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University of Michigan to Sue to Overturn MCRI Preferences Ban:

Detroit Free Press:

University of Michigan President Mary Sue Coleman says the school will explore its legal options after the state's voters approved a ban on affirmative action programs that offer preferences to women and minorities. Coleman says she has questions as to whether the ban is lawful, particularly as it pertains to higher education. She said this morning she will ask the courts to allow U-M to keep using its admission system for now until the question is decided.

The chances that the university would ultimately win such litigation approach zero. Any argument that UM could make that it's unconstitutional to ban affirmative action preferences in higher education (e.g., academic freedom) would also mean that it would be unconstitutional to ban discrimination more generally in higher education, and no court is going to accept such an argument. But with clever forum shopping, the implementation of the MCRI can be delayed.

Thanks to reader Hans Bader for the link.

UPDATE: President Coleman, in the midst of lengthy remarks expressing her dedication to "diversity," added, "Of course the University of Michigan will comply with the laws of the state." Her devotion to a cause she believes just is admirable, but I think it would have been appropriate for her to recognize, even if briefly, that out of a student body of 40,000, and an alumni body of hundred thousands, there are many thousands of people of good will who disagree. The actual remarks, however, suggest that the only good member of the Michigan community is someone who supports "diversity" policies.

Related Posts (on one page):

  1. BAMN Files a Lawsuit Against the MCRI
  2. University of Michigan to Sue to Overturn MCRI Preferences Ban:
  3. Michigan Civil Rights Initiative Passes Easily:
anonVCfan:
Hey, if she gets her case in front of the right judge in Michigan, she can just argue that banning affirmative action entrenches "hereditary kings."
11.8.2006 2:33pm
MnZ (mail):
Ms. Colman could also just take the University private. Oh wait...UM would have to forgo that state tax money. Can't do that!
11.8.2006 2:40pm
Hans Bader (mail):
Even the Ninth Circuit, the most liberal federal appeals court, held that it was perfectly constitutional for voters to ban affirmative action in a ballot initiative. See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).

The fact that the federal Constitution does not itself forbid all racial preferences hardly means that it requires them, or overrides state laws forbidding them.

The Michigan Proposal 2, which the university president is defying, is modeled on the California affirmative action ban upheld by the Ninth Circuit. Indeed, it is word-for-word the same.

If Coleman does challenge Proposal 2, such a challenge will be baseless, and the courts should consider sanctioning her under Rule 11 and awarding attorneys fees to the other side under 42 USC 1988.
11.8.2006 2:40pm
j..:
Shouldn't, you know, people wait to find out the actual legal argument advanced prior to arguing that something is baseless?
11.8.2006 2:52pm
Daniel Chapman (mail):
Maybe before the laughter starts, but I think shock and disbelief are appropriate first reactions.
11.8.2006 2:56pm
MnZ (mail):
Shouldn't, you know, people wait to find out the actual legal argument advanced prior to arguing that something is baseless?


I don't think people are saying that it is baseless...just impossible to win legally.

The only arguments that I can think of off-hand range from laughable (e.g., bans on racial preferences are unconstitutional) to dangerous (e.g., UM needs racial preferences to compete with other universities).
11.8.2006 3:00pm
Brian Kennedy (mail):
Why isn't going private the real answer, rather than just an "oh, wait . . ." semi-snark lead in?

1. President Coleman's position, I'm guessing without having closely analyzed it, is probably that of a subordinate state official who disagrees with orders coming down from the chain of command, in this instance from the voters. Probably untenable at the end of the day.

2. The dilemmas posed by affirmative action bite a lot less in BOTH directions for private schools. I can see why residents who belong to groups (whether racial or geographic, such as the U.P.) that are very grossly underrepresented in elite schools can feel badly used if those schools are run (in practice) for the benefit of other groups by their own government. On the other side, I can see why people who cannot get into one of those elite schools only because of their skin color (e.g.) would also feel badly used when it is their own government that is denying them admission. Getting the government out of the business of running elite schools doesn't necessarily solve the entirety of these debates but, whichever policy a private school decides upon, its decision at least lacks the extra gratuitous sting of inflicting injury or perceived injury by one's own government spending one's own tax dollars.

3. As an alum of the U. of M. law school, I'm constantly (well, frequently) told how little the State now contributes to the University's finances. I don't doubt that there would be a substantial hit to the University to going private, but it might still be worth doing if the University's aspirations are indeed now out of step with those of the state government (i.e., voters).
11.8.2006 3:00pm
KeithK (mail):
While going private would get around the AA issue, it's not like the UM president can simply say "let's go private!" The school is a state institution. You'd have to convince the state legislature and I really doubt that they would choose to do so. Particularly since the obvious reason would be to get around a measure that close to 60% of the state voters approved.
11.8.2006 3:05pm
Jiffy:
The Coalition for Economic Equity suit was not based on an argument specially applicable to higher education (e.g., academic freedom) but on application of Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), especially the latter. While very good arguments can be made about the continued viability of those cases (which seem to give a special status to underrepresented minorities) in light of subsequent Supreme Court authority, they are quite difficult to distinguish, and it's arguable that the 9th Circuit did so persuasively. (By the way, although the 9th Circuit is thought to be "liberal" the Coalition for Economic Equity Panel was pretty conservative.) In other words, given existing Supreme Court authority, the argument raised in Coalition was hardly "baseless." It is not clear, however, that UM would have standing to assert the argument put forward in Coalition.

