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Michigan Civil Rights Initiative Passes Easily:

The Michigan Civil Right Initiative, banning race and sex preferences in higher education and government contracting, passed easily, with 58% of the vote:

Mary Sue Coleman, president of the university [of Michigan]issued the following statement Tuesday night — before final results were in: "We defended affirmative action all the way to the Supreme Court because diversity is essential to our mission as educators. We must keep the doors of opportunity open to all. Regardless of what happens with Proposal 2, the University of Michigan will remain fully and completely committed to diversity. I am determined to do whatever it takes to sustain our excellence by recruiting and retaining a diverse community of students, faculty and staff."

One thing obviously missing from President Coleman's statement is a commitment to obey the law. Hopefully, she will make it clear that future diversity efforts will be pursued in accordance with Michigan law. To his credit, Dean Evan Caminker of the law school made it clear many months ago that the law school intends to obey the law:

Caminker said the Law School would not break the law if it passes in Michigan. "What is clear is that if a school is disabled by state law from taking race into account, it is disabled from taking race into account, period," Caminker said.

I tend to think that measures like the MCRI are too heavy-handed, but I have no doubt that state officials are under an obligation to abide by them.

ksd:
Good for my home state of Michigan. Shame on my alma mater.
11.8.2006 9:12am
Spaceman (mail):
The voters of Michigan have screwed their own law school. We will now admit lesser qualified whites, who will be less employable than the minorities who were here. And we will have virtually zero minority representation in class and outside class. Awesome, isn't it?

How much of the vote do you think can be explained by simple, plain, good ol' racism? You know--the "I hate black people" kind? I doubt prop 2 would've have passed without it. Puts the law on morally deficient ground if you ask me.
11.8.2006 9:24am
Ron Hardin (mail) (www):
"What is clear is that if a school is disabled by state law from taking race into account, it is disabled from taking race into account, period," Caminker said.

The word he couldn't find was ``prohibitited.''
11.8.2006 9:31am
ksd:
Huh? How does a law that prohibits racial preferences require the admission of "lesser qualified whites, who will be less employable"? I'm not following you.
11.8.2006 9:32am
Virginia:
How much of the vote do you think can be explained by simple, plain, good ol' racism?

Given Kwame Kilpatrick's George Wallace impersonation, I'm inclined to think that a significant percentage of the anti-MCRI vote can be explained by simple, plain ol' racism against whites and asians. Fortunately, 58% of Michiganders are more tolerant and enlightened.
11.8.2006 9:38am
Spaceman (mail):
Lesser qualified than the whites currently enrolled. Presumably, this new group will underperform the current group of whites, and will be less desirable to employers.
11.8.2006 9:40am
Oren Elrad (mail):
Somehow I'm confident that they will be clever enough to find proxy variables to use as a stand-in for race . To remedy this, I suggest that in 2008, we pass a law forbidding UofM from expressing preference for any variable that has a correlation of better than one half with race or sex (e.g. x is forbidden if Cov[x,race]/(sigma_x*sigma_race) > 1/2)

That'll learn em!
11.8.2006 9:49am
poster child (mail):
As Scalia pointed out, if they want a more diverse class at UM law school, all they have to do is lower the overall academic standards until they can admit a diverse class without giving minority applicants special treatment.
11.8.2006 9:56am
Houston Lawyer:
So Michigan will now be under the same constraints as the California schools. It will be interesting to see how the demographics of the classes change.

Qualified minorities will continue to be admitted. Those not qualified to go to Michigan will have to go to Harvard or Yale instead.
11.8.2006 10:11am
ksd:
Spaceman's comments assume a correlation between admissions standards and the "employability" of graduates. I don't believe any such correlation has ever been shown. In any case, the data I've seen suggests that Michigan law grads, regardless of race, aren't having trouble finding employment. I doubt that eliminating racial preferences in the admissions process would change that, and I'm certainly not aware of any evidence that suggests eliminating racial preferences in law school admissions is correlated with declines in employment among graduates. Even if that is the case, however, does it justify the use of such preferences?
11.8.2006 10:26am
Hans Gruber:
"Huh? How does a law that prohibits racial preferences require the admission of "lesser qualified whites, who will be less employable"? I'm not following you."

