James Brennan: Rock, paper, scissors

By James Brennan, Columnist
Published October 15, 2013

WASHINGTON, D.C. — “What’s strongest? The rock, the paper or the scissors?”

A group of about 40 kids, each no older than 12, stood across the street from the U.S. Supreme Court listening to their tour guide — a stocky, gray-haired man with a short beard.

“None of them, right? Well, that’s just like Washington.”

In theory, this analogy is quite apt. Each branch of government is assigned no more power than any of the others, able to overrule decisions through checks and balances. But as we all know, government is hardly this balanced or simple. The courts often overpower all other branches, while some presidents expand executive power beyond constitutional limitations.

Like our system of governance, affirmative action is far more complex than we’d like it to be. Both sides of the debate over Michigan's 2006 ballot proposal that banned most forms of race-and-gender conscious admissions argued in front of the strongest branch of government Tuesday. It was made clear that neither the Court nor affirmative action are as easy to understand as rock, paper, scissors.

“This is about the political process”

After speaking with Mike Steinberg, legal director of the American Civil Liberties Union of Michigan, it was made abundantly clear that the usual debate about the merits of race-conscious admissions wouldn’t be on the table. What was at stake, according to Steinberg, was the right of minorities to be treated equally in the political process. Proposal 2 did not simply outlaw an unpopular policy by referendum, but it created a separate and unequal process for minorities to lobby for their interests. The state has made it so any minority group that wants to request the University Board of Regents to consider race has to gather thousands of signatures, run an entire statewide campaign and overturn a ballot proposal. Citing precedent in a similar case that involved busing, Seattle v. Washington, Steinberg believes that Proposal 2 creates two separate and unequal playing fields based on race.

Caroline Wong, national organizer of By Any Means Necessary, gave me similar arguments, asserting that Proposal 2 is reminiscent of Jim Crow Laws. When challenged on the legality of overturning a ballot proposal democratically decided on by an entire state, Wong cited an amicus brief by dozens of history professors drawing parallels to state laws designed to disenfranchise minorities. According to Wong, stopping minorities from petitioning universities is just another attempt to subvert people of color without actually codifying racism — a violation of the 14th amendment.

General misunderstandings

While Wong has demonstrated understanding of the complex legal reasoning in the fight against Proposal 2, her arguments were a rarity among BAMN protesters outside the court. University students told me they came to fight for race-conscious admissions, greater diversity and equality for people of color. When asked why the Supreme Court should exercise its ultimate power and throw out a popular ballot initiative, they struggled, clinging to simplistic reasons and failing to move beyond a single frame of mind.

One University student cited the fact that a majority white state passed the law, only doing so to maintain white privilege. Another University student rattled off facts about dropping minority enrollment, but could only explain the need to overturn Proposal 2 as a matter of racial justice and whites outvoting minorities. A University of California, Berkeley student admitted she couldn’t articulate why Proposal 2 was unconstitutional, but simply reinstating affirmative action was reason enough for her to come protest. A national organizer, speaking into a megaphone, accused the majority of Supreme Court justices of being racist.

This dissonance isn’t just on the side of BAMN. Attorney General Bill Schuette wrote an op-ed in the Detroit Free Press on Sunday purely attacking the merits of affirmative action, never once mentioning Proposal 2 — let alone the issues at hand in the case itself. Some opponents of affirmative action are also fully ignorant to the state of race-based admissions as a whole. Multiple Black students explained that some white students concluded they were only admitted to Michigan because of affirmative action, a sentiment I’ve heard in person plenty of times. Apparently, some opponents of affirmative action don’t even realize that the University has been barred from using race in admissions for the better part of a decade.

Confusion is the only constant

I don’t feel a great deal more enlightened after Tuesday. Maybe I didn’t learn a whole lot because affirmative action is an issue I vigorously follow and defend. Maybe I’m unimpressed because I ran for student government with a BAMN-sponsored party as a freshman and worked for the ACLU. Or maybe I’m just frustrated that people still don’t understand affirmative action.

Since the first time I stood up against my entire high school government class to argue in favor of affirmative action, I have rarely seen coherence in interpreting a race-conscious admissions policy. Proponents seem to only defend it because they feel they’re supposed to, while opponents are blind to the realities of racism.

Affirmative action is a complex policy with pros, cons and a lot of moving parts. It can’t be opposed simply because it “sounds” discriminatory, and it can’t be defended and implemented because “diversity is good” and “we want justice.” Affirmative action is a complicated, constantly evolving issue — if you decide to take a stance, understand that. While it would be nice if affirmative action were as simple and neat as a game of rock, paper, scissors, it simply is not.

James Brennan can be reached at jmbthree@umich.edu