In his amicus brief challenging the legality of a state constitutional amendment that bans race and gender preferences, California Governor Jerry Brown cites the 2003 U.S. Supreme Court Grutter v. Bollinger decision to make his case. Brown invokes the same "political-structure doctrine" litigants used to overturn Proposition 2 in Michigan.
On July 1, a three-judge panel on the Sixth Circuit Court of Appeals ruled that the anti-discriminatory language included as part of the Michigan Civil Rights Initiative (MCRI) actually violated the amendment's equal protection clause and must therefore be overturned. The two Clinton appointees who formed the majority opinion, declared MCRI, widely known as Proposal 2, to be unconstitutional because it alters the state's political structure in a manner that unduly burdens racial minorities.
Jennifer Gratz, the executive director of the MCRI, points out that opponents of race-neutral initiatives have always misconstrued and misinterpreted Justice Sandra Day O'Connor's majority opinion in Grutter.
"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," Gratz explained. "She certainly did not mandate the use of preferences and made it clear that over the next 25 years following this decision race should ultimately cease to be a factor."
O'Connor also ruled that law schools should make a "good faith" effort to adopt race neutral alternatives capable of yielding a diverse student composition. In addition, she encouraged other states to follow the example set by universities in California, Florida and Washington State, which all had state laws prohibiting race preferences at the time of O'Connor's ruling.
In other words, Gov. Brown's premise is flawed right from the get go because the same Supreme Court decision he cites also points to California's Proposition 209 as a model for what every state should be doing; in point of fact this is what has happened. Washington State, Michigan and Nebraska have also passed constitutional amendments that outlaw preferences.
An organization the describes itself as Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), is the key instigator behind litigation in California and Michigan aimed at overturning the will of the voters. BAMN attorneys have pledge to fight all the way to the U.S. Supreme Court.
Ward Connerly, the former University of California regent, who lead the charge for Prop. 209 would welcome a new case before the highest court in the land, but sees it as unlikely at this point. The California Supreme Court and the Ninth Circuit Court of Appeals have already ruled in favor of Prop. 209. Moreover, the full Sixth Circuit has accepted a petition from Michigan Attorney General Bill Schuette for a rehearing en banc (in full), which is expected early next year. Schuette expects to prevail before the full court and for Proposition 2 to remain in full effect.
"I know the opposition has this idea that it has struck pay dirt with this ruling [from the Sixth Circuit], but if this case were to go to the Supreme Court I believe would get the ruling we have long desired and that Grutter decision would be overturned," Connerly said. I think we are on track to win this battle for colorblind policies in the fullness of time, but that's not to say any of this will be easy. When it comes to race, nothing is surprising and nothing is unbelievable because we find there are groups out there fighting to maintain race preferences `by any means necessary,' and with very extreme tactics."
Back in California, Gov. Brown appears set to sign off on a senate bill that would allow state universities to "consider race, gender, ethnicity and national origin, along with other relevant factors, in undergraduate and graduate admissions." This would effectively overturn Proposition 209. Connerly has pledged to file suit if the bill does become law.
But in post-racial America, national trends are cutting against Gov. Brown. The Oklahoma State legislature recently approved a resolution that would allow for voters to approve a new constitutional amendment banning race and gender preferences. The Oklahoma Civil Rights Initiative will be on the ballot in Nov. 2012. State Sen. Rob Johnson co-authored the resolution with State Rep. Leslie Osborne.