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The Potential Impact of the
Michigan Civil Rights Initiative on
Employment, Education and Contracting The Michigan initiative is modeled after Proposition 209,1 a nearly identical constitutional amendment adopted by California voters in 1996. The California experience suggests that the people of Michigan can expect the impact of the initiative to be quite broad, affecting not only affirmative action but also outreach efforts designed to ensure access to opportunity. California courts have consistently construed Prop. 209 broadly, striking down not only those programs that were designed to benefit racial and ethnic minorities or women, or that included participation goals, but even those that sought to remedy documented patterns of discrimination. Prop. 209 has resulted in the elimination of services such as college preparation programs for students of color, summer science programs for girls, outreach to minority- and women-owned businesses to notify them of government contracting opportunities, and funding for training of minority professionals in fields where they are underrepresented. It has ended the requirement that state boards reflect the population of the state and also ended numerous voluntary K- 12 school integration efforts. It has led to significant decreases in government contracts awarded to minority- and women-owned businesses, hiring of minority and female university professors, college enrollment of minority students, and the percentage of women working in the construction trades. This paper will focus primarily on the impact of Prop. 209 and the likely impact of the nearly identical Michigan ballot initiative relative to race, ethnicity and national origin. For a fuller explanation of impact on women and girls, see “The Gender Impact of the Proposed Michigan Civil Rights Initiative,” by Susan Kaufmann and Anne Davis . Race, ethnicity and gender are not fully separable, however, as women of color are doubly affected. Although the MCRI is described as a civil rights initiative, it appears to confer no additional civil rights on the basis of race, gender, ethnicity or national origin. With proper enforcement, moreover, existing state and federal civil rights laws seem to be clear and adequate. Title VI of the 1964 federal Civil Rights Act protects against discrimination on the basis of race, color or national origin in any program receiving federal funding; Title VII prohibits employment discrimination based on race, color, religion, sex and national origin;3 and Title IX of the Education Amendments of 1972 prohibits sex discrimination in education in programs that receive federal funding.4 Executive Order 11246 also forbids discrimination and requires affirmative action for certain classes of workers at federal contractors and subcontractors. The Elliott-Larsen Civil Rights Act, passed in Michigan in 1976, protects against discrimination in employment, education, public services and public accommodations on the basis of race, sex, color, national origin, age, height, weight, religion, familial status or marital status.6 Some Michigan municipalities protect additional groups against discrimination. The Equal Protection Clause of the Michigan State Constitution duplicates the federal equal protection clause, and guarantees the equal protection of the laws. The Michigan ballot initiative has been sponsored and financially supported by Californian Ward Connerly, who also sponsored Prop. 209 in California and similar initiatives in Washington and Florida. Connerly v. State Personnel Board The suit came to be known as Connerly v. State Personnel Board. As a result of the Connerly decision, the state ended its affirmative action programs in civil service and community college hiring and in state government contracting. The decision stated, “Proposition 209 . . . prohibits discrimination against or preferential treatment to individuals or groups regardless of whether the governmental action could be justified under strict scrutiny.” A strict scrutiny standard requires that a suspect statutory classification (for example, a classification based on race) serve a compelling government purpose and be narrowly tailored to achieve that purpose. According to the court, limitations imposed by Prop. 209 would prevail where federal law merely permits, rather than expressly requires, the consideration of race or gender. Thus, Connerly v. State Personnel Board declared that Prop. 209 would invalidate those California statues that employ gender- or race-based classifications for the purpose of targeting programs or services, even if they are permitted under federal law or meet the strict scrutiny standard, except when either (a) federal law requires the state to engage in the particular action or (b) the state would be threatened with ineligibility for a federal funding program and a corresponding loss of federal funds if it did not engage in that action. The California Court of Appeals did conclude, however, that Prop. 209 would not bar the state from collecting data on race, gender, ethnicity or national origin, a practice that Governor Pete Wilson had ended after Prop. 209’s passage. Following the Connerly decision, the state legislature reinstated collection of such data. Ward Connerly then launched an unsuccessful California ballot initiative, the Racial Privacy Act, which would have provided that “The state shall not classify any individual by race, ethnicity, color or national origin in the operation of education, public contracting or public employment.” Impact of Proposition 209
The Impact of Prop. 209 on Contracting
