Anti-Affirmative Action Threats in the States: 1997-2004

Background

In light of the U.S. Supreme Court's 2003 decision in the University of Michigan affirmative action cases (Grutter v. Bollinger, Gratz v. Bollinger), colleges and universities are continuing to assess their admissions policies to determine if these policies comport with the ruling.

The Grutter decision is particularly relevant for state university systems in the U.S. Court of Appeals for the Fifth Circuit (Texas, Louisiana and Mississippi). For these states, the Grutter decision effectively overturned Hopwood v. Texas, the 1996 Fifth Circuit decision that found the University of Texas law school's policy of considering race in the admissions process to be a violation of the Constitution's equal protection guarantee. Following Grutter, the University of Texas has reinstated affirmative action programs while Texas A&M University has said it will not.

The Leadership Conference on Civil Rights Education Fund/Americans for a Fair Chance (LCCREF/AFC) believes legislatures should work with their state university systems to redesign programs in order to meet the Supreme Court's guidelines. Universities can affirm their support for student body diversity by implementing and/or maintaining legally permissible affirmative action, including: 1) looking beyond the numbers to holistically evaluate each applicant; 2) developing a diversity policy statement; 3) documenting the educational benefits of diversity and, if applicable, the institution's prior record of discrimination; 4) developing broad diversity goals and maintaining sound criteria; 5) reviewing legacy policies and evaluating the potential disparate impact on students of color; 6) periodically reviewing whether there are workable race-neutral alternatives to affirmative action; and 7) eliminating other artificial barriers to inclusion.

As we approach the two-year anniversary of the Grutter and Gratz decisions, LCCREF/AFC finds that the tactics and messaging by opponents of affirmative action have generally remained consistent at both the state and federal levels.

The Grutter decision has galvanized opponents who have increased their efforts to end affirmative action programs in the states. In doing so, opponents have sought help from the federal government to support their efforts. For example, the Office for Civil Rights at the Department of Education has been enlisted in the continuing attack on affirmative action, especially at the state level.

Opponents of affirmative action, including the Center for Equal Opportunity (CEO), the Center for Individual Rights (CIR), the National Association of Scholars (NAS), and the American Civil Rights Institute (ACRI), have publicly opposed and taken legal action against institutions of higher education that have decided to continue or reinstate the use of race as a factor in the admissions process. For example, NAS mailed letters to the most selective universities in 20 states requesting all documents that relate to any statements or discussions of university policies, practices, or procedures about the consideration of race. Further legal action is expected from opponents.

Focusing on the States

This report provides an overview of threats from 1997-2004, including legislation/resolutions (28 states), ballot initiative campaigns (3 states), and state executive orders (1 state). Despite the success of anti-affirmative action ballot initiative campaigns in California (1996) and Washington state (1998), anti-affirmative action opponents' legislative campaigns have not enjoyed the same level of success. In fact, of the 102 bills and/or resolutions introduced during 1997-2004, only six have been enacted. While efforts to eliminate affirmative action have continued consistently over the last several years, legislative threats have decreased to some degree:

• 1997-1999 represents the highest number of threats to affirmative action over the last decade. In 1997, the year following enactment of California's Proposition 209, 33 anti-affirmative action bills and/or resolutions were introduced in 15 states. In 1998, 16 bills were proposed in nine states. In 1999, 20 bills were introduced in 14 states.

• From 2000-2004 there were fewer threats to affirmative action at the state level. In 2000, seven anti-affirmative action bills and/or resolutions were introduced in five states. Four bills were proposed in four states in 2001, while seven bills were introduced in four states in 2002. In 2003, seven bills were proposed in six states. In addition, in October 2003, Proposition 54, Ward Connerly's follow-up ballot initiative to Proposition 209, was defeated in California. In 2004, 3 states introduced a total of 8 anti-affirmative action state legislation and/or resolutions, two of which are still pending.

The strongest threat to affirmative action at the state level is in the form of a ballot initiative being sponsored by Ward Connerly, which would end affirmative action in higher education, public contracting, and hiring in Michigan (see page 3). While legal challenges and internal campaign problems kept the initiative off of the 2004 Michigan ballot, Connerly is attempting to qualify his so-called "Michigan Civil Rights Initiative" (MCRI) for the 2006 ballot.

In comparison to legislation and ballot initiatives, there have been few executive orders pertaining to affirmative action. In 2005 Oregon Governor Ted Kulongoski (D) issued an executive order in support of affirmative action programs and policies, in light of the Supreme Court decisions in Grutter and Gratz. Executive Order 05-01 mandated a review of each agency's affirmative action plans and goals for their departments and development of training related to effectively managing affirmative action and diversity issues.

Governors in Florida and Delaware have also issued executive orders related to affirmative action. In 1999, Florida Governor Jeb Bush (R) issued the One Florida Initiative (99-201), which ended the use of affirmative action in government employment, contracting, and education. In contrast to Florida, in 2001 Delaware Governor Ruth Ann Minner (D) issued an executive order supporting the use of affirmative action programs.

Full Report: Anti-Affirmative Action Threats in the States: 1997-2004