If the law school doesn't institute a socio-economic AA stand-in, then the decline in quality of the student body would be infinitesmal.

However, what will probably happen is that a new race blind AA based on socio-economic standing will take its place. To get anywhere near the "critical mass" of minorities, the university would have to lower standards for a greater proportion of students.

Simply put: A university prohibited from practicing racial AA can buy "diversity" by admitting underqualified non-URMS under a socio-economic program.
11.8.2006 10:35am
UMICH LAW:
David,

Posted below is Dean Caminker's statement e-mailed this morning to the law school. Perhaps you should update your post to read:

"One thing obviously missing from [both] President Coleman[ and Dean Caminker's statements] is a are commitment[s] to obey the law. Hopefully, she they will make it clear that future diversity efforts will be pursued in accordance with Michigan law. To his credit, Dean Evan Caminker of the law school made it clear many months ago that the law school intends to obey the law: "

——-

As many of you know by now, Michigan's ballot proposal 06-2, also known as the Michigan Civil Rights Initiative, has been approved by the electorate and will become law with an effective date likely in mid-December. This proposal amends the state constitution to prohibit affirmative action programs that give preferential treatment to individuals or groups based on race, gender, color, ethnicity, or national origin in the realms of public education, employment, and contracting.

For quite some time, the University of Michigan Law School has embraced a deep institutional commitment to diversity. As one of many aspects of the diversity we value, our admissions policy has long taken race into account to some degree, and this policy was upheld against legal challenge by the United States Supreme Court in Grutter v. Bollinger. The merit of our goal of diversity has consistently been validated in terms of the performance of our students in class; their recruitment by prestigious law firms, corporations, and governmental agencies; and their ultimate success in the legal profession or their chosen careers. In our institutional view, and as affirmed by the Supreme Court in Grutter, racial diversification of our student body (along with diversification along other lines) improves the quality of the educational experience at the Law School, inside class and out; enables integration of the leadership of the bar, the bench, government, and the corporate sector; clearly demonstrates to our own citizens and the world that the pathways to leadership are transparent and accessible to the suitably gifted and committed; and allows us to graduate a diverse group of superbly prepared professionals who will serve an increasingly diverse nation and world. Consistent with these goals, every student admitted to Michigan Law deserves to be here -- and our track record clearly demonstrates this fact.

Proposal 2 will likely require the Law School to modify some of its specific admissions policies and practices, and options will be considered carefully over the next few weeks and beyond. But Michigan Law remains committed to its longstanding goal of admitting and matriculating an absolutely outstanding student body that is brilliant, energetic, multi-talented, and diverse along a wide variety of dimensions, including race. And while what we might do is as yet undetermined, I'm confident that how we respond will follow the proud and equally longstanding tradition at this Law School of addressing important and potentially controversial issues in a civil and collegial manner.
11.8.2006 10:40am
Hans Gruber:
"Lesser qualified than the whites currently enrolled. Presumably, this new group will underperform the current group of whites, and will be less desirable to employers."

The whites and asians that didn't get in because of racial preferences are applicants that are only marginally less qualified. I doubt there would be a statisically significant difference in "employability" between students at the present median.

That's all in theory though, the university is likely to institute a new program and buy its coveted racial "diversity" by admitting under-qualified non-URMS (see my previous post).

On a separate note, I would like to know why Bernstein considers actual equality "heavy-handed."
11.8.2006 10:49am
Gabriel Malor (mail):
Hans Gruber, Michigan schools (and all schools applying racial AA) should welcome the chance to apply color-blind socio-economic affirmative action. If AA is really about helping the disadvantaged, it'll be nice to see AA proponents actually focus on the disadvantaged and not some racist proxy for it.
11.8.2006 11:00am
Andy Freeman (mail):
> Lesser qualified than the whites currently enrolled. Presumably, this new group will underperform the current group of whites, and will be less desirable to employers.

But, they're more qualified than the current AA admits. Under the same presumption, they'll outperform said AA admits and be more desirable to employers.

