BAMN Files a Lawsuit Against the MCRI

claiming that the anti-preference initiative violates the Equal Protection Clause of the Fourteenth Amendment (in part because it bans only certain types of preferences), is preempted by federal civil rights laws (because it prevents universities from using the only effective technique they have at hand to integrate), and violates the First Amendment of public universities as recognized by Grutter "to determine their academic standards and to determine the criteria for admission to the university." The latter argument is especially interesting because if it emerged victorious it would, e.g., implicitly call for the reversal of the Bob Jones University and Grove City College cases, and more generally allow any public or private university to discriminate in any way so long as they could claim they were doing so for "academic" reasons. (Okay, for public universities there might be an argument that the 14th Amendment still prohibits invidious discrimination, but certainly private schools would henceforth have a First Amendment right to discriminate in admissions).

Another interesting aspect of the complaint is that all of the defendants opposed the MCRI, making one wonder if the court will allow intervenors who have an incentive to defend the law. A link to the complaint can be found on Bamn's website.

Mark Seecof (mail):
I sure hope someone can intervene to defend the Michigan MCRI statute, because otherwise it may be nullified by hostile state officials "throwing" a lawsuit over it to opponents. That's what happened to California's Proposition 187.

(Prop. 187 was attempt to discourage illegal immigration. I'm not citing it for its content, but rather to show how State officials who disliked it managed to get rid of it just by refusing to defend it in court, despite their official duty to do just that.)
11.9.2006 3:06pm
Elliot Reed:
Why file suit now? Is it even clear that as a matter of statutory interpretation the MCRI prohibits affirmative action programs? The language is very similar to the '64 Act, which doesn't. I know that the drafters of the initiative had specific intent to ban affirmative action programs, but insofar as intent is relevant the relevant intent for initiatives is usually the intent of the voters, not of the drafters. So wouldn't it be more lawyerly to continue doing what they were doing before on the grounds that the MCRI permits their affirmative action programs and wait to be sued?
11.9.2006 3:10pm
Mike BUSL07 (mail) (www):
This MCRI thing is a big victory in itself, and welcome consolation vis a vis the big picture. Is it possible that the tide is actually turning against affirmative action, on a national scale?
11.9.2006 3:12pm
andy (mail) (www):
"federal civil rights laws (because it prevents universities from using the only effective technique they have at hand to integrate)"

i thought the Civil Rights Act prohibited racial discrimination-- did it also require states to practice racial discrimination in order to achieve 'harmony'?
11.9.2006 3:19pm
Archon (mail):
I am assuming sole legal theory behind this lawsuit rests on dictum in Sweezy v. New Hampshire - specifically the "who may be admitted to study" portion. Although others may disagree, I think this theory is a complete non-starter. The Supreme Court has never rested one of its rulings solely on academic freedom grounds and has only treated it as a "special concern."

Even assuming this argument worked in court, I highly like BAMN would like its ultimate outcome. If public institutions had the sole right to control admissions and were not bound by any state, federal, or constitutional constraints, then it would probably be perfectly OK to not allow blacks or women in at all.

Not to mention, if academic freedom trumped the 14th Amendment, universities would probably have the right to restrict free speech and have no obligation to provide any type of due process.

I highly doubt BAMN would like these outcomes.
11.9.2006 3:23pm
Kevin P. (mail):
BAMN seems like a hard-left organization:

Some excerpts:

As Americans committed to saving our society from the evils of racism and sexism, we understand that racism and sexism are so deeply a part of the structure and institutions of American society that only the growing power of a new mass movement can uproot them.
BAMN will employ whatever means are necessary to oppose and defeat these attacks on the democratic and egalitarian aspirations and struggles of our people.
11.9.2006 3:47pm
Kevin P. (mail):
Here is another link about BAMN by a pro-affirmative action advocate.
11.9.2006 3:51pm
paul (mail):
I always thought that the laws and public policies of the state that creates and funds a public university would take precedent over the academic freedom of those hired by the state to run the institution.
If members of the board of trustees of a state institution agree with the MCRI are they allowed to appoint administrators who will comply with it? Or would this be some type of unlawful discrimination?
11.9.2006 3:54pm
anon 3L:
One would think that, if one was going to file such an important complaint, and then go posting it on one's website, one would also take care to leave said complaint free of typos. See the bottom of page 7. Or maybe that's just me.
11.9.2006 4:03pm
Bart (mail):
It takes a certain brand of chutzpah or simple derangement to argue that a law barring discrimination based on race is somehow racially discriminatory.
11.9.2006 4:06pm
Preferred Customer:
Hard left is a bit of an understatement. IIRC, they are (or at least were) affiliated with various Maoist organizations.

