In his amicus brief challenging the legality of a state constitutional amendment that bans race and gender preferences, California Governor Jerry Brown cites the 2003 U.S. Supreme Court Grutter v. Bollinger decision to make his case. Brown also invokes the same “political-structure doctrine” litigants used to overturn Proposition 2 in Michigan. The governor also appears set sign off on a bill that would reinstate preferential policies; a move that is certain to spark additional legal challenges.
On July 1, a three-judge panel on the Sixth Circuit Court of Appeals ruled that the anti-discriminatory language included as part of the Michigan Civil Rights Initiative (MCRI) actually violated the amendment’s equal protection clause and must therefore be overturned. The two Clinton appointees who formed the majority opinion, declared MCRI, widely known as Proposal 2, to be unconstitutional because it alters the state’s political structure in a manner that unduly burdens racial minorities.
But, Jennifer Gratz, the executive director of the MCRI, points out that opponents of race-neutral initiatives have always misconstrued and misinterpreted Justice Sandra Day O’Connor’s majority opinion in Grutter.
“While it’s clear that O’Connor favored a holistic approach that included race, she also said it was acceptable for voters in states to make preferences unconstitutional,” Gratz explained. “She certainly did not mandate the use of preferences and made it clear that over the next 25 years following this decision race should ultimately cease to be a factor.”
O’Connor also ruled that law schools should make a “good faith” effort to adopt race neutral alternatives capable of yielding a diverse student composition. In addition, she encouraged other states to follow the example set by universities in California, Florida and Washington State, which all had state laws prohibiting race preferences at the time of O’Connor’s ruling.
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