David Bernstein claims that any argument for unconstitutionality of banning affirmative action in higher ed would require a conclusion that it is unconstitutional to ban discrimination in higher ed. Could he explain that? I'm not sure it necessarily follows.
11.8.2006 3:06pm
DavidBernstein (mail):
Jiffy, I take Coleman's statement that banning AA is unconstitutional specifically in universities to suggest that the university will likely be relying on what probably is, after Grutter, its most plausible argument, that the ban interferes with the academic freedom of the faculty to pursue diversity policies that it thinks are academically important. But if academic freedom is absolute in that sense, than a school that wants to discriminate against blacks (or whoever) for "academic" reasons would have the same argument.

I don't think there is any other plausible argument, though I may be missing something, and if there is, it would have to be one that could not just as easily be used by the "other side."
11.8.2006 3:11pm
A.C.:
The trouble with the state university system in Michigan is that it doesn't have the same depth as the system in California. In some subjects, failure to get into UM Ann Arbor doesn't leave you with a second choice that's almost as good, the way the California system has excellent fall-backs for people who can't get into UCLA and Berkeley. (In some it does, and other schools may actually be better for a few subjects, but you get my point.) That makes the stakes higher and the politics nastier than those in California -- I don't think it is an accident that these arguments center on Michigan.

My preferred solution isn't to have affirmative action at UM Ann Arbor, but rather to put more resources into the other schools in the state university system so that they are better options for residents who want to pay in-state tuition but can't quite make the cut at UM. In a world of limited budgets, however, that might mean taking some resources away from UM. Is it any wonder the leadership of that institution balks?
11.8.2006 3:20pm
MnZ (mail):
David,

Isn't the logic against "academic freedom" argument even weaker than that? Many states have laws regulating admissions to their universities. For example, some states mandate "open enrollment" at public universities (e.g., all state residents with a HS diploma are admitted). Many in academia believe that these policies can hurt the quality of the university. If they had "academic freedom," they would adopt stricter admission standards.

Does "academic freedom" mean that states cannot regulate the admission policies of their own public unversities?
11.8.2006 3:59pm
J.U. (mail):
Saying that something is unlawful does not necessarily mean the same thing as unconstitutional under the U.S. Constitution.
11.8.2006 3:59pm
ksd:
A.C., you're sure looking for a fight aren't you? I'm sure there are many grads of other Michigan public colleges that will take exception with your thesis that none of them are comparable in quality to the Big Blue. Michigan has LOTS of public colleges and universities, and ours a lot of money into them. Off the top of my head, I can think of the following: Michigan State, Northern, Eastern, Western, Central, Tech, Lake State, Wayne State, Ferris State and Grand Valley State. While MSU may not have the reputation of Michigan, or of Berkeley or UCLA, I highly doubt it suffers in comparison to the "second tier" schools in California, and is almost certainly superior to many of the "best" public schools in the majority of other states. I don't know where you're from, but as someone who grew up in Michigan and lives in the midwest now, I can tell you that I have a vague idea that Berkeley is supposed to be "very good", I know UCLA as a sports brand only with no perception of quality, and I know absolutely nothing about other California state schools. If someone tells me they went to Chico State, or UCSD, or wherever, they might as well say they went to Northwest Central Podunk Techical College. My perception of quality will be the same.

And what makes the UM so attractive? It's the reputation and accompanying prestige. Michigan is a top 3 public university (with UVa and Berkeley) in every ranking I've ever seen. It's almost certainly top 20 and perhaps top 10 overall for undergraduate education, and is top 5-10 in many graduate fields.

Think about those numbers for a minute. There are 50 states in the union. If the state of Michigan was to put "more resources" into other state universities to make them "close seconds" to the University of Michigan, does that mean that the second best Michigan university would have to be ranked 4th in undergrad education among public universities? 5th? 10th? 25? What would be a "close second"? What, exactly, would you do to get it there? No matter how you slice it, second best is always second best.

Finally, what makes you think that pouring "more resources" into other schools would make them much more attractive than they are now? Is there any suggestion that they are underfunded in comparison to UM? I don't think so. In fact, I seem to recall seeing data suggesting that Michigan gets much lower $ per student than any other Michigan public university.

In the interest of full disclosure, I am a Michigan alum. Twice (undergrad and law school). I do not believe, however, that the University of Michigan is inherently "better" as an educational institution than MSU or other Michigan public colleges. Michigan is a great brand name with a pretty good football team. The brand name on my diplomas certainly opens some doors that "Wayne State University" may not. But the quality of the education was no better, and in some ways was probably worse.
11.8.2006 4:00pm
Tom952 (mail):
Stupid democracy.
11.8.2006 4:01pm
Brownie:
Brian Kennedy: It would probably be pretty easy to find real numbers for the amount of support the state gives the university, but I'm not sure where to look.

