Constitutional Opinions

Affirmative Action Reconsidered

New legal cases and initiatives confirm renewed popular opposition to race as an organizing principle in American society.

By 1.25.12

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When President John F. Kennedy included a call for "affirmative action" as part of an executive order he issued in 1961, the phrase was widely viewed as a proactive extension of the civil rights movement. The idea was to adopt corrective measures that would reverse discriminatory practices and for employers to open up new opportunities to minorities who had been denied equal treatment. However, for Americans living in the 21st century, the concept of affirmative action in employment, college admissions, and government contracting has conflicting connotations.

For some, the term is synonymous with the use of racial quotas, set-asides, and other preferential policies at odds with constitutional rights. For others, affirmative action continues to register as a benign, anti-discriminatory policy measure aimed at compensating minority groups for past injustices and safeguarding hard fought gains.

But the existing legal regime that sorts out individual Americans on the basis of race is no longer tenable in a society that has become more multi-ethnic at the turn of the century, Roger Clegg, the president and general counsel of the Center for Equal Opportunity (CEO), told listeners during a recent Federalist Society luncheon in New Orleans. In fact, in some parts of the country, it is no longer clear which group is actually in the minority, Clegg noted in his talk. Moreover, many individual Americans check off more than one box when asked about their ethnicity in census samples, he points out.

But there is another option gaining momentum at the state level that appeals to long-standing constitutional ideals. In defiance of academic elites, far-left pressure groups and establishment figures in both major political parties, average Americans are voting down race and gender preferences as a matter of government policy; and they are doing so by sizable majorities. The demographic shift that has become evident in recent years is at least partly responsible for the public's heightened opposition toward preferential policies, Clegg suggested.

"There is a form of affirmative action that is not controversial, that no one is trying to abolish," he said. "It does not violate the original meaning of the phrase. The idea was that companies that may have had a history of discrimination could not just sign a piece of paper and pretend that it wasn't a problem anymore. Instead, they had to take proactive measures."

But affirmative action does become controversial, Clegg added, when it is attached to policies that treat people differently based on their ethnicity or gender. This approach, which is still operative in many government agencies and academic institutions, no longer sits well with a growing majority of Americans.

Up next for voter approval, is the Oklahoma Civil Rights Initiative (OCRI), which will be on the state ballot in November. The proposal would amend the state constitution with language prohibiting government-sanctioned discrimination.

State Sen. Robert Johnson, the prime sponsor of the resolution to put the civil rights initiative on the ballot, has invoked language reminiscent of Martin Luther King Jr. to make his case.

"I have always believed we should be evaluated by our character and merit, not by the color of our skin," he has observed. "Equality of the law is a fundamental American value. This proposal would give Oklahoma voters the opportunity to reaffirm the importance of that value in state government."

The proposed amendment declares: "The state shall not grant preferential treatment to, or discriminate against, any individual or group on the basis of race, color sex, ethnicity or national origin in the operation of public employment, public education or public contracting." The Oklahoma initiative is closely patterned after California's Proposition 209, which passed with 54 percent of the vote in 1996.

While the language is as clear and unambiguous as the public sentiment behind it, the mixed messages of the U.S. Supreme Court have created an uncertain legal environment that allows for continued judicial mischief at the lower level. Writing for the majority in the 2003 Grutter v. Bollinger opinion, Justice Sandra Day O'Connor ruled that it was permissible for the University of Michigan Law School to use race as one of many factors in a "narrowly tailored" fashion to achieve student diversity. But in the concurrent Gratz v. Bollinger ruling, the majority of justices rejected the point system used at the University of Michigan undergraduate school. When the two rulings are blended together, it is evident that the high court is opposed to the use of overt quotas and set-asides.

Left-leaning political figures who are working to overturn or block the civil rights initiatives typically aim their arrow through the Grutter ruling. Gov. Jerry Brown of California filed an amicus brief last year backing up the latest legal challenge to Proposition 209 that is now before the 9th Circuit Court of Appeals. But just a few months later, Brown also saw fit to veto legislation that would have reinstated race and gender preferences. Even as he attempts to placate his far left base, Brown recognizes that he faces an uphill climb in the court system.

