Acting Affirmatively

The words “affirmative action” first appear in Executive Order 10925 signed by President John F. Kennedy in March of 1961. They were later used again in another Executive Order signed by President Lyndon Johnson in September of 1965.

Nothing is more freighted with meaning for our own destiny than the revolution of the Negro American…In far too many ways American Negroes have been another nation: deprived of freedom, crippled by hatred, the doors of opportunity closed to hope…But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. – Lyndon Johnson

“Damn Angry Birds”

But let’s stop the history lesson here. What the words have come to mean for the millions of ethnic minorities in the United States is a foot in the door, a bite of the apple, a break in the glass ceiling. Metaphors only come to close to relating what affirmative action policies have done for many people. It may come as a surprise to some of you that affirmative action isn’t as pervasive as one might think. Nor has it been safe where it exists today. California, Washington, Arizona, and Connecticut are all states where Affirmative Action has been . . . wait for it . . . outlawed. In each of these states, amendments to the states’ constitutions have been passed by popular initiative to bar any state sponsored school, or state entity from considering race when distributing benefits and burdens.

"Good thing I went to Harvard and not Yale"

You may also be surprised that there is an organized, concerted effort to END Affirmative Action everywhere it now exists. Ward Connerly and Jennifer Gratz, the latter being the loser in the Gratz v. Bollinger, the Supreme Court case that ruled the University of Michigan’s undergraduate affirmative action admissions policy unconstitutional, mobilized after her unfavorable judgment to outlaw affirmative action in the state of Michigan. They joined together to pass a ballot initiative that amended the state’s constitution to say, in its pertinent part, “[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

The thing is, this dynamic duo used tactics that amounted to fraud to put the amendment on the ballot. The judge deciding the lawsuit brought against the duo’s organization stated plainly, “MCRI engaged in systematic voter fraud by telling voters that were signing a petition supporting affirmative action.” Yup, they plainly lied to the petitioners to get them to sign the petition. What part of the Game is that?

Sore Losers

It’s always darkest before the dawn in Michigan, however. Just when the people of Michigan thought it was safe to be a privileged white person again, a case you’ve probably never heard of came along. Coalition to Defend Affirmative Action v. Regents of the University of Michigan, a pivotal Sixth Circuit Court of Appeals case decided just this month, found a Federal judge holding that the Michigan constitutional amendment that outlawed “preferential treatment” in the state itself was a violation of the Equal Protection Clause. This is the clause in the 14th Amendment that guarantees “equal protection of the laws” to all citizens of the United States. It turns out, according to the judge, that because this amendment to Michigan’s constitution made it harder for minorities to advocate for race-conscious policies, it amounted to an unfair tipping of the scales in favor of the majority. Minorities would have to pass a constitutional amendment before then advocating for these policies. The majority however, could freely advocate for other policies by going straight to the electorate.

Equal Protection means not only having the same laws for blacks and whites, it also means not making it any harder for minorities to change laws. From this humble law student’s perspective, the case may just sound the death knell for anti-affirmative action constitutional amendments everywhere.

"Mom? Yeah, it's Susanna. Have you heard they have to start letting coloreds in again?"

It seems we as minorities shall forever have to take the fight to the courts to ensure even the most basic protections that others are guaranteed. Going to law school might make me a soldier on the front lines of this battle . . . and I’m ready.


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