Our Legal Case: The BAMN Brief
[Excerpts from the Introduction with legal citations extracted]
This case is about the protection of the political rights and educational futures of black, Latina/o and other minority residents under the Equal Protection Clause of the Fourteenth Amendment during the period of the greatest demographic change that the nation has ever faced.
On the one hand, Article 1, Section 26 of the Michigan State Constitution (“Proposal 2”) denies to racial minorities the right even to propose that the governing boards of Michigan’s public universities adopt the exact affirmative action plan that this Court held was the only way that significant numbers of black, Latina/o and other minority students could be admitted to the University of Michigan’s Law School and other schools like it.
On the other hand, in two profound and prescient decisions, this Court rightly found in the Fourteenth Amendment a mighty shield protecting the democratic rights of black, Latina/o and other minority citizens against attempts by a would-be dominant white majority to prevent minority citizens from obtaining protection against de facto segregation and inequality.
The Sixth Circuit Court of Appeals, in a well-reasoned decision, held that Hunter and Seattle compelled the conclusion that Proposal 2 violated the Equal Protection Clause by creating an unequal and racially discriminatory political process.
Every other group in the state–including the alumni, wealthy donors, game-day boosters, powerful politicians and all the rest—whose sons and daughters already have a host of unearned advantages in the universities’ admissions systems may still lobby for and win the consideration of special factors that will further increase their children’s chances of being admitted. Black, Latina/o, Native American and other under-represented minority citizens, however, now have no such right.
They and they alone may not lobby the elected governing boards of the University of Michigan, Michigan State University and Wayne State University to obtain those changes in the universities’ admissions systems that Grutter held were the only way that a significant number of their children could actually attend those universities.
Under Proposal 2, black, Latina/o and other minority citizens may no longer ask the universities to consider the ways that Michigan’s nationally-recognized pattern of intense segregation and inequality makes it almost impossible for the universities to admit many minority students under its other admissions criteria. Nor may they ask the universities to consider the cultural biases in the standardized tests that allow the poorest white students to score higher on those tests than the most privileged minority students .
Under Proposal 2, minorities may not fight for their children’s future, and the universities must pretend that race and racism do not exist.
Like many discriminatory laws before it, Proposal 2 uses seemingly neutral language, declaring that state universities “…shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin…” The prohibition of discrimination, however, has no meaning because the Michigan’s Constitution had long before banned discrimination on account of race or national origin. Similarly, the prohibition on “preferential treatment” was completely one-sided because the University of Michigan had never adopted a special program to admit white students. As Ward Connerly made clear in the 279 pages of his book, California’s Proposition 209 from which Proposal 2 was copied aimed only at banning the affirmative action programs that had led to the admission of minority students.
By so doing, Proposal 2 hopes to reverse some of the proudest and most far-reaching achievements of the Civil Rights Movement. During the 1960s, the University of Michigan Law School had nine black graduate and no known Latina/o graduates. After the Regents established the first affirmative action program in 1970 , the Law School graduated 262 black and 41 Latina/o students in the 1970s and comparable numbers every decade thereafter.
Proposal 2 has reversed that progress and driven down the number of black law graduates to levels not seen since 1969.
The proponents of Proposal 2 ask this Court to uphold Proposal 2, knowing that it has re-segregated the selective colleges in Michigan and California, knowing that it will deny minority communities equal access to the political process, and knowing that it will allow white majorities to take from black, Latina/o and other minority citizens the equality in the political process that the Fourteenth Amendment promised to protect.
But Proposal 2 does even more: it enshrines in the Michigan Constitution the false claim that any attempt to overcome racial inequality and exclusion is an attempt to win “preferential treatment,” an attempt to maintain “discrimination.” By its votes, the white majority has renamed the pursuit of equality the pursuit of inequality.
The Court’s decision in this case will tell the people of America what the Court’s relationship is to America’s transformation into a majority-minority nation. Michigan established pervasive de facto segregation and inequality with the same scientific precision that it used to create the assembly line. Michigan must not become the model for how to create a new, constitutionally-ratified Jim Crow.
The proponents of Proposal 2 ask this Court to transform the Fourteenth Amendment from an Amendment that requires the states to protect equality into an Amendment that allows the states to pass laws that deny equality. Such a reversal could never legitimately claim to foster a “color-blind Constitution,” but rather would create a Constitution that is blind to injustice, blind to inequality, and blind to the needs and aspirations of the communities that are quickly becoming America’s new majority.
If “color-blind Constitution” means nothing more than the protection of white privilege, then it will be a phrase held in derision, associated with cynicism and hypocrisy, and will serve as the new legal pseudonym for separate and unequal.