It was my understanding that they still give a decent amount of support. That is evidenced, I think, in the fact that out-of-state tuition is roughly twice what in-state tuition is for the undergraduate colleges.

On the other hand, I think that the law school receives barely any support at all. I have heard some talk of the law school alone going private, apart from the rest of the university (though I don't remember if those were rumors or just suggestions). Out-of-state tuition and in-state tuition for the law school are almost the same.
11.8.2006 4:09pm
David W Drake (mail):
I agree with KSD (and I also have two UofM degrees). The solution seems to me to be to offer the best and brightest minority high school students from around the U.S. (whom all the top schools are seeking) enough financial aid and an educational experience valuable enough to get them to choose UofM. In other words, use the same tools in recruiting students that the football and basketball programs now use in recruiting student athletes.

Go Blue!!
11.8.2006 4:12pm
wt (www):
The argument is actually quite plausible that a district court, strictly obeying Supreme Court precedent, would have to strike down this law. And Dean Caminker is certainly familiar with the relevant arguments. See Amar and Caminker, EQUAL PROTECTION, UNEQUAL POLITICAL BURDENS, AND THE CCRI, 23 HSTCLQ 1019 (1996).
11.8.2006 4:12pm
KeithK (mail):
wt, could you explain this case/argument? On the face of it I can't see any reason why this initiative could be considered unlawful but I don't have access to the cite (not being a lawyer and all).
11.8.2006 4:20pm
DavidBernstein (mail):
MnZ, I agree the academic freedom argument is inherently weak, but the idea that a public university has academic freedom was nevertheless adopted by Justice Powell in Bakke and Justice O'Connor's majority opinion in Grutter.
11.8.2006 4:27pm
Gabriel Malor (mail):
wt, the CCRI was--subsequent to the Amar and Caminker article--upheld by the 9th Circuit.
11.8.2006 4:35pm
wt (www):
Gabriel --

Right. The argument would presumably hold that the 9th Circuit got it wrong. Nothing impossible about that.
11.8.2006 4:38pm
Jiffy:
David: Although I agree that an academic freedom argument would apply with equal force to laws prohibiting discrimination against minorities and laws prohibiting affirmative action, I don't see that this leads to the conclusion that it would be "unconstitutional to ban discrimination more generally in higher education." Discrimination would have to be justified on educational grounds in the same way that diversity was justified in Bakke and the Michigan cases. Possible, but unlikely. That said, I think the academic freedom argument is a likely loser for the reasons suggested above by MnZ: if such freedom exists, who "owns" it? For a public university, presumably it would be whoever is in charge of making policy for the University--in this case, the voters. Maybe it would work against a federal law banning affirmative action.

Keith K: The argument set out in the Amar and Cammiker article is the same one referred to in my post above. It comes mainly from the Seattle case which invalidated a state referendum prohibiting localities from adopting school "busing" plans (if I recall correctly). The court held that this violated the Equal Protection Clause because it removed an issue of particular importance to minorities to the most remote reaches of state decision-making, creating insurmountable obstacles to their achievement of political goals. For a variety of reasons, it's likely that the Supreme Court would rule differently today, and would perhaps reverse that case. But it's still on the books.
11.8.2006 4:38pm
RMCACE (mail):
I think the academic freedom argument is such a loser you can't even make it.

How about a Romer v. Evans type of argument? There is an argument that it would be unconstitutional to prohibit Affirmative Action protection for minorities.

BTW, this is also a huge loser of an argument.
11.8.2006 4:41pm
dearieme:
Ignorant foreigner enquires: why would a University President object to a law that permits the Uni to admit the brightest students instead of the correctest ones?
11.8.2006 4:42pm
aces:
It would probably be pretty easy to find real numbers for the amount of support the state gives the university, but I'm not sure where to look.

I'm not sure where to look either, but I recall that when Virginia Military Institute was ordered to admit women, the school seriously considered going private as an alternative--seriously enough to run the numbers. By far the single biggest line item (and a stone-cold showstopper) was the requirement to assume the state's pension obligations for all current and former employees. The real estate costs were also huge.

I've no idea what the UM numbers would be, but UM is far bigger than VMI...
11.8.2006 4:49pm
The General:
Having only baseless legal arguments hasn't stopped liberal judges from striking down laws with which they disagree.

