Michigan Lawyers Weekly
November 13, 2006
In "Ending affirmative action," Oct. 30, 2006, we reported that the campaign manager and another member of the Michigan Civil Rights Initiative (MCRI) - the group responsible for putting Proposal 2 on the Nov. 7, 2006, ballot - did not respond to questions about the proposed constitutional amendment to ban state-sponsored affirmative action in the areas of public employment, public education and public contracting.
However, on Nov. 2, 2006, Michigan Lawyers Weekly received an email response from Pinckney attorney James K. Fett, counsel for the MCRI:
"I would like to point out that, contrary to your article, private sector employees are not without recourse against their private employers' affirmative action plans," Fett wrote. "Private employers can be sued under Title VII, the Elliott-Larsen Civil Rights Act and 42 U.S.C. Sect. 1981. True, the private employer is not subject to constitutional equal protection scrutiny because they are not state actors. However, the above referenced statutes apply equally to whites as well as minorities and therefore any discrimination on the basis of race, gender, etc. is illegal. Since federal law trumps state law, a Title VII or 42 U.S.C. Sect. 1981 [challenge] would still invalidate any affirmative action plan that was approved by the Michigan Civil Rights Commission under MCLA 37.2210."
As for the questions Michigan Lawyers Weekly had posed to the MCRI, Fett "offer[ed] the following comments."
The questions have been reprinted as they appeared in the Oct. 30, 2006 article.
Question 1: What is so bad about affirmative action that we need to amend the state's constitution to prohibit the state from engaging in it?
Fett's Answer: "We need to amend the state's Constitution to prohibit affirmative action because there is wide-spread flouting of the equal opportunity laws in favor of minorities and against whites and males. See e.g. Frantz v City of Pontiac. This is only one of many examples. We must enshrine the notion of no preferences in the Constitution so governmental actors understand that the law treats whites and minorities and males and females the same. They still do not get it."
Question 2: Why are the existing remedies under both state law (Article 1, Section 2 of the Michigan Constitution and the Elliott-Larsen Civil Rights Act) and federal law (Fourteenth Amendment Equal Protection Clause and Title VI of the Civil Rights Act of 1964) inadequate for challenging state affirmative action plans?
Fett's Answer: "At least with respect to employment law, my specialty, the existing remedies under state and federal law are inadequate because in many cases citizens are relegated to federal law in federal court for violations of law which should be subject to redress under state law and in state courts. There are very big differences in both substance and procedure in state and federal court and our citizens ought to be able to have the benefit of the state law in state courts which they fund with their tax dollars."
Question 3: If affirmative action is so bad, why has the Michigan Civil Rights Initiative - through Proposal 2 - only targeted affirmative action in the public sector and not in private employment, private education and private contracting?
Fett's Answer: "The MCRI applies only to public sector preferences because constitutional guarantees only apply to state action (i.e. not private actors)."
Question 4: In addition to the "safe harbor" provision for employment, the Elliott-Larsen Civil Rights Act also provides for a "safe harbor" provision in Article 5, the section dealing with real estate and housing, MCL 37.2507. Why didn't the MCRI include in Proposal 2 a ban on affirmative action in public real estate/housing?
Fett's Answer: "I do not know why MCRI failed to include in the proposal a ban on preferences in public real estate and housing. I suspect it is because the organizers wished to propose amendment language comparable to that which was approved in California and Washington to minimize the chances of successful court challenges. This strategy has been effective as there has been no successful court challenge."
Question 5: In neither the ballot language nor the proposed constitutional amendment language is there any mention of prohibiting affirmative action on the basis of religion in either public employment, public education or public contracting, yet both of the Elliott-Larsen Civil Rights Act "safe harbor" provisions for employment and housing authorize affirmative action plans on the basis of religion. Why didn't the MCRI include in Proposal 2 a ban on affirmative action based on religion in public employment and public housing?
Fett's Answer: "I do not know why the MCRI did not include language relating to religious preferences in public employment and public housing. However, I suspect it is because there has never been a problem with religious preferences (at least as far as I know) in the public sector. It probably also has something to do with the fact that the language in the California and Washington state ballot proposals also did not include any such language."
Editor's response: With regard to Pinckney attorney James K. Fett's assertion that "Private employers can be sued under Title VII, the Elliott-Larsen Civil Rights Act and 42 U.S.C. Sect. 1981," the following should be considered.
While a private employer may be sued under MCL 37.2102 and 37.2202 of the Elliott-Larsen Civil Rights Act (ELCRA), the suit will be unsuccessful if the private employer's affirmative action plan was approved by the Michigan Civil Rights Commission. As the Michigan Supreme Court stated in Sharp v. City of Lansing, the employment "safe-harbor" provision of the ELCRA, MCL 37.2210, "invites employers to implement their own affirmative action policies. Under this section ..., an employer's actions that would otherwise violate the CRA are permissible, provided they are taken pursuant to an affirmative action plan properly approved by the commission."
Moreover, Title VII of the Civil Rights Act of 1964 is similarly of no help to private employees because, even though it prohibits public and private employers (with 15 or more employees) from "discriminat[ing] against any individual ... because of such individual's race, color, religion, sex, or national origin ...," the U.S. Supreme Court has declared that Title VII does not bar affirmative action.
Specifically, in U.S. Steelworkers of America, et al., v. Weber, et al., the court held not only "that Title VII's prohibition ... against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans," but that it leaves discretion to private sector employers to "voluntarily [] adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories."
As for 42 U.S.C. Sect. 1981, its protections against affirmative action appear symbolic at best.
While it refers to "equal rights under the law," in a general sense, it is not the subchapter of Title 42 of the U.S. Code dealing with "unlawful employment practices."
That subchapter is codified in 42 U.S.C. Sect. 2000e-2000e-17 and is commonly known as "Title VII of the Civil Rights Act of 1964."
Additionally, when 42 U.S.C. Sect. 1981 and Title VII were amended by the Civil Rights Act of 1991, section 116 of that act stated that "[n]othing in the amendments made by this title shall be construed to affect court-ordered remedies, affirmative action, or conciliation agreements, that are in accordance with the law." [Emphasis added.]
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