A Council on Public Higher Education in Missouri (COPHE) Presentation

October 10, 2007
Michael A. Middleton

Race, gender and National Origin have been significant factors in public decision-making throughout human history. Without attempting to explain the origin of what seems to be a natural propensity of humanity to divide itself based on human differences and to seek primacy over those not included in "our" group (tribe, personal spiritual belief systems, color, race, national origin, gender, etc.), we need only look at the extreme and longstanding tension and bloodletting in the former Yugoslavia , Northern Ireland, the Middle East and Africa to understand the devastating effects of such behavior on any society.

America's ironic experience with the use of race in public decision-making began with the adoption of the already centuries old institution of slavery. Slavery originated on this continent is the early 1500's and was maintained for the first century of this Nation's existence. Even after it was abolished in 1865, the federal reconstruction effort was strongly resisted and finally abandoned in 1877. For the next 75 years or so, race was the determining factor in identifying the American citizens who were, by law and custom, to be denied basic benefits of citizenship such as, among others, the right to vote, to purchase property, to make contracts, to gain an adequate education or to secure gainful employment.

AFFIRMATIVE ACTION

Around the middle of the 20th Century, the United States began efforts to eliminate discrimination on the basis of race and to equalize opportunity for all American citizens regardless of race. During this period, the U.S. Congress passed historic legislation , and the Federal courts breathed life into earlier legislation (ii) designed to eliminate discrimination against individuals on the basis of race, national origin and gender. As a part of that effort, "Affirmative Action" (iii) was mandated by the Federal Government as early as 1961 when President Kennedy issued Executive Order 10925. Since then, Congress has authorized numerous federal affirmative action programs designed to advance participation of minorities and women in all aspects of American life. Such affirmative action is an important tool designed to remedy past discrimination, counteract present-day discrimination, and promote diversity in our society. These laws and regulations require that public decision-makers consider race, gender and national origin along with all other relevant factors in carrying out their public responsibilities.

The U.S. Supreme Court has historically defined the legitimate scope and meaning of affirmative action policies and the extent to which certain human characteristics (iv) can be considered in public and private institutions. (v) On June 23, 2003, the Court in Grutter v. Bollinger revalidated the affirmative and conscious use of race in public decision-making, clearly stating that diversity is a compelling governmental interest and that race can be one of the many factors considered in higher education admissions. In a companion case, Gratz v. Bollinger, the Court acknowledged a compelling interest in student body diversity but determined that the use of race in the University of Michigan undergraduate school's admissions program was not narrowly tailored to achieve that interest. Reinforcing the compelling nature of that interest, the Court stated, "Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized." (vi)

Justice O'Connor acknowledged the important connection between campus diversity and our nation's competitive global posture stating, "[M]ajor American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints." (vii)

THE OPPOSITION

Long-time opponents of affirmative action, including the Center for Equal Opportunity (CEO), the Center for Individual Rights (CIR), the American Civil Rights Institute (ACRI), and the National Association of Scholars (NAS), have consistently opposed affirmative action. They have targeted institutions of higher education that utilize such policies by filing claims of "reverse discrimination" with the U.S. Departments of Justice and Education. MU, for example, is currently under investigation by the U.S. Department of Education's Office for Civil Rights as a result of a challenge by the Center for Equal Opportunity. The theory advanced is that any "affirmative action' taken or any "preference" given on the basis of race, gender or national origin is an illegal discrimination against others who do not benefit from the action. This conclusion is required without regard for the public interest being advanced or the extent to which consideration of the suspect factor is narrowly tailored to that interest. The fundamental argument is for "color-blindness" in public decision-making.

Opponents have also challenged affirmative action policies through proposed legislation at the state level. These efforts have generally not succeeded. Of the 102 bills and/or resolutions introduced in state legislatures nationwide during 1997-2004, only six were enacted.

Conversely, the pursuit of ballot initiatives to challenge affirmative action programs at the state level has met with more success. The leading proponent of these efforts is California businessman Ward Connerly. Connerly, a former University of California Regent and chairman of the American Civil Rights Institute, was the key figure behind the enactment of California's Proposition 209 (1996), Washington State's Initiative 200 (1998), and Michigan's Proposal 2 (2006) which purport to eliminate any consideration of race and/or gender in public decision-making.

Following the Supreme Court rulings in the Michigan cases, the opposition brought its ballot initiative campaign to the mid-west, starting with Michigan's Proposal 2 and continuing with well organized campaigns to pass similar ballot measures in Arizona, Colorado, Nebraska, Oklahoma and Missouri.