Certainly, there is a liberal judge in Michigan who will agree that a law that says 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" actually discriminates against people.
11.8.2006 4:54pm
Jiffy:
Ignorant foreigner: Almost no colleges or universities in the US admit students only on the basis of how "bright" they are. Universities have long recognized that having students with a broad mix of backgrounds, talents, and experiences creates a better educational environment on campus. UM argued before the Supreme Court that racial diversity is one aspect of this, that diversity improves the quality of education for students at the school, and that diversity can be achieved only through affirmative action.

aces, et al: "Going private" is a pipe dream. Michigan voters would likely have to approve. Unlikely that they will allow the University to go private so that it can avoid the affirmative action ban that the voters just supported.
11.8.2006 4:57pm
whit:
everybody is arguing the legal/constitutional analysis side (understandable on a legal blog) and ignoring the political theatre angle.

regardless of if she actually believes, she has a case, she definitely has a CAUSE.

this will put her in good stead with all the little lockstep racial preference supporters at the school. she will be seen as speaking "truth to power", fighting "racism" (how ironic), promoting diversity, etc.

iow, she may be tilting at windmills, but she can be a heroine, or even a martyr by doing it. what does she possibly have to lose? it's not like the will of the people matters. what matters to these people is their narrow ideology, and their ivory towers to look down at the university hordes below them (with the proper racially diverse balance of course).

iow, legal issues aside - of COURSE she will make a statement like this. it puts her on the "right side" and just bolsters her support by the seething university elite and students who support racial preferences aka govt. sponsored racism
11.8.2006 5:02pm
whit:
everybody is arguing the legal/constitutional analysis side (understandable on a legal blog) and ignoring the political theatre angle.

regardless of if she actually believes, she has a case, she definitely has a CAUSE.

this will put her in good stead with all the little lockstep racial preference supporters at the school. she will be seen as speaking "truth to power", fighting "racism" (how ironic), promoting diversity, etc.

iow, she may be tilting at windmills, but she can be a heroine, or even a martyr by doing it. what does she possibly have to lose? it's not like the will of the people matters. what matters to these people is their narrow ideology, and their ivory towers to look down at the university hordes below them (with the proper racially diverse balance of course).

iow, legal issues aside - of COURSE she will make a statement like this. it puts her on the "right side" and just bolsters her support by the seething university elite and students who support racial preferences aka govt. sponsored racism
11.8.2006 5:05pm
Curmudgeon:
Presumably, they will try to attack the procedure that resulted in the amendment. Not familar with MI law, but there a "single subject per bill" rule has worked wonders/horrors in my home state.
11.8.2006 5:15pm
dearieme:
"Universities have long recognized that having students with a broad mix of backgrounds, talents, and experiences creates a better educational environment on campus." I can believe that they say such things but are you asking me to believe that they mean them? They really think that if you recruit the brightest, they are all clones? Do they arrange classes like that? Do maths classes include the innumerate, language classes the tongue-tied, athletics teams the slow and cack-handed? Really?
11.8.2006 5:28pm
A.C.:
ksd -- Oh, what fun! I'm also a UM grad and a former employee of Wayne State, and I've had plenty of friends from other Michigan state schools. I also know that Michigan State has programs that UM doesn't, which makes the overall rankings of the two schools irrelevant for people who want one of those subjects. But I've definitely seen some differences in facilities, instruction, and so forth, and I think that those tend to be starker than they need to be.

Take law if you want. You've got UM at the top and Wayne State in the third tier of the rankings. But California has UC Davis in their system... not all the way up there with Berkeley and UCLA, but still pretty posh. I've read recently that minority enrollment in that school went up when it went down at UC Berkeley, suggesting that minority law students are still getting places at fairly prestigious schools even in the absence of affirmative action in California. There's no UC Davis for law in Michigan, though, and I do think that's a problem in more than just the one subject.

Maybe the lack is inevitable because the state university system is smaller, or maybe it's because Michigan has fewer urban centers than California. But does it HAVE to be that way? Couldn't the state system make an effort to nurture more competitive programs at other schools, the same way the George Mason law school has developed in the Virginia state university system in recent years? I don't see why not.
11.8.2006 5:51pm
David Maquera (mail) (www):
Mary Sue Coleman is just grandstanding to the liberals in Ann Arbor so she doesn't have to walk through picket lines to get to her office if she just remained silent. The obvious and practical way for U of M to continue giving preference to most minorities under MCRI is to simply consider the socio-economic status of an applicant as a factor for admission.
11.8.2006 6:02pm
loki on the run (mail):
Do maths classes include the innumerate, language classes the tongue-tied, athletics teams the slow and cack-handed? Really?

Not at all. What they mean is that some are more equal than others. In addition, in English Departments, an ability to think is not actually required, however good physical skills are always required in those athletics areas that are good money spinners (pretty much always those involving XY individuals which pisses off people from some other departments) whereas in the rest, being an XX individual is pretty much the only requirement.
11.8.2006 6:07pm
ksd:
A.C. -- didn't MSU acquire a law school several years ago? It seems to me that it has indeed been making an effort to build a law program that is competitive with the University of Michigan's, even if it in unwise and unrealistic to attempt to displace Michigan as the premier program in the state.
11.8.2006 6:08pm
ksd:
"The obvious and practical way for U of M to continue giving preference to most minorities under MCRI is to simply consider the socio-economic status of an applicant as a factor for admission."

