Interest Groups Vie for Public Support

Abstract

Although affirmative action in college admissions has not been declared unconstitutional by the Supreme Court, the consideration of race in admissions has been banned in nine states—in six of them by public vote. This article analyzes the campaigns to ban affirmative action in California and Michigan as a battle between interest groups. The course of events in these states demonstrates that public opinion is a threat to the legality of affirmative action, should interest groups continue to take advantage of it by pursuing bans by state initiative.

Keywords

affirmative action educational policy equity higher education higher education policy Michigan California Proposition 209 Proposal 2 race

Since its inception, the consideration of race in college admissions has faced numerous legal challenges. The practice was not ruled unconstitutional by the Supreme Court in Fisher v. University of Texas (2013; Liptak, 2013), but Michigan’s ban on race-conscious admissions by public colleges was upheld as constitutional in Schuette v. Coalition to Defend Affirmative Action (Liptak, 2014; Schuette v. Coalition to Defend Affirmative Action, 2014). These recent judicial decisions regarding state-level policies indicate that a threat to the legality of race-conscious college admissions remains at the state level. The consideration of race in college admissions has been banned in Texas, California, Washington, Florida, Michigan (Zamani-Gallaher, Green, Brown, & Stovall, 2009), Nebraska, Arizona, the University of Georgia (Hinrichs, 2011), and most recently in New Hampshire (Schmidt, 2012) and Oklahoma (Kahlenberg, 2012).

This article tells the story of the battles over affirmative action in California and Michigan and analyzes the outcomes through the framework of interest group theory (Dahl, 1961/2005; Truman, 1951/2005). The Supreme Court affirmed the consideration of race in admissions for universities in both states, but when the prohibition of “racial preference” came up for public vote, voters were in favor. I analyze why this was so by examining the campaigns, taking into account political history and public opinion. I assert that the fight over the ballot initiatives was a battle between interest groups and examine the role of the state initiative process, a critical tool for anti-affirmative action interest groups. Finally, I demonstrate that the ultimate reason for the initiatives’ success was the voting public as a potential interest group who, even before the anti-affirmative action campaigns, was inclined to support the bans.

The story of the affirmative action bans in California and Michigan is important not only because it helps us understand the state of affirmative action today but also because it helps us assess the likelihood of future events regarding state-level bans on affirmative action. Previous works have described events in California or Michigan, but this is the first to compare events between the two states and implement interest group theory as a framework for understanding these events. The sources for my analyses include literature about the history of affirmative action in California and Michigan, classic theoretical essays in public policy, newspaper articles, TV advertisements, public opinion polls, election exit polls, and campaign expenditure reports.

The Origins of Affirmative Action

Race-influenced affirmative action is supported in college admissions for several reasons: It provides academic opportunities to students who otherwise would not have them due to factors such as the achievement gap (Jencks & Phillips, 1998), it acts as redress for past and present discrimination (Lewis, 2004), and it creates diversity on campus, which is associated with positive educational and democratic outcomes (Gurin, Dey, Hurtado, & Gurin, 2002). The practice was foreshadowed by Title VI of the Civil Rights Act of 1964, which prohibited discrimination based on race by programs receiving federal funds (Skrentny, 1996), and by Title VII, which prohibited the same by employers (Rubio, 2001). In the later 1960s, universities began to pursue student diversity in multiple aspects as an admissions goal (Loss, 2012). They, the federal government, and employers began to consider race in hiring and admissions, rather than being “color-blind.” Their reasons were pragmatic; they were under pressure to achieve greater minority representation (Skrentny, 1996, 2002).

By 1970, two thirds of medical schools had instituted some type of affirmative action program, and the practice was soon questioned in the nation’s highest court. Alan Bakke, a White applicant, was twice rejected from the University of California (UC) at Davis’s medical school and sued, arguing that his rejection violated the Equal Protection Clause of the 14th Amendment (U.S. Const. amend. XIV) and Title VI of the Civil Rights Act (1964). The case went to the Supreme Court in Regents of the University of California v. Bakke, and in 1978, Justice Powell wrote in his swing opinion that while the use of quotas is unconstitutional, the consideration of race is not (Skrentny, 2002).

The Beginnings of Interest Against the Consideration of Race in College Admissions

Interest groups are formed by “sets of individuals with some values, purposes, and demands in common” (Dahl, 1961/2005, p. 104). Most of the public was aware of race-influenced college admissions by the mid-1970s, and by the mid-1980s, researchers had found that many disapproved. “Scholars complained of reverse discrimination, blacks of tokenism, and conservatives of all races of the bastardization of standards,” explains Lewis (2004, p. 48). Since the 1970s, the argument of neoconservative opponents of affirmative action has been that the practice involves judging people on the color of their skin and violates the Civil Rights Act of 1964. However, the anger of certain groups of voters is not only about affirmative action, but also about larger economic and social changes. Politicians, particularly Republicans, soon responded to White working-class resentment (Schmidt, 2007). By 1972, today’s pattern of Democratic support for and Republican opposition toward affirmative action had been established. The White working class, formerly Democratic, supported President Reagan during the presidential election of 1980, during which he publicly opposed affirmative action. President Reagan and first President Bush eliminated many affirmative action and Black entitlement programs (Rubio, 2001).

