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Published: Friday, 12/22/2006

Lawsuit seeks to overturn will of the people on affirmative action

DETROIT - Last month's vote on affirmative action was decisive. Whatever your politics, 58 percent of Michigan voters clearly wanted to end race-and-gender based preferences, both in government hiring and college admissions.

Both sides spent lavishly. The ballot language on what was called "Proposal 2" was easy to understand, and so was the result. Affirmative action lost in every county except the two major university counties, and the one that contains the nearly all-black city of Detroit.

Case closed? Issue decided? Not if you are the American Civil Liberties Union or the NAACP. This week, the groups filed a lawsuit in federal court seeking to have the people's vote tossed aside. "We have come too far to allow the doors of opportunity to be shut in the face of the American promise of liberty and justice," said the Rev. Wendell Anthony, Detroit NAACP president.

"Recent events in Michigan related to the passage of Proposal 2 have only increased our energy to keep the doors of equal opportunity open and accessible," he added. He was joined by Kary Moss, executive director of the ACLU of Michigan, who noted that the U.S. Supreme Court has indicated "that it is entirely within the law for universities to consider race or gender as one of many criteria in selecting their student body. Proposal 2 should not change that."

However, the proposal did change that. Mark Rosenbaum is both a professor at the University of Michigan law school and the head of the ACLU in Southern California. He supports the current lawsuit, and in fact argued similar unsuccessful suits in California, when that state's voters also chose to overturn affirmative action.

Asked if the lawsuit was asking the courts to overturn the will of the people, he admitted that, yes, it was. "But sometimes minority rights take precedence," over a majority vote, he said.

Mr. Rosenbaum admitted that no, the U.S. Supreme Court in Grutter vs. University of Michigan had not said the University of Michigan had to use affirmative action - only that doing so was all right, up to a point.

But neither did it say the people could not decide. Certainly both sides during the campaign acted as though the issue was theirs to decide. Even some liberals and supporters of affirmative action might be leery of asking a court to overturn the result of an election.

Do they remember a little case called Bush vs. Gore?

Perhaps the best way to think about this case is to compare the result to the election for U.S. senator held the same day. The results are uncannily similar. When asked, 2,141,010 Michigan voters voted to end affirmative action; 1,555,691 wanted to keep it.

When asked about their next U.S. senator, 2,151,278 wanted to re-elect Democrat Debbie Stabenow; 1,559,597 wanted the Republican candidate, Mike Bouchard.

If the courts overturn the vote on Proposal 2, what's to stop Mr. Bouchard from asking them to do the same and install him as senator? After all, a minority of voters clearly wanted him to be in office, and, he could say, minority rights take precedence.

Naturally, that's absurd. Or at least one hopes so.

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On the other hand, a federal judge made a sensible decision to allow Michigan's major universities to continue to use race and gender in making their admissions decisions until July 1.

U.S. District Judge David Lawson agreed it would be too disruptive to do away with affirmative action immediately, since the schools began the process of accepting next fall's class even before the vote, and it would be hard to change the rules midstream.

That decision was supported by Michigan Attorney General Mike Cox, a Republican who supports ending affirmative action, but said this deal was in the best interests of both the universities and the will of the people.

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Toothless Tiger: Concerned about increasing school violence, Michigan's board of education, with some fanfare, adopted new standards for the emergency use of "seclusion and restraint," when students are out of control.

Trouble is, after reading the standards, which seemed to be mostly bureaucratic gobbledygook, I could not understand them. All that seemed clear is that you should not restrain students in a way that prevented them from breathing (good idea!)

You also aren't supposed to put little ones in a dark closet. But beyond that, how are teachers supposed to know what to do?

The schools should pay for training, board president Kathleen Straus told me. Do you have money to give Michigan's mostly cash-strapped districts for seclusion and restraint training?

Well, no. They should use funds they have already. Well, does the board have any enforcement power? Can the board take any action if a school chooses not to follow its seclusion-and-restraint policies? Well, not exactly.

However

"Seclusion and restraint are being used in our schools now. What people are crying for is for us to set forth guidelines in ways that protect students," board member Reginald Turner said in a press release last week.

Trouble is, they are still waiting.

Jack Lessenberry, a member of the journalism faculty at Wayne State University in Detroit and The Blade's ombudsman, writes on issues and people in Michigan.

Contact him at: omblade@aol.com



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