Debate Forum: 09/16

Forum Center: Affirmative action is alive and well?

By Alex Culpepper

Jennifer Gratz will be forever linked to Michigan and affirmative action. It was Gratz, a Caucasian woman, who, in 1995, applied for admission to the University of Michigan but was denied – even though she had a 3.8 grade average, as well as some other compelling records. She eventually sued, citing the admissions process, including quotas under affirmative action, as being unfair and costing her acceptance at the school. She found sympathy with the Supreme Court, but eventually a 2003 ruling sided with the university’s admissions policies and their call for diversity. Then, in 2006, Gratz was a motivating force behind Michigan’s ballot initiative to ban affirmative action in the state. Nearly 60 percent of voters sided with her, and the ban went into effect. Court battles broke out immediately after the ban, and they all led to the Supreme Court once again presiding over affirmative action this year.

It should be no surprise Gratz was further vindicated by the recent Court ruling supporting Michigan’s ban on affirmative action. Michigan now joins California, Texas, Florida, Nebraska, Oklahoma and Washington as states with bans on affirmative action in admissions to state universities. Even though affirmative action is a divisive issue, one of the broader debates coming from the court ruling has nothing to do with the merits of affirmative action. Rather, sides are setting up over the role of ballot initiatives in this issue. So far, both sides are active.

Supporters of the ruling say this is democracy in action, and it is important to acknowledge voters are capable of rationally deciding issues like this.

They say the main question is which level of government can decide the best way to develop and maintain diversity in public institutions. They believe power should rest with the people whenever possible. Supporters further say the ruling does not end affirmative action in the country – it merely places the decision with the states.

Opponents of the ruling say the states’ rights argument is what allowed state-sanctioned discrimination to flourish for so many years. They argue this is good old-fashioned tyranny of the majority, and it changes the political process, negatively affecting racial minorities. The say majority rule has limits, and without checks and balances, minorities are always at the mercy of the majority.

Other states may be lining up to place constitutional limits on affirmative action. Wisconsin is following directly behind Michigan with a proposal of its own. And opponents are speaking out about this one, too, spreading the message race and gender matter, and throwing issues like these directly out to voters is not what the Constitution intended. The supporters, though, say times have changed and policies enacted during different periods should be revisited, and support for a ban on racial preference is not the same as support for discrimination.

Reach DCP forum moderator Alex Culpepper at


Debate Forum Question of the Week:

As reflected in the recent Michigan affirmative action debate, should a state ballot initiative be able to affect the rights of individuals in protected classes?


Debate Left: The majority guards the lead

By Michael Truax

Runners A, B and C dig their track cleats into the starting blocks for the 400-meter run.

“On your mark … Get set …”

Runners A and B tear away.


Runner C launches.

By the time the runners leave the initial curve, the A and B are far ahead. C struggles to catch up, dodging holes in the dilapidated track. On the final curve, C moves one lane to the inside. A wins the race, C finishes second and B is third.

Runners A and B file a complaint against C for changing lanes. See, once the race was started (albeit, unfairly, but that was 400 meters ago, and C had time to catch up), the majority decided it had to be an equal race. Believing they were enforcing equity, A and B actually reinforced inequity.

Until recently, colleges in Michigan had the right to use race as one of several factors in college admissions. Other factors include merit-based measures, such as test scores and extracurricular activity, as well as non-merit factors like legacy – if they had family alumni – or geography. All of the other factors can still be considered, but a voter-approved measure ended any use of race.

How is a legacy bonus unlike Oklahoma’s racially-charged 1915 grandfather clause? What better way to give historically advantaged groups an extension? Extending an unfair advantage for the majority damages the rights of minorities: Legacy candidates – more likely white, middle class or higher and not recent immigrants – have a leg up in college admissions over minorities. This will likely lead to a widening of the income and education gap, which is already an iron manacle around the country’s ankle.

Thanks, Michigan Attorney General Bill Schuette, for playing the heel. It didn’t even take a snarky columnist in an alt weekly to do it for him.

It took Michigan less than a month after the Supreme Court upheld the state’s voter-approved statute against affirmative action to show why the ruling was a mistake.

From “Michigan cites Supreme Court’s affirmative action ruling in gay marriage appeal” by Khalil AlHajal, on “Attorney General Bill Schuette in a brief filed Wednesday … argued that a federal judge’s March decision that briefly legalized gay marriage should be reversed ‘out of respect for democracy.’”

The new case is a perfect illustration of the tyranny of the majority. It makes perfect sense why Schuette sees a connection between the affirmative action and gay marriage cases. The gay marriage challenge is a distillation of why the Supreme Court was wrong to uphold Michigan’s ban on affirmative action.

Affirmative action case: Can the majority vote away programs to help suppressed minorities?

Gay marriage case: Can the majority vote away the rights of suppressed minorities?

Logical extension: The minority’s rights and involvement are granted and approved by the majority. Fresh off his victory in the affirmative action case, Schuette has reduced his argument to absurdity himself.

American democracy doesn’t mean mob rule. The majority is kept in check through the Constitution, which guarantees rights for the minority that supersede any other law, including those passed by the majority of voters.

Justice Sonia Sotomayor set the bench aflame with her dissent to April’s affirmative action decision. “We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do.”

Affirmative action in this case had been voluntary, enacted and upheld by the public universities’ boards of directors. Now their decision has been taken away by force of law.

On-campus diversity has a positive effect for majority students, as well. Studies have shown diversity – not just in race – augments an education and prepares well-rounded graduates to compete and interact in a diverse workforce.

