. The preference has the effect of placing the starting line of the admissions race closer to the finish line for in-staters than for out-staters. Thus, the same action that advantages some, necessarily disadvantage their competitors.
If, instead of in-state residence, the basis of preference were service in the military, the same logic would apply. Any advantage granted to applicants who are veterans would produce an equal disadvantage to those who are not. The disadvantage would be only relative; still, it would be real. There is no way that an advantage could be given veterans, without disadvantaging the other applicants. (We assume here that the admissions are competitive. If all applicants are accepted, an admissions preference for any would be meaningless.)
Art I, § 2 of the Michigan Constitution does not ban state discrimination against non-state or non-veteran applicants to state schools. However, it does ban state discrimination based on race, color, or national origin. Our question is, whether adding a ban on preferential treatment, on the same bases, prohibits anything not already prohibited by the discrimination ban. The answer will be No, by analogy to the logic concerning unequal treatment for in-state vs. non-state, or veteran vs. non-veteran, applicants.
Suppose that applicants for employment in Michigan government jobs receive preference if they are members of "underrepresented racial or ethnic minority groups." This advantage is based on "race, color, or national origin." Any advantage so based, whether tiny or huge, is clearly forbidden by the new amendment's ban on preferential treatment. However, it is already forbidden by the ban on discrimination in Art I, § 2, since any advantage granted to minority applicants places other applicants at a corresponding disadvantage. By favoring (discriminating for) certain minorities, it disfavors (discriminates against) everyone else. Since the preferential treatment for applicants in the favored groups cannot exist without discriminating against other applicants, based on their race, color, or national origin, it was already prohibited by the ban on such discrimination in I : 2. Therefore, the amendment's ban on preferential treatment, based on race, color, or national origin, prohibits nothing that was not already prohibited by the constitution's ban on discrimination. Q.E.D.
Was this point addressed during the Michigan battle? So far as I know, neither side argued that the nondiscrimination clause already in the Michigan Constitution necessarily bans preferential treatment based on race, color or national origin. On the contrary, both sides seemed to assume that-without the amendment-the constitution would not block what MCRI called "preferential treatment," and what the opposition called "affirmative action."
This assumption was based largely on a Giant Fact: the racial preference revealed in the University of Michigan admissions lawsuits, Gratz v Bollinger and Grutter v Bollinger. The apparent depth and breadth of the unequal treatment of applicants, based on their race or national origin, was spectacular. This is illustrated by the racial admission rates for applicants with the same grades and test scores. The examples given below are from tables comparing applicants at the 10th, 20th, 30th, 40th, 50th, 60th, 70th, 80th, and 90th percentiles, according to their grades and test scores. (An applicant at the 10th percentile was behind 90% of all applicants; at the 20th percentile, behind 80%, and so on.)
In the undergraduate college, the probability of admission for Black applicants, whose high school grades and SAT scores placed them at the 10th percentile of all applicants, was 88%. The admission probability for White applicants at the same percentile was 4%. At the 30th percentile, the Black applicants' probability of admission was 99%; the Whites' probability, 45%. Not until the 80th percentile did White applicants have a 99% probability of admission. [The full table is here.]
Law school admissions being more selective, the differences in treatment were even greater. The racially or ethnically Favored applicants were African-, Mexican-, Puerto Rican-, and Native-Americans. The Unfavored were Caucasian-, Asian-, and other Hispanic-Americans, plus Foreign and Ethnically-Unidentified applicants. The rate of admission for the Favored, whose college grades and LSAT scores placed them at the 30th percentile of all applicants, was 83%. The admission rate for the Unfavored applicants at the same percentile was 1%. At the 50th percentile, the admission rate for the Favored was 100%, compared to 5% for the Unfavored. The table's highest rate of admission for Unfavored applicants was 95%, at the 90th percentile. [The full table is here.]
These statistics are powerful evidence, though not conclusive proof, of favorable treatment based on race, color, or national origin. In neither the college nor the law school were grades and test scores the only bases of admission. It is theoretically possible that superiority in meeting other admission criteria overwhelmed the disadvantage resulting from lower grades and test scores. However, the university never denied that race or ethnicity was a factor in its admission decisions. The question, in the admissions lawsuits, was not whether U-M was using race and ethnicity, but whether their use violated the equal protection clause of the U.S. Constitution, which does not explicitly ban such discrimination.
We have no reason to believe that the state's use of race to favor "underrepresented minorities" is limited to the University of Michigan. However widespread this usage, it would raise in every case the same question: How could this happen, in the face of Art I, § 2?