"MISSOURI CIVIL RIGHTS INITIATIVE"

Efforts are now underway to place the "Missouri Civil Rights Initiative" (MoCRI) on Missouri's 2008 ballot. The current controversy over MoCRI involves the language to be used in the ballot measure.

Language recommended by the MoCRI Committee describes the proposed Constitutional Amendment as one prohibiting discrimination and preferential treatment based on race, sex, color, ethnicity, or national origin. (viii)

The Secretary of State of Missouri, charged with responsibility for preparing the official ballot, crafted language describing the amendment as banning affirmative action programs and allowing preferential treatment where authorized. (ix)

On July 26, 2007 the Missouri Civil Rights Initiative (MoCRI) filed suit in the Cole County Circuit Court challenging what it considers an unfair and inaccurate Official Ballot Title written by Secretary of State Carnahan and approved by Attorney General Nixon.(x) Another suit was filed on July 30, 2007 raising additional challenges to the Official Ballot Title and Fiscal Note. These cases have been consolidated.

Circuit Court Judge Patricia S. Joyce will resolve the dispute over the language used in the Official Ballot. (xi)

The controversy over the language of the ballot measure raises interesting political and rhetorical questions, but the language of the actual proposed constitutional amendment, raises the most significant legal questions. The actual constitutional amendment proposed through the MoCRI is substantially the same as that used in Michigan's Proposal 2.(xii)

This language attempts to ban "discrimination against" and "preferential treatment of" any individual on the basis of race, gender, or national origin by all public entities. The measure contains exceptions in three instances: 1) where gender is a bona fide occupational qualification, 2) where discrimination or preferential treatment is necessary to secure federal funds, or 3) to comply with existing court orders. These exceptions are present in existing anti-discrimination law and provide examples of instances in which an absolute ban on consciousness of these factors is inappropriate and unworkable. (xiii)

WHAT DOES IT MEAN?

The actual legal meaning of the California, Washington and Michigan initiatives is still evolving in the courts. Consequently, the long term effect of those initiatives on higher education in those states remains unclear. We do know that from 1996 (the year of Proposition 209's passage in California) to 2006, the number of minority freshmen registrants at the University of California at Berkley fell 65%. The University of California at Los Angeles was similar with a minority freshmen enrollment drop of 45% during that same period. In 2006, UCLA's freshman class of nearly 5000 had only 96 African Americans. Berkley Law, in 1997, had 1 African American in its incoming class of 268.

An absolute ban on any consideration of the identified factors could have broad effects on all public decision-making in such state and local programs as:

• Apprenticeship programs
• Training programs
• Summer jobs programs
• Minority business enterprise programs
• Fair housing and lending programs
• Gender based programs
• Minority oriented career programs
• Support services programs
• Law enforcement

In higher education, such a ban would potentially require significant changes in:

• Outreach and recruitment programs
• Academic programming
• Academic support programs
• Admissions policies
• Financial aid programs
• Student club and organization programming
• Student support programs
• Diversity programs

DISCRIMINATION

A state constitutional ban on discrimination against individuals on the basis of race, gender and national origin would be redundant and likely add confusion to an already complicated legal analysis. Discrimination against individuals on the basis of race, gender or national origin has been prohibited by state and federal law since the middle of the 20th Century. As noted above, the Supreme Court has been consistent in holding that the limited use of race in a manner narrowly tailored to achieve a compelling governmental interest does not constitute "discrimination" as defined under current statutory or constitutional prohibitions. Most recently, the Supreme Court reaffirmed this conclusion in the Seattle and Louisville K-12 school desegregation cases (xiv) Though the Court found that the use of race as the determining factor in public school assignments at the K-12 level was not narrowly tailored to achieve a compelling governmental interest in those cases, it did not modify the constitutional standard for evaluating the use of race nor did it suggest that an absolute ban on such use was constitutionally appropriate.

The Court recognizes that public bodies must consider all relevant factors in public decision-making. This is the perspective that has driven the anti-discrimination legislation of the 1960's and the federal programs and policies over the past 50 years designed to advance greater participation in American life by members of groups that had previously and historically been excluded by law and practice. Appropriate consideration of race, gender and national origin in designing and implementing these programs has not been judged to be illegally discriminatory.

