Open Letter, December 9, 2005, to Ms. Kary Moss,
Executive Director of the Michigan ACLU,
from Dr. Carl Cohen, Professor of Philosophy at the University of Michigan,
and an MCRI Leader

Dear Kary -

Warm greetings. Your long and thoughtful letter of 1 December 2005, reporting the activities of the ACLU of Michigan, is in hand. Thank you for writing. And thank you for your continuing concern for the liberties and rights of our citizens. I respond to your request and enclose another contribution to the ACLU of Michigan in the amount of $250. The long-honored principles of the American Civil Liberties Union have been my principles for the whole of my adult life.

You will be well aware of efforts to keep the Michigan Civil Rights Initiative off the Michigan ballot. I would have expected the ACLU to oppose those efforts (whatever our views on the substance of the Initiative) because we agree that issues of importance are rightly resolved by the people of the state, when, as in this case, and in full accordance with the law, 455,000 vetted signatures (approximately 135,000 more than were needed) had been delivered to the office of the Secretary of State. I was one of those who personally carried those signature petitions into the offices of the department of elections, in Lansing. I was one of the major contributors to that signature-gathering campaign. I was joined by more than 1,700 volunteers, all across the state of Michigan, who collected those signatures in the conviction that it is plainly wrong, in morals and in law, for the State of Michigan to discriminate, or to give preference, on the basis of race, sex, color, ethnicity, or national origin.

If the American Civil Liberties Union stands for anything I believe it must stand for the equal treatment of persons without regard to their color or their national origin. That the ACLU of Michigan does not now defend this most fundamental principle of justice is matter of continuing and bitter disappointment to me and to many other loyal members.

The Michigan Court of Appeals, as you know, ordered (on 31 October 2005) the Michigan Board of Canvassers to certify the MCRI for the statewide ballot. After having issued that order, explaining with its order that it was the duty of the Board of Canvassers to certify in the light of the correct and fully adequate petitions that had been timely submitted, the Board of Canvassers defied the Court and declined to certify as instructed; in fact, the Board then removed the consideration that matter from its own agenda on 7 December 2005.

A group with which you, Kary, have regrettably associated us, calling itself "By Any Means Necessary" -- a concept about as far removed from the democratic process, and from what we in the ACLU stand for as one can get - joined by another group calling itself "In the Hood Research," seeking to delay certification as much as possible, filed a motion for reconsideration by the Court of Appeals.

They succeeded in delaying the matter for about four hours. Later in the day on the 7th of December the Court of Appeals issued a ruling denying the motion for reconsideration, and granting the Michigan Civil Rights Initiative's Motion for Immediate Effect, and obliging the Board of Canvassers to meet forthwith to certify in accordance with their duty. Certification is not to be delayed by further appeals.

Moreover, the Court of Appeals, on its own motion, issued punitive sanctions -- $500 fines -- against the three "In the Hood Research" plaintiffs, for filing a motion so patently lacking in propriety. The Court of Appeals wrote that its earlier decision, ordering certification of the Michigan Civil Rights Initiative was a matter of clearly settled law, and that "this order simply reaffirms the People's Constitutional right to vote."

It is my earnest hope that, for the sake of our integrity, and our loyalty to the procedural rights of the citizens of our state, that (whatever may be the judgments some of us may reach about the substantive merits of the MCRI) we will, as an organization devoted to fair process above all, formally separate ourselves from "In the Hood Research," and from the very appropriately named "By Any Means Necessary."

I served for many years as a leader of the ACLU in Michigan, and nationally. If we stood for anything then, if we stand for anything still, it is the conviction that objectives, however worthy, may not be advanced "by any means necessary." Am I not right about that? This is a serious question, Kary, and as your loyal member I ask you to respond to it. If I am not right about this it may be time for me, and perhaps many others as well, to reconsider our association with a group that pursues its objectives by any means necessary.

More. I register strong objection to that passage in your letter of December 1 in which you write, "Ward Connerly has succeeded in placing an initiative on the ballot to amend the Michigan Constitution." As a member of the steering committee of the Michigan Civil Rights Initiative I am much offended by this assertion. It is not true; Ward Connerly did not put the MCRI on our ballot. And the insinuation is nasty. Hundreds of thousands of Michigan citizens joined to place the Initiative on the ballot; I was one of those who contributed heavily to support the effort to gather those signatures. We - Jennifer Gratz, Barbara Grutter, and I -- were indeed proud to accept the support of Ward Connerly, along with that of hundreds of thousands of others. That passage in your letter, Kary, is deceptive and unworthy of you.

Your letter includes another statement that is deceptive or false. You write: "This ballot initiative, if passed, will effectively end affirmative action for both women and people of color." Affirmative action means different things to different people, as you know well. There are many important forms of affirmative action that are not preferential and that are not affected in any way by the MCRI; they certainly will not be ended when the Initiative is adopted in November of 2006. If you mean that the MCRI will end race preferences you are right; say that. That is true. But "affirmative action," which had a very honorable origin and (in its early days) an honorable career as part of the long effort to uproot race preferences, is not mentioned in the Initiative and is not at issue in the coming campaign over the MCRI.

We members of the ACLU expect you, as our Executive Director, to behave honorably and to speak forthrightly and without chicanery in debate and in communication with the public. Sharp disagreement among ourselves is not at all uncommon, we know. But sly innuendo is - for us - unacceptable.

In my judgment the ACLU of Michigan is deeply wrong to defend race preferences. We are disloyal to our own deepest principles when we do so. I may be in error about this. But if you believe that it is right to defend race preferences, say that forthrightly and give your reasons. That view will almost certainly be rejected by Michigan citizens, but at least you will then retain your good repute, and not besmirch that of the ACLU.

Receive my personal good wishes, please. You have a permanent standing invitation to come to Ann Arbor as my guest, where the two of us can discuss these matters privately in full detail. I will gladly take you to the best meal Ann Arbor can provide!

And if you would be willing to have that discussion between us in public, as a debate here in Ann Arbor, that would be splendid. You have only to express that wish and we will find a venue for a well-publicized forum in Ann Arbor on the Michigan Civil Rights Initiative - just the two of us on the two sides of the matter. We will argue the substance of the matter civilly and courteously, without accusations of fraud or racism, as is our proud tradition. Such a debate will be very well attended, I am certain. It may be, however, that the public defense of race preference by the American Civil Liberties Union is a humiliation you will wish to avoid. I will await your forthright response on this matter also.

Finally, I ask you to convey my sincere good wishes to the members of the State Board of the ACLU, on which I served for so many years, and I ask specifically that you distribute copies of this letter to each of the members of the Board.

Respectfully and very cordially yours.

Carl Cohen

[ACLU statement against MCRI and for affirmative action is here. ]



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