Is that really true? While it is true that certain minority groups are more highly represented in the lower income brackets, I wonder about the absolute effect of an income or wealth test. I suspect that poor whites, for example, still greatly outnumber poor blacks in Michigan. Therefore, a program designed to favor applicants from poor families is still going to benefit whites more than blacks. Thus, you could put in place a program, for example, that required 25% of new students to be from families with incomes less than $20,000 a year, and find that 90% of the students enrolled that way are from the majority race. What would that accomplish, other than driving up your financial aid burdens?
11.8.2006 6:15pm
Brian Kennedy (mail):
While the process of having U of M go private would undoubtedly be painful, I'm not convinced by the objections that it would not be the least bad result in the long run. It's win-win-win (albeit with some pain getting there).

The leaders who run the University get out from under policies that they strongly believe are misguided.

The people of the State, by allowing the University to go private, shed obligations the State can no longer afford. As KSD explains, U of M is one of the top three public universities in the country AND Michigan also has many other top-flight universities (one of which, in my biased opinion as an undergraduate alum is even better than U of M [Go Spartans!]). Well, with the economic reverses the State has had, Michigan can't afford that existing system (I heard Mary Sue Coleman say something like that within the past year or two) let alone [as A.C. wishes were possible] pour more resources into the state system. If President Coleman was right when she said that Michigan would be unable [perhaps she said unwilling, but for present purposes, it amounts to the same thing] to support its existing institutions of higher education, then the choices are to starve all of them somewhat or to close one or more down. Human nature and inertia being what they are, the likelier choice is to starve them all. But the better choice -- if the State's resources really are strained -- is to shut one or more down. Letting U. of M. go private, in addition to solving the AA problem there, is a twofer because it also lets the State make that better, but otherwise too painful, choice.

It is also a win for the State's other schools [recall bias note supra] because it will free up resources for them.

I don't see this as KeithK does, an "obvious" means of "get[ting] around a measure that close to 60% of the state voters approved." The State can comply either by stopping AA at state-operated schools or by stopping running such schools. Maybe 30% of the electorate would also approve of an initiative to bar private schools from AA [maybe 30% would approve of an initiative requiring AA by private schools for that matter], but not 50%.

It's a proposal for an amicable separation by two parties who no longer see eye to eye. There would be a lot of reasons to be sad to see such a parting. But is California that much better off paying for Berkeley than Massachusetts is not paying for Harvard? Both the State and the University could be better off in the long run by separating even if if there is, as with any divorce, a lot of short-run pain getting there.
11.8.2006 6:42pm
jgshapiro (mail):
Coleman spoke today at UM. The transcript of her remarks is here.

One thing she says is that UM will ask for a stay of the application of the MCRI until the end of the admissions year so that the current class of admittees will not be judged according to different criteria (and so that UM doesn't have to rescind any offers that would not have been made under MCRI).

In the short term, we will seek confirmation from the courts to complete this year's admissions cycle under our current guidelines. 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. This is our first step, but only our first step.

This seems specious to me. The law changed midway through the year. Why should UM get to follow the old law for 6 months so admittees from the same year are treated the same? Is there a federal statute or another state constitutional provision that would trump MCRI and pursuant to which all admittees from the same year must be treated the same? If so, why would the solution be to suspend operation of a state constitutional provision, rather than to rescind some offers of admission?

Not to mention the fact that Coleman knew back in August or September (when applications first came in) that MCRI was on the ballot and might pass. Wouldn't the prudent thing have been to wait to admit AA applicants until after the vote on MCRI?

Her entire speech brings to mind the quip that Denial is not just a river in Egypt . . .
11.8.2006 6:50pm
Houston Lawyer:
All she has to argue is that democracy is illegal if she doesn't like the result. I'm sure that there's a Federal judge somewhere in Michigan who agrees with her. That's the basic holding of Romer v Evans anyway.
11.8.2006 7:02pm
jgshapiro (mail):
Brian:

Why on Earth would Michigan voters want to allow UM to go private? For one thing, it is a valuable state asset. Are you suggesting that UM (or its alumni) could or would buy it from the state? Or that they would simply get it for free in exchange for the state giving up its obligation to support UM (which is an obligation left entirely to the mercy of the state legislature)?

For another, as a state institution, UM is practically, if not legally required to admit far more Michigan residents than if it was a private university. That helps Michigan residents (or their children) get into a better university than they might otherwise get into if UM were private.

On a similar note, the tuition for out-of-state residents is much higher than for in-state residents. So even if the admissions criteria was the same, Michigan residents get a high quality education subsidized by out-of-state folks who don't have a comparable state university to go to and didn't get into a comparable private university. What a great deal for them. You have to factor that into the "cost" of suppoting UM, at least from an individual taxpayer's perspective.

As for Michigan's other schools, the better UM is, the better they are. Applicants who get bounced from UM go to WSU or MSU; applicants who get bounced from WSU or MSU go to NMU, EMU or WMU, etc. A rising tide in quality of education lifts all of the educational boats. If MIchigan has to shut down one of its universities or sell it, it is highly unlikely it would pick the best one to let go.

