Beyond Michigan's Race Referendum

On election night next month, many eyes will be on Michigan, where voters will consider a proposal that would broadly ban race or sex-based affirmative action in all government programs, including college and university admissions. But while that may be the most visible state ballot measure related to higher education this year, dozens of others -- on such diverse issues as state tax and spending limits, eminent domain and gay marriage -- could significantly affect colleges and universities.

October 20, 2006

On election night next month, many eyes will be on Michigan, where voters will consider a proposal that would broadly ban race or sex-based affirmative action in all government programs, including college and university admissions. But while that may be the most visible state ballot measure related to higher education this year, dozens of others -- on such diverse issues as state tax and spending limits, eminent domain and gay marriage -- could significantly affect colleges and universities.

Voters in three states – Maine, Nebraska and Oregon – will consider Taxpayer Bill of Rights (TABOR)-style referendums that would restrict state spending increases to inflation plus population growth. Any spending increases beyond the new limits would be subject to voter approval. Proponents of the initiatives argue that the they would bring sanity to government spending practices, putting the brakes on "rollercoaster spending" and ensuring "that politicians have to live by the same standards that families, individuals, and businesses have to live by everyday," as the Stop OverSpending Nebraska group says.

But passage of the measures would mean increased tuitions and decreased state funds for public universities, said Patrick Callan, president of the National Center for Public Policy and Higher Education. That's been the case without exception when states adopt sweeping revenue or spending limits, the first of which, Proposition 13, passed in California in 1978, Callan said.

“I can’t recall a single case where the proponents of this initiative have ever said that higher education should be cut or tuition should be raised. Yet, it’s been the one consequence every single time it’s been done,” Callan said.

In Colorado for instance, home of the most famous TABOR amendment, approved in 1992, higher education funding per resident student has dropped by 31 percent, after adjusting for inflation, according to a 2005 study conducted by the liberal Center on Budget and Policy Priorities. Meanwhile, tuition jumped by 21 percent after inflation from 2001 to 2005, the study says.

However, within a week of the CBPP study's release, the Cato Institute, which advocates limited government, released a briefing report, "Dispelling the Myth." The report argues that critics of the measures are wrongly placing the blame for Colorado's fiscal woes on TABOR, rather than a recession, a drought and a "misguided (K-12) educational-spending mandate that forced government to spend more money than it collected."

But the referendums have drawn fire from college administrators, and in Nebraska, even the students have gotten involved: The Association of Students of Nebraska Lincoln passed a resolution in September urging students and citizens to vote against the spending measure. Initiative 423 would “leave students paying more for a substandard education,” the association’s president, Matt Schaefer, said in a statement. Meanwhile, the UN at Lincoln-based organization, Students against the Lid, which opposes the referendum, had 746 members in its Facebook group as of Thursday afternoon.

In Maine, the chancellor of the University of Maine System and Board of Trustees have both issued statements opposing the state’s TABOR-style referendum. The board’s statement, which expresses members’ “most serious concerns,” points out that the initiative would not only restrict total state spending allocations, but would specifically limit higher education spending by a similar formula that would substitute student enrollment for population growth.

"Without question, TABOR’s passage would lead to the reduction or elimination of programs and services at the local, state, and university levels," Terrence J. MacTaggart, chancellor of the University of Maine System, said in the statement.

In Oregon, opponents of the TABOR-style ballot initiative, Measure 48, fear that its passage could also impose spending limits on public university tuition revenue, thereby restricting the use of student-generated funds and preventing universities from offsetting funding cuts with tuition hikes, said Jenny Ulum, chair of the advocacy committee for the University of Oregon's alumni board.

“It’s a very broad definition of state spending, and that’s why it would have such a devastating impact on higher education," said Chuck Sheketoff, executive director of the Oregon Center for Public Policy.

But supporters of the Oregon amendment point out that forcing universities and other state agencies to prioritize their programs is precisely the point -- and that lower, not higher, tuition rates could be the result if the measure passes.

“We ought to make Oregon public colleges and universities more affordable,” said Matt Evans, spokesman for the Rainy Day Amendment Committee in Oregon. “There wouldn’t be any reason to increase college tuitions if that money cannot be spent.”

