AALDEF Joins Brief Against Michigan's Proposal 2 Affirmative Action Ban

Monday, Nov 7, 2011

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The Asian American Legal Defense and Education Fund (AALDEF) joined the Equal Justice Society among other civil rights organizations last week in filing an amicus brief urging the U.S. Court of Appeals for the Sixth Circuit to strike down Michigan's Proposal 2 as unconstitutional.

Michigan's Proposal 2 was passed in response to the 2003 U.S. Supreme Court decision that held that the University of Michigan could foster a diverse student body through its admissions process, although it could not use racial quotas or assign extra points to minority applicants.

Jennifer Gratz, the lead plaintiff in one of the University of Michigan Supreme Court cases, then led a campaign to amend the state constitution to prevent the state government from considering race, sex, color, ethnicity, or national origin in public universities and government hiring.

AALDEF's amicus brief reasons that Proposal 2 is unconstitutional because it indoctrinates one group's interests into the state constitution, effectively destroying minorities' and women's ability to even advocate for their interests without seeking yet another constitutional amendment.

"Affirmative action is an issue that minorities have long advocated for politically," said Khin Mai Aung, Director of AALDEF's Educational Equity Program. "Placing a ban on their interests like Proposal 2 in the state constitution cuts them off from the political process. This is another in a long line of unconstitutional laws that have cut minorities out of the political process, from voting literacy tests to redistricting. A state constitution, under the Equal Protection Clause of the 14th Amendment, cannot impose barriers that burden only the political participation of minorities."

A Brief History of Affirmative Action in Michigan and the Asian American Community

"Many people are familiar with the U.S. Supreme Court case that held that public universities could consider race as a factor in the holistic school admissions process," said Aung. "What is less well-known is the near decade-long battle that followed in the state, beginning with Proposal 2."

When Proposal 2 was originally introduced to amend the state constitution, Aung collaborated with a broad coalition of local community partners in Michigan in compiling data and educating various communities throughout the state on its likely impact on the Asian American community.

The result of this was a 2006 report by AALDEF that focused on the false concept that Asian Americans are disadvantaged by affirmative action because they are a "model minority," and do not need assistance in achieving social, academic, or professional success.

"This myth is false, divisive, and dangerous to the Asian American community and all other communities," said Aung. "In our report, we cite Gallup poll statistics that 31 percent of Asian American respondents have faced incidents of employment discrimination, the largest percentage of any racial or ethnic group."

Moreover, AALDEF's report notes that the term "Asian Pacific American" refers to individuals of more than twenty-four ethnicities, and a range of socioeconomic classes and generations. For example, compared to white households in 2006, Bangladeshi American households earned 14.3 percent less, Hmong American households earned 19.3 percent less, and Korean American households earned 24.7 percent less.

"The false characterization of Asian Americans as a 'model minority' is not only divisive between different groups within our own community, but it places the burden of disparity upon other people of color, including Blacks and Latinos," said Aung. "Instead, we should be calling attention to the institutionalized biases that cause these disparities in education, health care access, and other economic opportunities."

The Constitutional Challenge to Proposal 2

The constitutional challenge to Proposal 2 is not about the need for affirmative action, but the fact that placing such a ban in Michigan's constitution imposes an unfairly high bar on minorities advocating for their rights. In March 2008, a federal district court judge upheld Proposal 2, but the decision was reversed last July by an appeals court panel, which held that the ban "unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities." Now the case is under full consideration of the Sixth Circuit Court of Appeals.

"Proposal 2 is unconstitutional, and we will continue in our efforts to fight for its repeal," said Aung.

Read the amicus brief >

For further information, please contact:
Ujala Sehgal
Communications Coordinator
212.966.5932 ex. 217

Image: Phil Roeder/Flickr