I think this solution is a complete loser for Michigan residents and voters. It benefits only the administrators and faculty who don't like living under state laws. But not for long: Michigan voters (or its legislature) could easily pass a law just like MCRI that was applicable to private universities, and then they would be in the same place they are now.
11.8.2006 7:07pm
Jim Rhoads (mail):
On the strength of this statement, it might be fun for a current applicant or two to file suit against UM seeking a mandamus in a favorable forum to require her to comply with the Constitution on this go-round in the admission process.

If I were admitted in Michigan instead of Georgia, I would take such a case probono.
11.8.2006 7:59pm
Harry Eagar (mail):
ksd, this is ancient history, but MSU used to think (still thinks?) highly of itself.

When I was in high school, MSU made a great deal of the fact that it enrolled more National Merit Scholars in the class of 1967 than any other school in the country -- 178.

The competition for top students was not, in those days, as fierce as it seems to be these days, but at least outside Michigan, I'd have said that UM and MSU were considered equivalent. Of course, high school students may not be as discriminating as law school applicants.
11.8.2006 8:19pm
KeithK (mail):

I don't see this as KeithK does, an "obvious" means of "get[ting] around a measure that close to 60% of the state voters approved." ... It's a proposal for an amicable separation by two parties who no longer see eye to eye. There would be a lot of reasons to be sad to see such a parting. But is California that much better off paying for Berkeley than Massachusetts is not paying for Harvard? Both the State and the University could be better off in the long run by separating even if if there is, as with any divorce, a lot of short-run pain getting there.

I don't disagree that this would solve the disagreement between the voters and the University. I'm far from convinced that states ought to be running academic institutions like Michigan. But my point wasn't what should happen but what would. My point was simply that the voters of Michigan wouldn't be willing to privatize the school at this point, whether or not you can make a good argument that it would be better in the long run. The arguments that jgshapiro makes would easily beat yours in the court of public opinion.
11.8.2006 8:27pm
PersonFromPorlock:
dearieme:

Ignorant foreigner enquires: why would a University President object to a law that permits the Uni to admit the brightest students instead of the correctest ones?

Bright students are a pain in the arse; mediocre students are much more, um, biddable.
11.8.2006 9:21pm
A different Steve:
I have a question as to the procedure of a suit by Coleman and/or the UofM against the MRCI: How can she as an employee of the state or the University as a state-owned institution sue their employer/owner over a matter of public policy?

Were Michigan a private university, I would support their right to admit or refuse whomever they wanted, wrongheaded as their policy may be. The fact that Michigan is a public university makes me think a claim of "academic freedom" against the taxpayers seems vanishingly weak. Wouldn't that make the faculty of every public university essentially an anarchy?
11.8.2006 9:52pm
Lev:
Maybe someone could help me out on this.

California Prop 209, which "banned affirmative action" in state institutions and government, was almost word for word a repeat of the Civil Rights Act of 1964.

I had read a version of the Michigan initiative that the courts had not allowed to be voted upon, and it tracked both California Prop 209 and the Civil Rights Act of 1964.

1. How does the Michigan initiative that did pass compare to the Civil Rights Act of 1964 and Cal Prop 209?

2. If the Michigan initiative is unlawful and unconstitutional, is the Civil Rights Act of 1964 also unlawful and unconstitutional?
11.8.2006 11:02pm
Jiffy:
Lev:

The key provisions of the Michigan initiative state:


(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.


Although California Prop 209 includes only the latter paragraph, "the state" is defined to include California's public Universities. (I'm not sure why there are separate sections in the Michigan initiative.)

What section of the 64 Civil Rights Act are you refering to for the comparison?

In any event, the arguments for unconstitutionality of the Michigan initiative (see above) wouldn't apply to the Civil Rights Act.
11.9.2006 12:20am
Brian G (mail) (www):
Maybe their attorney can make another brilliant legal argument like, "the students see it as such a positive."

I look forward to watching U of Michigan spend another $13 million and cry poverty just like last time. They're out judge shopping as we speak I'm sure.
11.9.2006 12:43am
Brian G (mail) (www):
I agree with the supporters of the initiative. Blacks, Hispanics, and Native Americans are just too unqualified to get into good colleges without it. Seriously, isn't that what they are really saying? I think if AA went away, it would force the K-12 to actually teach their students. But, because the education unions are all about their unions, they don't want the hassle of actually having to teach their students, because AA closes the gap that they caused.

Plus, if any of us called a U of M student an "affirmative action admittee," we'd be called a racist. AA is shameful to all minorities, and it needs to die. I trust that if you raise the bar for minorities, they will meet it. I am sure I'll be called a racist for that.
11.9.2006 12:55am
Richard Aubrey (mail):
Solving the problem AA is supposed to solve would require revamping whole cultures. See McWhorter "Losing the Race", and others.
That means getting down and dirty doing work which could be sweaty.
K-12 ed has to improve in certain locations. Lots of luck with that one.
Family structure has to be improved.
Crime has to be addressed more successfully.

