NEW SUIT SEEKS TO DULL PROP 2 EFFECT; JUDGE OK'S DELAY
Voter approval of Proposal 2006-2, barring the use of most race- and
gender-based affirmative action programs by public entities, cannot
override the constitutional right of universities to take race and
gender into account when establishing the make-up of their student
bodies, a new lawsuit filed in U.S. District Court in Detroit on Tuesday
contends.
The new lawsuit was assigned to U.S. District Judge David Lawson, who
earlier in the day approved an agreement by the state and the state's
three largest universities to delay the implementation of Proposal 2
until no later than July 1.
http://www.aclumich.org/FinalComplaint.pdf
The NAACP and ACLU, representing students, faculty and applicants, said
in its new case that Proposal 2 cannot undercut the right of
universities, most recently established in a 2003 U.S. Supreme Court
decision regarding UM admissions policies, to consider race and gender
as one factor in their admissions process.
The suit alleges the new language does not ban programs that use race
or gender in the admissions process, and in fact argued that such an
interpretation would "place an unconstitutional burden on the ability of
protected groups to advance their interests and rights while leaving
others, such as legatees, athletes, and veterans, free to advance theirs
without any similar burdens."
Those are similar to new arguments submitted by the group By Any Means
Necessary in a revised complaint filed Monday in its lawsuit that
brought the Proposal 2 controversy to the federal court.
"Affirmative Action is still the law of the land," said Wendell
Anthony, president of the Detroit chapter of the NAACP. "We have come
too far to allow the doors of opportunity to be shut in the face of the
American promise of liberty and justice."
And ACLU Executive Director Kary Moss said, "We are pleased to be able
to represent current students and faculty, as well as prospective
students, in a case that will be the first to evaluate exactly what
Proposal 2 means in this state."
The lead plaintiff in the case is U-M student Chase Cantrell, an
African-American who said he selected the Ann Arbor campus because it
was "so much more dynamic" than the Cornell Law School where he had also
been accepted.
The order (USDC docket No. 15024) issued by Mr. Lawson to delay
implementation of the new constitutional language means the University
of Michigan, Michigan State University and Wayne State University may
complete their current admissions and financial aid process under their
existing policies giving additional weight to applicants who are from
racial minority groups or are women.
The new amendment was to have gone into effect Saturday, a date that
will still apply to other public entities that must end their
preference-based programs.
Attorney General Mike Cox said in a statement that the stipulated
agreement to delay implementation of the amendment as it applies to
universities "upholds Proposal 2 and the will of the people."
In exchange for winning a delay in adhering to the new ban on
affirmative action programs, the universities agreed to drop their
cross-claim in the lawsuit challenging the amendment as violating the
U.S. Constitution, and to not file other constitutional claims against
the proposal.
But Alan Foutz of the Pacific Legal Foundation, which sought to enter
the case on Monday, said the agreement does not prevent the universities
from filing a later challenge against Proposal 2.
Governor Jennifer Granholm, a defendant in the case, was also a party
to the agreed delay. She said the state is continuing to review the
implications of the amendment as it applies to government. "Clearly we
are committed to diversity," she said.
George Washington, an attorney for the group By Any Means Necessary
that initiated the court challenge, said the agreement to delay its
application to universities was "a good first step toward undoing
Proposal 2."
Meanwhile, the city of Lansing filing a motion to obtain a delay
similar to the one given universities in order to have the amendment go
into effect when the city's fiscal year begins July 1. It argues it
has contractual commitments and hiring procedures that cannot be quickly
abandoned.
Mayor Virg Bernero said, "Like the state universities, we need time to
evaluate our hiring and procurement processes and to make whatever
adjustments are needed to comply with the law." But he also said he is
committed to continuing to do everything possible to "uphold the
principles of inclusion and equality."
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