MIXED VIEWS ON PROPOSAL 2 IMPLEMENTATION
As there were mixed opinions what Proposal 2006-2 would mean when it
was on the ballot, there are now mixed thoughts on what laws will be
affected now that it is part of the Constitution, as well as on
fundamental issues such as how to define preferences regarding race and
gender that are now banned. And there are differences of opinion on
who should be determining that list of laws and issues.
The Michigan Law Revision Commission heard testimony Monday that the
amendment prohibiting affirmative action programs based on race and
gender would end a number of programs designed to promote equity. But
it also heard testimony that preferential programs could be maintained
as long as they are designed properly.
And one of the commission members, Sen. Hansen Clarke (D-Detroit), said
the commission should not say anything on the issue until the Civil
Rights Commission and the courts have had a say.
Mr. Clarke said any action by the commission to generate a list of laws
that potentially violate the new constitutional provision would "be a
rush to end affirmative action."
"We could be targeting programs that are trying to provide equal
opportunity, not preferences," Mr. Clarke said. He said the Civil
Rights Commission was better positioned to determine the role of
particular programs.
Lansing attorney Richard McLellan, chair of the commission, agreed that
the Civil Rights Commission's input would be important, but noted also
that it is part of the Executive and does not answer to the
Legislature.
Mr. McLellan said it was still not decided when the Law Revision
Commission might present a report to the Legislature or what that might
contain. The commission provides an annual report to the Legislature
on laws and issues that it may need to address in the coming year and he
said some issues may be addressed in that. But he said this issue may
be too complex to try to include anything on it in the report set to
come out in the next few weeks.
"It may be that we advise them to take it slow," Mr. McLellan said.
"(Or) there may be two or three areas that can be fixed."
Among other issues is what authority the Legislature even has, Mr.
McLellan said. For instance, the amendment prohibits preferential
treatment, but it does not define that. Since the amendment purports
to be self-executing, it may be up to the courts to set that definition,
or the Legislature may be able to step in and set that definition, he
said.
"To constantly defer to the courts is in my view not a good idea," he
said. "The Legislature should step up."
And there were still some disagreements among interest groups what laws
would be affected.
There appeared general consensus among the groups present, most of
which had been neutral on or opposed to the measure when it was on the
ballot, that it would not affect such things as the Michigan Women's
Commission.
But a report from the Citizens Research Council raised questions
whether scholarship programs, run by the state or the universities,
targeted to women or minorities could be maintained under the
amendment.
Jill Roof, author of the CRC report, said many parts of the
King/Chavez/Parks program, which provides incentives for minorities to
enter college and to take up courses such as teaching, could be
stricken. So, she said, could a provision in the Public Health Code
providing assistance for minorities entering the health professions.
"If Proposal 2 is construed to affect scholarship programs then this
program should be invalidated," she said.
Similar fates could befall programs throughout state government
designed to give preference to minority- and women-owned businesses.
She said programs that simply provide assistance in negotiating the
bidding process should not be affected.
Matthew Fletcher, a professor with the Indigenous Law and Policy Center
at the Michigan State University School of Law, said the same analysis
would not apply to scholarships, or any other programs, targeted at
Native Americans. He said those programs were politically-, not
racially-, based.
"Just acknowledge that there's a government-to-government relationship
with the tribes," he said. Any programs targeted at Native Americans
flow from that relationship and so do not fall under the prohibition
against racial preferences, he said.
Ms. Roof said the proposal also would not likely affect the
recently-adopted provisions allowing public schools to offer
single-gender schools or classes "provided the single gender educational
opportunities are equal."
But Mary Pollack with the Michigan National Organization for Women,
which had opposed the single-gender educational programs, hailed that as
one of the outcomes of the proposal the group had otherwise opposed.
"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," Ms. Pollack said.
The amendment would not, however, affect such segregated programs as
physical education and sex education, nor would it prohibit girls' and
boys' choirs or sports programs. "These forms of sex segregation are
longstanding and reasonably necessary to the normal operation of public
education," she said.
Proposal 2006-2 will also mean changes in state hiring and employment
practices, Ms. Pollack said. "Government employment, like private
sector employment, is designed to give preference to men, with women
staying home to care for children or elderly parents," she said.
The system would have to change to be more open to employment of women
and to ensuring equal wages for women, she said. It would also have to
provide opportunities for men to stay home to assist with raising
children and caring for family members.
But Ms. Pollack chafed at calling the amendment a civil rights
amendment. "This amendment was not a general civil rights measure as
the term civil rights has traditionally been used in this country," she
said. "Rather, this amendment was directed at preserving majority
rights through limiting the voluntary remedies available to government
to redress past discrimination."
"If we were to accept using Michigan Civil Rights Initiative or Civil
Rights Amendment, we would be using that term in a new way," Mr.
McLellan agreed. "I think it would be a good idea to develop a
nomenclature for what Proposal 2 does."
Dan Levy, Michigan Region chair for the Anti-Defamation League, said
the proposal was intended by supporters to bring a broad end to
preferences in government, but he said the language would allow the
state actually to define its effects very narrowly.
He argued, in fact, that preferences could continue outside of
affirmative action. "Affirmative action is a remedial concept.
Diversity is about the present," Mr. Levy said. "An entity that
encourages diversity does not help any group. It seeks only to improve
itself."
He said, for instance, a university that set a target that neither
gender constitute less than 30 percent of its student body would not be
askance of the amendment to give preference to one gender if it fell
below that mark. The policy would, in the short term, give preference
to one gender, but in the long term it would be gender-neutral.
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