08 Aug 2013 Black Conservatives Join Supreme Court Brief to Put Aside Race Preferences in Michigan, Support Will of Michigan’s Voters

Brief Argues Lower Court Allows Discrimination to Thrive

Filing Comes Days After Supreme Court’s Setback for Race Preferences in Fisher Decision

Washington, D.C. – The Project 21 black leadership network has joined an amicus curiae (“friend of the court”) brief filed with the U.S. Supreme Court in support of Michigan voters who overwhelmingly sought to remove preferential race policies in that state.

The filing in this case came just days after the U.S. Supreme Court sent the University of Texas at Austin’s race-conscious admissions policy back to the 5th Circuit Court of Appeals for re-evaluation under a strict scrutiny standard.

“The people of Michigan agree with the drafters of the 14th Amendment — the state government shouldn’t predicate hiring, firing or scholarship and admissions decisions to whether one is white or black,” said Horace Cooper, a legal commentator and co-chairman of Project 21.

In the case of Schuette v. Coalition to Defend Affirmative Action, which will be argued before the U.S. Supreme Court during its term that begins this October, the Court is asked to determine if the 6th Circuit Court of Appeals correctly voided an amendment to the Michigan state constitution, passed by voters in 2006, that prohibits preferential treatment in public employment, education and contracting based on “race, sex, color, ethnicity or national origin.” The Michigan Civil Rights Initiative, which became Section 26 of the state’s constitution after its enactment, was supported by 58 percent of Michigan voters. It was struck down by the 6th Circuit in 2012.

Project 21’s brief argues that the legal doctrine of political structure (popularly called the “Hunter/Seattle doctrine” among lawyers) that was used to outlaw discrimination in lesser government policies such as housing and busing cannot be used to invalidate Section 26. The brief explains, “Section 26 enhances protections against discrimination and covers all Michigan government action — not just a single political issue.”

In analyzing the historic use of this doctrine, the brief points out: “Both Hunter and Seattle necessitated the finding of an impermissible racial classification in the challenged law before the political structure doctrine was invoked… The clear effect of Section 26 is to prohibit the State and its political subdivisions from adopting race- and sex-based preference programs.”

Project 21’s Cooper explains: “The 6th Circuit misapplied the test when they reviewed the Michigan Civil Rights Initiative. The so-called ‘political structure doctrine’ applies only in circumstances where a specific anti-discrimination statute is repealed, not when a state or local government affirmatively adopts race neutral policies going forward.” The brief also notes adherence to the Hunter/Seattle doctrine would essentially make racial preferences permanent. It is noted that “[n]o government institution is required to institute race-based preferences, yet Hunter/Seattle prevents institutions from repealing them… [T]here will be no stopping point for racial preferences — they will be required by the Constitution.” Similarly, the brief adds: “No case has cast doubt on the constitutionality, under the political structure doctrine, of a law which — like Section 26 — treats all racial matters the same by outlawing discrimination and preferential treatment by government in all cases. This should not be the first.”

In the brief, factual data is presented about how the prohibition of race-based preferences in California has increased diversity and minority retention rates. Similarly to Michigan, California voters outlawed race preferences in public college and university admissions in 1996.

“Americans all across the country are coming together to reject the temptation to use raced based preferences to address the problem of race,” added Project 21’s Cooper. “Michigan is another example of the progress we’re making in achieving Martin Luther King’s dream of a nation where we are judged not by the color of our skin, but by the content of our character.”

Written by the Pacific Legal Foundation, the brief to which Project 21 is a party is also joined by the Center for Equal Opportunity, American Civil Rights Institute, National Association of Scholars and the Cato Institute.

During the last term of the U.S. Supreme Court, Project 21 was involved in the race preferences case of Fisher v. University of Texas at Austin and the voting rights case of Shelby County, Alabama v. Holder. Project 21 legal experts and other members have discussed these cases in media interviews this year on MSNBC, Fox News Channel, HBO, Glenn Beck’s Blaze TV, the nationally-syndicated Jim Bohannon radio show, Florida Public Radio, the Christian Science Monitor and Reuters.

Project 21, a leading voice of black conservatives for nearly two decades, is sponsored by the National Center for Public Policy Research (https://nationalcenter.org). Contributions to the National Center are tax-deductible and greatly appreciated .

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