PREFERENTIAL TREATMENT

Preferential Treatment is a term of fairly recent origin in the legal lexicon and guidance on its meaning in the current context has not been provided by the courts. One can assume however, that the proposal to prohibit "preferential treatment" is intended to eliminate treatment of individuals on the basis of even the limited consideration of race, gender and national origin that has consistently been authorized by the Supreme Court as not illegally discriminatory. The effort appears to be to ban ANY consideration of the identified factors in ANY public decision-making regardless of the governmental interest advanced by that use. (xv)

Ward Connerly has consistently touted his "plans to eliminate race in all facets of American public life." In light of the historic negative uses of race in the United States, one can understand an inclination to impose an absolute ban on any consideration of race. Such a fundamentalist position however, ignores our constitutional history and the undeniable fact that race, gender and national origin have throughout time been factors that significantly influence human interaction. An absolute ban on ANY consideration of these factors in public decision-making would require that public officials blind themselves to potentially significant information.

Even if we come to the political conclusion that public decision-makers in Missouri must blind themselves to certain relevant facts, it is unthinkable that a university, dedicated to the creation and diffusion of knowledge, could support a proposal that would require it to conduct its work in a self-imposed ignorance. The university cannot pursue knowledge through blindness.

RECOMMENDATION

How we accomplish the effective reconciliation of the differences that have confounded societies for centuries is a difficult and controversial public policy question. It will be the subject of litigation for many years to come. In my view, the Courts have struck a balance that allows consciousness of race, gender and national origin yet regulates their use in a way that minimizes unintended negative consequences while allowing public entities to continue the work of reconciling those differences. That work cannot be done without consciousness of human difference in our public decision-making.

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1. E.g.,  the Civil Rights Act of 1964, the Voting Rights Act of 1965
2. E.g.,  42 USC SS1981
3. This term is broadly used to make reference to deliberate race conscious action designed to accomplish the goals of equalizing opportunity for all American citizens and providing the benefits of diversity in our society.  In the context of the current controversy, it is used to denote policies that consider race, gender, national origin and other criterion. 
4. The constitutionality of classifying individuals on the basis of their human characteristics has been the subject of much litigation over the years.  Classifications based on Race, National Origin and Gender have been determined by the Supreme Court to be subject to a heightened level of scrutiny.  The Court has defined these levels of scrutiny in the following way:
   • Strict scrutiny (classifications based on race or national origin): the classification is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.
   • Intermediate scrutiny (classifications based on gender): the classification is unconstitutional unless it is "substantially related" to an "important" government interest.
   • Rational-basis test (classifications on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.
5. Civil Rights Cases 109 u.s. 3 (1883); Yick Wo v. Hopkins 118 u.s. 356 (1886); Plessy v. Ferguson 163 u.s. 537 (1896); Guinn & Beal v. United States 238 u.s. 347 (1915); Buchanan v. Warley 245 u.s. 60 (1917); Norris v. Alabama 294 u.s. 587 (1935); Missouri ex rel. Gaines v. Canada 305 u.s. 337 (1938); Chambers v. Florida 309 u.s. 227 (1940); Smith v. Allwright 321 u.s. 649 (1944) ; Korematsu v. United States 323 u.s. 214 (1944); Morgan v. Virginia 328 u.s. 373 (1946); Shelley v. Kraemer 334 u.s. 1 (1948); American Communications Assn. v. Douds 339 u.s. 382 (1950); Sweatt v. Painter 339 u.s. 629 (1950); McLaurin v. Oklahoma State Regents 339 u.s. 637 (1950); Terry v. Adams 345 u.s. 461 (1953); Brown v. Board of Education 347 u.s. 483 (1954); Bolling v. Sharpe 347 u.s. 497 (1954); Brown v. Board of Education 349 u.s. 294 (1955); Monroe v. Pape 365 u.s. 167 (1961); Edwards v. South Carolina 372 u.s. 229 (1963); Heart of Atlanta Motel, Inc. v. United States 379 u.s. 241 (1964); Katzenbach v. McClung 379 u.s. 294 (1964); Evans v. Newton 382 u.s. 296 (1966); United States v. Guest 383 u.s. 745 (1966); Loving v. Virginia 388 u.s. 1 (1967); Swann v. Charlotte-Mecklenburg Board of Education 402 u.s. 1 (1971); Apodaca v. Oregon 406 u.s. 404 (1972); Milliken v. Bradley 418 u.s. 717 (1974); Washington v. Davis 426 u.s. 229 (1976); Regents of the Univ. of Cal. v. Bakke 438 u.s. 265 (1978); National Association for the Advancement of Colored People v. Claiborne Hardware Co. 458 u.s. 886 (1982); Bob Jones Univ. v. United States 461 u.s. 574 (1983); Johnson v. Transportation Agency 480 u.s. 616 (1987); United Steelworkers of America, AFL-CIO-CLC v. Weber 443 u.s. 193 (1979); Fullilove v. Klutznick 448 u.s. 448 (1980); Mississippi University for Women v. Hogan 458 u.s. 718 (1982); Building Trades & Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden 465 u.s. 208 (1984); Firefighters Local Union No. 1784 v. Stotts 467 u.s. 561 (1984); Wygant v. Jackson Board of Education 476 u.s. 267 (1986); United States v. Paradise 480 u.s. 149 (1987); Johnson v. Transportation Agency 480 u.s. 616 (1987); City of Richmond v. J. A. Croson Co. 488 u.s. 469 (1989); Metro Broadcasting, Inc. v. Federal Communications Commission 497 u.s. 547 (1990); Missouri v. Jenkins 495 u.s. 33 (1990); Adarand Constructors, Inc. v. Pena 515 u.s. 200 (1995); United States v. Armstrong 517 u.s. 456 (1996)
6. Grutter v. Bollinger, 539 U.S. 306, 332 (2003)
7. Grutter, at 330.
8. “Shall the Missouri Constitution be amended to prohibit any form of discrimination as an act of the state by declaring:
   • The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting?
9. Shall the Missouri Constitution be amended to:
   1. ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education; and
   2. Allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards as well as preferential treatment for bona fide qualifications based on sex?
10. Timothy Asher v. Robin Carnahan, No.07AC-CC00648 (Cir 19), set for trial 10/30/2007, Div 4.
11. The language of the ballot measure associated with Michigan’s Proposal 2, was something of a blend:

