Court Battle Likely on Affirmative Action

Michigan Voters Approved Ban, but Opponents of the Measure Persist

DETROIT -- In the wake of a decisive Nov. 7 vote to prohibit race- and gender-based preferences in employment, education and contracting, leaders in government and academia who fought to preserve affirmative action are now hurrying to assess the impact. Officials said the response is likely to start with a court challenge.

Business and civic leaders who opposed the anti-affirmative-action measure are gathered here on Friday to develop a strategy. The University of Michigan Board of Regents is also meeting, with announcements expected soon. At City Hall, Mayor Kwame Kilpatrick (D) is drafting an ordinance that would favor companies based in the city, which is more than 80 percent African American.

"The voters went to the polls and Proposition 2 passed, and we have to live with it now," said Matt Allen, the mayor's spokesman. "As of December 22, there can be no more gender or race preferences."

The first attempt to block the new law in court was filed soon after the election, although courts have upheld a similar California law.

"There will be both offense lawsuits and defensive lawsuits filed to understand what this actually means for Michigan," said Kary L. Moss, executive director of the Michigan office of the American Civil Liberties Union. "I do think it's necessary for the courts to slow this thing down and . . . interpret some of the language."

Supporters of Proposal 2 are ecstatic at the showing at the polls, where 58 percent of voters backed the new law. Jennifer Gratz, who earned headlines for suing the University of Michigan over admissions policy in a case decided by the Supreme Court in 2003, returned home to lead the fight, backed by Ward Connerly, who bankrolled similar battles in California and Washington.

"Rather than challenging the law," Gratz said in a telephone interview from Lansing, "they should be looking at real solutions."

Michiganders who voted to end affirmative action in the public sphere -- private entities, both companies and universities, are not bound by the new law -- said it is unfair to give extra credit to people based on sex or race. Analysts believe Proposal 2 benefited from the impression that whites are losing out and from economic insecurity in a state where unemployment is 6.9 percent, or 50 percent higher than the national average.

"The proponents of this initiative packaged it and sold a bill of goods to Michigan voters, and played into the fears we have," said Linda Parker, director of the Michigan Department of Civil Rights, who said backers "deliberately racialized the issue." She is studying contracting rules and talking with California counterparts.

Gov. Jennifer M. Granholm (D) and her Republican opponent, businessman Dick DeVos, opposed Proposal 2, as did much of the state's government, business and civic elite.

One person they failed to persuade is Anne Taylor, a marketing manager in Troy, near Detroit.

"It's not that I'm prejudiced. I feel equality should be universal. No one should get preferential treatment," said Taylor, 43. "Some minorities have an entitled feeling, 'You owe me something based on what my ancestors did to your ancestors.' How long does it go on?"

During the campaign, Gratz asked whether it was right for the son of a black doctor to be admitted to school or hired in place of an impoverished student whose parents did not attend college.

That argument resonated with countless Michigan voters who suspect they are losing out. A human resources worker in Troy who voted for Proposal 2 said she knows a young white woman with a stellar academic record denied admission to Michigan State University. She blames affirmative action, as do some whose children failed to get into the University of Michigan.

"It is a common human misperception, but it is factually and mathematically wrong. Many great students can't get in here because it is just so competitive," said University of Michigan spokeswoman Julie A. Peterson. This year, there are 330 African Americans in a freshman class of 5,300.

UM President Mary Sue Coleman vowed to fight on. At a rally the day after the votes were counted, she said she will consider "every legal option."

"I am standing here today to tell you that I will not allow this university to go down the path of mediocrity," Coleman said. "That is not Michigan. Diversity makes us strong, and it is too critical to our mission, too critical to our excellence and too critical to our future to simply abandon."

Gratz, a successful white high school student, sued after being placed on UM's waiting list, contending that the consideration of race was unfair. The Supreme Court ruled 5 to 4 in June 2003 that race could be considered and that diversity is a worthy educational goal.

To back the contention that Gratz did not suffer because of race, the university points out that 1,400 white and Asian students with lower grades or test scores than hers were admitted that year, while 2,000 whites and Asians with higher test scores were denied admission.

Gratz, now 29, went to school elsewhere, earned a mathematics degree and worked as a product manager before quitting her job in 2003 to work full time on Proposal 2. Her battle has lasted nearly 10 years, and she said she would not hesitate to do it again.

She argues that universities and employers should look to socioeconomic factors, such as an impoverished upbringing, while discounting race. Economic elements "should be taken into account, regardless of your skin color."

As for diversity, she pronounces it a "great thing."

"I think it happens naturally," Gratz said, "and I don't think government should engineer it."

Fresh from her triumph, she is mulling over "where we should consider going next -- what other states -- and how we move this country back to the promise of colorblind government."