The Fourteenth Amendment was proposed and ratified after the Civil War to heal the breach in America. Those who drafted, proposed and ratified it understood that the only way to heal the breach was to protect and empower protect the ex-slaves and to defend their rights with the arms of Union soldiers. Every right extended to the slaves was attacked by the Andrew Johnson and many others as a detriment to white people, as a special privilege or preference for black people. But the Fourteenth and later Fifteenth Amendments recognized that a united and diverse America could only be built by uplifting those who had so long been forced down by force, by law, and by custom.
One hundred years later, in the wake of what until that time had been the most ferocious, bloody, and costly urban riots in American history, the bipartisan body charged with investigating why the riots had occurred and what could be done to prevent future uprisings concluded, “Our nation is moving toward two societies, one black, one white, separate and unequal.” Dr. Martin Luther King, Jr. called that Report “a physician’s warning of approaching death, with a prescription for life.” The life-saving prescription to save America was affirmative action.
In the 1960s, some sections of America’s top leaders, including this Court under Chief Justice Earl Warren, heard the voices of discontent. The Court worked to restore the Fourteenth Amendment and used its guarantee of equal protection to combat segregation and discrimination in the North and the South. In Hunter and then Seattle, the Court assured that minority citizens would have an equal right to seek the aid of government in overcoming the enormous private discrimination and de facto segregation that remained.
The Court’s authority was high, because its decisions were based on reality and truth and on the Court’s great optimism that the American people could change for the better. The Court recognized that it is ultimately the real lives of the American people—not the legal terms and high-sounding phrases—that alone can give the Constitution true meaning for the great majority of Americans and that defines for them whether the nation’s laws are just or unjust.
America today is a nation desperately in need of decisions that express a commitment to equality and justice. America will soon be a majority-minority nation. There is no way to build a united, inclusive new America if the core values, the core political rights that have bound us together, even in their imperfect application, do not apply to us all. We are in a new phase of struggle for human equality, dignity and equal rights in America. The millions of immigrants, mostly Latina/o, who started their great march in 2006, are just beginning their fight to make America everyone’s nation.
As they do, however, California’s Proposition 209, from which Proposal 2 was copied word-for-word, is widening the gulf between Latina/o and black communities on one side—and white communities on the other. The gap in educational opportunities means widening gaps in employment, family income, home ownership, and everything else.
This trend, if unchecked, will take on a whole new meaning in our nation today than it did under the old Jim Crow. In the lifetime of many who are alive today, black, Latina/o, Asian and Native Americans will be the majority of our population. America will no longer be in any sense the “white man’s republic.” The transformation before us will be vast, and few would say that we are ready for it.
This case is essentially about this question: Can our nation avoid the traumatic convulsions that such changes have so often wrought in human history? Can the “principles of constitutional liberty” that Justice Harlan described, Plessy v. Ferguson, 163 U.S. 537, 559 (Harlan, J., dissenting) be a bright beacon that provides a sufficiently broad, deep and realistic framework to ease and foster this great transformation, making it an organic process in the evolution of a great democratic people?
Or will that constitutional framework itself be distorted into a perverse bulwark of a decadent rearguard defense of the dying privileges of those who believe that they should be the “dominant race” in this country?”
This Supreme Court should not repeat the mistake of Plessy by turning equality over to the states and thus becoming responsible for the new Jim Crow that these laws are now creating in California, Michigan and other states. We ask that the Court consider the words of a Texan raised in the de jure segregation of the South. Everything that President Lyndon Johnson said in June of 1965 to the graduating students of Howard University, just weeks before he signed the 1965 Voting Rights Act, remain both true and painfully relevant today:
Freedom is the right to share, share fully and equally in American society—to vote, to hold a job, to enter a public place, to go to school. It is the right to be in every part of our national life as person equal in dignity and promise to all others.
But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please.
You do not take a person, who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say ‘you are free to compete with all others’ and still justly believe that you have been completely fair.
That is, it is not enough to open the gates of opportunity. All of our citizens must have the ability to walk through those gates.
This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek the not just legal equity, but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.
President Johnson could not make that speech to the Regents of the University of Michigan today. If he did make it, they would be required to ignore it. If they did not ignore it, they could be sued under the private right of action that Proposal 2 has created for any student who claims to have been aggrieved by alleged “preferential treatment” given to minority applicants.
This Court should strike down Proposal 2 to end these attacks upon democracy and upon equality and to assure that all of the citizens of Michigan and of the Nation can again use the normal democratic procedures for establishing the admissions standards that will play such an enormous role in determining what kind of country we will be over the next half century and more.