Civil rights in the crosshairs yet again

Michigan, which has been embroiled in significant anti-union activity, adopted a referendum banning affirmative action – underscoring againa the connection between labor rights and civil rights. In other words, the recently adopted Proposal 2 – which amended the State constitution to bar affirmative action in contracting, employment, and education – amounts to an attack on civil rights just as the recently enacted “right to work” legislation is an assault on labor rights. The central and well-financed proponents of both initiatives are largely the same, and they pursue a concentration of economic power and opportunity that labor rights and civil rights advocates have sought to democratize.

As elsewhere, the debate about affirmative action in Michigan has mainly turned on competing views of the world and the related definitions of equality. Proponents of affirmative action generally view the world as affected by past and present discrimination that distorts, if not denies, opportunity to people of color and women in particular. Under this view of the world, equality is understood as fairness – substantive equality. Opponents of affirmative action typically view the world as free of discrimination and the adverse consequences of any past abuses that might have occurred. Under this view of the world, equality is understood as sameness – formal equality.

In recent years, the Supreme Court has repeatedly taken a formalistic view of equality in affirmative action cases, in particular, and in employment and civil rights cases, in general. Therefore, the Supreme Court’s decision to review Michigan’s ban on affirmative action via Schuette v. Coalition to Defend Affirmative Action seemingly does not bode well for affirmative action supporters. Indeed, one of the moderates on the Supreme Court, Justice Elena Kagen, is not participating in the case. It is nonetheless possible, however, that there could be a 4-4 split between the remaining moderate Justices and the radical Justices. If that were to happen, the Court of Appeals decision striking down the ban would stand. Labor, employment, and civil rights advocates everywhere hope that comes to pass.