The obvious relationship between government, policy, and practice is that government makes policy, which influences practice. However, affirmative action in higher education shows a different pattern, in which interest groups, politics, and policy around affirmative action in admissions developed after the practice began. Cohen and Moffitt (2011) help us understand this feedback phenomenon with their explication of the reciprocal relationships between government, politics, and policy on one hand and practice on the other. Policy influences practice, but practice, the implementation of policy, in turn influences policy. Present policy can influence future policy by changing the goals or capabilities of social groups to change that policy (Skocpol, 1992).

In the 1960s, when colleges began to implement affirmative action, they did not do so because it was required by federal or state mandate (Skrentny, 2002). However, the practice of affirmative action in college admissions soon began to influence politics and policy on a national level. Race-influenced admissions decisions quickly became divisive, and interest groups formed positions on the practice. Once interest groups formed an opinion on the consideration of race in admissions, organized action to stop the practice became a possibility.

Dahl (1961/2005) writes that one answer to the question of “Who governs?” is competing interest groups. Despite its quiet beginnings, policy change around affirmative action in college admissions has been characterized by competition among interest groups. Schmidt (2007) expounds,

The story of the war on college affirmative action is very much the story of how Republican politicians—as well as conservative advocacy groups and the broader conservative movement—tapped into the resentments of people like Gratz and Grutter to promote agendas that often went well beyond protecting anyone from discrimination. (p. 113)

The resentments of people like Gratz and Grutter were not enough to end affirmative action by way of the Supreme Court, but as we shall see, public dislike could be mobilized to effectively ban affirmative action by state initiative.

Ward Connerly and the UC Board of Regents

To understand how affirmative action has been banned in California and Michigan, one must know something about Ward Connerly. Ward Connerly is a businessman whose moral objections to affirmative action were critical to the success of the California Civil Rights Initiative (CCRI) and the Michigan Civil Rights Initiative (MCRI). Connerly (2000), who has multi-ethnic ancestry, believes that affirmative action discourages African Americans from working hard and prevents them from becoming independent and respecting themselves:

As I see it, the generation of black people before my own would do anything to get ahead . . . In a brief thirty years, programs such as welfare had changed all this, replacing these heroic efforts at self-betterment with a culture of dependency. And affirmative action was the kissing cousin of welfare . . . not only causing racial conflict because of its inequities, but also validating blacks’ fears of inferiority and reinforcing racial stereotypes. (p. 3)

Following his appointment to the Board of Regents of the University of California in 1993, Connerly became deeply, morally invested in ending the consideration of race in admissions after meeting Jerry and Ellen Cook in August of 1994. The Cooks, who were White, had a son who had been rejected from all UC medical schools in one year, and accepted to only UC Davis the next. Based on several months of his own investigations and UC administrative reports explaining UC’s admissions procedures, Connerly (2000) concluded that UC’s bold use of affirmative action was unfair to applicants of all races.

In 1995, Connerly released SP-1 and SP-2 for consideration by the board, which would end the UC’s use of race and gender as criteria in admissions, employment, and contracting (Connerly, 2000). Connerly’s supporters included Republican Governor Pete Wilson, the California State Assembly and Senate Republican Caucuses, some of the candidates for the Republican presidential nomination, and conservative legal foundations and interest groups (Pusser, 2004).

The administration of the UC attempted to convince the Regents to vote against the proposals. The UC’s supporters included the Clinton administration; the California State Senate and Assembly Democratic Caucuses; several elected state officials; civil rights groups, including the National Association for the Advancement of Colored People (NAACP), Mexican American Legal Defense and Educational Fund (MALDEF), and American Civil Liberties Union (ACLU); Reverend Jesse Jackson; several church leaders; labor organizations, including the University Professional and Technical Employees (UPTE) and the American Association of University Women (AAUW); women’s organizations; and national student organizations (Pusser, 2004).

The UC had more interest group support than Connerly, but both SP-1 and SP-2 passed. The governing structure of the UC played an important role in the success of SP-1 and SP-2. The governing board exerts strong control over university policy. Furthermore, the university may be autonomous from state government, but it is connected to the governor through the appointment of the Board of Regents. The Regents were appointed not for their postsecondary expertise but due to their relationships with the governor, perhaps making them sympathetic to the Republican governor’s views and interests. They perceived UC administration as an interest group with interests different from their own, making them less sympathetic to the administration’s arguments (Pusser, 2004).

The CCRI: Rubbing It In

While the Regents of the UC were discussing the consideration of race in admissions, two political rookies named Glynn Custred and Tom Wood were attempting to win enough support for a statewide anti-affirmative action initiative to place it on the state ballot in 1996. Custred and Wood used the language of the 1964 Civil Rights Act to craft the text of the CCRI (Connerly, 2000). Custred and Wood’s campaign was struggling to obtain the necessary signatures, and the men asked Connerly to become the chairman of the CCRI. Connerly noticed early signs of the public’s support: “It was not a hard sell. Whenever I was on the air, the phones in the CCRI office lit up, and people committed themselves to sending money and getting petitions signed” (p. 168). CCRI’s professional signature gatherers obtained 1.2 million signatures and in February 2006, the initiative officially became Proposition 209.

