By Frank Weir, Washtenaw County Legal News
Thursday, October 12, 2006
At the recent State Bar of Michigan Annual Meeting, in Ypsilanti, a debate was held on the contentious affirmative action Proposal 06-2, the Michigan Civil Rights Initiative (MCRI) which is on the ballot next month.
As most know, the proposal would amend the state constitution banning "affirmative action programs that give preferential treatment based on race, gender, color, ethnicity, or national origin for public employment, education, or contracting purposes."
The debate was organized by Michigan Department of Civil Rights attorney George Wirth as part of the Labor and Employment Section meeting at the SBM annual conference.
The two speakers included Frank Wu, dean of Wayne State's Law School speaking against passage of the amendment and James Fett, a civil rights attorney in private practice who represents minorities, whites, women, and the disabled, speaking for its passage.
Fett has represented MCRI in three cases on a pro bono basis, he said.
Fett began by saying that, "I don't like the term reverse discrimination.
"It's a misnomer since it implies that a person in the past was discriminated. But we know that the folks who are the victims of reverse discrimination didn't discriminate against anyone. They are just wage earners making a living.
"One of my pet peeves about reverse discrimination is that the harm done to white males and females is completely passed over. No one talks about these victims of discrimination," he said.
Fett made not that his law partner, Larry Fields, was denied admission to Wu's Wayne State Law School, saying later, "because he didn't contribute enough to Wayne State's 'diversity.'
"Why should whites, including Larry, have to 'take on for the team' when they had no part in slavery or discrimination?" Fett added.
Fett mentioned the Frantz v. City of Pontiac case which grew out of Pontiac's policy of allocating one out of every three departmental hirings or promotions to a woman or minority.
"This was a two-list promotion plan with one list based on merit and one based on being a woman or a minority."
Fett represented the plaintiff, a Pontiac fireman named Arthur Frantz, in the case. It resulted in a consent decree in which the city offered jobs or promotions to four white males.
Fett also cited the 1996 Cremonte v. Michigan State Police case in which, Fett said, state police were challenged for a promotion system that required a higher score for white males then for minority officers.
"They did it in their hiring too," Fett said. "They were passing up white males and recruiting minorities in the unemployment line. Now they are limited to proportional representation," he said.
"These are invisible victims," Fett continued. "They didn't discriminate against anyone. They didn't grow up with wealth and privilege and they thought the law applied equally to them."
Fett said that he believed that affirmative action programs are "elitist band-aids for something that requires major surgery.
"Why do I say they are elitist? This started with Richard Nixon who thought these programs were the answer to stopping riots and class actions; that they were cheaper than taking poverty seriously and fixing elementary education, addressing unemployment. It was a great idea for him.
"The same folks today, DeVos and Granholm, are against the MCRI. DeVos won't have any problem getting his kids into schools and jobs and Granholm never saw a preference that she didn't like. She also will have no problem getting her kids into schools.
"But they are foisting burdens onto the middle class," he said.
Fett said that "I never met any student who was pulled out of poverty by attending the University of Michigan. They had more money than I did when I attended."
Explaining his position later, Fett said that he believes "preferences do not help poverty-stricken minority college students as frequently advertised by my opponents.
"Rather, they help upper and middle-class blacks get into college over poor or middle-class white students.
"Merit should count for something when people with degrees are passed over to troll for people in unemployment lines. This is not isolated at all. It's an everyday occurrence and that's wrong and contrary to our ideal that you get ahead on merit.
"Finally, individuals have rights, not groups," Fett said.
Wu then took to the podium and began by saying that "Since the 60s, virtually all of us, regardless of origin, or politics, have a consensus that we believe as a nation that our schools should be racially integrated; that we should celebrate being black or white, that we should befriend each other and form a community.
"This is something that we take as a great strength that attracts people from around the world," he said.
He said that "this was not always the case" and that court decisions and civil rights initiatives came about to "insure that the door is open.
"It wasn't to debate if we should have affirmative action or not, this program or that program. We asked instead what every person who aspires to any position in life can achieve it in a tangible way.
"Not just the most junior position and not just menial jobs but those with power and privilege," he said.
"The MCRI would forbid in absolute terms, considering race and gender even if that is necessary to overcome a legacy of the past."
Wu argued that considering race and gender was the only way to remedy past discrimination.
"If we think diversity is important, if we take it seriously, then looking at race and gender is not only the best way, it's the only way to bring in meaningful numbers" of those who were formerly excluded from positions of power.
"Those of us who support diversity don't insist that affirmative action be done the same way in every context. I would wish for alternatives to achieve the same goal.
"But every study has concluded that if you want to remedy racial and gender inequality, the only way is to look at race and gender," Wu said.
"Affirmative action is responsible for much of the positive change that we have witnessed in recent decades.
"It would not have been possible for Harvard, the University of Michigan, Wayne State Law School and others to have enrolled women and minorities in anything other than miniscule numbers without affirmative action."
Responding to Fett's mention of gubernatorial candidates Richard DeVos and Jennifer Granholm, Wu said that "the two candidates oppose MCRI not because they are in agreement or because they want to mistreat white males but because they are pragmatic.
"To sustain democracy on this issue, it is clear affirmative action is much needed and that it works," he said.
"The issue is complex and empirical data shows that. It's easy to get people riled up; to get people to blame affirmative action especially in a time of economic anxiety.
"It's easy for people to feel resentful and angry. But we need to ask ourselves in what way we would benefit if we had almost no African Americans in important positions, if women were paid a fraction of what white males are paid.
"In what way would that help our country, our state, or any of us individually?"
"It's easy to talk about egregious cases. But look at those disparities that we can measure. The villains have long since passed from the scene.
"Whether you consider jobs, housing, test scores, there are measurable gaps they aren't based on biological inferiority.
"As we dialog, we should consider what merit is. What stereotypes do we carry unwittingly. Do we want what Brown v. Board of Education meant to bring about? Do we mean it?" he concluded.