Evans said that Oregon’s amendment would allow states to amass a “rainy day” surplus for the long term while forcing legislators to focus their priorities in the short term, reducing wasteful spending.

“If you ask any public official in Oregon, they will tell you that education is their highest priority. If they’re telling the truth that education is their highest priority, then higher education can expect, as this prioritization process goes forward, to get a seat at the table,” Evans said.

In Montana, a TABOR-style initiative will be on the ballot, but it’s still unclear whether the votes will be counted or reported. Alan Miller, election specialist for Montana’s department of elections, said that a district court threw out the ballot question based on signature-gathering irregularities and the fact that the proposed measure would amend two sections of the Constitution, rather than the one section allowable in Montana. The case is being considered by Montana’s Supreme Court.

Bond Measures

On the other side of the ledger are states that are looking to increase funding for higher education facilities. The biggest bond measure for higher education by far is appropriately in the state with the most extensive higher education system. If approved, California’s Kindergarten-University Public Education Facilities Bond Act of 2006, or Proposition 1D, would provide $10.4 billion in funds to improve and expand existing facilities in the public school, community college, University of California and California State University systems. The California Community College System would receive about $1.5 billion from bond sales, the University of California system would receive $890 million and the California State University system would receive $690 million.

Meanwhile, “Question 4” on Rhode Island’s ballot will ask voters to approve $65 million in bonds for a new College of Pharmacy building at the University of Rhode Island and $7.8 million for renovations at Rhode Island College.

An item on Arkansas’ ballot would, if approved, authorize $250 million in bonds for technology development and facilities improvements at state higher education institutions.

One final state has a major facilities bond measure on the ballot. New Mexico’s Bond Issue B would provide $118.4 million in bonds for higher education capital improvements. Bond Issue C asks New Mexican voters to approve $9.1 million in bonds for public libraries.


Two key ballot initiatives in Missouri and California could have an impact on university science departments. In California, voters will consider Proposition 87, which would levy a tax on producers of oil, and use that revenue to create a $4 billion program that would include funds for research initiatives in alternative energy. The goal of the overall program is to reduce petroleum consumption by 25 percent.

A constitutional amendment in Missouri would, among other things, prohibit state or local governments from restricting stem cell research allowable under federal laws. Steven Teitelbaum, a professor of pathology at Washington University in St. Louis School of Medicine, said that the Missouri General Assembly has considered a number of bills to criminalize stem cell research, and while none of them have passed, the looming threat might prevent potential faculty from moving to St. Louis. “The issue of whether or not there would be Draconian anti-stem cell laws came up during recruitment,” Teitelbaum said.

“Our concern is that a faculty member or scientist thinking about coming here might say, ‘OK, you folks prevented this from happening for the last few years; what’s going to happen in year four?’ We felt we needed a more permanent solution.”

Regent Selection

Two states are considering measures that would reform how members of boards of regents are chosen: One would grant the governor more discretionary power, the other would take some of that power away.

In Nevada, one of just a few states where regents are selected by popular vote, a ballot initiative seeks to cut the size of the board from 13 to 9, and offer three of those remaining seats up for popular vote, with the rest to be filled by gubernatorial appointment.

Jim Rogers, chancellor of the Nevada System of Higher Education, said the amendment stems from an internal dispute among board members over the controversial termination of Community College of Southern Nevada President Ronald Remington in 2003. Rogers, who thinks that the board now works together well, said a “knee-jerk reaction” to the controversy has led to what he described as a misguided attempt to deprive voters of their power, and will make the board less accountable to the public. “The appointed board is just as good as the governor who appoints them,” Rogers said. “Why would I turn my vote on who I think should be a regent over to a governor who may or may not be competent to select somebody? I would think there would be a great reluctance to give up the vote.”

But while a Republican state senator and key backer of the amendment, Randolph J. Townsend, conceded that Remington’s termination is a reason why some of his colleagues support the referendum, he personally believes that it is important because it will allow the Board of Regents to tap talented people who might not be inclined to run for office: “When you look at the rest of the country that appoints these folks, you’ll find some of the biggest and brightest names in the state,” Townsend said. “The type of people you’re looking for are not likely to run for office; you’re missing out on their brainpower.”