The UC and Public Interest

Connerly may have been driven by moral objections to race-influenced admissions, but the motivations of the California Republican Party, whose support contributed to the success of CCRI, were largely political. California Republicans’ backing of the CCRI was in their best political interests. Their strategy, aimed at winning White votes, had a historical foundation. Scholars have argued that the progressive policies that originated in the 1960s, including affirmative action, have pushed male voters and White voters from the Democratic toward the Republican Party (Abramowitz & Teixeira, 2008; Edsall & Edsall, 1991; Rhoads, Saenz, & Carducci, 2005)—the so-called Reagan Democrats.

In the later decades of the 20th century, the Republican Party gained support from groups who had previously voted Democratic, including the White working class, by focusing its message on social and cultural issues rather than class (Frank, 2004). The New Deal coalition, which greatly expanded the welfare state, had been popular among White working class, African American, Jewish, and Southern voters. The party lost support among the White working class in the 1960s due to its new association with progressive social movements such as civil rights, feminism, and environmentalism. The stagnating 1970s economy, which particularly affected the working class, “fed resentments about race: about high taxes for welfare (which were assumed to go primarily to minorities) and about affirmative action” (Abramowitz & Teixeira, 2008, p. 118). Racial integration efforts beginning at around the same time, such as busing, had a much larger impact on working-class Whites than on the privileged Whites who created the policies (Schmidt, 2007). Desegregation efforts were focused on urban schools, while suburban schools, populated by middle-class children, were largely left alone (Ryan, 2010).

Perceived economic competition can influence voter behavior. Huckfeldt and Kohfeld (1989) speculate that the post-1960s Democratic Party lost lower-class White voters because for them, “when, [for example], a white hod carriers’ union is required to admit blacks, the threat is economically real and socially visible” (p. 91). More recently, immigration has been an important matter to White voters and has been used to gain Republican votes, particularly from the non-college-educated who are more likely to feel that immigration increases competition for jobs (Frey, 2008). This was the case in 1990s California, where immigration was the wedge issue and where a Republican’s support for anti-immigrant policies could draw White male attention away from Democratic candidates and toward Republicans. In the same vein, California Republicans knew that affirmative action “could divide white, working-class voters from the Democratic Party as neatly as abortion, gun control, and immigration had in earlier elections” (Chavez, 1998, p. 47).

Demographic and economic conditions in the state certainly contributed to Californians’ response to the CCRI and provided Republicans and the CCRI with an audience attentive to their arguments. Beginning in the 1960s, national immigration rates increased significantly, but the demographic changes were most dramatic in California. In the mid-1990s, a quarter of the state’s population had been born abroad. A large proportion of the new immigrants were Hispanic and Asian, and the demographic shift made some White Californians uncomfortable. Moreover, California had suffered a recession in the early 1990s, and in the mid-1990s, the unemployment rate in California remained higher than the national average. Many of the well-paying jobs that had been lost had been held by White males, and some believed that White males were being replaced by less-well-qualified minorities (Ong, 1999).

The UC was an appropriate focus for the tensions arising from California’s social and economic shifts. As a public institution of higher education, the UC is also a political institution (Pusser, 2004). Political institutions are

entities that control significant public resources, possess the authority to allocate public costs and benefits, implement policies with significant political salience such as conditions of labor or standards of credentialing, and that stand as particularly visible sites of public contest. (Pusser, 2004, p. 7)

The fight over limited resources manifested itself as a debate over the role of race in allocating coveted places at institutions that confer higher socioeconomic status on their members. The UC’s role as a political institution was an important tool to the CCRI and politicians looking to further their own political interests.

Republicans’ plan to use the CCRI as a racial wedge issue was backed by polling data that indicated the public’s support. Polls had shown for years that public support for affirmative action programs is ambivalent and is influenced by question wording. In particular, Americans are more supportive of “affirmative action” than of “preferences.” For example, a 2005 national Gallup Poll showed that 50% of Americans support “affirmative action programs for racial minorities.” However, Gallup reported that in polls over the previous 5 years, support for affirmative action had ranged from 38% to 64%. The poll with just 38% support asked participants’ opinion on “racial preferences” (Jones, 2005). Gallup polling data from 2001 suggest that this negative opinion is due to the fact that Americans feel that different standards for minorities are unjust. While 66% of respondents favored minority quotas in hiring and admissions as long as minorities must meet the same standards as others, just 18% favored quotas “even if it means lowering the standards in order to make up for past discrimination” (Crabtree, 2003). Strategically, anti-affirmative action conservatives in the 1990s spoke of “racial preferences” and “racial quotas” when describing affirmative action (Rhoads et al., 2005).

Moses (2006) writes that moral disagreement about affirmative action can be explained by differences between liberal egalitarian (“liberal”) and libertarian (“conservative”) political philosophies. The liberal egalitarian view emphasizes equality of opportunity (even if it requires dissimilar treatment), while the libertarian view emphasizes liberty and equal treatment under the law (even if it results in large inequalities in life conditions). The public’s dislike of “preferences” indicates that it leans more libertarian than liberal egalitarian. Correspondingly, Rubio (2001) attributes White opposition to “racial preferences” to “an ideology whiteness that says that black disadvantage exists through a combination of blacks’ own failings and some past discrimination that is now gone and in any case should not interfere with white positions that were presumably earned” (p. 175). Or perhaps Americans feel differing standards in admissions are unfair because 77% believe that “black children have as good a chance as white children in your community to get a good education,” according to a 2002 Gallup poll (Kiefer, 2003).

