Although the recent U.S. Supreme Court decision striking down Michigan’s affirmative action programs focused on minority student inclusion in the state’s university system, the ruling poses an imminent threat to minority businesses here in Missouri and every state. This is because the ballot initiative passed by Michigan voters, which the Court upheld, banned affirmative action in more respects than the state’s university admission process.
The ballot proposal put before Michigan voters in 2006 was in response to the U.S. Supreme Court’s ruling in 2003 upholding the affirmative action program of the Michigan law school. It was called Proposal 2, and it passed by a margin of 58 percent to 42 percent, thereupon becoming a provision in the state constitution. This new constitutional provision broadly banned “preferential treatment … in the operation of public employment, public education, or public contracting.”
Thus, with the U.S. Supreme Court’s decision in the case styled Schuette v. BAMN, under the newly amended Michigan Constitution, any state or local government laws or programs providing so-called preferential treatment to minority businesses – such as those that establish minority goals – are now banned in that state.
To bring it closer to home, if such a ballot initiative was to pass in Missouri, the City of St. Louis’ minority business program, including the Mayor’s Executive Order requiring 25 percent minority business inclusion on city contracts, would come to an abrupt end. Such a ballot initiative would also preclude Missouri having any state minority goals or program – such as what is expected to be the outcome of the disparity study currently being conducted by the state.
In an intellectually blistering and lengthy dissent, Justice Sotomayor ripped her brethren for a decision she pointed out allowed the white majority to in essence “suppress the minority’s right to participate on equal terms in the political process.” She pointed to the ease with which the majority could trammel on the rights of minorities through the ballot initiative process, noting that “the amount spent on state-level initiative and referendum campaigns in 2008 eclipsed the $740.6 million spent by President Obama in his 2008 presidential campaign.”
The Missouri minority business community would be wise to begin preparing for and strategizing to prevent a ballot initiative similar to Proposal 2, which would pose an existential threat to all state and local minority business inclusion laws and programs. In Michigan, the organization BAMN fought all the way to the U.S. Supreme Court to try to stop Proposal 2, and it would be good if the Missouri minority business community understood that BAMN is an acronym: By Any Means Necessary.
