This week, the U.S. Supreme Court is hearing arguments on Michigan’s Proposal 2, a ballot initiative passed in 2006 that outlawed race and sex as a decision factor in public university admissions and public-sector hiring. Since then, minority representation has plummeted at the University, and the law has been overturned in federal court. Michigan Attorney General Bill Schuette, a staunch opponent of affirmative action, is now appealing to the U.S. Supreme Court.
This case, Schuette v. Coalition to Defend Affirmative Action, differs from the 2003 case Grutter v. Bollinger, in which the Court upheld the University’s use of race as a factor in admissions decision. In part as a result of that ruling, Proposal 2 was put on the ballot for Michigan voters a few years later. Instead, the argument in Schuette is over the ballot initiative itself and whether voters can eliminate policies that are ruled constitutional.
Supporters of affirmative action argue that Proposal 2 violates equal protection as it places undue burden on minorities. Typically, protests against policies like those regarding affirmative action, legacy preference or other “special considerations” for admission are brought before a university’s governing body, like the University’s Board of Regents. The ballot initiative is unfair because those wishing to challenge it cannot go to the Board of Regents — the democratic institution set up particularly for this purpose. Instead, they instead must amend the state constitution — a difficult task by design. It would require a two-thirds majority in both chambers of the state legislature, another ballot initiative or a special constitutional convention for an amendment to pass. This places minorities at an unfair advantage to change the policy, denying them their equal treatment under the law. Other groups like veterans, parents or legacy students don’t have to go through this difficult process.
Furthermore, ballot initiatives were not originally part of the democratic repertoire. The Progressive party added the mechanism in the twentieth century as a way to get ordinary citizens more involved in directly changing and influencing government and to make government more responsive. Recently, however, the mega-wealthy and special interest groups have used referendums to influence policy to their liking. Additionally, people who voted for Proposal 2 — also called the “Michigan Civil Rights Initiative” — may have been misled by the title that appeared on the ballot. The wording of the ballot initiative took advantage of inadequately informed voters who support civil rights — a dogma not furthered by abolishing affirmative action.
Proposal 2 closes avenues to democratic change to minorities. According to Judge R. Guy Cole Jr. — the author of the opinion from the U.S. Court of Appeals for the 6th Circuit — “the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them.” For that reason, the U.S. Supreme Court should strike down this amendment. If any real solution is to be found, minorities and marginalized communities must be free to represent their own interests in a way that is equal and fair.