After Prop. 209 was implemented, subcontracting opportunities were no longer distributed to the directory of registered women- and minority owned businesses, leading to a sharp decline in the opportunities known to disadvantaged business enterprises. In addition, the Pacific Legal Foundation filed a series of lawsuits with the goal of ending affirmative action in municipal contracting. The first, Hi-Voltage Wire Works, Inc. v. City of San Jose, led to a California Supreme Court ruling that under Prop. 209 not only diversity goals but also outreach efforts targeted to minorities or women are illegal. Although that decision directly applied only to contracting, it has been considered indicative of the courts’ likely interpretation of similar programs in employment and education; accordingly, many California public entities have eliminated targeted outreach programs in those contexts as well. Other Pacific Legal Foundation lawsuits eliminated affirmative action in public contracting in Sacramento; challenges to San Francisco’s contracting program continue. According to a report by Chinese for Affirmative Action, “Contract dollars awarded to businesses owned by minorities and women fell by 22% following the repeal of affirmative action programs in California,” resulting “in a loss of at least $94.5 million per year to these businesses.” The Impact of Prop. 209 on Employment
The Impact of Prop. 209 on K-12 Education The Impact of Prop. 209 on University Enrollments
The number of Latino students attending the University of California also dropped sharply following passage of Prop. 209. Although the percentage of Latino students admitted to the University of California system is recovering to pre-209 levels, it does so in the context of rapidly increasing Latino population in the state of California. The percentage of Latinos at Berkeley and UCLA is still substantially lower than in 1997. Enrollment of Native American freshmen has declined by approximately two-thirds from pre-209 levels. Low and, in some cases, declining enrollments of underrepresented minority students appear to be the result of several factors resulting from Prop. 209: the end of affirmative action; elimination of targeted outreach programs; the perception, as numbers dwindle, that the University is unwelcoming; and a growing tendency for students with strong academic records to enroll elsewhere. These Prop. 209-related trends are occurring in the context of“disparities in [K-12] educational opportunity for underrepresented students;” reduction or elimination of state funding for race-neutral college preparatory and outreach programs;46 increasing competition and selectivity in University of California admissions as applications rise faster than capacity,47 and decreasing need-based financial aid. Since the passage of Prop. 209, an increasing number of high-achieving African American, Latino and Native American students who are accepted into the University of California system choose instead to attend elite private institutions, such as Stanford, Harvard and Yale. In 1997, 14.1% of underrepresented minority students denied admission to UC Berkeley and UCLA but accepted to another UC campus chose a private college or university. By 2002, 59% of such students opted for colleges outside the UC system. Their departure contributes to low numbers of underrepresented students of color on UC campuses, which reinforces the impression among prospective students that the climate is inhospitable, thereby further dampening both applications and enrollments. Furthermore, the absence of these students diminishes the opportunities for all students to benefit from a diverse academic environment. According to a July 2005 report on graduate and professional enrollments, since passage of Prop. 209, “enrollment at UC campuses of most historically underrepresented minorities remains alarmingly low,” with sharp drops of underrepresented minority students in schools of law, medicine and business. Training of fewer minority professionals by the University of California has serious implications for their communities and the well-being of the state of California. For example, both California and national studies have found that minority “physicians are more likely to practice in medically underserved communities.” The University of California has tried many race-neutral means of increasing enrollments of underrepresented students but, according to Atkinson, “Despite enormous efforts, we have failed badly to achieve the goal of a student body that encompasses California's diverse population. . . . Any state tempted to emulate the example of California should think long and hard about the consequences.” For UC Berkeley Chancellor Robert Birgeneau, diversity is the foundation of effective education: “We are … missing out on exceptional African American, Latino and Native American students who can not only succeed here, but whose participation can improve the education the university offers all its students. … The single most important skill that a 21st century student must master is ‘intercultural competence’–the ability … to navigate successfully in today’s globalized society. Affirmative Action in College Admissions While the University of California has been training fewer minority professionals since passage of Prop. 209, the University of Michigan Law School has pursued a policy of promoting diversity in the classroom through affirmative action, as upheld by the U.S. Supreme Court in Grutter v. Bollinger. A 1999 study of University of Michigan Law School alumni reaching back to 1970 found that white and minority alumni were equally likely to pass at least one state bar, practice law successfully and persistently, and earn high incomes. In addition, minority alumni engaged in more pro bono work than their white colleagues and were significantly more likely to hold leadership positions in government, including judgeships. The report further found that “Law School Admission Test scores and undergraduate grade point averages … seem to have no relationship to achievement after law school, … whether achievement is measured by earned income, career satisfaction, or service contributions. For both our minority and white alumni those numbers that counted so much at the admissions stage tell little if anything about their later careers.” In 2003, the U.S. Supreme Court, in both the Grutter v. Bollinger and Gratz v. Bollinger lawsuits against the University of Michigan, affirmed the validity of affirmative action in college admissions. During a holistic review of each applicant’s strengths and potential contributions to the class, the Court concluded, race/ethnicity could be considered as one factor among many others, provided that this consideration is not done in a mechanistic way.
