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Court Overturns Michigan Affirmative Action Ban

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Focus shifts to California

By Chris Levister –

A federal appeals court on Friday struck down Proposal 2, the 2006 Michigan referendum that banned affirmative action in college admissions, employment and contracting, setting up another U.S. Supreme Court showdown on the issue.

"This ruling is a tremendous victory for affirmative action," said George Washington, a lawyer for the plaintiffs, the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (commonly known as BAMN).

“It means that literally thousands of Black, Latino, and Native American students who would never have had the chance to go to public universities in the state of Michigan now have that chance. Affirmative action is back on the agenda,” Washington said. The ruling, which overturned a 2008 decision by a federal district-court judge, concerns a ballot measure that passed with 58 percent of the vote.

Friday's decision caps a five-year campaign by BAMN to challenge the Michigan law. It also raises a new set of legal questions for states with constitutional bans on preferential admissions and hiring.

California, Washington, and Nebraska have similar laws, but they are not directly challenged by the new ruling, which is limited to the states in the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee). Michigan pledged to appeal the ruling.


Washington, an attorney with the firm of Scheff, Washington and Driver, which filed the Michigan lawsuit, said their focus now shifts to California. The firm has appealed to the 9th Circuit Court of Appeals in an attempt to overturn the state's Proposition 209. The controversial measure was passed by California voters in 1996.

“Prop. 209 is every bit as unconstitutional as Proposal 2,” Washington said.

“It's a carbon copy. At the most basic level, we must continue to remind the public that discrimination on the basis of race is unfortunately still very much with us today. Our efforts to achieve equality must be seen as resting on that fundamental truth in order to be perceived as fair and necessary.”

Attorney’s in the Proposal 2 lawsuit say as competition for a spot at a top college increases, debates over legacy preferences in college admissions are likely to become even more contentious.

University of California spokesman Ricardo Vazquez said UC's legal staff declined to comment on the Michigan case because they needed more time to review the decision and whether it had any relevance to the ban on affirmative action in state college admissions in California.

Christine Helwick, general counsel for the Cal State University system, said that she and other education officials in California will be watching the Michigan case's appeals. The case ultimately could be relevant to California if the U.S. Supreme Court hears an appeal, she said.

In 2006 conservative activist and former UC Regent, Ward Connerly who spearheaded Proposition 209 helped lead the anti-affirmation action campaign in Michigan with Jennifer Gratz, a former student who sued the University of Michigan in 1997 over its use of racial preferences in admission but lost when a narrowly divided U.S. Supreme Court sided with the school.

He supported a similar ballot measure that was approved by voters in Washington state in 1998. Florida, facing the threat of a similar initiative, changed its college admissions policies in 2000.

He calls his ballot initiatives civil rights measures and named his organization the American Civil Rights Initiative.

His group receives funding from conservative groups, such as the Sarah Scaife Foundation, and from individual donors whom he did not identify for fear that it would expose them to charges of racism.

Some African American leaders see Connerly as a sell-out acting at the behest of his conservative sponsors.

They maintain that affirmative action, which began in the 1960s, is an essential step in helping Blacks, Latinos and Native Americans overcome generations of discrimination that have left them at a disadvantage in obtaining an education or a job.

“I am inclined to see him as an opportunist, someone who is supported by wealthy backers and is primarily interested in protecting the privileged, not the underprivileged,” said Darnell Hunt, a professor of sociology and director of the Ralph J. Bunche Center for African American Studies at UCLA.

“He has set us back 30 years in terms of public education,” Hunt said.

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