[Last month Oklahoma voters went to the polls and approved State Question 759. The measure bans affirmative action programs in the state, and prohibits special treatment based on race or sex in public employment, education, and contracts. To get her insights on the matter, Perspective editor Brandon Dutcher interviewed Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger, a landmark U.S. Supreme Court case challenging race preferences in college admissions.]
Dutcher: Now that Oklahoma has banned affirmative action, do you think a legal challenge is forthcoming? Or, given conflicting rulings from the 9th Circuit and the 6th Circuit, do you think this matter will eventually go to the U.S. Supreme Court?
Gratz: I don’t believe a legal challenge is forthcoming in Oklahoma. The showdown is already set. There are eight states that have enacted essentially the same language—California, Washington, Florida, Michigan, Nebraska, Arizona, New Hampshire, and Oklahoma. Opponents of these measures have pushed challenges to the 9th Circuit Court of Appeals and the 6th Circuit. The 9th Circuit ruled that the language is constitutional, and the 6th just ruled last month that it is unconstitutional. I haven’t met a legal scholar that doesn’t believe the U.S. Supreme Court will take up the recent 6th Circuit decision. Nor have I met a scholar that doesn’t believe that the 6th Circuit ruling will be overturned. Either way, the Supreme Court needs to resolve the conflict between the 9th and 6th circuits, which will, of course, impact the constitutionality of all the measures in all eight states.
Dutcher: What was the 6th Circuit’s rationale?
Gratz: No amount of mental gymnastics will make the 6th Circuit’s rationale make sense. Essentially the court ruled that equality is unconstitutional in Michigan. What I can say about the rationale is that the decision relies at least partially on the Grutter decision. You may recall that there were two lawsuits against the University of Michigan heard by the U.S. Supreme Court in 2003, Gratz v. Bollinger and Grutter v. Bollinger. Gratz challenged race preferences in admissions at the undergraduate school, Grutter at the University of Michigan’s law school.
On June 23, 2003, both of our cases were decided by the U.S. Supreme Court. I won my lawsuit. But in her Grutter case opinion, Justice Sandra Day O’Connor delivered us a blow that defied logic. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote. But what proponents of race preferences and what the 6th Circuit fail to understand is that the O’Connor opinion in Grutter barely tolerated, much less mandated, race preferences. In fact, in 2006 former Supreme Court Justice O’Connor—who infamously wrote the majority opinion in Grutter allowing race preferences to continue—was asked the day after the election what she thought of Michigan’s approval of our Michigan Civil Rights Initiative. “It is entirely within the right and privilege of voters,” she replied.
I am extremely confident that the Supreme Court will toss out this flawed ruling from the 6th Circuit.
Dutcher: So now that this is law in Oklahoma, does this mean preferential treatment in government employment, education, and contracting will come to an end?
Gratz: No. Preferential treatment won’t come to a magical end. I wish it would, but past experience says otherwise. Now that this is law, it means preferential treatment is unconstitutional, but unfortunately, it will take diligence to rid preferential treatment from actual practice.
Dutcher: In what ways will some officials continue to practice preferential treatment, and how will they disguise it?
Gratz: To put it mildly, administrators are always slow to eliminate preferential treatment, even after amending the state constitution. Some policies will be defended by government officials as being required by the federal government, some will be adjusted and cloaked in new terms—like diversity. It often takes courageous individuals who have been harmed by preferential treatment to come forward and challenge these policies. The good news is that when a courageous individual does come forward in Oklahoma, the law is now on his side.
Dutcher: So that means Oklahomans should keep their eyes and ears open. Is there a public interest law firm ready to assist an Oklahoman who is discriminated against?
Gratz: Yes, eyes and ears open! There are a few public interest law firms ready to assist. Oftentimes people fail to speak up because they think a legal battle would be costly. I think it is important to note that there are legal firms that take on cases like these pro bono, meaning the law firm raises money from contributors and then represents the plaintiff free of charge.
Dutcher: One of the arguments used by opponents of this measure is that its passage would hurt Oklahoma’s image. Is that likely? Has that happened in other states where affirmative action has been banned?
Gratz: I think just the opposite. Oklahoma is now part of the 28 percent of the U.S. population that has banned race and gender preferences and declared equality the ruling principle in their state. That’s a powerful, positive message to send to individuals.
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