This case has precedent. In Hunter v. Erickson (1969), the majority of voters in our sister city of Akron tried to strike down a City Council ban on housing discrimination. The majority even attempted to require the City Council to seek voter approval before enacting new anti-discrimination laws. The Supreme Court recognized the threat to minorities’ rights and struck it down.

Maybe it’s different now than it was in the time of Hunter v. Erickson. Suppressed minorities have had fair chances to overcome centuries of racism and injustice.

Smash cut to cable news coverage of faux-cowboy Cliven Bundy: “I want to tell you one more thing I know about the Negro …”

Smash cut to sports news dissecting Donald Sterling: “It bothers me a lot that you want to broadcast that you’re associating with black people. Do you have to?”

Smash cut networks discussing Arizona’s SB1062: “Under Arizona’s new law, business owners have the right to not serve gay customers if it violates their religious belief.”

OK, so maybe it’s not all that different now.

Some states – like, for instance, Ohio – still try to suppress the votes of minorities and the disadvantaged. Instead of using skin color now, they use geography. Sometimes the motivations are different, but the result is the same. It extends well beyond voting, to housing, to employment, to educational access. It happens on a social level, economic level and governmental level.

In a perfect world, where people are frictionless spheres of uniform density and size, affirmative action isn’t needed. This isn’t that theoretical world.

Michael Truax is a freelance writer, digital marketing consultant, entertainment enthusiast and bar trivia champion living in West Chester, Ohio. He can be reached at


Debate Right: Do we have reason to fear ballot initiatives?

By David H. Landon

There is growing concern states are increasingly making decisions today about a number of issues by the use of ballot initiatives. In a recent Supreme Court case entitled Schuette v. Coalition to Defend Affirmative Action, the Court upheld a Michigan ballot initiative ending affirmative action. It bans preferential treatment based on race, gender, ethnicity or national origin. The initiative, in effect, ended a long-standing public policy which was based on the argument there was a “compelling state interest” in promoting diversity. The ballot initiative was passed by Michigan voters in 2006 with more than 58 percent voter approval. Those who oppose this approach to changing public policy by overturning current law through the initiative process argue it could potentially lead to a “tyranny of the majority.”

Let’s explore that fear.

Could ballot initiatives be used to undo progress we have seen achieved in the area of civil rights over the last 65 years? I’m certain that is not the case. Could a group of citizens, let’s say in Arkansas, through a ballot initiative vote to ban people – of, let’s say Irish descent – from voting or owning property? The simple answer is “no.” And why is that, you may ask? After all, the State of Michigan, through ballot initiative, has banned affirmative action. The answer is “no” because the protections of the Constitution, the Bill of Rights and the 13th, 14th and 15th Amendments provide equal protection under the law to people of all race, gender, ethnicity and national origin. No such initiative could withstand the scrutiny of court review. And it is the same “Equal Protection” clause that would protect us lads and lasses of Irish descent from such a fate that allowed for the banning of affirmative action in Michigan.

In a republic such as ours, affirmative action is a flawed concept. It seeks to address injustice brought upon an entire race of people, but does so in a manner that fails to treat everyone equally. Affirmative action certainly had understandable goals. The hope was to tip the playing field ever so slightly in favor of a group who had been, to our consternation and embarrassment, so very badly treated and discriminated against in the past. Over the last few years, the courts have been finding less and less of a “compelling state interest” and, as a result, affirmative action as a remedy for past societal wrongs has had its high water mark and is in decline.

So, is there something inherently unfair or undemocratic about using ballot initiatives to affect public policy? In recent years, we have seen many types of initiatives placed on the ballot when normal legislative channels seemed to have been blocked. Special interest groups on both ends of the political spectrum have used ballot initiatives in Ohio in the recent past. In 2004, Republicans placed an amendment on the ballot declaring marriage could only be between one man and one woman. It passed easily and drove up the turnout of conservative issue voters.

This year, the Democrats are placing a constitutional amendment on the ballot, assuming they are successful in collecting the 350,000 valid signatures, through a ballot initiative they are calling the “Voters Bill of Rights.” Convinced that going from 35 days of early voting to 28 days of early voting is tantamount to voter suppression, Democrats will attempt to affect a change in policy through their initiative. While I will vote against such a constitutional amendment initiative, I don’t challenge their right to attempt policy change through ballot initiatives.

If they can get around the thorny fact that during the November Election of 2004 there was only 1 day of voting, that being Election Day – no early voting and absentee ballots required the voter being ill or being out of the county – and 5,722,443 or 71.77 percent of Ohioans cast a ballot. Compare that to the 2012 November Election, where there were 35 days of early voting including the Saturday and Sunday prior to the election, instant voter registration, and a plan whereby everyone was not only eligible for an absentee ballot, but the State of Ohio paid to mail an application for an absentee ballot to all 7,987,203 voters, and only 5,633,443 or 70.52 percent of voters cast ballots. That’s right: More Ohioans cast a ballot during the 2004 presidential election on one day than voted in 2012 over 35 days with every other gimmick that could be construed to drive voters to the polls.

There have been other ballot initiatives across the country. Last year, initiatives in Colorado and Washington proposed the legalization of marijuana in those states. In California this year, there are 30 initiatives being circulated with everything from increasing the minimum wage; to an initiative to protect buyers of used cars; to an initiative to split California into six separate states; to an initiative to stop high-speed rail and reinvesting those dollars into education. I could support an initiative splitting California into six separate states, but would insist Hollywood would have to be its own state, just for the sheer amusement of it all.

The forum question this week is “Should a state ballot initiative be able to affect the rights of individuals in protected classes?” As discussed earlier in this column, suspect classifications such as race, creed, gender and national orientation are fully protected from such manipulation by the Equal Protection Clause. There’s no need to fear ballot initiates.

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at

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