News and Commentary

News Postings for Nov. 7, 2006 thru Dec. 31, 2006

MCRI On November 7, 2006 Michigan voters overwhelmingly approved the Michigan Civil Rights Initiative (known as Proposal 2) by a margin of 58% to 42%. Michigan is the third state in the past 10 years, behind California and Washington State, whose voters have chosen to ban discriminatory racial preferences in college admissions, college financial aid programs, state contracting and state employment decisions.
Even more states are being targeted for such voter initiatives during the 2008 election cycle.

But the ink was barely dry on Proposal 2 when three prominent Michigan schools began legal maneuvering to delay its implementation.

The schools are essentially claiming that they were already in the midst of next year’s race- and gender-based admissions and financial aid decisions and that complying with Prop. 2 by the Dec. 23, 2006 deadline would be too difficult.

What is truly difficult is to believe that these major universities did not have a contingency plan for compliance in the event Prop. 2 passed. After all, these schools have all of the management expertise and legal resources of any Fortune 500 company facing a similar shift in the political winds, changes in market forces, and/or imminent changes in the regulatory environment.

It is not as if Prop. 2 dropped out of the sky unannounced. The campaign for the Michigan Civil Rights Initiative has quite publicly been underway since the June 2003 muddled Supreme Court decision regarding diversity in academia.

That the schools apparently did not have such a compliance plan in place defies logic, implies incompetence or deliberate malfeasance, or — perhaps most likely — simply points to massive arrogance.

Nov. 7, 2006 — On election day, 58 percent of Michiganders voted for Proposal 2 (the Michigan Civil Rights Initiative). The constitutional amendment bans race and gender preferences in university admissions and government hiring and contracting within the state. It was to become effective Dec. 23.

However, three universities, along with Gov. Jennifer Granholm and Attorney General Mike Cox, requested an extra six months for the schools to implement Proposal 2 because of what they called the “difficulties, inequities and unfairness” involved in changing the admissions standards “midstream”. The universities had already begun making admissions and financial aid decisions for the Fall 2007 academic year — many of which decisions involved the use of race and gender to some degree.

Dec. 19, 2006 — U.S. District Judge David Lawson (U.S. District Court for the Eastern District of Michigan) agreed to the delay, and pushed back the effective date from Dec. 23 2006 to July 1 2007 for Michigan universities’ admissions and financial aid programs.

Eric Russell, a Wayne State University graduate student, appealed to the 6th Circuit, saying the delay will hurt students like him. Russell, who is white, is applying to the U-M Law School for fall admission. He was represented by the Center for Individual Rights.

Fri., Dec. 29, 2006 — A three judge panel of the 6th U.S. Circuit Court of Appeals ruled that University of Michigan, Michigan State University and Wayne State University must immediately remove race and gender consideration from the admissions and financial aid decisions and fully comply with Proposal Two. This ruling effectively overturned a six month extension granted last week by a lower court.

The University of Michigan announced it is “considering its options” and will soon announce their next step. The radical leftist group BAMN (By Any Means Necessary) promised a legal appeal to the full circuit court.

The National Association of Scholars statement, immediately below, gives an excellent summary of this historic victory. Additional news stories follow below.–Editor

NAS Hails MCRI’s Overwhelming Victory

Contact: Stephen H. Balch, President (609) 683-7878

PRINCETON, NJ — 8 NOVEMBER 2006 — The National Association of Scholars today hailed the overwhelming victory of the Michigan Civil Rights Initiative, a ballot referendum which — similar to California’s Proposition 209 in 1996 — amends the Michigan state constitution to ban the use of racial and gender preferences in the admission decisions of the state’s public universities and colleges. NAS, whose California affiliate helped launch Proposition 209 ten years ago, and its state affiliate, the Michigan Association of Scholars, were the only higher education organizations to support the measure.

Commenting on the decisive outcome, NAS President Stephen H. Balch said: “Preferential admissions received its death blow in Michigan yesterday. The higher education establishment, and almost every other establishment, did all they could, fair and foul, to save it. But the Michigan electorate wasn’t buying. Like the American people as a whole, it knows that elementary justice requires individuals be treated as individuals and not as members of designated castes. Preferences will linger on institutional life-support a bit longer. But their repudiation in the state of Gratz and Grutter is, quite unmistakably, the handwriting on the wall. Their eventual demise is now certain.”

