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Do We really need Affirmative Action

March 26, 2008

Each year, the students of the Federalist Society organize a scholarly symposium. This year's was held at the University of Michigan Law School. The topic of the panel on which I spoke was the efficacy of direct democracy - for example, state initiatives where voters literally choose public policy for themselves -- in response to unpopular judicial decisions.

The first Supreme Court case singled out for the panel was Kelo. There, the Court angered many by holding that it did not violate the Takings Clause for a town to force a woman out of her home for economic development, even though the developer was private, and the Takings Clause requires a "public" purpose. The second was Grutter, which held that the University of Michigan's affirmative action program could not use race as a factor in its admissions decisions.

Ultimately, the focus of the morning turned out to be the latter case, in part because of the failure of direct democracy in Michigan, which generated disillusionment and heated responses, some of which we heard that day.

The Protesters Who Heckled Ward Connerly's Speech on Affirmative Action

As we entered the building that morning, a few protesters stood outside, handing out pamphlets entitled "Defend Affirmative Action." They were very polite; we took the flyers; and I assumed that was the end of the matter. However, immediately before the panel began, over a dozen individuals, including the leafletters, entered the hall and sat down in the middle of the auditorium.

There could not have been a more striking difference in the two groups, with the Federalist Society students in their dark, formal suits and the protesters in considerably more casual apparel. The latter carried signs and yelled a few words as they entered, but otherwise their entrance was orderly, and the panel began. Justice Robert P. Young of the Michigan Supreme Court was the moderator, while Prof. Sherman Clark, of the Univ. of Michigan Law School, and I were the academic speakers.

The group of protesters was quiet until the final speaker of our panel, Ward Connerly, took his turn. Ward, who is very well-spoken and obviously very intelligent, is deeply opposed to affirmative action on the basis of race, and many have found his comments especially trenchant as he is himself African-American. He has led others as they have worked to persuade the people of each state to vote for initiatives that would ban affirmative action. Michigan has been the stage for one of his successful forays; there, Connerly and others persuaded almost 60% of voters to support a ban of affirmative action on the basis of race, gender, ethnicity, or national origin. It was called Proposition 2, or the Civil Rights Initiative, and passed on November 2, 2006.

The protesters were members of a group that strongly opposed Connerly's efforts to end affirmative action on the basis of race (and opposed, as well, the Supreme Court's decision in Grutter). The group goes by the name BANM--By Any Means Necessary - an unfortunate choice as it connotes extremism and even violence, but also one that conveys quite clearly their sense of frustration with the Prop 2 process and result.

A number of BANM members punctuated Connerly's remarks with loud opposing comments. Justice Young chastised them for their interruptions, but encouraged their First Amendment right to express their views, pointing out the two microphones set up in the aisles for questions. For the most part, they quieted down and a number soon lined up behind the microphones.

Once the panel members had concluded their remarks, Justice Young invited questions, and one BANM member after another took the opportunity to provide soliloquies on what was wrong with Connerly and his opposition to affirmative action. They did not actually have a lot of questions, but rather used the panel as a means of seeking an outlet for their views. Local (and university) newspaper reporters were present, so coverage of the event was likely to describe the protest as well.

To the Federalist Society's credit, the BANM members were not asked to leave, despite the fact the program had been derailed by the protest. Its academic aspiration had been to discuss what to do in the face of unpopular court decisions, but as a result of the protests, it was refocused on the perennial issue of the merits of affirmative action as a matter of policy.

The Federalist Society deserves praise for tolerating the refocusing. Overall, the organization receives a lot of heat for its conservative makeup, but it is a fact that its members do encourage multiple viewpoints and do invite speakers from a wide variety of perspectives on any single topic. Laudably, they held true to their core interest in lively and informative debate on this occasion, as well.

Two Important Points that Emerged Out of Bitter Disagreement

Two important points came out of BANM's impassioned statements. First, a high school student from Detroit spoke eloquently about how she had lived in urban and suburban areas, and therefore knew for a fact that kids in the urban schools were simply not getting the same education. She was a living testament to a serious problem we face as a society: Too many of our eager, intelligent students are locked into urban school districts that are not able to support their talents or ambitions and, therefore, cannot supply the preparation students need to compete in the college market. At one point, the speaker unfortunately implied that Connerly would be physically assaulted if he came to her high school. Nevertheless, on the whole, hers was the most convincing argument of the morning in favor of some sort of affirmative assistance, coming as it did from a standpoint not of racial preference, but of a search for equality in educational resources.

Second, on the whole, this was a very bitter group, and part of that bitterness seemed to rest in their sense that they had been betrayed by the initiative process. More than one BANM speaker charged that those canvassing voters in favor of the initiative told them that it was not, in fact, a "ban on affirmative action." Its title as a "civil rights initiative," also was a betrayal of first principles for them. They said that many had voted in favor of the initiative thinking it was simply a ban on discrimination, instead.

Connerly responded that his canvassers had been active and clear: You could still have affirmative action on the basis of socio-economic and other factors, but race or gender or ethnicity could not be among the criteria. Unfortunately, his formalistic response did absolutely nothing to assuage BANM's frustrations. When their community heard the phrase "affirmative action," they explained, its members understood that it involved preferences for race. Accordingly, they reaffirmed that the canvassers' statements were in fact misleading, even if that was not their intent.

How State Initiatives Illustrate the Larger Problem with Direct Democracy

This was the best example I have witnessed to date of the infirmities of direct democracy. The controversy over affirmative action is obviously a social problem that is hyper-charged with emotion and that plays into deeply-held beliefs and values, and the lawmaking process that ended over one and a half years ago had not succeeded in resolving public tensions. To the contrary, it had only reinforced those disagreements and resentments. The result was a frustrated group of citizens -- calling itself By Any Means Necessary in no small part because its members felt disenfranchised by the routine means by which the process operated.

One of the most common criticisms of direct democracy is that voters are ill-informed and easily misled. This seems like a core, commonsense insight. Some political scientists defending direct democracy today argue that this is not empirically true, but here is a straightforward, real-life example: Some Michigan voters, in fact, did misunderstand Prop 2 initiative to mean exactly the opposite of what it said, and voted for it in error.

Had this issue worked its way through the legislative process, Michigan might well have reached the same result, but at least the legislators could not have criticized the resulting legislation on the ground that they had been deceived - as ordinary voters could do, quite persuasively. It is legislators' job, after all, not to be deceived, but rather to do their homework to understand the proposals with which they are faced. Moreover, as legislators are approached by a wide variety of interests, especially on such a hot-button issue, they would have heard many sides before casting a vote; individual voters typically only hear the pre-packaged messages the interest groups concoct. Finally, had the initiative instead been a bill in the state legislature, and had it still passed, the members of BANM might have disliked the result, but they would not have the same sense of disenfranchisement and fraudulent manipulation of the process. Instead of now having to deal with the fact that their state Constitution had just been amended by fellow citizens not fully understanding what was at stake, they would have a clear choice: work to unseat those elected representatives who had betrayed their interests. That is the system of accountability that the Framers put into place at the federal and state levels.

That morning, unsurprisingly, no one solved the question whether affirmative action on the basis of race is a necessity or a disaster. However, they did prove how ineffective direct democracy is for solving our most intractable social problems.

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