Testimony Concerning Implementation of
Article I, Section 26 of the Michigan Constitution
before the
Michigan Law Revision Commission
December 18, 2006
by
Mary Pollock, Legislative Vice-president
Michigan National Organization for Women

Thank you for the opportunity to comment on statutes that may be affected or require change in light of the adoption of Proposal 2 by the voters on November 7, 2006.  I will focus on 7 general recommendations.

Not “Civil Rights”

First, I do not think this amendment should be labeled “Civil Rights” in the section title of the new amendment.  This amendment was not a general civil rights measure as that term “civil rights” has traditionally been used in this country to mean laws designed to include those who have been traditionally excluded.  Rather, this amendment was directed at preserving majority rights through limiting the voluntary remedies available to government to redress past discrimination or achieve integration for invidiously discriminated against individuals based on their group membership.  The amendment’s proponents told white voters that they were being unjustifiably deprived of a few hundred spaces at the University of Michigan solely because of race and they ought to stand up for white rights over racial minority rights by voting yes.  Invoking white fear in these difficult economic times in a highly racially segregated state worked, and the amendment will soon become our law.  However, we should not dignify such a racial backlash measure by calling it a civil rights amendment.  Label it “Discrimination and Preferences in Government Employment, Education, and Contracting” or just “Discrimination and Preferences” but do not insult the traditional civil rights movement in this country by allowing it to be labeled “Civil Rights.”

Cure the Ballot Petition Fraud

Second, this Commission needs to recommend to the legislature that reform is needed in the regulation of the petition signature gathering process.  In the case of Proposal 2, we had a federal judge declare, after examining the evidence that signatories to the petitions were not accurately informed about what this proposal would do.  However, he held that since all voters were deceived, not just one race of voters, it was not illegal under the federal Voting Rights Act.  The Michigan Civil Rights Commission reported from an extensive hearing process that many petition circulators and many of those who signed the petitions were lied to about what the amendment would do.  Our own courts commented on the limitations under Michigan law with regard to regulating the kind of conduct complained of the Operation King’s Dream lawsuits challenging Proposal 2’s ballot access.  In our view, both the amendment and ballot language need to be approved by the Board of State Canvassers or some other bi-partisan body before petitions are printed and circulated for signature.  The National Conference of State Legislatures has a good collection of articles and studies about what all the states are experiencing with regard to direct democracy processes.  We commend it to you for advice on what Michigan needs to do to better regulate the petition process while still allowing voters access to law-making.

Data Collection Not Affected

Third, proponents of these anti-affirmative action measures typically advocate that government should be banned from collecting data on race, sex, national origin, ethnicity or color so that government will not have the information to use to either discriminate or give preference.  First there are federal laws not connected to federal funding that simply require local government entities to collect this kind of information.  U.S. EEOC, for instance, requires state and local governments to collect race and sex data on employees and report aggregated frequency counts bi-annually.  I see nothing in the amendment that would be a basis to prohibit governmental entities from continuing to gather race, national origin, gender, or ethnicity information. 

Single-Sex Education Programs Are Now Prohibited

Fourth, because the amendment inserts sex as a prohibited form of discrimination in our Michigan Constitution for the first time, recently enacted law permitting single-sex classes, programs, and schools in Michigan needs to be repealed.  These laws include P.A. 348 of 2006 amending the Elliott-Larsen Civil Rights Act and P.A. 1296 and 4264 of 2006 amending the school code.  In our view, these laws are akin to Plessy v Ferguson in that they endorse and permit segregation in the schools albeit on the basis of sex, not race.  Federal Title IX permits sex segregation in certain circumstances, but the Michigan Constitution will prohibit it in Michigan after December 22 in our view.  The fact that these new statutes permit class, program or school sex segregation only if it is voluntary and there are substantially equal programs for the other gender and co-ed programs does not excuse the act of using sex as a factor to divide students into segregated education programs.  Sex, like race, is now a suspect classification in Michigan and we cannot have de jure sex segregation in the academic programs of our schools. 

Further, we do not regard paragraph 5 of the amendment as a safe harbor for schools who want to engage in this form of sex discrimination.  That section provides:

(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.