Meanwhile, an amendment in Hawaii would require the governor to choose regents from a pool that would be nominated by a commission. “The whole appointment process has become a sort of political football,” said Frank Boas, a retired lawyer who has teamed up with a Democratic state senator, Clayton Hee, to support the amendment. The legislation to carry out the amendment , which was vetoed by the governor, Linda Lingle, would provide for a seven-person selection committee -- one representative each selected by faculty, students, the governor, the association of former regents and the alumni association, and two from the Hawaii State Legislature. Kitty Lagareta, chair of the University of Hawaii Board of Regents, criticized the legislation for not including college administration, but Boas said that, if the amendment passes, groups that weren’t included can petition their state representatives when the implementing legislation is reintroduced in January.

Lagareta said her concerns run deeper than the exclusion of an administrative voice. She said that the Hawaii State Legislature, which would have two of the seven seats on the selection committee, is attempting to take too much control of the process. “They would be setting criteria, they would be selecting candidates, and then they would still go through confirmation, so our state legislature would have a real heavy hand in the process,” she said. “The legislature would get three bites at the apple.”

Eminent Domain and Marriage Amendments

Even ballot initiatives that would intuitively seem to have nothing to do with higher education could have a real impact on colleges and universities, said John G. Matsusaka, president of the Initiative & Referendum Institute at the University of Southern California. In a sweeping response to the U.S. Supreme Court’s 2005 Kelo v. New London decision, ballot measures in 13 states would limit eminent domain powers to stipulate that land can’t be condemned for use by a private developer. These amendments could have an effect on universities in blighted areas that join with private industry to develop their surrounding environs, Matsusaka said.

Amendments that define marriage as being between a man and a woman are also prevalent across the nation. Marriage amendments are on the ballot this November in eight states: Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin.

Colorado differs from the others in that it also has a referendum that would, if approved, establish domestic partnerships offering same-sex couples the legal rights of marriage. However, of the eight states, only one aside from Colorado -- Tennessee -- lacks “second-sentence language” that would restrict state entities from recognizing any other marriage-like union, said Carrie Evans, state legislative director for the Human Rights Campaign, a civil rights organization that advocates for gay equality. What impact that second-sentence language could have on public universities that offer or hope to offer domestic partner benefits is still being decided in several key court cases under litigation, Evans said.

“How that might be interpreted and what rights it might affect was up in the air and still is,” said Sam Marcosson, a professor of law at the University of Louisville, who previously worked for eight years at the U.S. Equal Employment Opportunity Commission. The University of Louisville’s board approved domestic partnership benefits for its employees this summer, despite the passage of a 2004 marriage amendment in Kentucky that restricts the recognition of alternative unions. Members of Kentucky’s legislature have vowed to battle the domestic partner benefits, to go into effect in 2007, said the university’s spokeswoman, Denise Fitzpatrick.

“The short answer is, we don’t know what impact it’s going to have. It’s going to depend on how far courts go, whether any particular right that a university extends is seen to be a right that is like or replicating marriage,” said Marcosson.

But approving or maintaining domestic partner benefits in states that approve amendments with second-sentence language could invite legal challenges, watchdogs say. Administrators at the Maricopa Community College System in Arizona, among the biggest community college systems in the country, with 280,000 students, believe that if the amendment passes in their state, they’ll have no choice but to revoke domestic partnership benefits currently being offered, said Matt Ortega, director of government relations at Maricopa.

The University of Wisconsin System Board of Regents approved a resolution this month opposing its state’s proposed marriage amendment. The board argues in a statement that universities without domestic partner benefits face a competitive disadvantage in recruiting personnel.

The University of Wisconsin is the only member of the Big 10 that doesn’t offer domestic partnership benefits, Evans of the Human Rights Campaign said. Meanwhile, 24 of the top 25 universities, as ranked by U.S. News and World Report, offer domestic partnership benefits -- along with 40 of the top 50 and 66 of the top 100.

