The Equal Justice Society and more than a dozen other civil rights organizations this week filed an amicus brief (PDF) in the U.S. Court of Appeals for the Sixth Circuit, urging the court to strike down Michigan’s anti-equality Proposal 2 as unconstitutional.
In its brief, EJS argues that Proposal 2 violates the Equal Protection Clause of the 14th Amendment of the Constitution by creating procedural barriers for people of color.
“Since its founding, certain interests in America have tried to restrict access to the political process,” said Eva Paterson, President of the Equal Justice Society. “First only white male landowners could vote. The franchise was expanded after the Civil War but women could not participate. Now we see many states erecting barriers to voting that may appear harmless, but are designed to keep voters of color from helping shape their political destinies. The national civil rights community speaks in one strong voice in opposing these measures, including Michigan’s Proposal 2.”
Several organizations joined EJS in signing the brief: the California Voting Rights Institute, Public Advocates, LatinoJustice PRLDEF, the Asian American Legal Defense and Education Fund, the National Women’s Law Center, Chinese for Affirmative Action, Worksafe, South Asian Network, the Association of Asian American Attorney and CPA Firms, the Council of Asian American Business Associations, Equal Rights Advocates, and the Asian American Justice Center and the Asian Pacific American Legal Center, the latter two both members of the Asian American Center for Advancing Justice.
Michigan voters passed Proposal 2 in 2006, amending the state’s constitution to prevent the state government from advancing equal opportunity by considering race, sex, color, ethnicity, or national origin. In March 2008, a federal district court judge upheld the law, but the decision was reversed this July by an appeals court panel. The case is now under consideration by the full Sixth Circuit Court of Appeals.
“We stand with our civil rights allies in opposing Proposal 2 and other similar laws that exclude racial minorities and women from the political process,” said Allison Elgart, Supervising Attorney at the Equal Justice Society. “When people of color have to amend the state constitution just to have their interests represented, the law is not protecting their right to equal protection under the law, and the court should step in.”
“Proposal 2 is the most recent example of a voter initiative that restructures the political process in a non-neutral way and places special burdens on racial minorities who want to lobby for race-conscious admissions processes,” reads the brief. “Voting changes and requirements that disproportionately impact racial minorities and provide them less opportunity than others to participate in the political process and effectuate their choices are violations of the Equal Protection Clause.”
The brief cites several reasons why Proposal 2 violates the Constitution:
The law impedes participation in the political process by people of color. After Proposal 2 passed, advocates of race-conscious admissions policies can no longer lobby admissions committees or university administrators. Their only recourse is to launch another statewide initiative, a costly process that could take years to see through to its conclusion. Advocates for other considerations in the admissions process do not face the same burden and are free to continue lobbying admissions committees without structural limitations.
People of color have historically faced hurdles that hinder participation in the political process. Participation in the political process by people of color in the past has been thwarted by literacy tests applied differently to distinct racial groups, electoral redistricting that disfavored racial minorities, and more recently by states that have established seemingly innocuous voter requirement laws that often result in racial exclusion and vote suppression. Courts have found these seemingly “neutral” laws unconstitutional if their purpose is to impede participation by people of color in the political process. Proposal 2 falls into this category.
Proposal 2 is a modern reincarnation of white primaries, literacy tests, and redistricting. Like voting, lobbying to change the admissions processes in Michigan is a way for people of color to participate in governance. The Equal Protection Clause “guarantees racial minorities the right to full participation in the political life of the community,” and therefore requires that every group has equal opportunities to participate in the decision-making process, particularly in the context of public education. Proposal 2 prevents the full participation by people of color in the decision-making process regarding admissions.
The case should be fully briefed before the Sixth Circuit Court of Appeals by the end of the year and the Sixth Circuit will then set a hearing date.