The U.S. Supreme Court decision Schuette v. Coalition to Defend Affirmative Action, issued last spring, upheld a 2006 citizen-approved ballot initiative in Michigan to amend the state constitution to ban reverse discrimination in public employment, contracting, and education, including at the University of Michigan.  The ruling ends a quarter-century battle that began when David Jaye, a state legislator of Polish ethnic heritage from suburban Macomb County, aggressively and repeatedly questioned the practice, much to the chagrin of Michigan’s political establishment.

In 2012, the Sixth Circuit Court of Appeals had concluded that the amendment, when applied to public universities, violated the 14th Amendment’s Equal Protection Clause.  But in a 6-2 decision (Sotomayor and Ginsburg dissenting; Kagan not taking part in the proceedings), the Supreme Court reversed that ruling: The state may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.”  In essence, the Court ruled that the 14th Amendment cannot be used to uphold preferences when state electorates decide otherwise.

The ruling illustrates how a small group of conservatives from blue-collar areas can transform state policy.  Proposal 2 (the Michigan Civil Rights Initiative) was placed on the 2006 ballot by a coalition led by Jennifer Gratz, a plaintiff in another successful reverse-discrimination case decided by the Supreme Court.  Gratz sued U of M in 1997, arguing she’d been denied admission because of a system that automatically distributed 20 points, or one fifth of those needed to guarantee admission, to every single “underrepresented minority” applicant solely because of race.  The Court, in Gratz v. Bollinger (2003), struck down U of M’s point system.  But in Grutter v. Bollinger, a separate 2003 decision, the Court left the door open for a narrow version of the practice, finding U of M’s admissions policy did not violate the 14th Amendment.  Michigan voters enthusiastically approved Proposal 2, a ban on reverse discrimination, 58-42 percent.  The Coalition to Defend Affirmative Action then sued to overturn, and won at the appellate level.

The legal saga dates to the mid-1990’s when several Michigan legislators (including David Jaye; Deborah Whyman, the leader; and me) responded to U of M’s discriminatory policy under then-President Lee Bollinger, a Clintonite.  We called a press conference and asked students who had been denied admission to contact our offices.  Hundreds responded, including Gratz and Grutter, and the Center for Individual Rights, a public-interest law firm, filed suit.  But it is unlikely the issue would have been raised were it not for David Jaye.  Elected to the state house in 1988, Jaye advanced hundreds of amendments and statements condemning the practice.  He understood the maxim “The executive proposes, the legislature appropriates,” and sought to strike funding for public institutions like U of M that practiced reverse discrimination.  He ventured into the lion’s den, debating liberal opponents on hostile turf, including college campuses.  Jaye, a U of M grad (B.S., M.A.), represented a tough suburban constituency for 14 years and demonstrated a remarkable ability to shrug off abuse, much of it personal, to advance the cause.

One of his tactical contributions was linguistic—i.e., rejecting the liberals’ term affirmative action in favor of reverse discrimination, the actual practice.  Another was his use of political theater to explain policy issues to the public.  He once interviewed a pot-bellied pig, “Mr. Perks,” about wasteful spending on the front steps of the state capitol in Lansing as bemused reporters scribbled notes.

Jaye’s opposition to U of M’s policy divided his Republican colleagues.  Some, envious of the publicity Jaye garnered, criticized him for being a “loose cannon.”  Yet they could read public-opinion polls, which showed the people of Michigan were warming to the issue, a development culminating in Proposal 2.  Jaye was grudgingly tolerated in the people’s chamber, but he was a marked man the moment he set foot in the senate.  Much of the anti-Jaye animus stemmed from his unwillingness to defer to members of the appropriations committee.  His colleagues preferred decisions be made in committee, but he insisted on bringing spending fights to the floor.  So in 2001, Senate critics finally used Jaye’s legal problems (including drunk-driving convictions) as a pretext to expel him after a kangaroo-court proceeding memorable only for its lack of due process.

The unstated reason was Jaye’s unwillingness to cease advancing a paleoconservative agenda on issues such as reverse discrimination.

But life, like the Great River, is full of unexpected twists and turns.  Thaddeus McCotter, who presided over Jaye’s senate trial, was later elected to Congress from Michigan’s 11th District.  McCotter did not qualify for the Republican primary in 2012 after fraud by his staff resulted in an insufficient number of nominating signatures.  The subsequent scandal led McCotter to resign.  Only one of the 21 Republicans who voted to expel Jaye still holds higher office: Bill Schuette, the Michigan attorney general who defended Proposal 2 before the nation’s high court.

Jaye’s response to this year’s Supreme Court ruling was to declare, “Thank you, my friends, for making history with me.”  He successfully resisted a cornerstone liberal policy; that is his legacy.