Proposal 2 challenge continues

Three years after Michigan voters approved Proposal 2, the constitutional amendment that ended the use of affirmative action in college admissions, lawyers are set to argue in a federal appeals court that the new law is unconstitutional.

And while you might not want to bet big on the challengers -- they lost an opening round in U.S. District Court -- their case is intriguing.

The ACLU is representing 18 students and faculty members at the University of Michigan in its lawsuit against the state of Michigan, saying that Proposal 2 violates the Equal Protection Clause of the 14th Amendment. The new law makes any effort to reinstate affirmative action laws difficult -- creating an undue burden on minorities who would benefit from such laws, they argue.

What's clear, and unsurprising, is that Proposal 2 has cut into African-American enrollment at state universities, especially at the University of Michigan, the state's most selective school. While the law hasn't had an impact on gender or some minorities, Native American and African American admissions are down at U-M and some other state universities.

Another way to discriminate

At the 6th U.S. Circuit Court of Appeals today, Mark Rosenbaum, a U-M Law School professor and ACLU attorney, will make a novel, and counter-intuitive, effort to challenge the law. He contends that the law's "race-blindness" is just another way to discriminate against people on the basis of it.

He points out that Proposal 2 didn't eliminate U-M's controversial "point" system that was struck down by the U.S. Supreme Court. Instead, the amendment abolished any consideration of race in college admissions, requiring even programs that had been deemed constitutional to be eliminated.

"I can be an oboe-player from the Upper Peninsula, and say, please consider my background, my musical ability, my geographical diversity, my veteran status -- and all of those factors can count favorably in admissions," says Rosenbaum.

"But if I'm a person of color and I say what you and I know matters -- that race matters in this country." His point is that universities can consider many factors in admissions -- but by excluding race, under-represented minorities are denied an aspect of their identity that unfairly discriminates against them. The NAACP Legal Fund, Harvard University Law Professor Laurence Tribe and other legal scholars have provided legal assistance with the case.

Burden is unequal

Kevin Gaines, a U-M history professor who is one of the plaintiffs, says Proposal 2 has also created burdens on African-American students, who are less likely to receive financial aid because they're outnumbered.

Instead of creating a more even playing field, the law disproportionately affects African-Americans of modest means who still need help to make headway. The threat, he says, is reversing three decades of gains.

"It's not disputable that there is now a higher burden to change the law on behalf of a minority," says Rosenbaum.

As U.S. District Judge David Lawson ruled in his 2008 verdict on the case, that's true -- because ending preferential treatment for minorities was the intent of the law.

The law changed the playing field. But the debate about whether it's level now -- or just tilted differently, for some -- continues. Today.

lberman@detnews.com">lberman@detnews.com (313) 222-2032 Laura Berman's column runs in Metro on Tuesday and Thursday.