Executive Summary: The Legal Challenge to Proposal 2

February 01, 2008

Cantrell v. Granholm
On Wednesday, February 6, 2008, at 2:30pm at the U.S. Courthouse in Detroit, Federal District Judge David Lawson will hear oral argument on the constitutionality of Proposal 2, the 2006 ballot initiative banning affirmative action in Michigan. The case, Cantrell v. Granholm, (Case No. 2:06-cv-15637) was filed in December 2006, soon after Proposal 2 was adopted, by a diverse group of students, prospective students and faculty at the University of Michigan. They are being represented by a legal team comprised of the Detroit Branch NAACP, ACLU of Michigan, the New York law firm of Cravath Swaine and Moore, U-M Law Professor and ACLU Lawyer Mark Rosenbaum, NAACP Legal Defense and Education Fund, Harvard Law Professor Lawrence Tribe, the Michigan State Conference NAACP and the national office of the ACLU. A separate but related lawsuit, filed by an organization known as “BAMN,” will be argued at the same time.

This case is the second major lawsuit addressing affirmative action at public universities in Michigan. In the first case, the U.S. Supreme Court held in 2003 that public universities may consider race as one of many factors in achieving what the court deemed a “compelling interest” in educational diversity. (Grutter v. Bollinger and Gratz v. Bollinger).

After the Supreme Court’s decision, opponents of affirmative action eventually gathered enough signatures to place an anti-affirmative action initiative on the ballot. Although a federal judge found that the petition circulators engaged in fraud in collecting signatures, the initiative– called Proposal 2 –appeared on the November 2006 ballot and passed. The initiative amended the Michigan constitution to bar the consideration of race, sex, ethnicity or national origin in education, employment and contracting.

When the first lawsuit challenging the validity of Proposal 2 was filed, the parties reached an agreement to permit Michigan’s public universities to continue to use affirmative action though the end of current admissions cycle. However, a white applicant to U-M Law School intervened in the case and filed an emergency appeal to the U.S. Court of Appeals for the Sixth Circuit. A three-judge panel of the appellate court, while careful to state that it was not deciding the constitutionality of Proposal 2, ordered the universities to implement Proposal 2 immediately. Accordingly, Michigan’s public universities stopped the use of affirmative action in the middle of this year’s admissions cycle while this case was being litigated in the U.S. District Court.

For the last year, the parties have been engaged in what is called “discovery” of the facts which has resulted in dozens of depositions, expert testimony and reports, and the production of thousands of pages of documents. The Cantrell Plaintiffs have now filed a “Motion for Summary Judgment” asking Judge Lawson to rule in their favor based on the undisputed facts and without the need for a trial.

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. First, universities continue to give weight to a myriad of non-academic factors in admissions such as geographical diversity, legacy status and athletics. However, because of Proposal 2, universities are now banned from considering an applicant’s racial identity even though the Supreme Court has a compelling interest in admitting a racially diverse student body. By targeting and surgically removing race from consideration in admissions, while allowing the consideration of virtually all other non-academic factors, Proposal 2 unconstitutionally discriminates against students of color.

Second, Proposal 2 has created an unfair political structure that allows groups to urge universities to give weight to virtually any non-academic factor in admissions except race. If, for example, a musical society thought oboe players 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 could not simply lobby the admissions committee. Rather, they would be forced to go through the arduous and expensive task of first amending the Michigan Constitution. This double standard, which primarily hurts people of color, also violates the Equal Protection Clause of the U.S. Constitution.

It is important to note that the Cantrell plaintiffs do not argue that universities are required to consider race in admissions. Rather, we argue that if a university seeks to admit a diverse class of students, it cannot be precluded from voluntarily considering race as one of many factors in admissions.

Here is a short description of three Supreme Court cases upon which the Cantrell plaintiffs rely:

Washington v. Seattle School District, 458 U.S. 457 (1982).
The voters of the State of Washington passed a ballot initiative that banned bussing of public school students to achieve racial integration, but permitted bussing for any other purpose. The U.S. Supreme Court struck down the initiative as violating the Equal Protection Clause of the U.S. Constitution because it created a double standard that unconstitutionally discriminated against people of color. The court reasoned that any group that wanted bussing for any purpose other than integration simply had to lobby the school district, but people of color were required to first amend the state constitution if they wanted bussing to integrate the neighborhood schools.

Hunter v. Erickson, 393 U.S. 385 (1969).
Voters of Akron, Ohio passed a charter amendment barring the enactment of any ordinances barring race, religious and national origin discrimination in housing unless the measure was first approved by popular referendum. The Supreme Court struck down the charter amendment as denying equal protection because it made it more difficult for minorities to advance legislation in their interest than others.

Grutter v. Bollinger, 539 U.S. 306 (2003).
Universities have a compelling interest in admitting a racially diverse student body. Race may be considered as one of many factors in admissions so long as the university engages in an individualized review of applications, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.

Affirmative action is necessary to level the playing field and open doors to students of color who continue to experience discrimination and who have historically been excluded from the nation’s flagship universities. Unless we win this case, it is undisputed that the number of students of color at the University of Michigan will drop significantly and the university will no longer reflect the racial diversity of this state. Moreover, the benefits that flow from learning in a racially diverse community will end for all students and the University of Michigan will be a less competitive institution.

The case has national significance as well. Proposal 2 was backed by California businessman Ward Connerly as part of a national strategy to roll back civil rights. Connerly also sponsored Proposition 209 in 1996, which banned affirmative action in California. Presently, he is attempting to mount similar campaigns in Colorado, Missouri, Oklahoma, Arizona and Nebraska. If the court strikes down Proposal 2, it could impact attempts to ban affirmative action across the country.

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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