Whatever the cause, voter aversion to “preferences” does not bode well for affirmative action in college admissions, since a goal of the practice is to admit a satisfactory number of underrepresented minorities even if they have on-average lower grades and test scores. In other words, affirmative action in college admissions does not hold all groups or applicants to the same standards. It should be noted that colleges are affirmative for numerous characteristics in addition to race, including legacy status and athletic skill (Karabel, 2005).

Proposition 209: The Battle for Public Support

Although the CCRI had strong Republican support, its opposition suffered from Democratic hesitancy. Democrats, informed by the same polls, feared that coming out in opposition to CCRI would be politically damaging and did not publicly oppose CCRI. Instead, the major players in opposition to Proposition 209 were civil rights groups and women’s rights groups. The groups could not agree on strategy, message, and money, and split into the southern California-based group Stop Proposition 209, which was dominated by women’s organizations, and the northern California-based Campaign to Defeat 209 (Chavez, 1998).

The women’s groups’ message was focused on Proposition 209’s alleged threats to women, including the loss of the right to an abortion, the end of maternity leave, and the elimination of girls’ tutoring programs. The minority vote was not enough to defeat the proposition, reasoned the campaign, and White women’s support was crucial. This approach was not successful, however, as women did not perceive themselves as beneficiaries of affirmative action and felt that the practice could hurt their male relatives (Chavez, 1998; Connerly, 2000).

The Campaign to Defeat 209 initially wanted to aim for a more moderate message than the one used by women’s groups. It was more closely tied to the California Democratic Party, White House, and labor unions, and aimed its strategy at White male swing voters (Lemann, 1999). Politically moderate voters are most on the fence about affirmative action. A national 2005 Gallup Poll showed that among Whites, most liberals support affirmative action and most conservatives are opposed, but exactly 50% of moderates are in favor (Jones, 2005). In a move that backfired, the Campaign released a TV ad that associated the CCRI with David Duke, a member of the Ku Klux Klan (KKK) and an outspoken racist. Voters who were considering supporting CCRI were offended at being associated with extreme racism. This TV ad was the only one released by the Campaign, and Stop Proposition 209 likewise released just one TV ad, which argued that Proposition 209 would result in severe consequences for women’s rights (Chavez, 1998).

Radio ads were more frequently used by both sides, and although the opposition suffered from inadequate funding, the women’s organizations did manage to run a few. The opposition also engaged in grassroots community organizing to educate voters, particularly minority voters, and encourage them to vote. Students demonstrated their opposition to 209 in campus rallies. The few debates had little media attention (Chavez, 1998). The opposition could not rely on business support. Republican Governor Wilson “would remind the potential contributor [to the opposition] of how much business his company did with the state government, and of how heavily regulated it was by state agencies run by gubernatorial employees. The threats were that direct,” explains Lemann (1999, p. 325). Businesses hesitated to oppose or contribute to the CCRI because they feared angering customers (Chavez, 1998).

Relative to the opposition, the CCRI had more money and radio spots. Like the Campaign to Defeat 209, the California Republican Party released a failed (in terms of garnering support) TV ad that angered civil rights leaders by invoking Martin Luther King’s words to promote the prohibition of affirmative action. Despite this blunder, the CCRI’s radio ads were appealing. Their message was positive and emphasized the importance of equal opportunity (Chavez, 1998). This tactic was not new; since the 1980s, conservative groups have used the same ideologies to argue that affirmative action violates Titles VI and VII of the Civil Rights Act that in the 1960s were used by civil rights advocates (Rhoads et al., 2005). The first radio ad featured Connerly himself, and “relies on the moral capital of a successful Black businessman while channeling White resentment of affirmative action programs toward feelings of virtue rather than anger or fear” (Chavez, 1998, p. 188).

The Initiative Process and the Public as a Potential Interest Group

On election day in November of 1996, 54.6% of voters supported Proposition 209, although most Black, Latino, and Asian voters did not (Chavez, 1998). There are several explanations for CCRI’s success. First, perhaps the Republican angry-White-voter strategy was based on truth and many White voters felt that opportunities were being unfairly taken from them and instead offered to members of minority groups. Perhaps voters felt economically or culturally threatened, or believed that the consideration of race is morally wrong. Seventy-four percent of voters were White, and 63% of them voted yes on Proposition 209. Sixty percent of voters with just some college voted in favor, compared with just 48% of voters with a graduate education, which suggests that economic struggle contributed to support for Proposition 209 (Ong, 1999).

However, the extent to which all of the supporters of Proposition 209 truly opposed affirmative action is unclear. It has been argued that the discourse around anti-affirmative action state ballot initiatives has not included an adequate discussion of whether affirmative action is right or wrong (Moses & Saenz, 2008; Moses, Yun, & Marin, 2009). The language used by the CCRI was controversial, as it had been strategically chosen to maximize voter support by prompting voters to show their dislike for “preferences” rather than “affirmative action” (Chavez, 1998). The 1996 ballot pamphlet produced by California’s Attorney General names Proposition 209 as the “Prohibition against Discrimination or Preferential Treatment by State and Other Public Entities.” The summary states that the proposition

prohibits the state, local governments, districts, public universities, colleges, and schools, and other government instrumentalities from discriminating against or giving preferential treatment to [emphasis added] any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin. (California Attorney General, n.d.)