“We are happy to acknowledge the tireless, often Herculean efforts of those who brought this worthy project to fruition, especially Jennifer Gratz and Carl Cohen, executive director and state chairman respectively of MCRI, and, of course, Ward Connerly. We are also grateful for the work of our Michigan affiliate, which was instrumental in obtaining admissions data under Michigan’s public disclosure laws that documented the discrepant standards applied to individuals of differing ancestry. We note finally the stellar and exemplary work of the Center for Equal Opportunity and its president, Roger Clegg, whose recently published statistical studies so irrefutably demonstrated the undue weight assigned to ethnicity by the University of Michigan’s undergraduate admissions process.”

“Much cleanup work remains to be done, of course, in eliminating the preferential admissions and hiring policies that are now so widespread in America’s institutions of higher learning. But the voters of Michigan have sent an unmistakable message to which higher education’s leadership will now have to attend.” -30-

The National Association of Scholars is America’s foremost higher education reform group. Located in Princeton, it has forty-six state affiliates and more than four thousand professors, graduate students, administrators, and trustees as members.

Last Known Link to NAS press release

Controversial Proposal 2 will face three more appeals

City of Lansing, others fight to join prominent lawsuit challenging race preferences ban.

Detroit News — Friday, December 29, 2006

Marisa Schultz / The Detroit News

The debate over Proposal 2 got even more intense Thursday as three more appeals headed to the 6th U.S. Circuit Court of Appeals.

The parties involved are the city of Lansing, the group Toward a Fair Michigan, and the American Civil Rights Foundation, which filed a joint appeal with the Michigan Civil Rights Initiative committee, to challenge a federal judge’s decision that blocked them from joining a prominent lawsuit that challenges whether Proposal 2 is constitutional.

Thursday’s action brings the number of appeals to five in less than a week after Michigan’s ban on racial and gender preferences took effect and may be a preview of an anticipated lengthy and arduous legal battle.

On Wednesday, U.S. District Judge David Lawson decided Lansing, Toward a Fair Michigan, American Civil Rights Foundation and Jennifer Gratz’s Michigan Civil Rights Initiative committee cannot intervene in a lawsuit filed by By Any Means Necessary against the state and three universities.

If they had been granted intervenor status they would have been treated like full stakeholders in the litigation, which carries such privileges as introducing evidence and cross-examining witnesses.

Lawson said the groups did not prove the necessary requirements for intervention such as timeliness of the request, substantial legal interest and inadequate representation by others in the lawsuit.

However, he did grant a request by Eric Russell, a white applicant to U-M Law School, to intervene.

In other action Thursday, lawyers for Gov. Jennifer Granholm, Attorney General Mike Cox, BAMN and the state’s three largest universities asked the appeals court to uphold a Dec. 19 district court decision that delayed the implementation of Proposal 2 at Wayne State University, Michigan State University and University of Michigan for six months.

Now the Center for Individual Rights, which filed the original two appeals, must file a response by 1 p.m. today. The group, which represents Toward a Fair Michigan and Russell, argues Lawson overstepped his authority when he granted the delay.

A three-judge appeals panel could rule on whether the delay stays in place as soon as today. -30-

You can reach Marisa Schultz at (313) 222-2310 or [email protected]

Last Known Link to Original Story

Cox: Proposal 2 is Upheld

Monday December 18, 8:10 pm ET

Universities Agree to Comply with Proposal 2, Specify End-Date for Current Admissions Cycle & Prohibit Lawsuits

LANSING, Mich., Dec. 18 /PRNewswire/ — Attorney General Mike Cox announced today he expects a federal court to approve an agreement reached in a lawsuit challenging the constitutionality of Proposal 2 with respect to a cross claim brought by the University of Michigan, Michigan State University, and Wayne State University. The agreement, as negotiated by the Attorney General, is narrowly drawn to delay the enforcement of Proposal 2 with respect to the universities’ current admissions and financial aid cycles only, and will expire no later than July 1, 2007. At that time the universities must comply with the new constitutional provision. The agreement also requires the universities to dismiss their claim that Proposal 2 is unconstitutional under the First Amendment, and prohibits the universities from filing any new lawsuits on the same basis.

Cox declared victory. “This is an historic agreement. It upholds Proposal 2 and the will of the people. In addition, the agreement is a reasonable compromise that serves the public interest by allowing the current admissions and financial aid cycles to be completed under existing policies, while confirming the constitutionality of Proposal 2 in light of the legal challenges launched against it by the universities,” Cox said. “This is an important legal victory for the people of Michigan and for Proposal 2.”

The universities had sought a declaration that Proposal 2 unconstitutionally infringed upon their right of academic freedom under the First Amendment, and sought to have a federal court delay implementation of the amendment with respect to the universities’ current admissions and financial aid cycles. The federal court previously permitted the Attorney General to intervene in the lawsuit to defend the constitutionality of Proposal 2.