The brief filed by 65 Fortune 500 businesses similarly emphasized the centrality of affirmative action to their core values and operations. The brief explains that the participating corporations value diverse students educated in diverse settings because they are better able to integrate different perspectives to solve problems, develop and market products that appeal to a variety of customers, partner with constituencies in the U.S. and around the world, and discourage discrimination and stereotyping. “Overall,” it continued, “an educational environment that ensures participation by diverse people, viewpoints and ideas will help produce the most talented workforce.” The importance corporations place on being able to hire the diverse workforces they require is demonstrated by recent decisions made by Alcoa and General Motors to stop sending recruiters to the University of Wisconsin-Madison and by Dow Chemical to cease recruiting at Michigan Technical University, in both instances citing lack of diversity in the student body as the reason for the decision. While affirmative action in public college and university admissions has been prohibited in California, and would be in Michigan if the MCRI were to pass, other groups would continue to get special consideration in the admissions process in the more selective institutions: students who live in parts of the state– like Michigan’s Upper Peninsula–or attend high schools that send relatively few students to the university; students from academically challenging “feeder” schools that are mostly in affluent (and white) suburbs; “legacy” students whose parents, grandparents or siblings attended the institution; those who apply for early admission; veterans; and athletes who have been awarded athletic scholarships in any of the varsity sports. Only race, ethnicity, gender and national origin would be barred from consideration, no matter how compelling the educational, social or economic benefits of educating a diverse student body. What Will Be the Likely Impact of Passage of the MCRI?
The California experience suggests that those effects could include:
The Michigan Context Pervasive racial segregation is a major factor in low educational attainment, the poverty of Detroit and other Michigan cities, and out-migration. Three of the top 10 and five of the top 25 most segregated cities in the country are in Michigan, and the Detroit metropolitan area is the second most segregated in the nation–second only to Gary/Hammond, Indiana. Segregation has major consequences for access to good schools and good jobs–or any jobs. While African Americans, in particular, are often limited by lack of transportation, housing discrimination or real estate steering to inner city neighborhoods or inner-ring suburbs, jobs typically develop in the outer suburbs or exurbs. A Wayne State University study shows that 78% of the Detroit region’s jobs are being created at least 10 miles from the central city. While numerous surveys have demonstrated that Americans generally support school integration and believe in the importance of having children learn and interact with diverse classmates, in actuality, both adults and children are experiencing rapidly increasing segregation at home and at school. Michigan schools are the third most segregated in the U.S. for African Americans, who are more likely to attend schools with high concentrations of poverty and all its attendant problems, less experienced teachers, high student and teacher turnover, and less access to challenging college preparatory classes. Unequal educational outcomes for elementary and secondary students, which affirmative action in education is designed to address, are closely linked to poverty, segregated communities, and segregated schools. Sustaining the nation’s economy and resolving Michigan’s economic crisis demand that all citizens be educated to the full extent of their interests and abilities, especially in science and technical fields. According to a June 2006 report by Michigan Future, Inc. called A New Agenda for a New Michigan: Michigan’s slower job growth is not caused by the loss of manufacturing jobs. … It is in the nonmanufacturing industries that Michigan is lagging the nation, especially in the dynamic, middle- and high-wage knowledge-based industries. These industries … now account nationally for 43% of all jobs. They have seen employment growth nationally of nearly 32% [since 1990] compared with 17% in Michigan. That report also points out that Michigan ranks 31st in the country for the percentage (24.6% in 2004) of residents 25 years and over who have a four-year college degree or more. A March 2006 survey of 1,200 “new economy” business executives in five states conducted for Western Michigan University found that they believed an educated workforce to be much more critical to business creation than favorable tax policy. According to a report issued in 2004 by the Lieutenant Governor’s Commission on Higher Education and Economic Growth, chaired by Lt. Governor John Cherry and popularly known as the Cherry Commission: “States that educate and nurture creative talent … keep and attract people and investment and can capitalize on the multiplier effects that create new companies and jobs.” Michigan leaders believe that recruiting and retaining knowledge workers requires that Michigan cities be revitalized and hospitable to a diverse citizenry. According to Dean Rebecca Blank of the University of Michigan Ford School of Public Policy, “the problems of Detroit are closely linked to out-migration from Michigan. ... Urban areas with dynamic downtowns, extensive cultural and recreational opportunities, and multiple career choices are the best attractors of the young and educated population. Too many of Michigan’s graduates see Chicago as a far more attractive urban area than Detroit and seek jobs out of state.” According to the authors of A New Agenda for a New Michigan: “metropolitan Detroit, and … metropolitan Grand Rapids, are highly likely to be the main drivers of a prosperous Michigan. In fact, it is hard to imagine a high-prosperity Michigan without an even higher prosperity metropolitan Detroit.” That report continues, “The places that do the best in attracting talent from anywhere on the planet win. … Leadingedge metropolitan areas are a tapestry of people from all backgrounds. Tolerant attitudes and great diversity characterize successful regions across the country.” The report concludes, “This means … building a culture that condemns rather than tolerates discrimination and segregation.” Linking the educational imperative with urban and economic development, the Cherry Commission declares: Michigan’s residents, businesses, and governments can either move forward to a future of prosperity and growth fueled by the knowledge and skills of the nation’s best-educated population or they can drift backward to a future characterized by everdiminishing economic opportunity, decaying cities, and population flight–a stagnant backwater in a dynamic world economy. Conclusion
Note; this is an extract of the text from a PDF document at www.umich.edu/~cew/PDFs/MCRIresearchbrief.pdf I have posted the text here as a convenience to those who may have difficulty opening the original document. Please refer to the original document for extensive footnotes and links. |
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