On Nov. 7, 2006, Michigan voters elected to ban affirmative action in public education, employment and contracting by a 16 percentage-point margin. Two days later, democratic Gov. Jennifer Granholm, whom voters re-elected by a landslide, issued an executive directive ordering the Michigan Civil Rights Commission (MCRC) to study the potential impacts of Proposal 2 and advise on how the state can promote diversity within the confines of the law.

To read a roundtable with 13 leading experts on affirmative action, both pro and con, get the April issue of DiversityInc magazine, available soon.

After an exhaustive three-month investigation of affirmative-action policies at 17 state departments and six state agencies, an analysis of current state statutes related to the subject, and a review of other states' best practices, the MCRC released its findings yesterday.

What Did It Find?

Loopholes--Proposal 2 includes no reference to affirmative action apart from its title; the language of the amendment refers only to "preferential treatment" based on race/ethnicity, color, gender or national origin. Given this context, Proposal 2 does not outlaw all affirmative-action programs, only those that grant preferential treatment, according to the report.

"With this report, the Commission and Department confirm that Proposal 2 does not mean the end of equal opportunity or diversity in Michigan," MDCR Director Linda Parker said in a statement. "Proposal 2 was a clear objection to one method of securing diversity and equal opportunity. We believe that the goal of promoting diversity and the message behind Proposal 2 are not mutually exclusive." Read more.

By definition, Proposal 2 applies only to "preferential treatment" based on race/ethnicity, color, gender or national origin in public education, employment and contracting. Read the amendment. That means Proposal 2 does not affect the following groups:

o        People with disabilities

o        LGBT people

o        Religious groups and organizations

o        Private employers

o        General government operations

o        Native Americans--tuition waivers for public community colleges and universities are constitutional; Supreme Court precedent interprets tribal status as a political category, based on sovereignty and governing bodies

The enactment of Proposal 2 does not invalidate state or federal laws enacted prior to Dec. 26, 2006. For example, Lyndon B. Johnson's 1965 Executive Order 11246, which mandated affirmative-action programs for contractors with more than 50 employees receiving more than $50,000 in federal funds, remains law.

Also, Proposal 2 does not ban race/ethnicity and gender from consideration as one factor in employment, contracting and admissions decisions in accordance with the precedent set by University of California Regents v. Bakke and Grutter v. Bollinger, which found diversity to be a sufficient compelling interest to warrant narrowly tailored programs to promote it. Unfortunately, the lack of specifics regarding implementation and adherence to Proposal 2 will most likely result in ongoing legal challenges.

Of the 23 state departments and agencies investigated, MCRC determined only two affirmative-action policies in violation of the new law. Of the 45 state affirmative-action programs related to public education, employment and contracting, MCRC found that eight (18 percent) may be at risk. These include contract set asides for business owners of color and women and scholarships designed for students of color, among others. One means of preserving these programs is to redefine eligibility criteria under race- and gender-neutral terms. Click here for MCRC's complete recommendations.

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