They also have a problem seeing the forest for the trees. When I was at UMich, there was a KKK rally planned for City Hall. BAMN was one of the groups that posted (apparently without any irony) "no free speech for fascists" signs all over school. The rally turned ugly and violent, mostly because of the smash the Klan protestors--the (very few) KKK idiots that showed up had to be sequestered behind chain link fence and protected by the Ann Arbor police from the stone-throwing mob.

End result? Lots of expense for Ann Arbor taxpayers and lots more news coverage for the KKK than they could have hoped to get on their own.
11.9.2006 4:07pm
Hans Bader (mail):
BAMN's First Amendment argument -- that PUBLIC universities have a First Amendment right to decide whom to admit -- is meritless, and would have radical effects if accepted, overturning statutes all across the country.

If it were accepted, it would logically result in scores of state statutes governing admissions to state colleges unconstitutional. Many state statutes restrict whom public universities can admit, including statutes permitting open enrollment, and statutes requiring admission of students with certain grades and/or test scores.

The general rule is that state actors have no First Amendment rights. See, e.g., CBS v. DNC, 412 U.S. 94, 139 (1973) (concurring opinion); Warner Cable Communications v. City of Niceville, 911 F.2d 634, 638 (11th Cir. 1990); NAACP v. Hunt, 891 F.2d 1555, 1565 (11th Cir. 1990); Student Government Association v. Board of Trustees, 868 F.2d 473, 481 (1st Cir. 1989); Estiverne v. Louisiana State Bar Association, 863 F.2d 371, 379 (5th Cir. 1989).

Moreover, the 14th Amendment overrides any First Amendment rights held by individual discriminatory government officials. Creek v. Village of Westhaven, 80 F.3d 186 (7th Cir. 1996).

And it is questionable that the act of admitting a student is "speech" covered by the First Amendment, even though who a college admits may influence the kinds of subjects that students discuss in academic debate, thus giving the college a strong interest (as opposed to a right), rooted in the tradition of academic freedom, in who may be admitted. See Grutter v. Bollinger (2003) (finding that universities have a strong interest, rooted in notions of academic freedom, in promoting student body diversity, of which racial diversity is one part).
11.9.2006 4:08pm
Archon (mail):

Public institutions cannot use academic freedom as a shield to evade most state, federal, and constitutional constraints. The Supreme Court has called academic freedom a "special concern" and has never relied on it to solely support one of its holdings.

Universities have used the academic freedom argument to try to avoid the constraints of the First Amendment when defending against speech codes and discriminatory funding practices involving student fees. The courts hearing these cases generally did not comment in their rulings because the argument had absolutely no merit.

But, the Supreme Court has used academic freedom to carve out different rules for universities. For instance, in Southworth, student fees were basically saved because the court found that two other factually similar cases outlawing the practice were not practical when applied to higher education. Also, just last term, in Garcetti, the court noted that the holding that the public concern doctrine did not apply to work product might not be applicable to colleges and universities because of academic freedom.

All in all, I would be surprised if a court relied solely on academic freedom to find that Michigan State did not have to comply with the ban on affirmative action.
11.9.2006 4:08pm
chrismn (mail):
What standing does BAMN have in this case?
11.9.2006 4:28pm
Hans Bader (mail):
It's not clear to me why they have standing.

Their suit is meritless. Their preemption and equal-protection claims were made, unsuccessfully, by the parties challenging California's version of Prop. 2 (Proposition 209), but the Ninth Circuit squarely rejected those arguments, holding that banning affirmative action (as Prop. 2 does) is perfectly constitutional and consistent with the civil rights laws. See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).

But in that case, the plaintiffs submitted declarations explaining in detail how the ballot initiative affecting affirmative action would affect them, and why they had standing to sue.

Here, it is not clear why a lot of the plaintiffs (suc as union locals) were even added. What interest a union local has in controlling who gets admitted to a state college is far from clear.

So, quite apart from being meritless, the suit may also be nonjusticiable for lack of standing.
11.9.2006 4:35pm
Shake-N-Bake (www):
As a person who attended Michigan Law and frankly didn't have a problem with their admission policies (I think it did make the classes better), I would be more than happy to see those nutjob BAMN folks get their butts handed to them in court. They make all the other civil rights groups look bad because, well, they go way way beyond civil rights. And they're obnoxious.