Ward Connerly, the former University of California regent who was the galvanizing influence behind the civil rights initiative, had threatened to take legal action if Brown signed off on the bill. Moreover, the 9th Circuit and the California Supreme Court have already upheld the constitutionality of Proposition 209.

"By Any Means Necessary"

The key instigator behind the continued legal challenges to Connerly's initiatives is a highly aggressive pressure group known in full as the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), which came together in response to Proposition 209. Shanta Driver, a 1975 Harvard graduate with a J.D. from Wayne State University Law School, founded the organization in 1995. BAMN claims it is out to "restore the real meaning" of the 14th Amendment's equal protection clause.

To this end, it has repeatedly filed suit in an effort to overturn the initiatives. Last year, on July 1, two Clinton appointees, who formed a majority on a three-judge panel of the Sixth Circuit Court of Appeals, embraced BAMN's tortured legal reasoning. Judges R. Guy Cole Jr. and Martha Craig Daughtrey ruled that the Michigan Civil Rights Initiative (MCRI), widely known as Proposal 2, is unconstitutional because it alters the state's political structure in a manner that unduly burdens racial minorities. The case could conceivably go back to the U.S. Supreme Court if the ruling in Michigan stands and remains in conflict with court decisions that uphold Proposition 209 in California.

"When it comes to race, nothing is unbelievable and nothing is surprising," said Connerly, who now heads up the American Civil Rights Institute (ACRI) based on Sacramento. "This is the kind of decision that reaffirms the idea that some groups will work to preserve preferences 'by any means necessary.' I know they [BAMN attorneys] believe they have hit pay dirt here. But I have spoken with very good constitutional scholars and I am absolutely convinced that this case will be overturned before the full sixth circuit. If by some chance this case does go to the U.S. Supreme Court, I expect that we'll get the ruling we have long desired on the issue of preferences and they will bite the dust once and for all."

Michigan Attorney General Bill Schuette has successfully petitioned the Sixth Circuit to rehear the case en banc (in full). He issued his first brief in defense of MCRI earlier this month. The civil rights law remains in full force pending a final court ruling, which is expected within the next few months.

While BAMN and other hostile litigants continue to invoke Grutter as a rationale for the continuation of race and gender preferences, they persistently misconstrue the larger point behind the ruling, Jennifer Gratz, the executive director of the MCRI, explained.

"While it's clear that O'Connor favored a holistic approach that included race, she also said it was acceptable for voters in states to make preferences unconstitutional," observes Gratz, who was also the plaintiff in the other Supreme Court case that struck down quotas at the University of Michigan. "She [O'Connor] certainly did not mandate the use of preferences and made it clear that over the next 25 years [from the time of that decision] race should ultimately cease to be a factor."

O'Connor specifically cited state laws in California, Washington State, and Florida (that were in effect at the time of her ruling) banning race and gender preferences as examples of what other states should be emulating. Since then, Arizona and Nebraska have also passed constitutional amendments banning preferential policies.

While Connerly continues to encourage grassroots activists who are ambitious to pass new initiatives in their home states, he cautions them against placing too much faith in either major political party. Despite embracing post-racial sentiments during his 2008 election effort, President Obama has inserted race and gender preferences into the Dodd-Frank finance bill, the health care bill, and the stimulus package, which are highlighted in a report from ACRI.

In Michigan, former President Gerald Ford joined with other Republicans running for state-wide office in 2006 to oppose the initiative banning preferences. Those Republicans lost; the initiative passed with broad support across party lines.

There's a lesson in that.

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About the Author

Kevin Mooney is an investigative reporter with free market think tanks associated with the Franklin Center for Government and Public Integrity. He has also written for the Daily Caller, the Washington Times, the Washington Examiner, NetRightDaily.com and NewsBusters.