In short, this will improve the quality of Michigan graduates. Why is that a bad thing?
11.8.2006 11:09am
Observer (mail):
Long before there was such a thing as affirmative action, the University of Michigan Law School admitted Amalya Kearse and Harry Edwards. Each graduated near the top of his or her class and went on to become highly regarded judges on the US Court of Appeals (Kearse on the Second Circuit and Edwards on the DC Circuit). Both are black, a fact that played no, as in zero, role in their admission to Michigan and their subsequent success their.

Alas, many of the black students admitted to Michigan since then with the aid of affirmative action have not done so well.
11.8.2006 11:23am
Stu (mail):
I felt both satisfaction and relief from last night's vote.

It was only a few years ago that my kids were frustrated by UMich's admissions policies. The school had just been sued and we read in the newspaper about how the point system automatically gave certain kids an advantage, unrelated to merit, over my kids.

Both my kids were Michigan residents and honors students from a private high school. Both were wait-listed and then denied admission the first time around, but transferred (after freshman years elsewhere) to UMich. Both graduated magna from UMich. Neither had to struggle as hard as most UMich classmates to get good grades. I have no doubt they would have been admitted the first time but for an admission system that gave more points for a person's race than for grades or SAT scores.
11.8.2006 11:31am
Hans Gruber:
Malor,

I have no strong feelings about the use of socio-economic standing in admissions, though I would tend to disfavor it. Suffice to say that universities will not "embrace" it in concept but merely utilize it as a means to acheive the so-called "critical mass" of minority students. If the California example is followed, race will remain a factor, though a less prominent and unofficial one.
11.8.2006 11:40am
Hans Gruber:
"But, they're more qualified than the current AA admits. Under the same presumption, they'll outperform said AA admits and be more desirable to employers."

Unfortunately law firms still discriminate on the basis of race, so academic performance does not equate to "employability." He may be correct. A white student in, say, the bottom quarter may have fewer job prospects than a minority student in the bottom 10 percent.

"In short, this will improve the quality of Michigan graduates. Why is that a bad thing?"

Well, removing race as an official qualification for admission is a step forward; but if the initiative is followed by a socio-economic program that seeks to accomplish the same result, then the quality of the student body may suffer (see my previous post).
11.8.2006 11:53am
wm13:
There's a bit of an empirical falsity implicit in some of the comments above. It is not the case that class-based affirmative action (or a preference for economically disadvantaged students, or whatever you want to call it) will produce a racially diverse student body. In fact, as I recall, whites from families with incomes of $20,000 have higher SAT scores than blacks from families with incomes of $70,000.

Since the faculty at Michigan and elsewhere badly wants a goodly number of black students admitted, and since they are smart people, I am sure they will find a way, but class-based affirmative action isn't it. Possibly, a la Texas, a regional diversity program, such as the Ivies used to employ to keep Jewish percentages down.
11.8.2006 11:59am
Mark Field (mail):

Spaceman's comments assume a correlation between admissions standards and the "employability" of graduates. I don't believe any such correlation has ever been shown. In any case, the data I've seen suggests that Michigan law grads, regardless of race, aren't having trouble finding employment.


This raises two issues:

1. If the Michigan admissions criteria don't correlate to jobs, that suggests pretty strongly that the admissions criteria need to be re-evaluated. That means ALL the criteria -- LSAT, grades, and "priorities" alike.

2. If employers -- i.e., the market for MI "products" -- are nevertheless satisfied with MI grads under the current system, it's pretty hard to justify any urgent need to change it.

3. Doesn't 2 contradict 1?
11.8.2006 12:11pm
Hans Gruber:
WM13,

I think you are probably correct if the formula was rigid and keeping with the spirit of the initiative. But all they need to do is admit enough disadvantaged whites and asians as to create a plausible claim the result is achieved by race-neutral means.
11.8.2006 12:12pm
Constantin:
Yes, Michigan universities will find a way around this. That way will be that they will simply ignore it. There's been a creepy, facist undertone to the entire anti-MCRI campaign to the effect that "the law is what I say it is." Some groups lobbied minority election workers not to print the proposal on ballots so it couldn't be voted on, when they weren't overturning tables at opposition rallies. Not a legal challenge, mind you, but a simple appeal to and by force.