You could walk around U of M's campus and find lots of people in favor of their admissions policies, but it would be awfully hard to find many who think highly of BAMN, virtually everyone I knew thought they were nutjobs of the highest order. And I knew some pretty left-leaning folks there.
11.9.2006 4:56pm
Bruce Hayden (mail) (www):
I think that I missed something with the 1st/14th Amdt. here. I always understood that it was a limit on state action, and not a license for state action. Frankly, it makes no sense since we are talking two parts or aspects of the state here.
11.9.2006 5:09pm
Brian G (mail) (www):
I love their website...March to save Brown v. Board of Education. Talk about a total con job.
11.9.2006 5:21pm
John Rosenberg (mail) (www):
I find the argument that a state can't ban racial preferences unless it bans every kind of preference as offensive as it is bizarre. It is based on the premise that discrimination on the basis of race or religion is morally and legally indistinguishable from preferences based on athletic ability or, as someone already said, high grades. It is disgraceful that ostensibly responsible leaders in Michigan have sullied themselves by their embrace of BAMN.
11.9.2006 5:51pm
Kevin P. (mail):

I always thought that the laws and public policies of the state that creates and funds a public university would take precedent over the academic freedom of those hired by the state to run the institution.

Amen! If the shameful U of M president wants and craves affirmative action so badly, she should find a job in a privately owned university.
11.9.2006 6:05pm
BillHancock (mail):
BAMN's suit is trivial. It has serious ripeness, standing and Eleventh amendment obstacles to overcome before the judge can impose the Rule 11 sanctions this complaint cries out for.

The far more intriguing suit will be the suit the University of Michigan President threatened yesterday. The questions are endless and metaphysical.

Who will UofM sue? The State of Michigan? That would be like your arm suing your leg. The University of Michigan is solely a creature of the Michigan constitution. It IS the state of Michigan. A fact the university no doubt raises when it successfully invokes 11th Amendment immunity.

What would the university ask a court to do? Enjoin someone (who?) from enforcing one part of the State Constitution against a state university that exists under another part of the very same constitution? Huh?

There are cases that recognize University have a First Amendment right to determine things like who will be admitted. But those cases all arose in connection with efforts by third parties to infringe on academic decision making. But the Supreme Court has never -- NEVER -- held that the First Amendment operates to immunize a state university from oversight of the State that created it.

UofM is really arguing that it is Frankenuniversity. Though the people of Michigan gave it life through the state constitution, the university now has a life of its own that the creator is powerless to influence.

11.9.2006 6:28pm
Now, I spent about 5 minutes googling up an argument, so I doubt this flies. But can someone tell my why the preemption argument obviously fails? The 9th Circuit case cited above relates to Title VII. OTOH, Title IX has at least one express affirmative action enforcement provision (34 CFR 106.3). This seems to bolster the argument. No?

[I'm really not looking for policy or ideological arguments. TIA.]
11.9.2006 6:29pm
poster child (mail):

As a person who attended Michigan Law and frankly didn't have a problem with their admission policies (I think it did make the classes better)

Well, I bet that's comforting to Barbara Grutter.
11.9.2006 6:38pm
MnZ (mail):
The President of UM spoke at a rally at which she said she would fight the ban. I find that a bit irresponsible given her position.
11.9.2006 6:39pm
MnZ (mail):

Based on my understanding, the preemption argument only makes sense if there is actual preemption. Michigan's AA program goes above and beyond what is needed to comply with Title IV.
11.9.2006 6:47pm
Spaceman (mail):
Well, I bet that's comforting to Barbara Grutter.

The world doesn't owe Barbara Grutter any favors. The school aims to create the best class possible. It just so happens, it was better without her.
11.9.2006 6:59pm
KeithK (mail):
I hate to trot out a cliched conservative argument but it's appropriate here. When faced with policy defeat through the democratic process the immediate response of some in the liberal elite is to run to the courts. If the UM president said she would lead a fight to repeal this proposition I would respect that. But to claim that federal law essentially requires affirmative action? Or that the First Amendment allows government entities to ignore duly enacted laws? Ridiculous.
11.9.2006 7:35pm
Regarding BAMN's 14th Amendment argument, one need only go to the Ninth Circuit's opinion on California's version of the MCRI:

Plaintiffs charge
that this ban on unequal treatment denies members of certain
races and one gender equal protection of the laws. If merely
stating this alleged equal protection violation does not suffice
to refute it, the central tenet of the Equal Protection Clause
teeters on the brink of incoherence.

11.9.2006 9:09pm
Alaska Jack (mail):
The world doesn't owe Barbara Grutter any favors. The school aims to create the best class possible. It just so happens, it was better without her.

Wow. And the world didn't owe Rosa Parks any favors either. The Montgomery Transit Authority just wanted to create the best bus system possible. It just so happened, it was better without her.

