Conservatives Seek to Circumvent Pro-Affirmative Action Ruling

“Since neither the judiciary nor the Congress are going to be disposed to solve this problem, then we will be looking at other states to carry the battle there and certainly the state of Michigan would be one that would be ripe for such an initiative,” says Connerly, a member of the California Board of Regents and chairman of the Sacramento-based American Civil Rights Institute, a conservative group that opposes affirmative action.
Connerly remarks reflected disappointment at the U.S. Supreme Court’s decision to allow the consideration of race, among other factors, in an affirmative action case brought against the University of Michigan law school. On a 5-4 vote, the court upheld the legality of that program.
“I’m not looking at a lawsuit, I’m looking at a ballot initiative,” Connerly says in an interview with the NNPA News Service. “Michigan is an initiative state. It would be like 209 to essentially restate the 1964 Civil Rights Act and say that the state shall not discriminate or grant preferential treatment to any individual on the basis of race, and so on.”
Civil rights lawyers contend that the Supreme Court’s ruling in the Michigan case supercedes any state-level action similar the one favored by Connerly. However, like everything else, that issue is likely to be resolved by the courts.

“We haven’t set a time,” Connerly says. “All we’re doing now is evaluating the wisdom of doing this and what the process would be and how daunting it would be. So far, all I can say is that if it got on the ballot, it would probably pass handily. You have a number of people who are eager to take the lead on this.”
The ballot initiative is just one of several strategies that conservative organizations say they will use to continue their war against affirmative action.
Many have not given up on more lawsuits to challenge the university’s law school admissions process, which the court upheld Monday in “Grutter v. Bollinger.” In that case, the court held that race can be considered in admissions as long as the university considers each applicant on a case-by-case and there’s no “mechanical” system, such as awarding specific points to underrepresented groups, as did Michigan’s undergraduate admission program, which the court struck down in “Gratz v.Bollinger.”
Moments after the court had issued its rulings, conservative groups were threatening to return to court.
“A school that tries to make this piece-by-piece system work is asking, is inviting further litigation to which they will have to try to prove to a federal judge that they’re not running a quota system,” Terry Pell, president of the Washington, D.C.-based Center for Individual Rights, the organization that brought the lawsuits, told reporters standing in front of the Supreme Court. “There will be a defendant in a court in a lawsuit and they will be challenged and they will have to prove that their case-by-case consideration really is case-by-case and is not a mechanical system. They’re going to have to demonstrate it to the court.”
CIR isn’t the only group eager to go to court.
“We’re constantly in contact with other like-minded groups throughout the country in sharing information. And again if there’s a question that’s out there that we can do research and find an actionable issue, we’ll be in the case,” says Denise Davis, spokeswoman for the conservative Pacifica Legal Foundation in Sacramento, Calif. “We’re going to closely monitor university admissions. We’re just keeping our ear to the ground and our eyes open about admissions policies that use race as a factor.”
Some anti-affirmation groups think that it’s only a matter of time before they prevail.
“We can expect that several of the justices that were a part of the 5-4 decision on the [law school] case are expected to be retiring in the next few years. We can expect that if they are replaced by more conservative judges, that we could find ways to challenge this in the years ahead,” says David Gersten, executive director for the Virginia-based Center for Equal Opportunity. “The speculation from those of us from a conservative perspective like myself is that President Bush will be appointing conservative judges, if not because he wants to see a reversal of this, then certainly because he is a pro-life conservative and more of those who are farther to the right on those types of issues are farther to the right on preferences and discrimination.”
Justice Antonin Scalia uses his opinion in the Michigan law school case to outline a string of scenarios that he claims could attract legal challenges:
* If someone thinks a university does not adequately evaluate an applicant as an individual before considering their race;
* If someone thinks a university has been so overzealous to achieve a “critical mass” of people of color that it establishes a de facto quota system;
* If someone wants to consider whether educational benefits flow from racial diversity at a particular university;
* If someone claims that a university’s “critical mass” is too high or too low and
* If an underrepresented racial or ethnic group believes it has been short-changed in the institution’s declaration of a “critical mass,” defined as enough students that would prevent their feeling isolated on campus.
Scalia also says that campus cultural activities that center around Black and other racial minority activities might also be ripe for lawsuits.
“Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses—through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduating ceremonies,” Scalia writes.
No one expected conservatives to halt their attack on affirmative action.
“I don’t think that anybody should fool themselves, the people on the other side of this issue are not going to go away,” Ted Shaw, associate director-counsel of the NAACP Legal Defense and Educational Fund, said on the steps of the Supreme Court shortly after the rulings. “This is a struggle that’s going to continue. But it’s very clear that the doomsday scenario that was predicted and was hoped for by the opponents of affirmative action has not come today.”



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