Proposition 209’s name, summary, and text do not mention the term “affirmative action,” and may have lead voters to believe that 209’s passage would increase opportunities for minorities and women. Indeed, there is evidence that some voters did not understand the intended effects of 209. A Los Angeles Times Exit Poll shows that the proportion of voters who report voting in favor of 209 is not the same as the proportion who oppose affirmative action. Fifty-four percent of those polled said they voted for 209, but it is also 54% of polled voters who responded positively when asked if they were “in favor of both private and public affirmative action programs designed to help women and minorities get better jobs and education” (Los Angeles Times Poll, 1996).

Not only is the language of Proposition 209 controversial but the fairness of the initiative process is also contested. The Californian initiative process began in 1911 to fight against corruption in politics (Ong, 1999) and against business interests, and to give the people more power (Raza, Anderson, & Custred, 1999). However, some argue that “the process has been taken over by special interest and big money [sic]” (Ong, 1999, p. 199), and that it “took complex policy issues . . . and put them into the political arena where money and sound bites counted most” (Chavez, 1998, p. 81). One could argue that Californians did not have a true, informed debate about the consideration of race by public entities, or that voters may have chosen differently had they been better educated about the ballot measure and affirmative action.

Although it has been written that

the closest thing to an interest group the California Civil Rights Initiative had was the Republican Party, which was interested not out of passion about affirmative action but in the hope that its presence on the ballot would help more Republicans to be elected (Lemann, 1999),

the CCRI did indeed have interest group support. The CCRI succeeded because it had the support of the most important interest group for a state initiative—voters—and the leaders of the CCRI knew it. They knew that Californian voters were a potential interest group that could be stirred up to protect their interests. Whether Californian voters supported “affirmative action” was not very important to the success of CCRI; what mattered was that voters disliked “preferences” and favored “equality.” While Ong (1999) and Chavez (1998) make important criticisms of the initiative process—money and advertising certainly helped the CCRI succeed—it would be incorrect to reduce 209’s passage to these factors. Polls had shown for years that the public disliked “preferences” (Jones, 2005); the CCRI did not make it so. Instead, the CCRI took advantage of the anti-preference interests of the public.

Cohen and Moffitt (2011) write that policies “can create or change politics by providing resources and benefits to practitioners who form constituencies that then use the resources to shape politics and policy” (p. 65). Affirmative action, though, demonstrates what can happen when constituencies feel that a policy or practice removes benefits or resources. From the point of view of affirmative action’s opponents, the consideration of race in admissions may be just one example of a wave of policies that have limited their opportunities in employment and higher education.

Ong (1999) and Chavez (1998) write that the initiative process gives power to only a wealthy few, but I would argue that the initiative process gave the people of California power by providing an opportunity to act as their own interest group. As Truman (1951/2005) explains, “any mutual interest, however, any shared attitude, is a potential group. A disturbance in established relationships and expectations anywhere in the society may produce new patterns of interaction aimed at restricting or eliminating the disturbance” (p. 86). Along with other progressive reforms of the 1960s and 1970s, the implementation of race-influenced admissions certainly changed previously established relationships among racial groups and institutions. The policy helped members of minority groups get ahead by giving them coveted places at selective postsecondary institutions, thereby, in the eyes of voters, replacing White students who might otherwise have taken those places.

In addition to competing interest groups, Dahl (1961/2005) writes that another answer to the question of “Who governs?” is a combination of leaders and the people: “the leaders cater to mass tastes and in return use the strength provided by the loyalty and obedience of the masses to weaken and perhaps even to annihilate all opposition to their rule” (p. 105). The fight over Proposition 209 represents a combination of both forms of governance: competing interest groups and leader strength based on public support. The initiative process creates a competition different from the type of competition typically associated with interest groups: lobbying for legislative votes. The initiative competition is similar to an election in its reliance on the public as an interest group. The CCRI, as the leading interest group, lobbied for public support (rather than legislative support), gained that support, and was victorious.

Opfer, Young, and Fusarelli (2008) explain that interest groups are more likely to achieve their policy goals “when an issue is highly technical or complex, nonpartisan and nonideological, or receives little public or media attention” (p. 200). The complexity of the reality of affirmative action in college admissions may have benefited the CCRI, as it would not have been easy for the opposition to explain. Bob Laird, director of undergraduate admissions at UC Berkeley from 1993 to 1999, explains that the CCRI’s sound bites, their radio ads, and use of keywords such as “reverse discrimination” contributed greatly to the campaign’s success. The opposition, by contrast, could not fit the counter-argument into a sound bite (Laird, 2005). Otherwise, Opfer et al.’s characterization is not fitting. The issue was certainly partisan and wrapped up in larger ideologies that prevented Democratic politicians from becoming involved, gave the CCRI the support of Republican politicians and voters, and gained votes for the Republican Party. Soon after the passage of Proposition 209 in California, another politicized, judicial battle concerning affirmative action began to stir in Michigan.