One method would be judicial interpretation. Did the Michigan Supreme Court simply decide that the command in Art I, § 2 not to discriminate based on religion, race, color, or national origin was not meant to bar preference for minorities? The U.S. Supreme Court took such a step in a famous case, United Steelworkers v. Weber, (1979). In that case, the Court was interpreting a federal statute rather than the U.S. constitution. The Court held that the commands in Title VII of the U.S. Civil Rights Act not to discriminate based on race, color, religion, sex or national origin were not meant to bar preference on these bases for minorities. [The opinion of the Court by Justice Brennan is here, and the dissent by Justice Rehnquist is here.] If the illogic of this conclusion failed to inhibit the nation's highest court, it could also fail in a state court. Be that as it may, no such decision has occurred in Michigan.
How, then, did Michigan get from its constitutional principle to its discriminatory practice? The road leads first to key provisions in Michigan's Civil Rights Act. Most of these provisions ban discrimination, but some empower Michigan's Civil Rights Commission to waive the bans. We then check how the Michigan courts have dealt with this tension. This will be enough, I believe, for a plausible, short answer to how Michigan got from there to here. A virtue of this answer is that it will explain why it made sense for the amendment to ban racial and ethnic preference, even though these were already banned by the constitution. Also, it will explain why it made sense for practitioners of affirmative action to fear the new discrimination ban, even though the old one had not stood in their way.
The constitution's Art I, § 2 concludes with: "The legislature shall implement this section by appropriate legislation." This mandate has been carried out chiefly byMichigan's Civil Rights Act, initially adopted in 1976, but often amended since. Directly pertinent to U-M's racial admissions policies is the Act's fourth Article, concerning educational institutions (both public and private). According to Art IV, § 402, they must not:
These statutory bans on racial and ethnic discrimination are as uncompromising as the constitutional ban in Art I, § 2. U-M's admissions policies breached Clause (b) by discriminating against applicants on the forbidden bases, and Clause (e) by limiting the number of white and Asian acceptances in order to obtain a "critical mass" of "underrepresented minorities." Clause (a) was probably breached by race-based financial and tutoring assistance. Clause (d) was surely breached by public notices advertising "diversity," "equal opportunity," or "affirmative action," all "indicating a preference, limitation, specification, or discrimination based on . . . race, color, national origin. . ."
The foes of the MCRI amendment maintained it had no right to be called a "civil rights" amendment. Yet its bans on discrimination are obviously quite similar to the bans long present in Michigan's Constitution, and in § 402 of Michigan's Civil Rights Act. The opposition also claimed that the amendment's ban on preference would destroy civil rights. Yet the Act, in § 402 (d), treats "preference" and "discrimination" as synonyms, banning both.
Sec. 402 (c) bans schools from trying to find out the racial or ethnic identity of their applicants. Here, the non-discrimination principle is strengthened by requiring colorblindness. But a counter-tendency appears, for the first and only time in Art IV. Schools may elicit racial identity: if the feds require it, the Michigan Civil Rights Commission permits it, or pursuant to an affirmative action plan. Notice, however, that these exceptions reach only the prohibition in Clause (c). They are not stated as exceptions to the prohibitions in Clauses (a), (b), (d), and (e). As written, § 402 of the Civil Rights Act seems every bit as hostile to U-M's racial admissions policies, as does Art I, § 2 of the Michigan Constitution.
The litigation in Gratz and Grutter addressed the use of race in U-M's student admissions only, but no one would be surprised to find it also in faculty hiring. Racial discrimination in faculty hiring at any public college is forbidden by both the new amendment and the previous constitution. The Article on Employment in Michigan's Civil Rights Act starts out as categorical as the constitution, but later introduces an important exception. First, it declares (Art II, § 202):
Sections 203-205 ban such discrimination also by labor unions and employment agencies. Sec. 206 (1), like 402 (d) above, treats "preference" and "discrimination" as equivalent:
The exception arrives in § 210:
Unlike the exception in § 402 (c) above, which applies to a single clause, § 210 applies to an entire article. I read § 210 as an exception. It is generally treated so, as a waiver to the article's bans on discrimination in employment. But where is the language that would justify this interpretation? Nowhere does 210 state that the plans adopted by employers, employment agencies or labor unions "to eliminate present effects of past discriminatory practices" or to "assure equal opportunity with respect to religion, race, color, national origin, or sex" may include discrimination or preference on these bases.
Both these goals may be pursued by means that do not discriminate. It depends on how the goals are defined. For example, if the first goal were defined as compensation to a worker for having been discriminated against by an employer, the compensation would be based on the employer's wrong, not on the worker's race. Making sure that such compensation occurs would remove the present effect of a past discriminatory practice. Since this action would not discriminate, it would require no waiver of the article's nondiscrimination rules. Likewise, if the second goal were defined as an equal chance of employment for equally qualified workers, no matter what their "religion, race, color, national origin, or sex," the goal would require obeying the article's nondiscrimination commands, not waiving them.