Other higher education-related ballot initiatives:


In addition to a proposed marriage amendment, Arizona voters will consider two other ballot items that could affect higher education: Proposition 300, which would require that higher education institutions charge out-of-state tuition or, for community colleges, out-of-county tuition, for undocumented immigrants, and Proposition 101, which would lower tax ceilings for community colleges  and stipulate that the maximum amount of property taxes levied by a community college district could increase by no more than 2 percent over the previous year.

Maricopa’s Ortega said that Proposition 300 is his biggest concern: It’s an unfunded mandate, he said, that implies a need for universities to do background or citizen’s checks. Based on an estimate of $50 per student for the checks, Maricopa would spend $13.9 million in the first year to meet the mandate, he said. Currently, Maricopa requires only proof of address for enrollment, rather than proof of citizenship. Out-of-county tuition is 4.5 times what it is for in-county students.


The latest Detroit Free Press poll on Michigan's Proposal 2, a measure that would ban governmental affirmative action programs giving preferential treatment to groups or individuals based on race, gender, color, ethnicity or national origin, shows a state narrowly divided: 44 percent of voters oppose the proposal, 41 percent support it and 15 percent are undecided. The disparity between supporters and opponents is well within the poll's margin of error.

According to the poll, men are more likely to favor the affirmative action ban than are women, with 47 percent of men supporting it and 36 percent of women. Black residents are mostly opposed to the measure, with 83 percent against it.

"People being treated differently by their race or gender is morally repugnant," said Max McPhail, spokesman for the Michigan Civil Rights Initiative, which backs Proposal 2. "This is absolutely a very, very timely and important proposal because basically what it’s doing is reaffirming the 1964 Civil Rights Act, which said that no one should be treated differently with regards to their skin color or their gender.”

But in a September speech, University of Michigan President Mary Sue Coleman called the Michigan Civil Rights Initiative "grossly misnamed." The university famously defended its use of affirmative action to the U.S. Supreme Court in 2003.

"We must pay attention to race. We must pay attention to ethnicity. We must pay attention to socioeconomic class. If we look away, the future is bleak," Coleman said, citing low enrollments of minority students in California, where voters approved a ban on racial preferences in admissions starting in 1996. At the University of California at Los Angeles this fall, black enrollment is the lowest it has been since the 1970s.

In addition to affecting admissions decisions, the University of Michigan's Web site lists a number of programs that are once again facing a threat if race or gender-based affirmative action is banned, including diversity scholarships, diversity housing options and programs for students such as the Women in Science and Engineering Program.

McPhail criticized special programs based on racial and gender preferences. “I am a minority and I do not feel that I need a special government program to help me be effective," said McPhail, who is Korean.

“They say we should treat everyone equally, but we know that when we treat everyone equally, we get unequal results," said David Waymire, spokesman for One United Michigan, a coalition of more than 200 organizations opposing Proposal 2.

“What this really would do is lock in the discrimination we have in place today."

Michigan voters will also consider Proposal 5 on Election Day. The proposal would set minimum spending levels for community colleges, state universities, financial aid/grant programs, and K-12 schools and districts. Proposal 5 would increase current funding by about $565 million and require the state to provide annual funding increases equal to the rate of inflation.

North Dakota:

Constitutional Amendment 1 strips the requirement that only the interest from the state's education trust fund may be spent.

The common schools trust fund is comprised of revenues generated from state lands, said Pat Seaworth, lawyer for North Dakota’s State Board of Higher Education. Seaworth said the amendment would have very little impact on colleges, as only a small portion of monies withdrawn from the fund are allocated for higher education, with most of the money devoted toward elementary and secondary schools.


Issue 3 would allocate 30 percent of revenue from new slot machines to the Board of Regents for college scholarships.


Initiative 920 would repeal the estate tax, which funds the Education Legacy Trust Fund. Money from the fund goes toward improvements in K-12 schools and higher education, including expanded financial aid.


Constitutional Amendment C would create a permanent fund to support scholarships, including the existing Hathaway Scholarship Program, which provides merit and need-based awards at the University of Wyoming and the state’s community colleges. The fund would also support improvements in higher education.


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