The parties, including the Attorney General and the Big Three universities, expect the federal court to approve the agreement. -30-

Last known link to original story

Dec. 11, 2006

The following statement was issued today (Dec. 11) by University of Michigan President Mary Sue Coleman:

Today the University of Michigan (including Ann Arbor, Flint and Dearborn), Michigan State and Wayne State universities filed a motion in federal court seeking a short-term delay in the implementation of Proposal 2 with respect to admissions and financial aid. We are requesting an injunction permitting us to complete this year’s admissions and financial aid cycles using the same standards in place when the process began earlier this year. This motion was filed in response to a lawsuit against our three universities by the Coalition to Defend Affirmative Action By Any Means Necessary (BAMN) and others.

It would be extremely difficult, and unfair to prospective students, to change our admissions and financial aid processes in mid-stream. Our admissions process, including the awarding of financial aid, is a cohesive cycle that begins in the summer when the application is distributed to prospective students and counselors and ends the following May when all offers of admission have been extended and responded to by the students, and financial aid awards have been made and accepted. Students and counselors are now at varying stages in that cycle, and it would be nearly impossible to flip a switch on Dec. 23 and change our procedures abruptly. Students have relied on the information they were given months ago about this year’s admissions process, and we have already accepted applications and notified many students of our decision regarding their application.

We want to ensure that our process is consistent and fair throughout the entire admissions cycle. We owe this to prospective students and their families.

I have been clear in my statements over the past few weeks that the University of Michigan will obey the law. We recognize the voters’ decision, and we will comply with Proposal 2.

However, precisely what that means for our core operations is uncertain. This uncertainty is underscored by the executive order issued by Gov. Jennifer Granholm, who has instructed the Michigan Civil Rights Commission to investigate the potential impact of Proposal 2 and issue a report by February. We want to understand the outcome of that review as we consider what changes need to be made to our policies and programs.

We can expect these uncertainties to be clarified by the courts and by our experiences over time, as occurred in California after the passage of Proposition 209. At this time, the University of Michigan is not planning to initiate any additional legal actions. A lawsuit already has been filed against the University by BAMN, and the Pacific Legal Foundation has said it is also considering a lawsuit.

In the meantime, we will make our best attempt to interpret the language of Proposal 2, and continue our programs in a manner that both complies with the law and protects our diversity and our academic excellence. If challenged, the University of Michigan is prepared to defend our programs and our interpretation of the law.

It is important to emphasize that the passage of Proposal 2 does not prohibit public institutions from seeking diversity in our student body, staff and faculty. This educational goal is more important than ever before. We remain fully committed to keeping the doors of opportunity open for all.

The University strives first and foremost to be academically excellent. Diversity is an essential component of our excellence. The quality of our academic programs is enhanced by the rich and varied contributions of students and faculty who approach problems from different perspectives. Many top scholars are attracted to our community because they can study and conduct research with others who challenge their ways of looking at the world. The University of Michigan’s academic quality will suffer if we cannot recruit and retain faculty, staff and students from a wide range of backgrounds.

As I have noted, our efforts to defend diversity cannot be limited to the legal arena. An important part of our work in the months ahead will be to pursue every possible innovative means of building a broadly diverse community within the boundaries of the law. We don’t know yet whether we will be successful. The experience of other states causes us great concern, but the University of Michigan has been a leader with respect to diversity for many years and we have a dedicated and creative community. We are not afraid of tackling big challenges. We will try every means permitted by the law to achieve this important educational goal, because diversity is critical to our mission, to our excellence and to our future. -30-

Last Known Link to UMich statement

Dec. 11, 2006, 3:08PM

Mich. universities seek delay on new law

By TIM MARTIN Associated Press Writer

LANSING, Mich. – Three universities asked a federal court in Detroit on Monday to delay a new state ban on public affirmative action programs until after this year’s admissions and financial aid cycles.

The University of Michigan, Michigan State University and Wayne State University want to complete their annual admissions and financial aid cycles using the standards that were in effect when the process began earlier this year.

The voter-approved initiative to ban the use of race and gender preferences in university admissions and government hiring is to take effect Dec. 23.

The University of Michigan’s admissions process begins in the summer when applications are sent to prospective students and counselors. It ends the following May. So far, the school has received nearly 16,000 applications.

“It would be extremely difficult, and unfair to prospective students, to change our admissions and financial aid processes in midstream,” University of Michigan President Mary Sue Coleman said in a news release.

