The Michigan Civil Rights Commission (MCRC) was established under Article V, Section 29 of the Michigan Constitution as a quasi-judicial body with the authority to investigate alleged instances of discrimination against any person in the enjoyment of civil rights guaranteed by law, to make legal findings, award damages when appropriate, and to secure the equal protection of the laws without discrimination.
At the outset, we make the following findings:
1. We believe, based on our reading of the amendment, that Proposal 2 does not eliminate all affirmative action and affirmative action programs but only those that grant preferential treatment based on race, sex, color, ethnicity, and national origin in the
operation of public employment, public education, and public contracting.
2. Proposal 2 does not end equal opportunity or the critical pursuit of diversity and inclusion in the State of Michigan. Neither does it mean that the terms "race" or "sex" are banished from the official state vocabulary, as it relates to the state's decision-making process. This latter point was in fact acknowledged by proponents of Proposal 2 during the campaign to place the initiative on the Michigan ballot. The Michigan Civil Rights Initiative ("MCRI"), the key proponent organization of Proposal 2, wrote the following on its webpage made available to Michigan voters during the campaign, on a page titled "Big Myths about MCRI,"
"(1) Myth: MCRI 'ends all affirmative action.'
(2) Fact: MCRI makes it unconstitutional to pick winners and losers based solely on race and sex." (emphasis added)
This statement by MCRI, in our view, indicates that race and sex may still be used under certain circumstances. If this were not the case, Proposal 2 could, and still may be, struck down by the courts as placing an unconstitutional burden on protected groups seeking beneficial legislation. There is legal precedent from the U.S. Supreme Court that race and sex may be used as one of a number of factors in the state's decision-making process, if the objective serves a compelling state interest, such as diversity in higher education, and is narrowly tailored to achieve the objective sought. We do not believe that Proposal 2 has overturned the referenced U.S. Supreme Court precedent.
3. The ballot language for Proposal 2 stated that it would ban affirmative action programs that gave preferential treatment to groups or individuals based on race, sex, color, ethnicity, or national origin. The amendment is titled "Affirmative Action," however, the text of the new amendment does not reference the terms "affirmative action" or "affirmative action plans." Many affirmative action plans or programs do not contain preferences and would therefore not be in violation of Proposal 2. (See Section II (B), herein.)
4. The term "preferential treatment" is new to Michigan constitutional law, unlike the term "discrimination" which is well-settled by Michigan courts. "Preferential treatment" will be subject to continuing judicial review.
5. MDCR met with seventeen state departments and six other state agencies. As a result, it has been determined that none of these state departments or agencies, with the exception of Michigan Department of Transportation (MDOT) and Michigan Department of
Environmental Quality (DEQ) uses an affirmative action program or plan that grants "preferential treatment" in its employment or contracting decisions. Both MDOT and DEQ have federal contracts that require the use of affirmative action programs.
6. The MDCR reviewed 45 state programs relating to the operation of public employment, public education, and public contracting that may be affected by the adoption of Proposal 2. As a result of this review, we believe eight (8), or 18% of the programs may be in
jeopardy. The programs are: Collective Bargaining Agreements, Commission on Spanish Speaking Affairs, Foster Care, Higher Education Programs, Minority-Owned and Women-Owned Businesses, Minority Student Grants, Single Business Tax Credit, and Special Needs Adoption. Some of these programs may be preserved by eliminating reference to race, sex, color, ethnicity, and national origin and expanding the program's scope or eligibility criteria using race/gender-neutral terms. (Refer to Section VI., Identification of State Laws That May Be Affected By the Adoption of Proposal 2; and VIII., Recommendations for Maintaining Diversity and Economic Growth in State
Government in the Aftermath of Proposal 2, for more details.)
7. Due to time limitations, we were unable to meet with state institutions of higher learning or public school districts, nor have we conducted in-depth review of their policies, procedures, or programs.
8. Proposal 2, by its own terms, has limited application. It only applies to government institutions. It has no application in the private sector.
9. As expressly articulated in the language of the amendment, Proposal 2 only applies to government institutions in the areas of contracts, employment, and education. It does not apply to the general operations of government.
10. Under President Lyndon B. Johnson's September 28, 1965 Executive Order No. 11246, (Attachment 3) the U.S. government has mandated diversity in employment for federal contractors, including state agencies, doing contractual work for a federal agency, if that
contractor or subcontractor receives over fifty thousand dollars ($50,000) in federal funds for contractual work, and has over fifty (50) employees. This federal diversity requirement is not nullified or invalidated by Proposal 2.
11. By its own terms, Proposal 2 does not apply to any government institution that receives any federal funding now, or which plans to establish a program that would make it eligible to receive federal funding in the future, if the federal appropriation has affirmative action requirements attached to it.
12. Proposal 2 does not apply to bona fide occupational qualifications ("BFOQ") based on sex.
13. Any court judgment, or judicial consent decree in force before December 23, 2006, is not affected by Proposal 2.
14. State agencies are permitted and in some instances are required, to keep statistics on race and sex.
15. State agencies may conduct outreach to groups based on race, sex, color, ethnicity, or national origin so long as that outreach is not exclusive to groups based on race, sex, color, ethnicity, or national origin.
16. If the preference is based on disability Proposal 2 does not apply.
17. Proposal 2 does not apply to religious organizations or programs.