Seems insurmountable. Better to pretend the real world is, instead, made up of racists and one gets all kinds of self-appointed credit by using AA to cover for society's failures and excuse yourself from doing the tough and necessary work. That could get you sweaty.
11.9.2006 12:10pm
A.C.:
Is the MSU-affiliated law school a state school? I thought it was private. (This isn't odd. Cornell has both public and private components.)

The issue for me is what students in a given state can get at in-state tuition rates. This is likely to be an issue for many minority students and for white students from working class backgrounds, the two groups that seem to be pitted against each other in the state school affirmative action debate. Rich people of all talent levels can afford to go to private schools, so it's less of an issue for them if there is no public university choice at their particular academic level.
11.9.2006 12:41pm
MnZ (mail):
The issue for me is what students in a given state can get at in-state tuition rates. ... Rich people of all talent levels can afford to go to private schools, so it's less of an issue for them if there is no public university choice at their particular academic level.


I would add that rich but "underrepresented" groups can afford to go to private schools as well. As I said above, state governments can regulate admission policies of state universities because those universities were founded and are funded by the state government to serve the public interest. It is possible that admitting wealthy members of an "underrepresented" groups at the expense of poorer "overrepresented" groups might not be in the public interest.
11.9.2006 1:07pm
Elliot123 (mail):
Some folks may want to take the UM private. However, the employees of the unversity don't own it, so there is little they can do. Nor do the students own it, so they too are powerless. The people of the state own it, and they just voted 3 to 2 to get rid of affirmtive action. I doubt those voters agree that dissenting employees have a veto.
11.9.2006 3:59pm
chrismn (mail):
Elliot's comment goes to standing. How can a wholly owned subsidiary of the State of Michigan have standing in trying to overturn a law of the State of Michigan? Can you sue yourself for doing something you don't like?
11.9.2006 4:32pm
Brian Kennedy (mail):
In response to two of my earlier comments about why privatization of U of M might make sense, JGShapiro writes:


UM is practically, if not legally required to admit far more Michigan residents than if it was a private university. That helps Michigan residents (or their children) get into a better university than they might otherwise get into if UM were private.

On a similar note, the tuition for out-of-state residents is much higher than for in-state residents. So even if the admissions criteria was the same, Michigan residents get a high quality education subsidized by out-of-state folks who don't have a comparable state university to go to and didn't get into a comparable private university. What a great deal for them.


As a prediction why privatization might provoke opposition in fact, I don't doubt that. I wasn't trying to predict what Michigan will do, but to suggest some thoughts about why privatization might be what it ought to do. On that point, what JGShapiro says gets fairly close to why I think privatization might make sense here. It is not "Michigan residents" who get a "great deal," easier admission to an elite university at less than the market price. It is a relatively small subset of Michigan residents. If you're a supporter of AA, it is noticeable and resented that without AA that "great deal" in practice goes disproportionately to some racial groups. If you're an opponent, it is noticeable and resented that with AA that great deal is given more readily to some racial groups.

Handing out a "great deal" to a small subset of the population is different from most things governments do. Drivers' privileges, police and fire protection, voting rights, and elementary and secondary education are all widely available; at least in some states, so is non-elite post-secondary education for people able to profit from it. As for government jobs and contracts, States usually don't overpay the market price (at least not by much).

Elite higher education may not be the only sphere in which government has managed to get itself into the business of handing out "great deals" to a very limited and select portion of the population, but it is the most conspicuous and important example of that. Government doesn't need to perform that function, and the problems with AA would be a lot less difficult if it didn't try (for the reasons I tried to set out in my first post).

Other responses to my comments have noted that university stakeholders could not unilaterally take the University private. I agree. It would indeed require a rather broad agreement.
11.9.2006 8:40pm
whit:
"Elliot's comment goes to standing. How can a wholly owned subsidiary of the State of Michigan have standing in trying to overturn a law of the State of Michigan? Can you sue yourself for doing something you don't like?"

they could just do a Gavin Newsom. When california passed an initiative criminalizing gay marriage, he just ignored it, basically declared San Francisco an autonomous zone not subject to state law, or the will of the people and criminally encouraged his subordinates to break the law and carry out gay marriages anyway.
11.9.2006 9:54pm
eddy:
Isn't 'diversity' nothing more than stereotyping in drag?

"Those black folk think differently than us white folks -- let's get one, any one will do, they all think the same."

If 'diversity' was an actual valuable asset, the optimal amounts wouldn't correlate to local demographic proportions. If an auto maker in Detroit needs 5% of its employees to be engineers, could a Tennessee auto maker succeed with a lower percentage that nonetheless "reflects the local population" of engineers?