Gratz and Grutter Take It to the Highest Court

In 1997, Jennifer Gratz, Patrick Hamacher, and Barbara Grutter sued the University of Michigan for discrimination. Jennifer Gratz, the daughter of a police officer and hospital lab worker, grew up in a working-class suburb of Detroit and attended a public high school. She, Hamacher, and Grutter were recruited by Republican legislators seeking to ban affirmative action in the state (Schmidt, 2007). For legal assistance, the legislators recruited the Center for Individual Rights (CIR; 2013), a conservative public interest law firm with an aim to “defend individual liberties, broadly understood to encompass both civil and economic rights.” The CIR had previously fought against affirmative action from 1993 to 1996 in Hopwood v. Texas, during which the U.S. Court of Appeals for the Fifth Circuit struck down the affirmative action policy of the University of Texas. In March 1997, the CIR filed the discrimination lawsuit against the University of Washington’s law school on behalf of Katuria Smith (Schmidt, 2007).

The cases, Gratz v. Bollinger and Grutter v. Bollinger, were decided by the Supreme Court in 2003. Just 20 amicus briefs were filed in favor of the plaintiffs, who were supported by conservative groups such as the American Civil Rights Institute (Connerly’s organization), the Center for Equal Opportunity, and the Pacific Legal Foundation. Ironically, after what happened in California, few Republican politicians openly supported the plaintiffs. Instead, Democrats publicly praised the University of Michigan in its defense of affirmative action. More than 60 amicus briefs representing more than 300 organizations were filed in support of the University, declaring support from

88 colleges, 50 higher education associations, dozens of minority-advocacy and student groups, labor unions, nearly 70 Fortune 500 companies, 29 former top-ranking officers and civilian leaders of the military, 22 states’ attorneys general, and more than 110 members of Congress. (Schmidt, 2007, p. 195)

Professional associations such as the Association of American Law Schools and the Association of American Medical Colleges advocated for diversity among lawyers and medical practitioners because minority lawyers and doctors are more likely to work in poor, underserved communities. Former military leaders argued that diversity among military leadership, partially produced by colleges’ Reserve Officers’ Training Corps programs, decreases racial tension among the troops and aids national security.

Corporate interest groups have traditionally been strong and have had a significant influence on state school policy (Opfer et al., 2008). This holds true for collegiate diversity efforts. Corporations argued that diversity among college students is important because it teaches future employees to work well with diverse colleagues in a global economy. The corporate sector has relied on colleges to provide them with qualified minority employees. Companies often contribute to academic support programs and give financial gifts to colleges that provide them with minority employees. They also assist minority students with scholarships, paid internships, and job offers, which eases the financial burden on the colleges themselves. For example, in 2000, as the University of Michigan was facing the Gratz and Grutter lawsuits, Procter & Gamble was working with the university to recruit minority employees and gifting the university with U.S. $200,000 annually (Schmidt, 2007).

Like the professional associations, corporations, and former military leaders, most of the University of Michigan’s supporters went along with the university’s defense, which was based around the benefits of diversity for all. Even most minority-advocacy organizations utilized benefits-of-diversity arguments instead of remedial justifications. The CIR, defending the plaintiffs, did not contradict the university’s benefits-of-diversity arguments, but instead argued that the benefits were outweighed by the harm done to White and Asian applicants (Schmidt, 2007).

Gratz, Hamacher, and Grutter, the Republican legislators who recruited them, the CIR, and their supporters failed to convince the Supreme Court that affirmative action violated applicants’ rights. However, as in California, affirmative action in Michigan would be condemned once placed into the hands of the voters.

History Repeats Itself: The MCRI

In 2006, Jennifer Gratz led the MCRI to campaign for Proposal 2, which would ban the consideration of race and gender by state agencies, including public colleges. Like the CCRI, the Michigan campaign focused its message on equality. It was partially funded by Ward Connerly, who after his success in California founded the American Civil Rights Coalition, which in 1998 successfully campaigned for the passage of Initiative 200 in Washington state, which prohibited state agencies from practicing racial or gender “preferences” (Schmidt, 2007).

The similarities of the MCRI to the CCRI are immediately evident: Ward Connerly providing financial support, potentially confusing language, and a positive message. One may think, therefore, that the opposition’s cause seemed hopeless from the beginning, but that is not the case. The opposition in Michigan was notably stronger than it had been in California.

The strongest opposition came from One United Michigan, an umbrella organization comprised of more than 200 groups, including “the American Federation of Teachers, the American Jewish Committee, the Detroit Urban League, the Michigan Catholic Conference, the Michigan Democratic Party, and the United Auto Workers” (Schmidt, 2007, p. 220). One United Michigan spent U.S. 4.5 million. Other opposition groups included Operation King’s Dream ($230,000), the American Civil Liberties Union ($127,000), and Vote No on Prop 2, funded by the Feminist Majority Foundation ($4,000; National Institute of Money in State Politics, n.d.).