We're ten years out from a similar measure in California and there still are lawsuits being filed to get local governments to recognize the law. From the pathetic George Wallace-esque comments of the University of Michigan's president and law school dean, we can expect the same from Michigan.
11.8.2006 12:17pm
Spaceman (mail):
"But, they're more qualified than the current AA admits. Under the same presumption, they'll outperform said AA admits and be more desirable to employers."

If blacks perform worse in the class, the few extra whites who are now accepted will (on average) fill these lower spots. An employer may not be willing to hire them. The difference being that the employer would have been willing to hire the black who was displaced.
11.8.2006 12:19pm
John Rosenberg (mail) (www):
I have a problem with Dean Carminker's statement, and a very similar statement issued today by UM president Mary Sue Coleman, vowing that Michigan will develop new means to maintain "diversity" despite the newly passed constitutional ban on racial preference. As I've just discussed here,
But wait a minute. Grutter already required schools to do that! "Narrow tailoring," Justice O'Connor wrote for the Court, requires "serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks."

If President Coleman and Dean Carminker succeed now in finding such alternatives, they obviously didn't look very hard, or exercise the required "good faith consideration," before being forced to do so by the citizens of Michigan.
11.8.2006 12:41pm
anon252 (mail):
I saw Dean Caminker (before he was dean) speak about the Michigan litigation several years ago. He stated that Michigan had looked into every possible alternative to race preferences, and none of them would result in a significant number of minority matriculants. I believed him then (at least in the sense that none of the alternatives would work)), but this means that if Michigan Law manages to matriculate a significant number of minority students in the future with a general change in its admissions standards, it will likely be "cheating."
11.8.2006 12:59pm
Richard Aubrey (mail):
Spaceman. The blacks admitted under AA (extra points for race) are, net of the extra bennies, less well qualified than the folks whose slots they got. That's why they have to have the extra considerations thrown in. It's a pretend-they're-qualified thing done by adding points which have no connection with preparation.
The raw admissions scores show this particular cohort of blacks behind whites. That's why they need the help. The reverse is that, in real terms, the whites they replaced are better prepared. If that were not the case, there would be no need for AA.
11.8.2006 1:48pm
whit:
Not just that, but the "dirty little secret" of RACIAL PREFERENCES is that it disproportionately (in CA) hurt asians FAR more than whites before it was outlawed.

the proponents of Rac. Pref's liked to frame it as a way to keep "privileged white males" from dominating the UC system.

However, the stats showed the most "overrepresented" group in Cali was asians. iow, far greater %age of the class at top tier UC schools was asian, than their representation in the greater population.

that was left out, because it's hard to argue that first and second generation asian immigrants are the "privileged". otoh, they are clearly the "work hardest and deserve college" class.

Asians were hurt most by racial preferences in Cali (had to score much higher than whites or blacks to get in).

The 'diversity' people rarely mentioned that.
11.8.2006 2:07pm
StevenK:
"I tend to think that measures like the MCRI are too heavy-handed."

Is it the law that's too heavy-handed, or the manner of making it law? If it's the former, there's not much to be said. If it's the latter, I don't see any other realistic way of it being done. In fact, this is a perfect example of why we have referenda--when there's an institutional situation that prevents a law from being passed even though it's highly popular.
11.8.2006 2:08pm
William Van Alstyne (mail):
In joining California and Washington, Michigan has simply embraced an admirable principle that forbids agencies of government, including our public universities, from engaging in racial discrimination. The resolve that our government (including our universities) may not brand us by "race," stereotype us by "race," divide us by "race" (and, indeed, presume to tell us which racial queue is "ours" and which racial queue is "theirs")deserves one's wholehearted embrace, an unreserved commitment we make to one another, as much so as anything else we can do for each other in this limited life. All of the shifting apologia offered by the tinkerers of racial regimes cannot escape the essential vice of their programs, even as many of them they know it to be.
Other commentators have expressed skepticism that the University of Michigan will abide by the electoral outcome in good faith. There is no doubt considerable reason for their skepticism, but may we not also hope that they are wrong? Surely, we may....
Wm. Van Alstyne.
11.8.2006 2:34pm
Jim Rhoads (mail):
It is interesting that the language of MCRI is stunningly similar to the language of Title VII of the Civil Rights Act of 1964.

