Saturday, February 03, 2007
It's Later!
Okay, it's later, now, so let's talk about "A Bill for an ASUC Amicus Curiae Brief in Support of the Legal Challenge to Stop the Implementation of the Anti-Affirmative Action Proposition 2 in Michigan." Obviously, Dimitri Garcia is the author, and Vivienne Nguyen and Jeff Manassero are co-sponsoring it with him. Vivienne Nguyen is on board, so that should already tell you it's a bad idea, but let's look at it.
Basically, Michigan passed "Proposal 2" which was similar to Prop 209. Michigan universities didn't want it, though, so the government's branches all got together and agreed to try not to enforce it, hoping to deal with the lawsuits by settling and giving the plaintiffs everything they wanted. The injunction was in place, but then, in a repeat of Prop 209, that injunction was overturned, as the courts determined that another party could intervene, since the interests of supporters of Proposal 2 were not represented. BAMN and co. are hoping that eventually, the legal challenge to Proposal 2 will reach the Supreme Court, where, if they win, they can find Prop 209 unconstitutional as well. The legal arguments, as described by the ASUC bill, are:
Proposal 2 violates the Fourteenth Amendment by establishing an unequal political procedure in which alumni, veterans, residents and numerous others can seek what are, or can be called, preferences merely by lobbying the governing boards of the defendant universities. Minorities and women, however, no longer have the right to secure change through that same method. In fact, if minorities and women do secure a change from the governing boards, the changes they have secured--and those changes alone--are subject to challenge in state court. They and they alone must wage a statewide campaign to amend the Constitution in order to secure changes that are in their interest. I'll quote the Prop 209 injunction lifting order again:
We must be sure not to misread the district court's finding that those seeking race or gender preferences now must mount a statewide campaign while "those seeking preferences based on any ground other than race or gender, such as age, disability, or veteran status, continue to enjoy access to the political process at all levels of government." Proposition 209 only prohibits preferential treatment based on race or gender. "Those seeking preferences based on any ground other than race or gender, such as age, disability, or veteran status," who "continue to enjoy access to the political process at all levels of government," include, we must remember, everyone -- members of all races and both genders. If the state ever prohibited women and minorities from seeking preferences on a basis available to everyone else, such as age, disability, or veteran status, the state would violate Proposition 209's prohibition against race or gender discrimination. (I want to stress I'm quoting these as arguments, not as a legal explanation of whether the legal effort will fail.) Also:
Plaintiffs challenge Proposition 209 not as an impediment to protection against unequal treatment but as an impediment to receiving preferential treatment. The controlling words, we must remember, are "equal" and "protection." Impediments to preferential treatment do not deny equal protection. It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment. While the Constitution protects against obstructions to equal treatment, it erects obstructions to preferential treatment by its own terms. Moving on with the arguments:
Proposal 2 violates Title VI of the Civil Rights Act by forcing the universities to adopt admissions systems that have the effect of excluding a disproportionate number of black, Latina/o and Native American students.
Proposal 2 violates Title IX of the Education Amendments of 1972 by forcing the universities to abandon outreach and admission programs that seek to admit women in programs to increase the number of women in the sciences, in engineering, in math, and in similar areas where women are still badly underrepresented. I suggest you read the two rulings I've linked concerning Prop 209 and Proposal 2. They're quite illuminating, and go into the legal details of these and other arguments. But there's one more I can't let go without comment:
Proposal 2 violates the First Amendment rights of the universities and of the students at the universities by depriving the university of their traditional power to set admissions criteria in a manner that will increase the racial integration and diversity on campuses I just want to make sure the argument here is clear: The government has a First Amendment right to be free from the will of the voters. From the order on Prop 2:
One does not generally think of the First Amendment as protecting the State from the people but the other way around—of the Amendment protecting individuals from the State. Anyway, the first resolved clause is for the ASUC to file an amicus brief in opposition to Proposal 2. Presumably, BAMN and co. have dozens of lawyers laying around who can write it up for the ASUC. The rest of it is:
the ASUC will co-sponsor a public hearing to investigate and hear testimony from students on the development of a hostile campus climate for students at UC Berkeley that has resulted from the ban on Affirmative Action. The transcript from this hearing will be included as an appendix to the amicus brief filed by the ASUC. Will they allow folks to speak up about how they haven't experienced a hostile climate, too? We'll see.
The ASUC has already proven itself to be the university's bitch. Will it be BAMN's, too?
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