The Ups and Downs of Ending Affirmative Action Preferences

By Carol Allen

In their highly readable book on the California Civil Rights Initiative, co-authors Harry Glynn Custred, M. Aliz Raza, and A. Janell Anderson describe the Ups and Downs of Affirmative Action Preferences. Were they to write a sequel today, they might aptly title it The Ups and Downs of Ending Affirmative Action Preferences. With the decision this month to close down the Missouri Civil Rights Initiative campaign and last month’s similar decision in Oklahoma, it would seem that the battle to end race preferences is facing some major setbacks. Has there, perhaps, been a downturn in the popular support for this quest?

A good place to start in answering that question is with a brief review of the ten-year history of efforts to end affirmative action preferences (by voter initiative or legislation). In 1996, Californians voted decisively to end the use of such preferences in public contracting, education and employment. But, it is worth remembering that the progenitors of the California Civil Rights Initiative (Tom Wood and Harry Glynn Custred) had first tried and failed to place the question before voters in 1994. The setback that year did not deter their renewed efforts in 1996, which – with the added support of many other leaders (including Ward Connerly) – were met with success.

The CCRI victory inspired citizens and legislators in many states to emulate that success. Ballot drives were launched in Colorado, Florida and Illinois in 1997, but each failed. That same year, legislation to end or curtail affirmative action preferences was introduced in eleven states (Arizona, Colorado, Georgia, Michigan, Missouri, New Jersey, New York, North Carolina, Oklahoma, and South Carolina). Although these efforts also failed, the idea that preferences based on race, gender or ethnicity have no place in our democratic republic was embraced by a growing number of adherents.

The defeat of the Houston Civil Rights Initiative in 1997 (and earlier legislative failures in Washington state) did not discourage state representative Scott Smith and businessman Tim Eyman from launching a petition drive that year, modeled on the CCRI. With substantial support from Ward Connerly and the American Civil Rights Coalition, their campaign led 58 percent of the state’s voters to pass the Washington State Civil Rights Initiative in November 1998.

From 1994 through 2001, a series of appellate court decisions (including Podberesky v. Kirwan, Hopwood v. Texas, Smith v. University of Washington Law School, and Johnson v. Board of Regents of University of Georgia) began to curtail the practice of affirmative action preferences in college admissions and scholarships – at least in the regions directly affected by the rulings. Many colleges and universities outside those regions also chose to moderate their use of preferences in an effort to limit potential exposure to legal challenges. Opponents of race preferences saw some hope that the practice would be eliminated through the court system.

But, the U.S. Supreme Court’s June 23, 2003 split decision on the Gratz and Grutter cases made it clear that the courts seem unlikely to take a firm position on the constitutionality of affirmative action preferences in the near future. On the one hand, the Gratz ruling declared that the outright, systematic, and heavy-handed practice of race preferences in college admissions is unconstitutional. On the other hand, the contradictory ruling in Grutter left open the possibility that colleges and universities could continue to give preferences and make decisions on the basis of race – so long as it was done in a subtle manner. The nation’s institutions of higher education seized this opening and re-invigorated (and cloaked in layers of subtlety) their practice of granting preferential treatment based on race and ethnicity (and sometimes gender – but with the gender-based preferences in admissions now going to men).

Within weeks after the Grutter-Gratz decisions, state legislators Leon Drolet and Jack Brandenberg launched the Michigan Civil Rights Initiative, with the support of Ward Connerly. Eventually – and under the leadership of Jennifer Gratz – their campaign led to a 16-point margin of victory at the polls in November 2006. But, that campaign had many setbacks also; in fact, the original plan was to place the Michigan Civil Rights Initiative on the November 2004 ballot.

What is the lesson to learn from this history? The clear pattern is that persistence will pay off. Popular support for ending preferences based on race and gender is widespread and it is growing. The American people have not lost their belief in the premise upon which this nation is founded: that all men are created equal. In the short term, activist groups on the left such as BAMN and ACORN can – through tactics of fear-mongering and deceit – temporarily thwart efforts to end the unconstitutional practice by the state of preferring one individual over another on the basis of that person’s skin color, gender, or ethnicity. But history plainly shows the long-term and progressive movement of the American people toward the goal of creating laws and adopting practices that entrench our commitment to the moral equality of all individuals.

Carol Allen is a research specialist in the Political Science Department of Michigan State University and the author of Ending Racial Preferences: The Michigan Story.