    A PROPOSAL TO AMEND THE STATE CONSTITUTION TO BAN AFFIRMATIVE ACTION PROGRAMS THAT GIVE PREFERENTIAL TREATMENT TO GROUPS OR INDIVIDUALS BASED ON THEIR RACE, GENDER, COLOR, ETHNICITY OR NATIONAL ORIGIN FOR PUBLIC EMPLOYMENT, EDUCATION, OR CONTRACTING PURPOSES.

    The proposed constitutional amendment would:

    • Ban public institutions from using affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes. Public institutions affected by the proposal include state government, local government, public colleges and universities, community colleges and school districts.
    • Prohibit public institutions from discriminating against groups or individuals due to their gender, ethnicity, race, color or national origin. (A separate provision of the state constitution already prohibits discrimination on the basis of race, color, or national origin.)

    Should this proposal be adopted? Yes or No

12. THE MISSOURI CIVIL RIGHTS INITIATIVE

    Be it resolved by the people of the State of Missouri that the Constitution be amended:

    One new section is adopted to be known as section 34 of Article I, to read as follows:

    Section 34.

    1. The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
    2. This section shall apply only to action taken after the section's effective date.
    3. Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.
    4. Nothing in this section shall be interpreted as invalidating any court order or consent decree that is in force as of the effective date of this section.
    5. Nothing in this section shall be interpreted as prohibiting action that must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.
    6. For the purposes of this section, "state" shall include, but not be necessarily limited to, the state itself and any of its departments, agencies, commissions, boards, and other units; any political subdivision and any department, agency, commission, board, or other unit of a political subdivision; any public institution of higher education, junior college district, and school district; any municipal corporation; and any public corporation, public entity, or other instrumentality of the state or a political subdivision, irrespective of the capacity in which the state or any such instrumentality or entity of the state shall be acting .
    7. The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing Missouri antidiscrimination law.
    8. This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United State Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

13. The BFOQ exception applies only to gender based discrimination and only in an employment context. The notion that gender may be a legitimate consideration outside the employment context is rejected in this proposal. Consequently, a program directed a women’s health would arguably involve a prohibited “preference based on sex.”
14. Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education
15. The failure to define the preferential treatment that is prohibited causes the most significant legal questions. Proponents of the amendment assert that nothing in the proposal would prevent a university from, for example, aggressively recruiting minority students for the purpose of increasing the diversity of a student body. There is a good argument however, that under such a program minority potential students receive a preference based on race in that they are more aggressively recruited than non-minority potential students.

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