Now would be a good time for the conservative movement to get out in front of a critical anniversary date in an effort to pre-empt left-of-center pressure groups that favor preferential policies. This advice comes from Jennifer Gratz, the president and founder of the XIV (14th) Amendment Foundation, a non-profit group committed to race and gender neutral policies.
The anniversary date she has in mind is July 2, 1964 – that would be the day President Lyndon B. Johnson signed off on a major piece of legislation set up to ensure equal treatment as a matter of law.
The Civil Rights Act of 1964 prohibits discrimination in public facilities such as motels, restaurants, theaters and sport arenas. The act also prevents employers and unions from discriminating on the basis of race, sex and ethnicity. Another key provision equalizes voter registration standards. In his public comments, President Johnson drew a connection between the legislation and the ideals of the founding period.
“Americans of every race and color have worked to build a nation of widening opportunities,” he observed in an address to the nation. “Now our generation of Americans has been called on to continue the unending search for justice within our own borders. “We believe all men are created equal, yet many are denied equal treatment. We believe all men have certain unalienable rights, yet many Americans do not enjoy those rights.”
All very laudable sentiments, but Johnson declined to tell the public that while serving in the Senate he had joined with other Democrats to oppose civil rights bills that were largely supported by the Republican Party.
This is where history turns.
The assassination of President John F. Kennedy gave additional impetus to remarks he made a few months earlier on June 11, 1963 when he called for new legislation that would enshrine legal protections for black Americans. But the end result renegotiated by Johnson, included sections that Sen. Barry Goldwater (R-Ariz.) viewed as being unconstitutional.
Specifically, Goldwater objected to those parts of Title II and Title VII in the 1964 Act that in his view intruded upon states’ rights and free speech. Up to that point in his political career, Goldwater has been a persistent supporter of civil rights bills. He was opposed to segregation and active with the NAACP in his home state.
But the media narrative attached to his vote against the 1964 bill ultimately worked to the advantage of the Democratic Party. Goldwater, who emerged as the Republican presidential nominee that year, lost in a landslide to Johnson.
Affirmative Action and Civil Rights in the 21st Century
But here in the 21st Century, the conservative movement, which grew out of the Goldwater campaign, could play an instrumental role in advancing civil rights initiatives rooted in long-standing constitutional principles. This will mean confronting the establishment of both major political parties and self-described civil rights leaders who continue to embrace quotas and set-asides at the expense of average Americans.
With U.S. Supreme Court set to issue a new ruling on the constitutional merits of state ballot initiatives that ban race and gender preferences in college admissions and government hiring, Gratz sees an opportunity for conservatives who are ambitious to restore the 14th Amendment’s “equal protection” clause to its proper station. After listening to oral arguments in Schuette v. Coalition to Defend Affirmative Action this past Oct., Gratz expressed confidence the high court will rule to uphold the Michigan Civil Rights Initiative (MCRI), which voters approved by a margin of 58 to 42 percent back in 2006.
“Supporters of race preferences essentially argued that equality violates the Equal Protection Clause,” she remarked. “No amount of mental gymnastics can overcome this blatant contradiction, and I believe the Court will uphold the will of the people.”
The MCRI amended 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.” Michigan’s initiative is modeled after California’s Proposition 209, which was passed in 1996. Similar measures banning discriminatory practices have also become law in Washington State, Florida, Nebraska, Arizona, New Hampshire and Oklahoma.
But they could all be jeopardized if the U.S. Supreme Court declines to reverse a bizarre ruling from the U.S. Sixth Circuit Court of Appeals last year that overturned the voter-approved MCRI.
The two Clinton appointees who formed the majority opinion on the Sixth Circuit, R. Guy Cole Jr. and Martha Craig Daughtrey, declared MCRI to be unconstitutional because they claim it altered Michigan’s political structure in a manner that unduly burdens racial minorities. Here’s the problem with lower court’s reasoning. The legal doctrine cited in the Sixth Circuit decision involved referendums that made it more difficult to enact anti-discriminatory policies, while Michigan voters approved a ballot question that explicitly outlaws discrimination. Gratz isn’t kidding when she speaks of “mental gymnastics.”
The MCRI came about in response to two concurrent rulings involving the University of Michigan in 2003. In Grutter v. Bollinger, the Court ruled that race could be used in a “narrowly-tailored” fashion at the law school to achieve diversity, but it also overturned the university’s use of quotas in the undergraduate program in Gratz v. Bollinger. When two decisions are blended together, it’s pretty clear the Court takes a jaundiced view of preferential policies. That much was evident in a new decision issued in June. By a 7-1 margin, the Court ruled in Fisher v. Texas that universities and college must first work to achieve diversity through race-neutral means and avoid preferences.
“There are a lot of nuances and caveats to the Grutter decision,” explains Gratz, who was plaintiff in the concurrent ruling involving the undergraduate program. “The Court confirmed in the Fisher case its view that universities must be moving in race-neutral direction and that the use of race as part of a holistic approach was only meant to be temporary. I think the time has come to overturn Grutter.”
That won’t happen in the Michigan case the court is now set to decide in its current term. Here, the justices are only asked to rule narrowly on the constitutionality of a ballot initiative that fits in with existing precedence. In her majority opinion in Grutter, Sandra Day O’Connor points to California’s Prop 209 Moreover, the U.S. Supreme Court . In fact, most recently, the Court ruled in Fisher v. Texas that universities and college must work to achieve diversity through race-neutral means and avoid preferences. as an example of what other states should be doing. This bodes well for the MCRI. Moreover, the supporters of race preferences have been forced to press their case with conflicting arguments.
“First, they argued before the Supreme Court that race preferences were for the benefit of everyone,” Gratz said. “Now, they argue in front of the same Court that race preferences are for the benefit of minorities. This conflict means either that they lied in front of the Court before, or they are lying now.”
Going forward, part of the controversy over the initiatives stems from what is meant by “affirmative action,” a phrase which was first used as part of an executive order President Kennedy signed into law in 1961. The idea then was for employers to open up new opportunities to minorities who had been denied equal treatment. By enshrining race and gender neutral polices into their state constitutions, voters from across the political spectrum are uplifting Kennedy’s original understanding of “affirmative action.” They are also taking corrective steps at the state-level, in line with what Goldwater envisioned 50 years ago, that extend constitutional protections to all Americans.
That’s what Gratz means by “getting out in front” of a critical anniversary date.
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