In sharp contrast to the opposition, the MCRI spent just 1.3 million. The campaign’s largest donors were Connerly’s American Civil Rights Coalition, which contributed $700,000, and the CIR, which contributed $200,000. Connerly’s group spent an additional $200,000, and another $12,000 from a group called Race Free Zone brings the total spent by the pro-Proposal 2 campaigns to 1.8 million, much less than the 4.9 million spent by the opposition (National Institute of Money in State Politics, n.d.).

In addition to greater financial support, the opposition also had greater open political support than did the MCRI. Proposal 2’s opponents had the public support of both the Democratic and Republican candidates for governor. The Michigan Republican Party remained neutral (Schmidt, 2007), but the Michigan Democratic Party gifted $300,000 to One United Michigan (National Institute of Money in State Politics, n.d.).

More importantly, while businesses stayed out of the battle over Proposition 209 in California (Chavez, 1998; Lemann, 1999), they were major contributors to One United Michigan. One United Michigan had several major corporate donors, while the MCRI had a dearth of corporate donors and other major donors. The local industry was generous. Ford Automotive and Daimler Chrysler each gave $250,000 to One United Michigan, while Greektown Casino and Dow Chemical each gave $200,000. Other six-figure donors included Comerica Bank, Blue Cross Blue Shield of Michigan, and General Motors (National Institute of Money in State Politics, n.d.).

This time around, affirmative action’s supporters had the resources for advertising, and television was used more frequently than it had been in 1996. One United Michigan had a YouTube channel, on which one can still view its TV ads (One United Michigan, 2006c). In one ad, the words “dishonesty and fraud” and “trained to lie to voters” flash across the screen as a man’s voice tells viewers that Proposal 2, “brought to Michigan by a secret group from California,” is meant to deceive voters and that signature gatherers had been dishonest (One United Michigan, 2006a). The other ads demonstrate that, as in California, the opposition attempted to convince voters that Proposal 2 threatened educational and career opportunities for women and girls. In one ad, as images of girls in educational settings flash across the screen, a woman’s earnest voice explains that “math and science programs for girls help create dreams and opportunities, but if Proposal 2 passes, they’ll be shut down” (One United Michigan, 2006b). Other ads are more positive, and feature minority and White women discussing how affirmative action has helped their careers.

Meanwhile, the MCRI’s message was similar to that of the CCRI. A TV ad shows Jennifer Gratz and Ward Connerly standing side by side. The imagery of a White woman and an African American man standing together seems like material for One United Michigan, except that the African American man asserts that “affirmative action has become corrupt and unfair,” and the White woman explains that “working people are being passed over for diversity” as a White, blue-collar man labors in the background. This MCRI ad also uses female imagery: A White girl raises her hand in a classroom and an Asian woman in a lab coat works as the words fair and equal flash across the screen (MCRI, 2006).

Despite One United Michigan’s significant financial advantage and greater organizational support, the use of affirmative action by public agencies was banned after 58% of voters supported Proposal 2 (Schmidt, 2007). Conservative interest groups have become increasingly influential (Opfer et al., 2008), and perhaps the MCRI led a stronger campaign even with limited resources. However, given One United Michigan’s advantages, it may be that the umbrella organization’s failure was due not to a weaker campaign, but rather to the fact that, as in California, the majority of Michigan voters disliked affirmative action in the first place, and the MCRI had their support from the start.

As in the Californian context, one could make the argument that some proportion of the voters did not understand what they were voting for when they supported the proposal. A media content analysis by Moses and Saenz (2008) reveals that news coverage of the Proposal usually did not include “the complex history of affirmative action in the United States, the multifaceted moral justifications for and arguments against affirmative action . . . or evidence from research” (p. 290). However, unlike Proposition 209 in California, the ballot text for Proposal 2 does include the term affirmative action. The proposal is described as “a proposal to amend the state constitution to ban affirmative action programs that give preferential treatment to groups or individuals [emphasis added] based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes.” (Proposal 2 Approved Ballot Wording, 2012).

It is the term preferential treatment that condemns the opposition to a loss. Gallup polls have shown that most Americans believe that people of all racial groups should be held to the same standards (Crabtree, 2003). Perhaps One United Michigan knew this, and therefore focused so much of its message on the gender aspect of Proposal 2, rather than race. However, the women-focused strategy failed at convincing most women that Proposal 2 was a threat, as 52% of women and 59% of White women voted in favor of Proposal 2 (compared with 70% of White men; Cable News Network, 2007).

The passage of Proposal 2, despite the opposition’s vast resources, indicates that the MCRI succeeded because the public, as a potential interest group, was given the opportunity to demonstrate its interests through the initiative process. Jennifer Gratz, the leader of the MCRI, clearly had the support of the masses, especially of White voters. The White vote was critical; White men were 42% of voters and White women were another 42%. Most men of color and women of color voted no on Proposal 2, but they cast fewer than 20% of the votes (Cable News Network, 2007).

As in California, economic competition may have motivated disapproval of affirmative action. Fifty-eight percent of high school graduates supported Proposal 2, compared with 49% of those with a graduate education (Cable News Network, 2007). Michigan does not have as great a minority population as California, but it has had economic troubles for many years. In 2006, Michigan’s unemployment rate was the highest in the nation at 6.9%, compared with the national rate of 4.6% (U.S. Bureau of Labor Statistics, 2007).

