Michigan voters struck a blow for equality this month, when 58% of them approved an amendment to the state constitution banning racial discrimination in public universities and contracting. Almost identical measures have previously passed by similar majorities in California and Washington state. That means the original meaning of the 1964 Civil Rights Act that racial discrimination of any kind is illegal has won reaffirmation in three liberal states, none of which have voted for a Republican for president since 1988. Supporters now plan to carry the fight to other states.
From the outraged cries of affirmative action diehards, you would think the dark night of fascism was descending with the passage of the Michigan Civil Rights Initiative. Mary Sue Coleman is president of the University of Michigan, which has already spent millions of taxpayers' dollars defending its racial preferences in courts. She addressed what Tom Bray of the Detroit News called "a howling mob of hundreds of student and faculty protestors" last week. "Diversity matters at Michigan," she declared. "It matters today, and it will matter tomorrow." Echoes of George Wallace, who in 1963 declared from the steps of Alabama's Capitol: "I say segregation now, segregation tomorrow, segregation forever."
Ms. Coleman isn't the only Michigan official to employ Wallace-style rhetoric against MCRI. Detroit's Mayor Kwame Kilpatrick told a fundraiser last April that the measure would usher in an era of racial prejudice. "Bring it on!" he bellowed. "We will affirm to the world that affirmative action will be here today, it will be here tomorrow, and there will be affirmative action in the state forever."
Another leader in Michigan's massive resistance is Karen Moss, the executive director of the state ACLU. "I do think it's necessary for the courts to slow this thing down and . . . interpret some of the language," she told the Washington Post. That "thing" is an amendment that simply states: "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." As the blog Discriminations.us notes, "What part of that language does the ACLU find vague or unclear and in need of "interpretation'?"
Let's be clear what is really at stake here. Racial preferences were intended to help disadvantaged minorities, but they have turned into a spoils system for the privileged. "Most go to children of powerful politicians, civil-rights activists, and other relatively well-off blacks and Hispanics," notes Stuart Taylor of National Journal. "This does nothing for the people most in need of help, who lack the minimal qualifications to get into the game."
School choice and other dramatic efforts to improve the quality of K-12 education would do far more to improve the chances of minorities entering and finishing college than any racial set-asides. Indeed, school choice would represent genuine "affirmative action" in favor of millions of disadvantaged kids trapped in failing schools.
Despite all the demagoguery and misrepresentations hurled at the MCRI, a CNN exit poll of 1,955 Michigan voters showed that the measure had widespread appeal across many demographic groups. A majority of both sexes voted for MCRI, as did 40% of self-described liberals and Democrats. Among nonwhite voters, 30% of men and 18% of women voted "yes."
The public sentiment against racial preferences is in accord with the overwhelming belief of the lawmakers who passed the 1964 Civil Rights Act. They thought they were ending segregation, not sanctioning new race-conscious violations of the Constitution. But it didn't take long for activist courts and bureaucrats to claim the act actually authorized the creation of preference programs.
In recent years, the courts have been slowly inching back towards a belief that the legitimate quest for diversity does not justify any and all race-conscious means to achieve it. In 2003 Jennifer Gratz, a young white woman denied admission as an undergraduate to the University of Michigan, won her case before the Supreme Court. By a vote of 6-3, the high court held that the school's undergraduate college had unconstitutionally awarded applicants a set number of points solely for not being white.
On the same day, however, the court ruled 5-4 against Barbara Grutter's suit against the University of Michigan's law school. The court decided that the law school used race as only one factor among many and upheld the view of the late Justice Lewis Powell, who held in the 1978 Bakke case that race could be used to achieve "diversity" in higher education.
Justice Sandra O'Connor, who sided with Ms. Gratz but wrote the opinion in Grutter, issued some cautionary language that supporters of affirmative action should heed: "The court expects that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today." After noting that institutions of higher education in California and Washington were pursuing alternatives to racial preferences, she urged that "universities in other states should draw on the most promising aspects of these race-neutral alternatives as they develop." Just last week, the now-retired Justice O'Connor was asked her opinion of MCRI's approval. She replied that it was "entirely within the right and privilege of voters" to enact a ban on racial preferences.
The blind anger that supporters of racial preferences have shown towards efforts at their reform betrays a lack of imagination. Ms. Gratz, who won her Supreme Court case against the University of Michigan and spearheaded this year's effort to ban quotas in that state, says she would be happy to explore alternatives if the opponents would sit down with her. She believes universities could look to socioeconomic factors rather than racial ones when considering applicants. Economic elements "should be taken into account, regardless of your skin color," she says.
Ms. Gratz is showing great forbearance in holding out an olive branch to her opponents. Just last June Ms. Gratz filed a report with Detroit police accusing Luke Massie, national chairman of the activist group By Any Means Necessary, of displaying a knife during a heated confrontation outside a state civil rights meeting. "It was one of several attempts to either intimidate me or attack my character," she said yesterday in an interview after a speech she gave at the National Association of Scholars meeting in Boston. She said Mr. Massie had a knife in his right pants pocket and toyed with it, pulling it halfway out of his pants but not drawing its blade. Mr. Massie denies the allegation.
What isn't in dispute is that supporters of racial preferences sometimes engage in behavior that resembles the "massive resistance" campaign that tried to preserve segregation in the South, and even led some counties to close their public schools rather than allow integration. Some supporters of preference programs in Michigan are talking about lowering state university admission standards dramatically in hopes that the university will then accept what, in their view, is the proper number of minority students.
Earlier this year, some 250 high school students staged a near riot at a hearing of the state's Board of Canvassers, which was charged with determining whether the initiative qualified for the ballot. The board's four commissioners were preparing to vote when members of Mr. Massie's group began yelling, "They say Jim Crow. We say hell no." Some 50 students began marching on the board, knocking over a table before Lansing police could stop them. Other protesters began stomping their feet, with one yelling at Paul Mitchell, an African-American commissioner, "Be a black man about this, please!"
The board adjourned for two hours only to be faced with more catcalls when they reconvened. In the end, two Republican appointees voted to place the measure on the ballot, but Mr. Mitchell voted "no," and Doyle O'Connor, the other Democratic appointee, refused to vote. Three votes were needed for the measure to secure ballot access. Eventually an appellate court had to finally order the board to do its sworn duty.
We've come a long way since 1964, when the late civil rights hero Hubert Humphrey stood on the Senate floor and told his colleagues that if the civil rights bill contained "any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion, or national origin, I will start eating the pages one after another, because it is not in there."
Four decades later, supporters of racial preferences imposed by government agencies are blocking legal efforts to establish the color-blind society that Martin Luther King envisioned. Dr. King's dream is alive in Michigan, and in other states, but a large number of people seem interested in stirring up a nightmare of massive resistance. Such efforts are likely not only to only fail, but to harden the public's opposition to divisive racial quotas.