Nevertheless, these two goals are commonly defined by advocates of affirmative action in ways that do require discrimination as a means. The "present effects of past discriminatory practices" are held to mean the lacks in individual ability, education and experience, which help to cause the underrepresentation of racial, ethnic, or sexual groups in employment. And "equal opportunity" is thought to require proportional representation of racial, ethnic and sexual groups in employment. To move from underrepresentation to proportional representation, the nondiscrimination commands of Art II must often be waived.
Near the end of the Michigan Civil Rights Act, there is a clause that sounds somewhat like §§ 210 and 507, but applies to the whole Act. It reads:
This clause seems to extend the exceptions in §§ 210 and 507 to the whole Civil Rights Act. If so, the wording is clumsy. It refers to "plans, programs, or services" that "eliminate" both "discrimination and the effects thereof." But most plans, programs or services do only one or the other. They eliminate discrimination by obeying the Act's discrimination bans, or they are officially permitted to disregard these bans in order to eliminate the effects of past discrimination. A plan, program, or service that attempted both would contradict itself: ending discrimination with one hand, while imposing it with the other. This contradiction created by the clause would have been avoided if "discrimination" were followed by "or" instead of "and."
One function of the courts, when interpreting legislation, is to define ambiguous terms. Have Michigan's courts defined the ambiguous terms in the Act's sections that seem to waive its bans on discrimination? Specifically, have they defined, in §§ 210 and 507, "present effects of past discriminatory practices" and/or "equal opportunity with respect to religion, race, color, national origin, or sex"? Have they wrestled with the apparent contradiction in § 705?
A quick answer to these questions is provided by Michigan Compiled Laws Annotated, available in paper or digital form in law libraries. This reference work quotes and summarizes judicial comments on and interpretations of clauses in Michigan's constitution and statutes. Unfortunately, a search of MCLA's Notes on Decisions concerning §§ 210, 507, and 705 yields no judicial discussion of their ambiguities or contradictions, let alone any attempt to define their key terms.
However, the Notes do point to two important Michigan Supreme Court cases applying § 210 - Victorson v. Dept of the Treasury (1992) and Sharp v. City of Lansing (2001). The opinions in these cases give some indication of the attitudes in Michigan's executive and judicial branches concerning the legality of state affirmative action plans that discriminate in favor of minorities or women.
In Victorson, the issue was whether the Treasury Department's affirmative action plan was illegal under § 210, not because it allowed discrimination, but because it had not been approved by the Civil Rights Commission. The Court held, four justices to three, that the plan was legal, if (1) it served the purposes of Michigan's Civil Rights Act, (2) did not unnecessarily trammel the interests of nonminorities, and (3) was temporary in nature. The U.S. Supreme Court's decision in United Steelworkers v. Weber (noted a few paragraphs above) is cited as authority for these three criteria. The dissent had no objection to the contents of the plan, but found it illegal simply because the Commission had not approved it.
As summarized by the Court, the plan included yearly, statewide goals and progress, for the Treasury Department's hiring of women, blacks and Hispanics, in various specialties at various levels of competency. Based on test scores, applicants were rated as "qualified" or " highly qualified." The latter rating was required for promotion. If fewer than three applicants scored as "highly qualified," a "qualified" woman or minority could be moved into the higher group. In the Court's description of the plan, there is no statement that discrimination occurred or was authorized. However, both the Opinion and the Dissent assume that, without the protection of § 210, the plan would be vulnerable to a charge of discrimination.
The Court cites executive rulings by Gov. Milliken (1970s), and Gov. Blanchard (1980s), to show that both men: (1) were concerned over "the dearth of minority and female representation in state employment," and (2) believed that "affirmative action was the primary means for achieving equal opportunity" in state employment. The Opinion notes also that the plan at issue in this case, though not endorsed by the Civil Rights Commission, had been approved by the Equal Employment Opportunity Council, which consisted of (no less than) the Governor, the Directors of the Departments of Civil Rights, Management and Budget, and Civil Service, and the Attorney General.
Reading this case, one has the impression that the majority and minority on the Court, the executive as represented by directives and policy, and the legislature as represented by § 210, were united in support of state affirmative action in employment. In their minds, what had become of the principle that discrimination based on religion, race, color or national origin is unjust, no matter who is targeted?
The Victorson Court states as "the purpose of civil rights legislation" a dictum of the Michigan Supreme Court in Miller v. C. A. Muer Corp (1984): "Civil rights acts seek to prevent discrimination against a person because of stereotyped impressions about the characteristics of a class to which the person belongs. The Michigan civil rights act is aimed at "the prejudices and biases" borne against persons because of their membership in a certain class, [citations omitted] and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases." This view harmonizes with the widespread governmental support of affirmative action indicated by the Court.