The passage of Proposition 209 in California and Proposal 2 in Michigan demonstrate the ability of interest groups to use the state initiative process to harness the power of the majority of voters. Fobanjong (2001) notes that one could have foreseen the battles against affirmative action because the policy has never reflected the majority opinion of the public. President Kennedy’s and President Johnson’s Executive Orders encouraging affirmative action in employment did not have public approval, and

in a democratic society, any group that feels that it has been unjustly excluded from a public good by an executive order or any other undemocratic means, would sooner or later resort to the democratic process to correct for the undemocratic measures of their elite. (p. 80)

Conclusion

Following the mid-1990s, the use of affirmative action declined, especially at public colleges (Grodsky & Kalogrides, 2008). Grodsky and Kalogrides suggest that the fear of legal repercussions has contributed to colleges’ reluctance to use affirmative action. However, voter behavior has been more decisive than court decisions in this regard. Rhoads et al. (2005) note after Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003) that while the rulings have not clearly outlined which practices are constitutionally supported, the interest group activity during the cases “underscored the value of collective action as a means of influencing the legislative and judicial future of affirmative action” (p. 212).

Collective action, manifested by state initiative, has indeed been valuable. Affirmative action has been banned by public vote in Washington state (Schmidt, 2012), Oklahoma (Kahlenberg, 2012), Arizona, and Nebraska (Hinrichs, 2011). Affirmative action was also banned in Texas in 1996, Florida in 2000 (Zamani-Gallaher et al., 2009), and New Hampshire in 2011 (Schmidt, 2012). California’s Proposition 209 has been challenged in the courts and with a proposed ballot measure to reduce 209’s restrictions, but these efforts have not been successful (Mintz, 2010, 2012; Rosenhall, 2014). The proposed ballot measure failed in 2014 for one of the same reasons that 209 passed: public and political opposition to race-conscious admissions (Rosenhall, 2014). The likelihood of success for future judicial challenges to Proposition 209 and Proposal 2 has been weakened by recent events. Although the Supreme Court affirmed the use of race-conscious admissions in Regents of the University of California v. Bakke (Skrentny, 2002), Gratz v. Bollinger (2003), and Grutter v. Bollinger (2003), the court’s recent decisions in Fisher v. University of Texas (2013) and Schuette v. Coalition to Defend Affirmative Action (2014) have set new precedents for the future of state-level affirmative action legislation.

The court did not declare race-conscious admissions unconstitutional in Fisher v. University of Texas, but neither did it affirm the constitutionality of the practice when it sent the case back to the United States Court of Appeals for the Fifth Circuit to undergo strict scrutiny (2013). Schuette v. Coalition to Defend Affirmative Action (2014) is more powerful, because the court’s decision affirms states’ rights to prohibit race-conscious college admissions, particularly if the legislation occurred through public vote. In his opinion, Justice Kennedy states that “there is no authority in the Federal Constitution or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions.” (Schuette v. Coalition to Defend Affirmative Action, 2014, p. 1). In this decision, the Supreme Court declared that it does not have the right, under the Federal Constitution, to overturn a state-level voter-approved ban on the consideration of race by public entities. Schuette may have important repercussions for the outcomes of further judicial considerations of race-consciousness by state colleges and other public entities.

The stories of Proposition 209 in California and Proposal 2 in Michigan are important because they are significant events in the history of the battle over the consideration of race in college admissions. They help us understand how we have arrived at the state of affirmative action legislation today, including the political and legislative context that frames the Fisher and Schuette cases. Furthermore, the stories presented here may portend the fate of affirmative action. Similar methods as were used in California and Michigan may be used by interest groups to achieve the same ends in other states.

Given the precedent set by Schuette, anti-affirmative action interest groups may be encouraged, as a voter-approved ban is now less likely to be overturned by the courts. Scholars may consider events in California and Michigan to assess the likelihood of similar legislation in other states. They should consider a state’s demographic context (Who are the voters?), political context (What do politicians have to gain/lose by opposing/supporting a ban?), economic context (Will voters be influenced by economic stress? Which side will have more financial support?), and immigration context (Do voters feel threatened by immigration?). As suggested by events in California and Michigan, the language used in the ballot proposal and by the media campaigns by both sides may be important to the outcome of a ballot initiative.

The most significant challenge to affirmative action is the state-level disapproval and even resentment of the majority. The support of the masses serves as powerful ammunition for interest group leaders such as Jennifer Gratz and Ward Connerly; ammunition that cuts through the defenses of universities and their many supporters. The consideration of race in college admissions may have appeared suddenly, without public support or opposition, but as soon as the practice became known, the disapproving public, always a potential interest group, simply needed the opportunity to end the perceived disturbance to its interests. Anti-affirmative interest groups know this; they have learned that if they want to ban affirmative action, they are more likely to succeed by state initiative than by lawsuit. Given the Supreme Court’s decisions in Fisher v. University of Texas and Schuette v. Coalition to Defend Affirmative Action, universities may soon see new initiatives ramping up in their states.

Footnotes

Acknowledgements

I thank Christopher Loss for his comments on a draft of this paper.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Author Biography

Serena E. Hinz is a doctoral candidate in Leadership and Policy Studies at Vanderbilt University. Her research examines equity issues in postsecondary education.

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