Still Fighting for Affirmative Action

U. of Michigan considers legal challenge to referendum -- while others focus on stopping states from adopting similar ballot measures.
November 9, 2006

The day after Michigan voters approved a ban on affirmative action by public colleges and universities, the president of the University of Michigan said that her institution was exploring legal challenges it might make to the referendum.

"I believe there are serious questions as to whether this initiative is lawful, particularly as it pertains to higher education," Mary Sue Coleman, the president, said in a speech to students. "I have asked our attorneys for their full and undivided support in defending diversity at the University of Michigan. I will immediately begin exploring legal action concerning this initiative."

Coleman did not provide any details about the basis for a legal challenge or whether it would be in state or federal court. In the short term, she said Michigan would seek "confirmation from the courts to complete this year’s admissions cycle under our current guidelines," saying that "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."

Beyond that, her emphasis was that no student would lose a scholarship, no employee would lose a job, and no commitment would be ignored because of the Michigan Civil Rights Initiative, the measure that passed with 58 percent of the vote on Tuesday. Coleman was emphatic that the university would fight to preserve its diversity and would "overcome the handcuffs" that the measure is attempting to place on it. She quoted Susan B. Anthony: "Failure is impossible."

(Also on Wednesday, a pro-affirmative action group -- the Coalition to Defend Affirmative Action, Integration and Immigration Rights By Any Means Necessary -- announced that it was suing the state in federal court to challenge the initiative. The group's complaint said that the ban on affirmative action would lead to discrimination, and that the ban was an unconstitutional "exception" to federal civil rights laws and would block Michigan from fulfilling "the federal mandate to desegregate." Similar arguments have failed in courts previously, in part because Michigan, unlike some Southern states, was never found to have operated an illegally segregated higher education system.)

While Coleman was rallying her troops (and lawyers), educators at other public institutions in the state were busy as well. They were trying to figure out which of their policies might run afoul of the new ban and what to do about them. Activists and experts on affirmative action were also planning for future battles -- with defenders of affirmative action considering whether new strategies are needed and critics looking for the next state in which to organize a referendum.

For now, though, Coleman's suggestion that legal action may be in the works infuriated those who sponsored the Michigan referendum -- and they vowed to fight back in court and in public discussion.

"It is absolute arrogance if the president of the University of Michigan thinks that she can trump the will of the people. Fifty-eight percent of Michiganders voted for this," said Doug Tietz, a spokesman for the organizers of the measure. "Just because one university president thinks something different does not mean that person can ignore the law. If they try to circumvent the law, we have prosecutors and other people who make sure laws get obeyed."

Tietz declined to comment on what other states may be targets for an initiative to bar affirmative action -- although there is speculation that Colorado is a likely target. "For the time being, we're still focused on Michigan," he said.

Whether the University of Michigan can challenge the referendum is unclear. Terry W. Hartle, senior vice president for government and public affairs at the American Council on Education, said "the concern in Michigan from the start was that the drafting of the initiative was so broad was that it would have unanticipated consequences," such as barring outreach activities to minority groups. The ACE has not officially signed on to join any Michigan challenge, but Hartle said "we have strongly supported the University of Michigan's diversity activities in the past and we'll continue to do so."

Some experts on affirmative action -- including some who support Michigan's policy of considering race and ethnicity in admissions decisions -- said that it was not clear to them that there were legal challenges to make. They noted that the measure had been challenged in court before it was placed on the ballot -- and that those challenges had been rejected.

To some critics of affirmative action, the vote was a clear sign that affirmative action is on the way out. "Preferential admissions received its death blow in Michigan," said Stephen H. Balch, president of the National Association of Scholars, which opposes affirmative action and pushes for a traditional curriculum. While Balch said that some affirmative action policies would "linger on institutional life support a bit longer," he said that the vote -- in a state where the flagship university went to the Supreme Court to defend affirmative aciton -- was key. He called the "eventual demise" of affirmative action "now certain."

That this vote took place in Michigan was noted by people who defend affirmative action as well. "Everybody is kind of stunned," said Damon Williams, assistant vice provost for multicultural and international affairs at the Univeristy of Connecticut, who said he was hearing from colleagues nationwide about the vote and its meaning. "They put on a tremendous fight to take affirmative action to the Supreme Court, so this is very disappointing."

Within Michigan, the immediate impact is on public colleges and universities. While admissions decisions tend to attract the most attention these days in debates about affirmative action, there are a range of other college efforts that could be questioned. Many public colleges have special programs or scholarships for female students in science, to recruit minority or female faculty members, or to promote contracting with minority-owned businesses. A spokesman for Eastern Michigan University said officials there were studying all of their programs, and had made no decisions on what -- if anything -- would need to change.

Terry Denbow, vice president for university relations at Michigan State University, said that institution was also studying any possible impact. But he said that academics in other states where affirmative action has been banned have advised Michigan State not to rush into any judgments. "We're cautioning against people having any immediate conclusions about what this will mean," he said. Over time, court rulings, advice from state leaders, and other developments are likely to help Michigan State determine its response, he said.

"No ballot initiative changes your core values and core commitments," he said. Michigan State -- a land grant institution -- has a range of programs to encourage diversity. Asked about them, Denbow said that "it is our belief that programmatic efforts that reflect a commitment to access and inclusion should not significantly change."

To critics of affirmative action, Tuesday's vote didn't raise any particularly tough issues -- the outcome reinforced their view that most people don't like the way colleges use affirmative action. To defenders, the vote raised some tough questions about how they have made their case and why they haven't gotten through.

Faye J. Crosby, a professor of psychology at the University of California at Santa Cruz and author of Affirmative Action Is Dead; Long Live Affirmative Action (Yale University Press), said that she wasn't stunned by the vote because she saw it as "an anger vote," adding that "in times of diminishing resources, inter-group relations deteriorate."

Crosby, who works in one of the other states that has banned affirmative action, said she worried that the impact on Michigan's universities would be greater than the effect California's ban has had on its colleges. There, she said, the state is so diverse that, even without affirmative action, public universities can't be overwhelmingly white, and many are majority minority. Michigan is more than 80 percent white, so a lack of affirmative action could result in homogeneous institutions, she said.

In discussing affirmative action, she said, colleges need to get away from the idea that college admission "is a reward for past behavior." Rather, she said, admission decisions are about "the promise of future behavior." In that context, she said it is possible to talk about affirmative action in a way people will understand. Just as President Johnson talked about affirmative action as making a race fair -- in his famous example, a race between someone who had been shackled and someone who hadn't -- Crosby looked at the kinds of races someone has run.

One way is to look at speed, she said. But another way might be to look at how one achieved speed while running uphill instead of downhill. That's evidence of future potential, she said.

Catherine L. Horn, an assistant professor of educational leadership and cultural studies at the University of Houston and co-editor of Higher Education and the Color Line: College Access, Racial Equity and Social Change (Harvard Education Press), said that defenders of affirmative action must get more assertive -- even on controversial topics. "These voter initiatives continue to pass -- quite frankly -- from spin over substance." She also said that critics of affirmative action "use the rhetoric of civil rights" in ways that are very smart politically.

She said that the kind of research Michigan and others did in preparation for the Supreme Court case -- studies on the long term benefits of being educated in a diverse environment -- should be replicated, and widely discussed. She also said that colleges need to tackle issues, like test score gaps between white and minority students, that play into critics' arguments. University officials have to talk more frankly about the limitations of test scores -- and about how other groups, such as athletes, are admitted with lower than average test scores, without inspiring referendum movements.

One thing that is clear, Horn said, is that "the states are not hearing our message about the benefits of diversity."


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