If to end discrimination when motivated by hostile prejudice were the sole purpose of civil rights laws, it would make sense to allow discrimination when motivated by a friendly desire to help. But the anti-discrimination clauses of the Michigan constitution and the Michigan Civil Rights Act do not confine their bans to discrimination motivated by prejudice. They sound as if their enactors believed that discrimination on such bases as religion, race, color and national origin is harmful to its victims and to society, whether motivated by prejudice or not.
The second Michigan Supreme Court case concerning § 210 is Sharp v. City of Lansing (2001). By a vote of six to one, the Court held that § 210 completely shields a public employer's approved affirmative action plan from liability under the state Civil Rights Act, but not under Art I, § 2 of the state constitution. By this decision, the white, male plaintiff was allowed to pursue his complaint of reverse discrimination, based on race and sex, by the Lansing fire department. If successful, his remedy would be an injunction ending the discriminatory practice. The other remedies for violations of the statute (monetary damages and attorney's fees) would not be available for a constitutional violation.
According to the Sharp majority, even though a city affirmative action plan has been approved by the Civil Rights Commission under § 210, the courts may review whether discriminatory actions under the plan nevertheless violate Art I, § 2 of the constitution. A plaintiff need not challenge § 210 itself as unconstitutional. The Court argues that "[t]he unsettling position of the dissent is that, if the state actor commits ongoing employment discrimination that violates the state Equal Protection Clause, without also violating the CRA, the courts, when petitioned by the employee, have no ability to put an end to the unconstitutional discrimination. . . . [I]t is axiomatic that the Legislature cannot grant a license to state and local governmental actors to violate the Michigan Constitution."
In Sharp, the Michigan Supreme Court was apparently in uncharted territory. From Victorson, we learn that affirmative action plans favoring women and minorities had been promoted by the Michigan government since the early 1970s. Sec. 210, permitting such plans, had been state law since 1976. Yet, as of 2001, there had been no Court decision that any state affirmative action plan, and/or any application of §§ 210, 507, or 705 was unconstitutional. Indeed, there is no indication, in this case or in the Michigan Compiled Laws Annotated, that these issues had ever been argued before this Court. From this it would be reasonable to conclude not only that Michigan's establishment was comfortable with discrimination favoring minorities and women, but also that the opposition to it, however widespread, was not assertive.
Not long after the Michigan Civil Rights Initiative was first announced, it was fiercely attacked by the Michigan Civil Rights Commission. The chairman of the Commission declared "The Michigan Civil Rights Initiative is a shameful attempt to confuse and manipulate unsuspecting Michigan voters. Ward Connelly's [sic] initiative is to civil rights what an ax is to a tree."
If, by "civil rights," you mean the rights not to be discriminated against that are proclaimed in Michigan's constitution and Civil Rights Act, the Civil Rights Initiative is not a destroyer but an added protector. However, if you mean by "civil rights" the right to discriminate in behalf of minorities and women, the MCRI is indeed an ax, though not deployed as broadly as Art I, § 2 of the Constitution. The new amendment leaves this right, whether exercised by the state or by private parties, untouched outside of public employment, public education and public contracting. Imagine the devastation that might have been wrought if the Initiative had instead amended the Civil Rights Act, by deleting the sections that override its commands not to discriminate. (In Michigan, ballot initiatives are allowed to enact statutes, as well as constitutional provisions.) Finally, if what you mean by "civil rights" is the power of the eight Commissioners to decide that certain people lack the right not to be discriminated against, based on religion, race, color, national origin or sex, while others have the right to be discriminated for on these bases, the MCRI is indeed an ax, or at least a hatchet.
We can now answer the two puzzles:
1. Why sponsor an amendment to add bans on racial and ethnic discrimination that were already there? Although such discrimination by the state was already explicitly forbidden, in both Michigan's Constitution and Civil Rights Act, the latter permitted these bans to be easily waived, and the former had yet to produce an injunction against affirmative action. The right of minorities not to be discriminated against was robust, but the corresponding right of whites was discounted, displaced by a right of minorities to be discriminated for. The amendment revived public support for the view that the right not to be discriminated against, based on race, ethnicity, or sex, belongs to everyone.
2. Since the existing bans haven't blocked affirmative action, why did defenders of such action fear the amendment? The amendment describes what it bans, honestly and precisely, as discrimination and preference based on race or sex. We have known for decades, that when such discrimination hides behind the name, affirmative action, a majority of Americans accept it, but when exposed as discrimination or preference, a majority reject it. The MCRI forced the supporters of affirmative action to drop the disguise. Although the amendment simply forbids discrimination and preference, based on race or sex, the opposition insisted that this would prohibit affirmative action. They thus confessed that what they supported as "affirmative action" requires discrimination and/or preference, based on race or sex. This confession helped the amendment to win. Both the confession and the victory have unsettled Michigan's affirmative action regime, which had lasted more than thirty years. The power to produce these results was ample reason for defenders of affirmative action to fear the amendment.