Coalition Deeply Disappointed by Court Decision to Dismiss Prop 2 Lawsuit

March 19, 2008

DETROIT – The civil rights coalition challenging Proposal 2, the 2006 ballot initiative banning affirmative action in Michigan, expressed deep disappointed with a federal judge’s decision to dismiss their lawsuit. The coalition had asked the court to strike down the ban because it discriminates against students of color by removing race from consideration in admissions, while allowing the consideration of virtually all other non-academic factors.

The lawsuit was filed in December 2006 on behalf of 19 students, faculty and applicants to the University of Michigan by the American Civil Liberties Union of Michigan, Detroit Branch NAACP, the New York law firm of Cravath Swaine and Moore, NAACP Legal Defense and Education Fund, Harvard Law Professor Lawrence Tribe, Michigan State Conference NAACP, and the national ACLU.

“It is unfortunate that Michigan universities can continue to use any non-academic factor in admissions but race even though the United States Supreme Court has recognized that universities have a compelling interest in ensuring a racially diverse student body,” said Kary Moss, Executive Director of the ACLU of Michigan.  “Proposal 2 has placed Michigan universities at a terrible disadvantage in attracting the brightest and the best. After all, a wealth of perspectives, ideas, backgrounds, and cultures leads to a learning experience that can never be offered in any course catalog.”

The lawsuit argued that Proposal 2 violates the Equal Protection Clause of the U.S. Constitution by creating a double standard in university admissions that hurts people of color. Universities continue to give weight to a myriad of non-academic admissions factors such as geographical diversity, legacy status and athletics, however, they can no longer consider an applicant’s racial identity.

In addition, Proposal 2 has created an unfair political structure that allows groups to urge universities to admit students based on virtually any non-academic factor, except race. If, for example, an alumni association thought children of alumni should be given extra consideration in admissions, all it would have to do is lobby the admissions committee. However, if people of color wanted to reinstate affirmative action in admissions, they would be forced to go through the arduous and expensive task of amending the Michigan Constitution.

“We are incredibly disappointed by this decision,” said Melvin Butch Hollowell, NAACP Detroit Branch General Counsel. “This lawsuit was always about putting children of color on equal footing with students of all other backgrounds.”

This was the second major lawsuit addressing affirmative action at public universities in Michigan. In the first, Grutter v. Bollinger and Gratz v. Bollinger, the U.S. Supreme Court held that it is constitutionally permissible for universities to consider race and gender as one factor among many in university admissions. Moreover, the Supreme Court has explained that a state law violates the Equal Protection Clause when it makes it more difficult for certain racial minorities than for other members of the community to achieve legislation that is in their interest.

“Proposal 2 is a deterrent to equal access and opportunity and it continues to perpetuate the myths about the true intents of Affirmative Action, said Rev. Wendell Anthony, Detroit Branch NAACP President. “However, it is important that we continue to march toward progress.”

By approving Proposal 2, Michigan became the third state in a decade — joining California and Washington — to ban the consideration of race, sex, ethnicity or national origin in education, employment and contracting.  Proposal 2 was backed by California businessman Ward Connerly as part of a national strategy to roll back civil rights. Presently, he is attempting to mount similar campaigns in Colorado, Missouri, Oklahoma, Arizona and Nebraska. 

"Some claim that we’ve moved beyond race in our nation, but this case is a stark reminder that issues of race still matter, especially when equal opportunity is not being afforded to all. It is vital that effective participation in the civic life of our nation continue by all especially at a time when a national effort to attack access to equal opportunity is underway," said Ted Shaw, Director-Counsel and President, NAACP Legal Defense and Education Fund.

The plaintiffs are represented by Melvin Butch Hollowell, Detroit Branch NAACP General Counsel; Kary Moss, Michael Steinberg and Mark Fancher of the ACLU Fund of Michigan; ACLU Attorney and U-M Law Professor Mark Rosenbaum; Karin DeMasi and Jessica Richman for Cravath, Swain and Moore; Theodore Shaw, Victor Bolden and Anurima Bhargava of the NAACP Legal Defense and Education Fund; Dennis Parker and Alexis Agathocleous of the national ACLU Racial Justice Project; Jerome Watson of the Michigan State Conference of the NAACP; Harvard Law Professor Lawrence Tribe; and Duke Law Professor Erwin Chemerinsky.

To read Judge Lawson’s opinion, visit: http://aclumich.org/sites/default/files/file/pdf/prop2opinion.pdf

To read the complaint, visit: http://aclumich.org/sites/default/files/file/pdf/cantrallamendedcomplaint.pdf

To read the motion for summary judgment, visit: http://aclumich.org/sites/default/files/file/pdf/cantrallmotionsj.pdf

To read expert affidavits, visit: http://aclumich.org/sites/default/files/file/pdf/Bowen.pdf and http://aclumich.org/sites/default/files/file/pdf/Oakes.pdf

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