Retreat on Affirmative Action?
From
Inside Higher Education Nov. 28, 2006
by
Scott Jaschik

The morning after Michigan voters approved a measure to bar affirmative action in public colleges and universities, University of Michigan officials refused to talk about how the university might carry out the ban. Instead, at a speech that afternoon on the Ann Arbor campus, President Mary Sue Coleman said that the university was seriously considering going to court to block Proposition 2, as the measure is known.

“I believe there are serious questions as to whether this initiative is lawful, particularly as it pertains to higher education,” Coleman said. “I have asked our attorneys for their full and undivided support in defending diversity at the University of Michigan. I will immediately begin exploring legal action concerning this initiative.” Coleman’s speech drew praise from minority students and many educators who support affirmative action. It was also harshly attacked by many others in the state, who said it was wrong for a public university to try to defy the 58 percent of the state’s voters who had expressed their opposition to affirmative action.

A few weeks later, with the clock ticking toward the December 22 date when Proposition 2 takes effect, the university is taking a very different line. No lawsuits have been filed, and the university now is talking about carrying out the measure. In an e-mail message to students and faculty members last week, Coleman invited ideas on how to promote diversity within the new constraints of Proposition 2.

Officially, the university says that nothing has changed. In her speech right after the vote, Coleman said that the university would not violate state law, and in her more recent e-mail, she said that the university is continuing to explore its legal options.

But both critics and defenders of affirmative action see a significant shift, in that the university that once wouldn’t talk about carrying out Proposition 2 is now doing just that.

“That [post-election] speech was clearly just for posturing,” said Sharon L. Browne, a lawyer for the Pacific Legal Foundation, which opposes affirmative action and has pledged to defend any legal challenge the university brings.

Agreeing with the Pacific Legal Foundation that the university has changed its stance is a group that pretty much never agrees with the Pacific Legal Foundation: the By Any Means Necessary Coalition to Defend Affirmative Action. “What the university is doing now is really lame. Coleman gave a good speech, but now they aren’t doing anything,” said Donna Stern, a spokeswoman for the group, which has filed its own suit to block Proposition 2. “What they are now saying is completely inadequate.”

Julie Peterson, a spokeswoman for Michigan, said that the university’s critics are misreading what is going on, and that the new effort to come up with ideas for carrying out Proposition 2 is “not instead of, but parallel to” any possible legal action. “Our commitment to diversity is as strong as ever,” she said.

Even though Proposition 2 applied to all public colleges in the state, the University of Michigan’s handling of the issue remains key. Because the university’s admissions are by far the most competitive in the state and because of the university’s role in defending affirmative action from previous legal challenges, its stance is attracting more attention that that of any other university.

At the crux of the debate is whether the university has good legal options to oppose Proposition 2. The Michigan Civil Rights Initiative, as the measure is formally known, faced a series of legal challenges before it ended up on the November ballot. The most serious challenges came from groups charging that citizens were deceived about the measure and signed the petitions to place it on the ballot without understanding what they were doing. In the end, those criticisms were set aside and the measure was placed on the ballot.

A decade ago, when California voters approved a similar measure, it was challenged in federal court, but those challenges were turned back and the affirmative action ban remained in place. As a result of that experience, some legal experts — including some who back affirmative action and supported the university’s successful defense of affirmative action before the U.S. Supreme Court — questioned privately whether a legal challenge could succeed. At the point that Coleman raised the possibility of a suit, she did not detail the grounds, and she has not done so since.

By Any Means Necessary argues that the university could preserve its admissions policies if it argued that any system without affirmative action would yield immediate discrimination against black and some other minority students. This would require the university to shift from an argument based on the educational value of diversity (an argument that the U.S. Supreme Court accepted) to an argument “based on equality,” Stern said.

“The university hasn’t been arguing that black students are intellectually equal. It was saying ‘we need to let some black students in for diversity,’ ” said Stern. “The university will not admit that standardized tests that it uses are biased. Every admissions officer in the country knows that they are biased,” she added.

As to the argument that the university shouldn’t legally challenge a measure approved by such a large share of the voters, Stern attributed the 58 percent margin to “white men voting to preserve white privilege” and said “if it had been left to the electorate in Alabama and Missisippi on whether to eliminate Jim Crow, we woudn’t have eliminated Jim Crow.”

Browne of the Pacific Legal Foundation scoffed at the idea that any legal challenge would get very far. Proposition 2 is “the mirror image” of California’s measure, Browne said. She noted that the University of Michigan’s win at the Supreme Court in 2003 did not require affirmative action, but said that colleges could decide to use it. Since there is no federal obligation, she said, states are free “to provide more protection” against the use of any racial distinctions, should states want to do so.

Coleman’s communication to her campus last week was toned down considerably from her earlier comments on the legal picture. A university statement said that Michigan might seek “clarification from the courts on how to interpret the impact of the amendment on U-M’s core operations” and that the next legal steps have not been determined.

The emphasis of Coleman’s message was that there are many ways to promote diversity, regardless of Proposition 2, and that the university’s commitment to diversity need not be diminished. She invited people to submit any reasonable idea — rough or detailed, predictable or unconventional. She predicted that the institution would find ways to make Michigan a place that “reflects the richness of the world.”

Aside from a broad challenge to Proposition 2, the university has also talked about seeking a stay of some sort, so that the admissions cycle taking place during this academic year could be consistent. Michigan uses a rolling admissions system, so not only will the university be reviewing applications before and after Proposition 2 takes effect, but it will be admitting or rejecting applicants before and after. In her post-election speech, Coleman said: “We believe we have the right, indeed the obligation, to complete this process using our existing policies. It would be unfair and wrong for us to review students’ applications using two sets of criteria, and we will ask the courts to affirm that we may finish this process using the policies we currently have in place.”

Peterson, the spokeswoman, confirmed that some admissions decisions have already gone out, and said she couldn’t say what would change on December 22, pending the outcome of any legal decisions the university makes.

Browne said that the Pacific Legal Foundation would oppose not only a broad challenge to Proposition 2, but any request for a delay, even to keep this year’s admissions cycle. “There’s no reason why, in 45 days, the university couldn’t have implemented a new admissions system,” she said.

As for the fairness of admitting some students under one system and others under another, for the same year, Browne said: “Being admitted based on your qualifications without regard to race seems to be a very fair admissions policy.”