MCRI provides:

1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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.

(2) The state shall 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.

Title VII prohibits, among other things, employers from taking adverse actions against individual employees "because of such individual's race, color, religion, sex, or national origin".

Hard to understand what all the fuss is about.
11.8.2006 5:49pm
Federal Dog:
"I tend to think that measures like the MCRI are too heavy-handed."


Why would prohibiting state preferences based solely on race or gender be "too heavy-handed?" I guess it all depends on how seriously you take the 14th Amendment.
11.8.2006 5:50pm
jgshapiro (mail):
Caminker says:

In our institutional view, and as affirmed by the Supreme Court in Grutter, racial diversification of our student body (along with diversification along other lines) improves the quality of the educational experience at the Law School, inside class and out; enables integration of the leadership of the bar, the bench, government, and the corporate sector; clearly demonstrates to our own citizens and the world that the pathways to leadership are transparent and accessible to the suitably gifted and committed . . .

What does "suitably gifted" mean? If the applicant is qualified on a race-blind basis, under MCRI,he or she will get in regardless of their race. If not, they won't. 'Suitably gifted' sounds like a euphamism for someone who is minimally qualified but demonstrably less impressive than a competing applicant.

In any event, the voters rejected their view, in favor of a view where equality of admission criteria trumps diversity. Since the Supreme Court has never required AA (or diversity), but only equal opportunity, how is Grutter relevant?

For more in the same vein, see here for comments by Coleman today in which she seems to be negotiating the first stage of grief (denial) by repeatedly using the word "diversity" in place of actual argument.
11.8.2006 6:26pm
jgshapiro (mail):
Jim:

The intentions imputed to MCRI by its opponents (not to mention the doomsday scenarios) seem to have overtaken its actual langauge.

Back in the 70's. if you asked people whether they agreed with the statement "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex," most people would say yes. But when you asked them if they supported the ERA (where that language came from - verbatim), the numbers went down significantly.

The same is true with the MCRI. If you ask people whether they agree with the language in the MCRI (which you quoted), they say yes. But when you ask them if they support the MCRI, the numbers go down (though fortunately, not below 50% yesterday).

I suppose the explanation is that the campaigning behind the "No on 2" side was misleading enough that people who said yes to the language and no to the initiative forgot about what the initiative actually said. But is is disturbing nonetheless. Those numbers should not be significantly different - and the only difference should be from those who don't know what the MCRI says.
11.8.2006 6:36pm
Jim Rhoads (mail):
jg:

I think you are right. Interestingly, the whole argument relating to affirmative action has become so emotional that rhetoric has outstripped the original intent and meaning of the practice.

Affirmative Action originally was instituted before the CRA of 1964 by Executive Order and was required of government contractors in the early sixties:


....The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. -- Executive Order 10925


Then in 1965, right after the CRA was passed, Executive Order 11246 added the requirement that government contractors keep:

such information as to the practices, policies, programs, and employment policies, programs, and employment statistics of the contractor and each subcontractor . . . "


From this modest beginning, over forty years practice and bureaucratic pushing has produced the intricate ballet known as "diversity".

It has gone far beyond its "original intent".
11.8.2006 7:35pm
Hans Gruber:
"Back in the 70's. if you asked people whether they agreed with the statement "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex," most people would say yes. But when you asked them if they supported the ERA (where that language came from - verbatim), the numbers went down significantly."

The failure of ERA came down to not trusting courts to interpret it within its original meaning. It could be interpreted to eliminate the exclusion of women from the draft, something most people don't want. One interesting textual objection to ERA was that it would give an in to legalizing same-sex marriage. That was considered ridiculous fear-mongering by ERA supporters, but Hawaii, which adopted its own ERA (word for word, I believe), had their Supreme Court rule precisely that!
11.9.2006 12:35am
Bruce Hayden (mail) (www):
re: ERA

One of the reasons that I did support the ERA was the draft - that it would be harder to justify treating men and women different in that respect. When my generation was being drafted for Vietnam, I never did understand why women should be exempt. After all, there were plenty of things that they could do instead of crawling through rice paddys.
11.9.2006 5:29pm