Nothing personal!

- Alaska Jack
11.9.2006 9:46pm
Hans Bader (mail):
The argument alluded to by a commenter above -- that Title IX might preempt Michigan's Proposal 2 -- has no merit.

It's even weaker than the Title VII preemption argument rejected by the Ninth Circuit in Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), which held that California's version of Proposal 2 was constitutional and not preempted.

Even Judge Henderson, whose trial court ruling declaring California's version of Proposal 2 unconstitutional was speedily reversed in that case, admitted in his ruling that Title IX and Title VI did not preempt the ballot initiative. (He did claim that another law, Title VII, preempted it, but that ruling was overturned by the Ninth Circuit).

Title IX does have affirmative action regulations, but they cover a narrow range of specific contexts, not education in general (making a facial challenge to Proposal 2 on that ground impossible), and they do not mandate affirmative action (at least outside the context of intercollegiate athletics).
11.9.2006 10:57pm
Hans Bader (mail):
When I said "Title IX does have affirmative action regulations, but they cover a narrow range of specific contexts," what I was focusing on was the fact that it has disparate-impact regulations (albeit not a general or catch-all disparate-impact regulation).

Disparate impact regulations are not affirmative action, strictly speaking, and do not require affirmative action (although affirmative action is sometimes used to mask or hide disparate impact).

Moreover, as former Education Department Office for Civil Rights Chief Alicia Coro once observed, OCR's disparate-impact regulations don't even cover all forms of disparate impact, just disparate impact in certain very specific contexts (like admission tests).

That's another reason they can't be used to mount a facial preemption argument against Proposal 2.

OCR does have some other regulations alluding to affirmative action, but they permit rather than compel it, and thus don't override state law limiting affirmative action (as even Judge Henderson conceded in Coalition v. Wilson (N.D. Cal. 1996)).

There is one unique OCR regulation that does effectively mandate affirmative action, although OCR would deny it: its interpretation of its intercollegiate athletics gender-equity regulation as presumptively mandating gender proportionality among athletes (that is, that schools' intercollegiate athletes' gender breakdown closely reflect the gender breakdown of the student body as a whole). There are two alternative ways for schools to comply with the regulation that don't involve gender proportionality, but they are impractical for most schools.

But this is an isolated exception to the general rule that Title IX does not mandate affirmative action, so it can't be used for a facial challenge to Proposal 2.

Moreover, the ballot proposition on which Proposal 2 is modeled, California's Proposition 209, doesn't conflict with Title IX's athletics gender-proportionality regulation, because it contains a provision permitting preferences mandated by federal law in order to receive federal funds -- which provision would cover the Title IX athletics gender-proportionality rule, but little else in the university setting.
11.9.2006 11:13pm
Brian G (mail) (www):
I just loved the guy who commented that affirmative action made his classes better. It reminds me of the Grutter v. Bollinger oral argument.

Ms. MAHONEY - And what the record shows is that in the Orfield study which was done of Harvard and University of
Michigan's students, it's in the record at Exhibit 167,
that there is overwhelming support by the students at
Harvard and Michigan Law Schools for maintaining the
diversity program, because they regard it as so positive.
That's --

SCALIA: Sure, they're in already.

One other thing; The best comedic moment I ever had at law school when was a snotty liberal went on a diatribe in front of a small group of us, complaining about every minority who made journal and law review, saying that they only made it because of their race, gender, or both combined. It was hilarious. I wonder how the Dean of Michigan law school would react if she were told she was being replaced by a minority for reasons of diversity. I am sure she's be filing with the EEOC the next day.
11.10.2006 12:48am
Brian, I'd argue that the dean has a duty by his own logic to give up his job and lobby for a minority candidate to replace him. His only plausible argument to the contrary--since he and the president of the University have established that diversity is the "heart and soul" of the place--is that he needs to stay in his position or else diversity can not be furthered.

In which case, he's a paternalistic racist who thinks minorities less capable than he is.

Unless this case winds up before the legal genius who decided the wiretapping case, or George Wallace-aficionado Kwame Kilpatrick gets appointed to the federal bench real soon, BAMN's absurd suit is going to last about five minutes.
11.10.2006 1:04am
Federal Dog:
"The world doesn't owe Barbara Grutter any favors. The school aims to create the best class possible. It just so happens, it was better without her."

