Gratz & Grutter: Michigan Civil Rights Initiative

Following the lead of states such as California, Florida and Washington, which have elected to eliminate all consideration of race in government contracting, hiring, and state-supported education, Michigan voters passed a ballot initiative to end racial preferences. Appearing on the November 2006 ballot as Prop. 2, the amendment passed with 58% of the vote and went into effect on December 22, 2006.

In addition to singling out public universities, the amendment broadly mandates that “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, or public contracting.”

The initiative was spearheaded by California businessman Ward Connerly and CIR client Jennifer Gratz, who formed the Michigan Civil Rights Initiative to obtain the requisite number of signatures to put the issue on the ballot. MCRI submitted 508,202 signatures on January 6th, 2005, well more than the 317,757 required.

To help ensure that Michigan residents heard both sides of the debate, a second organization was formed in early 2005 called Toward a Fair Michigan. Led by Michigan State Professor William Allen and CIR client Barbara Grutter, the organization initiated a variety of educational programs designed to educate the public about the harms and benefits of racial preferences.

The legal assault on Prop. 2

Before Prop. 2 had even made its way onto the ballot, the advocacy group “Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary,” known commonly as “BAMN,” demanded that U.S. District Court Judge Arthur Tarnow remove the initiative from the ballot. BAMN claimed that MCRI had violated the Voting Rights Act by using the terms “racial preferences” and “affirmative action” misleadingly. At the last minute, the District Court rejected BAMN’s claims, allowing Prop. 2 to stay on the ballot.

After Prop. 2 passed overwhelmingly, BAMN then sought to delay its enforcement by claiming that the amendment violated the U.S. Constitution. Three days before Prop. 2 was scheduled to take effect, on December 19, 2006 U.S. District Judge David Lawson ordered a delay on Prop. 2 until July 1, 2007, which would have bypassed an entire admissions cycle at Michigan’s universities. Representing UM law school student Eric Russell, CIR moved to intervene in the case. On emergency appeal to the U.S. Court of Appeals for the Sixth Circuit, CIR succeeded in lifting Judge Lawson’s order on December 29.

The Sixth Circuit then remanded the case to Judge Lawson for a decision on the question of whether Prop. 2 violated the U.S. Constitution. After a year of extensive discovery, Judge Lawson upheld the constitutionality of Prop. 2 on March 18, 2008. In December, 2008, Judge Lawson denied the plaintiffs’ motion to reconsider and the case is now on appeal to the U.S. Court of Appeals for the Sixth Circuit.

CIR’s successful defense of Prop. 2 removed a legal cloud hanging over ballot initiatives in other states. Led by Ward Connerly, the American Civil Rights Institute (ACRI) successfully passed a similar initiative in Nebraska in 2008, while falling short in Arizona and Colorado. ACRI continues to pursue state legislative reform designed to end the use of racial preferences in government hiring, contracts, and education.