The disappointing passage of Proposal 2 in Michigan, after similar Right-wing successes with Prop 209 in California and Initiative 200 in Washington state, coupled with other attacks, means that pro-affirmative action forces need to become more aggressive in defending and explaining affirmative action. A failure to do either will spell the end of affirmative action as we know it.

The irony of the misnamed Michigan Civil Rights Initiative passing in Michigan is that it was the suit against the University of Michigan Law School that paved the way for the United States Supreme Court upholding the concept of affirmative action. The court, rejecting a more numbers-oriented affirmative action program that the University of Michigan used at the undergraduate level, approved the more holistic approach used by the law school.

Writing for the 5-4 majority, Justice Sandra Day O’Connor stated, “The Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause.”

What the law likes to refer to as a “reasonable person” would have concluded that the issue was clearly settled. Far from it. Instead, Ward Connerly, the conservative Black California businessman who once benefited from a state set-aside program, decided to take his anti-affirmative action crusade on the road. After winning in Michigan, he may be heading to your state. Connerly is part of a well-funded national campaign to win with confusing ballot initiatives what conservatives clearly lost in pleadings before a Supreme Court dominated by conservatives.

While Connerly leads the attack on one flank, an even more successful assault is being carried out by the Center for Individual Rights, a conservative think tank opposed to affirmative action. By simply threatening to file suit against universities, the institutions usually buckle rather than litigate. Dozens of universities have scrapped race- or gender-sensitive programs rather than fight back.

Sadly, even the Justice Department came down on the side of CIR and pressured Southern Illinois University to terminate three fellowship programs whose recipients were mainly underrepresented women or people of color. But the Center for Individual Rights didn’t stop there. It is now suing the Virginia Commonwealth University and the Dow Jones Newspaper Fund for operating a two-week high school journalism program designed to encourage African-Americans to go into journalism, a field in which they are underrepresented.

CIR and other conservative groups are basically using the “equal protection clause” of the 14th Amendment, which was passed to end discrimination against African-Americans, to attack programs aimed at helping Blacks. It has shamelessly turned the 14th Amendment on its head. And, as I’ve said countless times, there is no infrastructure on the Left to
counter the energy and mischief of the Far Right.

They’ve been so successful that the news media has adopted the language of the Far Right. Conservatives have been successful in getting not only the news media to adopt their misleading language, but even our own leaders have fallen into that trap. I saw a syndicated column this week by a national civil rights leader that asserted that Michigan’s Proposal 2 “bars use of preferences by state colleges and universities as well as government agencies.” How can we get news outlets to stop equating to race- and gender-sensitive actions with “preferences,” if we’re using the loaded language ourselves?
As a 1995 report by the National Association of Black Journalists pointed out, “Since polls have shown that the public supports affirmative action, but opposes ‘preferential treatment,’ using the terms interchangeably, under the guise of objective reporting, unfairly characterizes affirmative action. “

It further explained, “Using the term ‘preferences’ in this context betrays a fundamental misunderstanding of the reason behind affirmative action: that it is intended to counter the built-in, systematic ‘preferences’ for white males that still exist.”

In addition to losing the language war, we are not effectively arguing our case. Admission to college has never been based strictly on test scores and grade point averages, yet the public is made to feel guilty because Jennifer Gratz, a White applicant, was not immediately accepted into the University of Michigan undergraduate school while supposedly “less qualified” African-Americans were.

In one of its briefs, the University of Michigan noted, “In 1905, when petitioner Gratz applied…more than 1,400 white and Asian-American students with lower adjusted high school GPS or test scores than hers were admitted, while more than 2,000 white and Asian-American students with higher adjusted GPAs and test scores were rejected [Brief for Respondents, No. 02-516, Gratz v. Bollinger]. So much for Jennifer Gratz being discriminated against because she’s White.

This war on affirmative action is not over. But we shouldn’t continue to show up for the battle unarmed.