Last Monday, the group By Any Means Necessary--which was active in the fight against Proposal 2 in Michigan--submitted a brief to US District Judge David Lawson explaining that a trial is needed to determine whether or not affirmative action is a system of "preferences" or an effective means of desegregation. Proposal 2 was an anti-affirmative action ballot proposal known as the "Michigan Civil Rights Initiative" that was passed by voters in 2006.

In a summary of the case, BAMN said that their argument centers around four factual points:

"(1) whether affirmative action programs are the only means for keeping the universities desegregated, (2) whether the universities' admission criteria without affirmative action are irremediably discriminatory against black, Latina/o, and Native American students, (3) whether Proposal 2 was an intentional attempt to exclude minorities from the state's universities, and (4) whether Proposal 2 has relegated racial minorities to a Jim Crow procedure for securing relief from the discrimination that they otherwise will face in university admissions."

Interestingly, in a deposition filed in the case, Proposal 2's backer--Ward Connerly--admitted that he knew the likely consequences of banning affirmative action:

"In the deposition taken by BAMN on October 24, 2007, Connerly said that he knew before proposing Proposal 209 in California that the California K-12 educational system was highly unequal and that this contributed to the lower adjusted grade point averages of black, Latina/o and Native American applicants to the University of California. He admitted that white students are given an advantage when test scores are used in an admissions system that does not consider race. Connerly also admitted that he knew beforehand that Proposal 2 would drive down the number of minority students at selective schools--and that there was nothing the admissions officers could do to stop it. Moreover, he admitted, that was the result he wanted--in order to administer what he called "tough love" to minority students."

BAMN is arguing that Connerly's admissions make it clear that Proposal 2 was "an intentional effort to drive underrepresented minorities out of the University of Michigan and the state's graduate and professional schools." BAMN is asserting that Proposal 2 is illegal on various grounds, including the Fourteenth Amendment because it:

"...prevents a white majority from (1) passing laws that intentionally exclude racial minorities from education, or (2) imposing more onerous political burdens on racial minorities when they attempt to win passage of programs that they hope will eliminate or lessen the problems caused by racial discrimination."

Oral arguments will be heard in the case on February 6 in the Federal District Court in Detroit.