The fact that institutions determine that the neccesary percentage of 'diversity' required coincidentially matches local demographics, is strong evidence that 'diversity' is nothing but a scam.
11.9.2006 10:24pm
whit:
nice post eddy. not to mention that, considering race is a "social construct", then why would diversity AS MEASURED BY A SOCIAL construct be valuable, if even meaningful?

frankly, i think the idea of FORCED diversity is bad enough, but what it really comes down to is this utopian idea that various institutions should have the same racial, ethnic, and gender breakdowns as society at large. this ignores a host of realities. for example, for police forces to become 50% female would require absurd amounts of social engineering and gender preferences. i have seen some police tests where less than 5% of applicants are female.

some career fields have historically appealed to certain ethnic groups more than others - farming, banking, law enforcement, clergy, etc.

thomas sowell, in his book Ethnic America, shows how certain nationalities have been grouped into certain occupations despite wide geographic dispersion (germans in south america, north america, europe, and africa going into farming, for instance. )

the search for egalitarian results NECESSARILY requires discrimination against individuals (and groups).

why is this good?

it also creates perverse incentives. asians tend to do better in SAT and scholastics in general than whites or blacks. so, without affirmative action, schools in california set HIGHER standards for asian americans, since they were "overrepresented".

that's a perverse incentive. you are saying "you have cultural capital that results in greater success. so, we are going to penalize that greater success by making it harder for you to succeed, while rewarding those with less merit by making it easier for them"

i don't care, for example, if 5% of firefighters are women, or 90%. i care that they are hired based on merit, and more importantly, that they can lift a full grown average weight human being and carry them out of a building.
11.9.2006 11:43pm
Under siege in Detroit:
In response to A.C.'s post:

Is the MSU-affiliated law school a state school? I thought it was private. (This isn't odd. Cornell has both public and private components.)

The issue for me is what students in a given state can get at in-state tuition rates. This is likely to be an issue for many minority students and for white students from working class backgrounds, the two groups that seem to be pitted against each other in the state school affirmative action debate. Rich people of all talent levels can afford to go to private schools, so it's less of an issue for them if there is no public university choice at their particular academic level.

Yes, MSU's law school is private. They were formerly the Detroit College of Law, but MSU essentially bought them out and moved them to Lansing (and built them a shiny new building too!). From what I understand, the law school will eventually be fully incorporated into MSU and become public. But, for now, they're still charging $970/credit hour.
11.10.2006 10:26pm
jgshapiro (mail):
They could just do a Gavin Newsom. When california passed an initiative criminalizing gay marriage, he just ignored it, basically declared San Francisco an autonomous zone not subject to state law, or the will of the people and criminally encouraged his subordinates to break the law and carry out gay marriages anyway.

And when Newsom's actions were taken to court, the state supeme court almost immdiately enjoined him from peforming any more SSM and later voided all of the SSM that preceded the injunction. So, in the end, he accomplished nothing, except politically. The gay community in SF didn't like him before; now they love him.

Coleman will sue, she will lose and the MCRI will be enforced; however, for engaging in the fight, she will earn the loyalty of most of the faculty at UM, and the attention of the regents of whatever private university she intends to go to next. She will waste a lot of money in the effort, but it will help her resume among the folks who pick the next president of, say, Columbia or Princeton.*

*2 of the last 3 UM presidents became president of Columbia and Princeton, respectively, after serving as president of UM.
11.11.2006 12:32pm
jgshapiro (mail):
It is not "Michigan residents" who get a "great deal," easier admission to an elite university at less than the market price. It is a relatively small subset of Michigan residents.

But every Michigan resident knows that his or her children have an equal opportunity at that great deal. As well as the great deal of an education at any of the other public U's in Michigan that get better as UM gets better, while still being cheaper for Michigan residents. There are only 36K students at UM at any given time, but there are many times more than that at other public U's in Michigan. When UM gets better, they get better, because the students who cannot get into UM fall to the next tier, and so on.

AA means that anyone who is not black or hispanic does not have an equal opportunity at that great deal, since increasing the odds of admission for any group results in decreasing the odds of admission for the remainder.

Elite higher education may not be the only sphere in which government has managed to get itself into the business of handing out "great deals" to a very limited and select portion of the population, but it is the most conspicuous and important example of that. Government doesn't need to perform that function[.]

Maybe it doesn't need to, but doing so has its advantages.

Another advantage of UM is that elite students, who might otherwise go elsewhere to school, stay in the state. Had they left to go to Harvard or Duke, say, they might not have come back. But having stayed in Ann Arbor, they are more likely to stay in Michigan post-graduation. So, UM helps not only train, but retain talent in the state. That advantage accrues to residents whose children may never qualify to go there, as well as residents that may not have or want children. [As noted above, you can substitute MSU, NMU, EMU, etc. for UM in the above argument, if you prefer.]
11.11.2006 12:49pm
Under siege in Detroit:

Another advantage of UM is that elite students, who might otherwise go elsewhere to school, stay in the state. Had they left to go to Harvard or Duke, say, they might not have come back. But having stayed in Ann Arbor, they are more likely to stay in Michigan post-graduation.

Actually, for the law school at least, this is not true at all. As noted previously in one of these MCRI threads, very, very few Michigan Law graduates actually stay in Michigan. Very few. Most of them leave for the big city and the big paycheck (i.e. New York). This is another argument against UM Law's use of AA, I suppose. How is this state institution helping Michigan's underrepresented minority communities when, after the AA admits get their degree, they leave for greener pastures?
11.11.2006 11:35pm