April 22, 2014

USAT Initially Fails to Identify 6-2 Majority in Supremes’ Mich. Racial Preferences Decision

In his story (saved here for future reference, fair use and discussion purposes — and in case it gets edited later today; Update: It did) on the Supreme Court’s decision this morning upholding Michigan voters’ 2006 approval of a ban on race-, ethic- and gender-based preferences in university admissions, USA Today’s Richard Wolf failed to identify the size of the court majority, which was 6-2. Justice Elana Kagan recused herself because she was previously the U.S. solicitor general before being named to the high court. The court’s decision effectively upholds such bans in seven other states.

Additionally, by focusing on Justice Anthony Kennedy as “the man to watch,” Wolf initially left many readers with the impression that only five justices, Kennedy and the four others usually describe as “conservative” (Roberts, Scalia, Thomas, and Alito) made the ruling. The fact is that they were also joined by Justice Stephen Breyer, one of the supposedly reliable “liberals.” Excerpts follow the jump (bolds are mine throughout this post):

Justices approve state bans on affirmative action

The Supreme Court dealt another blow to affirmative action programs Tuesday, upholding the right of states to ban racial preferences in university admissions.

The decision came in a case brought by Michigan, where a voter-approved initiative banning affirmative action had been tied up in court for a decade.

Seven other states — California, Florida, Washington, Arizona, Nebraska, Oklahoma and New Hampshire – have similar bans. Now, others may follow suit.

But the ruling, which was expected after the 6th Circuit Court of Appeals struck down the Michigan law, did not jeopardize the wide use of race preferences in many of the 42 states without bans. Such affirmative action programs were upheld, though subjected to increased scrutiny, in the high court’s June ruling involving the University of Texas.

The decision in Schuette v. Coalition to Defend Affirmative Action comes 10 years after two seminal Supreme Court rulings out of the University of Michigan. One struck down the undergraduate school’s use of a point system that included race to guide admissions. The other upheld the law school’s consideration of race among many other factors.

Immediately after the law school ruling, opponents of racial preferences set to work on a state constitutional amendment that said Michigan “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or natural origin.” Voters approved it by a 58%-42% margin in November 2006. 

The writing appeared to be on the wall at the Supreme Court based on the influence of Chief Justice John Roberts, an opponent of racial preferences who famously wrote in another case several years ago that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But in this case, Justice Anthony Kennedy was the man to watch. He wrote the court’s 1996 Romer v. Evans opinion striking down a Colorado referendum that banned local governments from enacting gay rights laws. Yet he had been less enthusiastic about the use of racial preferences in several recent cases.

The 2006 ballot effort was led by Ward Connerly, founder and president of the American Civil Rights Institute, whose motto is: “Race has no place in American life or law.” Its scope is broader, extending to “the operation of public employment, public education, or public contracting,” and includes state entities plus “any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan.”

In other words, the goal was to create colorblind public-sector operations from top to bottom, partially fulfilling Martin Luther King’s desire for a society where people are “judged by the color of their skin, but by the content of their character.”

The campaign against what was called the Michigan Civil Rights Initiative in 2006 was particularly vicious. George Will described some of it in a September 2006 column:

A feisty 29-year-old white woman and a pugnacious 67-year-old black man are performing two services this autumn for Michigan and the nation. Their Michigan Civil Rights Initiative is promoting colorblind government. And they are provoking remnants of the civil rights movement, which now is just a defender of a racial spoils system, to demonstrate its decadence, even thuggishness.

… With (Jennifer) Gratz as its executive director, and (Ward) Connerly lending hard-earned expertise, MCRI collected 508,000 signatures, more than ever gathered for a Michigan initiative. In response, some opponents of MCRI have adopted four tactics, none of which involve arguing the merits of racial preferences, and all of which attempt — in the name of “civil rights,” of course — to prevent Michiganders from being allowed to vote on MCRI. The tactics have included:

Pressuring signers of MCRI petitions to say they did not understand what they were signing. Some talk radio stations have broadcast the names of signers, and opponents of MCRI have gone to signers saying, “Did you know you signed a petition against equal opportunity?” Two who recanted their signatures, saying they had signed without reading the measure, are federal judges.

– Violently intimidating the state Board of Canvassers, which certifies that initiatives have qualified for the ballot. The Coalition to Defend Affirmative Action By Any Means Necessary (BAMN) disrupted the board’s deliberations, shouting and overturning a table. …

Asking a court to rule that MCRI committed “fraud” because many who signed the petition supposedly were confused — the signers were, presumably, not competent to read and understand the initiative, the full text of which was printed at the top of each petition. A federal judge — Arthur Tarnow, a Clinton appointee — sadly said he could not rule that way because, although he thinks MCRI is a fraud, whites as well as blacks were confused about it, and even if all signatures gathered in majority black cities were invalidated, there still were enough signatures to qualify it for the ballot. So Tarnow contented himself with an extrajudicial smear of Gratz, charging that her “deception” had confused all Michigan voters, regardless of race.

– Michigan ballots are printed by counties, so BAMN says it is asking local officials to assert an extralegal “moral authority” to leave MCRI off the ballot.

BAMN engaged in tactics which can be seen in retrospect as a preview of what resulted in California after voters defeated the Proposition 8 effort to legalize same-sex marriage in California in 2008:

From the beginning, BAMN has claimed the initiative disguised an anti-black and racist agenda. But because many black individuals had signed the petition, BAMN had to show they’d been duped.

So the group launched an “investigation.” They systematically called and personally visited blacks who’d signed the petition. In some cities, they had friendly talk show hosts read the names of black signers over the radio. In all cases BAMN’s message was the same: How could you, a black person, sign a petition to roll back affirmative action?

BAMN’s high-pressure tactics worked. Some signers and even gatherers decided they’d been deceived. In some cases they recalled being told that the petition was to “support affirmative action” and to help get their “children into college.” Using pre-printed affidavits (some “signed” over the phone), BAMN collected statements from dozens of individuals and started a legal campaign to get the referendum pulled.

Richard Wolf failed to report that opponents’ arguments couldn’t sway one reliably arch liberal justice.

Predictably, other press outlets like McClatchy are calling the decision, which was only two votes away from being unanimous, evidence of a “sharply divided” court.

Cross-posted at NewsBusters.org.

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