The normal operation of public school instructional programs by past custom and practice in the United States and Michigan since the inception of universal public education is both genders learning together in co-ed settings.  This does not mean that sports teams, physical education classes, sex education classes, or the girls’ choir need to be integrated.  These forms of sex segregation are longstanding and reasonably necessary to the normal operation of public education.  They are also permitted forms of sex segregation under federal law.  I note that the Pacific Legal Foundation, the legal arm for Ward Connerly’s Institute, has continued to pursue lawsuits to ban the use of race for school integration purposes, teacher assignment, and busing programs in some public schools in California under their Proposition 209 (Cal. Const. art I, § 31).  We think there is a similar case that could be made under our new amendment to prohibit use of gender in school and classroom assignments.

Proposal 2 Should End Male Preference in Government Employment Policies

Fifth, government employment structures, like private sector employment structures, are designed for male heads of households with a non-working wife to care for children, disabled, and frail elderly.  This male preference employment system has worked to the detriment of working women.  Every time a woman of child-bearing age is interviewed for a job in Michigan, the potential employer is wondering what her birth control and child care arrangements are.  And nowadays employers are also interested in what a woman’s eldercare responsibilities are as well.  Men of child bearing age or with living parents bear no such burden because the assumption is that he will not be primarily responsible for the care of children or parents.  Michigan needs a family and medical leave law that would help government employees of both sexes keep their jobs and take care of their family responsibilities.  Like jury duty laws, we need parent duty laws that require employers to give both parents paid time off and/or reduced hours for their own health care, child rearing or to care for loved ones.  That law needs to require both parents to bond with their children in mandatory time off from work.  For too long men have been allowed, with their employer’s endorsement, to opt out of their family duties placing a large burden on women to tend to caretaking responsibilities.  Many men would choose more parenting and eldercare time if there were not such a stigma attached to it, and loss of pay and career opportunities.  So we call on this Commission to recommend passage of state paid family and medical leave laws to end male preference and discrimination against women in government employment structures affecting medical, parental, and family care leave.

Though there has been substantial progress in integrating various occupations in state and local government, there is still substantial sex and racial segregation in government employment opportunities in some occupations in some geographical locations.  The new amendment does not change the obligation of state and local government under the federal Fourteenth Amendment to end this segregation, discrimination, and preference.  Part of the problem is the pipeline to government employment, i.e. a mal-distribution of education opportunities.  Children form low socio-economic status school districts do not get the same quality of education as those from more affluent school districts.  We urge this Commission to recommend to the legislature passage of a comprehensive education funding mechanism that would assure equal funding by state and local sources of all schools.  Whether living in Detroit or Bloomfield Hills, a child should go to schools that are similarly and equally funded.  This, in turn, would break down segregation by socio-economic status in housing patterns in our state. 

Proposal 2 Requires that Gender Pay Inequity End

Sixth, women in Michigan earn 67 cents for every one dollar a man earns.  State government women are much closer to pay parity with their male counterparts’ pay because state government undertook a pay equity study in the mid-80s and voluntarily made some pay adjustments for female-dominated jobs that had similar requirements for skill, effort, responsibility, working conditions, and training compared to better paid male-dominated and mixed jobs.  We call on this Commission to recommend passage of legislation requiring every local governmental jurisdiction to examine whether its pay structures are discriminating or giving preference on the basis of gender.  Once these disparities are identified, the statute should protect local jurisdictions who want to collectively bargain a remedy or take other actions to provide pay equity without fear of legal challenges under this amendment.

The Amendment Has Limited Jurisdiction

Seventh, with regard to various state and local government women’s or minority’s programs, committees, commissions, and centers, we think that these do not discriminate against men nor give preference to women as that is defined in the amendment.  The amendment is restricted in its jurisdiction to the operation of public employment, public education, and public contracting, and does not extend to government’s general operations.  For instance, a government health program may continue to give preference to women and/or discriminate against men in breast cancer screening as breast cancer screening is not an employment, education, or contracting program.  We see no basis to ban a program to encourage women hunters, for instance, since that program is not employment, education, or contracting, but a Department of Natural Resources outreach effort.  Similarly, state statutes that reserve spaces for minorities or women in the membership of a commission, create a minority or women-owned business enterprise assistance program, or even establish education grants for minorities or women in underrepresented areas that are then administered by another entity are not violative of this amendment.  Any attempt to ban all women’s or men’s programs – or any racial-, ethnic-, or national origin- identified program for that matter - that are sponsored by government is simply overreaching and well beyond the four corners of the amendment.  Only discriminatory or preferential programs in government employment, education, or contracting are banned by the amendment.

Michigan NOW thanks you for the opportunity to comment on how we interpret the new amendment and suggestions we have for its implementation.