An obvious question: How would you know such a thing? I assume you know her?
11.10.2006 6:44am
Spartacus (www):
When I was at Berkeley, BAMN routinely held protests blocking access to buildings and classes, and were involved and implicated in other actions such as climbing the main library and hoisting teh American flag upside-down from its flag pole, stealing and destroying copies of the Patriot, as well as copies of the Daily Cal that printed David Horowitz's famous "10 reasons why reparations for slavery ar a bad idea," and generally acting like a bunch of whining, spoiled babies. Their spoken rhetoric is usually self avowed Marxist tripe--which is however, quite mainstream in Berkeley.
11.10.2006 10:16am
Please, everyone at Berkeley was embarrassed by them, especially the Progressives.

They were so routinely incompetent that the serious Leftists made a pamphlet explaining to new Freshmen why BAMN was a bunch of idiots, and why not to join them on any account. The Progressives also spread half-serious rumors that BAMN was run by the CIA/Republicans in order to discredit and embarrass real Progressives. Half-serious because BAMN did a remarkably GOOD job of making Affirmative Action a pariah policy even among most Democrats.

My favorite BAMN antic was when they scheduled a class walkout for 12 noon -- when just about every class let out anyway. My second favorite was when they bused in most of the Oakland Unified School District for a protest. The kiddies got bored and ended up rioting on Telegraph, looting a Foot Locker. Good job.

Look into their history if you have free time. It's an interesting microcosm of the failures of the Left to get anything going. Basically, they're a hard-left Trotskyite group that 'stole' Aff. Am. as their issue in order to promote membership.

Bottom line, don't feel threatened by BAMN. If you imagine them as a secret CIA task force to discredit Affirmative Action supporters everything they do makes much more sense.
11.10.2006 11:20am
Spartacus (www):
I certainly don't feel threatened by BAMN now, though while at Berkeley I sometimes did feel threatened by their antics that tended toward potentially violent. My imagination, however, is not quite as vivid as yours (a conspiracy is always a convenient way to explain away an embarrassment, on the left or the right). From '95 - 2000, when I was in Berkeley, to say that BAMN "embarassed" Progressives or serious Leftists is misleading; there was also TWLF, ISW, and numerous other Marxist/Leftist/Progressive groups, all of whom routinely co-sponsored/co-participated in BAMN events and antics. Perhpas there were some moderate liberals who were embarrassed by all of this, but the volume of the serious marxists definitely drowned out any more moderate voices at Berkeley, and certainly contributed in pushing this libertarian to the right.
11.10.2006 12:01pm
fwiw, i see a lot of people using the term Affirmative Action interchangeably with racial preferences. It is entirely possible to support AA and be against Racial Preferences. Affirmative Action can include all sorts of stuff that does not involve giving PREFERENCES to applicants or employees, but merely trying to increase interest in a job or school, through community outreach, etc. A good example was the push by NYPD years ago to increase the interest in policing by people in colleges and universities. They went to schools, gave lectures, etc. on why one should consider LEO as a career. That would be affirmative action. Going into neighborhoods with historically low applicant #'s based on ethnicity, race, geography, whatever and passing out applications etc. is also affirmative action.

IMO, confusing AA and Racial Preferences is like when people claim that anti-ILLEGAL immigration activists, are in fact anti-immigration

it's basically a subset. Racial Preferences are a subset, a special kind of affirmative action. being against racial preferences, or any sort of preferences for that matter, does not mean one is necessarily against affirmative action, and it is sloppy, at best, to confuse the two concepts
11.10.2006 12:07pm
Under siege in Detroit:
If you're more of a visual learner, check out this youtube video of BAMN crashing a Michigan board of canvassers meeting (when they were deciding whether or not Prop 2 (MCRI) should be put on the ballot):

I'm sad to say Shanta Driver (head of BAMN in Michigan and named in the Grutter/Gratz decisions) is an alumnus of my law school. The school actually invited her to campus (along with Kimberle Crenshaw) pre-election to speak on the potential effects Prop 2 would have if passed (which, according to some, will eventually outlaw mammograms and pap smears alongside racial preferences). Suffice it to say an alternate viewpoint was not presented.(in fact, the Crenshaw/Driver events were just 2 of 10 or so anti-MCRI events sponsored by the law school. An opposing viewpoint was never offered--so much for debate. Could this have something to do with the fact that our dean proffered expert testimony in Grutter?)

Lastly, to build on Brian G's post:

I love their website...March to save Brown v. Board of Education. Talk about a total con job.

A resolution was presented to the student board of governors at the law school which would have officially supported BAMN in its efforts against Prop 2 and in its efforts to "save" Brown v. BOE, thereby preventing a relapse to "Jim Crow laws."

My school was never this bad. I wonder what happened.
11.10.2006 10:12pm