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Proposal 06-02

The Anti-Affirmative Action Ballot Proposal 06-02 Passes in Michigan

Proposal 06-02 amending the State of Michigan Constitution to prohibit the use of race, sex , color, ethnicity, or national origin in the operation of public employment, education or contracting passed on November 7, 2006 with 2,131,966 (58%) votes to 1,546,291 (42%) votes according to the unofficial vote count of November 13, 2006.  The new Article I, Section 26 to Michigan’s Constitution will go into effect on December 22, 2006 barring a court decision staying its effective date. 

97% of those voting for Governor also voted on Proposal 2.  Only 3 counties voted No:  Wayne (59% No), Washtenaw (57.5% No) and Ingham (51.8% No).  Wayne is the county where Detroit is located; Washtenaw and Ingham counties are home to the University of Michigan and Michigan State University respectively. 

Legal Action - By Any Means Necessary (BAMN) has filed a lawsuit in federal court challenging Proposal 06-02’s constitutionality based on the First and Fourteenth Amendments and that it is preempted by the Civil Rights Act of 1866, Titles VI and VII of the Civil Rights Act of 1964, and by Title IX of the Education Amendments of 1972.  BAMN’s First Amendment argument is reportedly a novel legal theory, asserting that public colleges and universities have federal freedom of speech and association rights to determine their academic standards and criteria for admission.  The Fourteenth Amendment equal protection argument was tried unsuccessfully in challenges to California’s Proposition 209 that went all the way up to the U.S. Supreme Court.  University of Michigan President Mary Sue Coleman has announced that the U of M is looking at legal action; a national consortium of civil rights groups is also considering legal options. 

Text of the Amendment - The text of the amendment to be added to our Constitution as Article I, Section 26 on December 23, 2006 is available here.

Polling - In the weeks and days before the election, most of the polling had the measure too close to call.  Even at 7 p.m. on election day, the WXYZ-TV/Detroit News/WWJ exit poll of 3,000 voters leaving the polls conducted by Tim Kiska and Associates called it 51% No – 49% Yes, too close to call.  The demographics of that poll was printed in the Detroit News saying that men favored it by 55% and 58% of women voted No.  This poll is widely quoted, but is likely very inaccurate.

More nearly accurate are the CNN, Mitchell, and EPIC/MRA exit polls.  These indicate that men favored it in the range of 59 to 64%, and women favored it in the range of 50 to 52%.  White men favored it with about 70% voting Yes; white women favored it by 59% voting Yes.  Whites were 85% of the voters on November 7, 2006.  Non-white men opposed it by 70% and Non-white women opposed it by 82%.  Democrats opposed it in the range of 59 to 60%; Republicans favored it in the range of 70 – 78%; and Independents favored it in the range of 52 to 59%.  Students opposed it by 83% of their votes.  Pro-choice voters opposed it in the range of 55 to 56%.  Big and smaller cites opposed, suburbs, small towns and rural communities went Yes.  Michigan had a historic turn-out of voters for a mid-term election, with more Dems and Independents turning out than usual. 

Finances – One United Michigan, the mainstream coalition of over 200 organizations opposed to Proposal 2, received approximately $4.7 million in contributions, mostly from corporations and large associations; proponents of Proposal 2 (the Michigan Civil Rights Initiative) received approximately $1.5 million, mostly from Ward Connerly’s American Civil Rights Institute.  See www.michigan.gov/sos/ at the Elections Web page for detailed information about donors and expenditures.

Going forward – The Governor has issued Executive Directive 2006-7 Promoting Diversity in Michigan assigning the Michigan Department of Civil Rights the responsibility to report in 90 days (by February 7, 2007) with findings and recommendations on what state laws and regulations are affected, impact on public educational institutions, and impact on state economic development efforts.  MDCR is asked to identify any proposed legislative changes necessary to promote diversity while complying with Proposal 06-02. 

Various private sector organizations are offering seminars and workshops on interpreting the new amendment. 

This is the first time that sex discrimination (or preference) is banned in the Michigan Constitution as gender was purposefully excluded from Article 1, Section 2 of the 1963 Michigan Constitution that assures equal protection of the laws on the basis of religion, race, color or national origin.  Michigan NOW urges public entities to take a cautious approach before abandoning voluntary gender-conscious programs that were put in place to remedy identified gender under-representation or disparities.  Federal law or regulation may require, permit, or preempt the Michigan Constitution’s ban on gender discrimination and preference, or an otherwise prohibited gender-conscious program may be eligible for one of the safe harbors in the new amendment such as section 4 or 5. 

Michigan NOW also urges public entities to cease immediately unconstitutional male preference, the genesis of female under-representation and/or disparities in public employment, education, and contracting. 

Passed November 7, 2006; effective date December 23, 2006.

ARTICLE I, SECTION 26:  Civil Rights.

  1. The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district 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.
  2. 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.
  3. For the purposes of this section "state" includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.
  4. This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.
  5. Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.
  6. The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Michigan anti-discrimination law.
  7. This section shall be self-executing. If any part or parts of this section are found to be in conflict with the United States Constitution or federal law, the section shall be implemented to the maximum extent that the United States Constitution and federal law permit. Any provision held invalid shall be severable from the remaining portions of this section.
  8. This section applies only to action taken after the effective date of this section.
  9. This section does not invalidate any court order or consent decree that is in force as of the effective date of this section.