The Michigan Civil Rights Initiative, the group that organized and supported the initiative, said universities have had adequate time since the November election to get ready for the change.

“This is at best horrible planning by the universities, and at worst an attempt to evade the voters,” said state Rep. Leon Drolet, a member of the group.

After the initiative passed, Coleman said the university would try to finish this year’s admissions cycle under its current system, which considers race in selecting students. She said scholarship and financial aid promises made to students would be kept, and that no one on campus would lose a job because of the new law.

The initiative was approved by 58 percent of voters. The measure was prompted by a 2003 U.S. Supreme Court decision that upheld a general affirmative action policy at the University of Michigan’s law school but struck down the school’s undergraduate admissions formula, which awarded points based on race.

Courts have upheld a similar proposal passed in California a decade ago. -30-

Last Known Link to Houston Chronicle story

City Journal

Now the GOP Is For Affirmative Action?

Abandoning principle may not even be smart politics.

Harry Stein, City Journal, Autumn 2006

Ten years ago, the historic passage of California’s Proposition 209 banning racial preferences in public contracting and university admissions seemed to promise that colorblind government would soon prevail nationwide. Today, though, affirmative action remains on the books almost everywhere in America. Those who’ve kept preferences alive include the usual coalition of left-wing activists, a strongly pro-affirmative-action media, business and civic groups anxious to avoid charges of racism, and, hardly least, judges who haven’t hesitated to give their own political views the force of law. But what’s arguably hurt the anti-preferences drive most has been the desertion of its formerly best ally: the Republican Party.

Nowhere has this Republican desertion been starker than in Michigan, where an almost exact replica of Prop. 209, mandating that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color or ethnicity, or national origin” is on this fall’s ballot. Led by its candidates for governor and U.S. Senator, the state GOP has emphatically distanced itself from the Michigan Civil Rights Initiative.

Not only has GOP opposition enabled pro-affirmative-action forces to cast those fighting quotas as ideological pariahs, so far out of the mainstream (and, by implication, so tainted by racist bigotry) that not even Republicans want anything to do with them; it also has severely hampered the MCRI’s fund-raising efforts, with many would-be contributors reluctant to cross the party leadership. “I can’t tell you how many people have whispered in my ear, ‘I’m with you, but I can’t say anything publicly,’ ” confides a frustrated Jennifer Gratz, the MCRI’s executive director and the former lead plaintiff in a landmark affirmative-action lawsuit against the University of Michigan. “There’s just this fear of standing up and doing the right thing.”

Even more disheartening, the Republican backtracking on preferences in Michigan reflects a quiet but steady shift in the national party, too, with the Bush administration undercutting affirmative-action foes-longtime GOP supporters-by embracing the “diversity” mantra that liberals so fervently preach.

The contrast with the GOP’s principled recent past is striking. At his first press conference after assuming office in 1981, President Ronald Reagan noted that many affirmative-action programs had become rigid quotas, adding: “I’m old enough to remember when quotas existed in the U.S. for the purpose of discrimination, and I don’t want to see that happen again.” Reagan’s assistant attorney general for civil rights, the combative William Bradford Reynolds, echoed the anti-preferences view, judging affirmative action “demeaning because it says people are going to get ahead not because of what they can do but because of race.” While federal bureaucrats and congressional Democrats often frustrated the Reagan administration’s efforts to curb quotas, the president’s position was never in doubt, and it set the tone for the party.

Black California businessman Ward Connerly was among the many drawn to the GOP by the force of Reagan’s personality and straightforward commitment to principle, changing his party registration the very day after he met then-governor Reagan in 1969. Twenty-seven years later, after discovering as a trustee of the University of California system the extent to which skin color determined admission to top campuses like UCLA and Berkeley, he was leading the fight for Prop. 209. Then, as now, the viciousness of the opposition (headed by future Kerry campaign guru Bob Shrum) knew no bounds. Television ads attacking the measure depicted cross burnings and police dogs, seeking to link anti-preferences forces with the ugliest anti-integration backlash of the civil rights era; Prop. 209 foes at Cal State Northridge actually invited KKK leader David Duke to campus to speak on behalf of the measure.

But support for Prop. 209 was broad and deep, and included many influential figures in business and politics. Most notably, its chief sponsor, Republican governor Pete Wilson, effectively countered the other side’s race-baiting by arguing that those fighting to make race a nonfactor in government decision making were abiding by the civil rights crusade’s true values. “It is time for those who have resisted Prop. 209 to acknowledge that equal rights under law, not special preferences, is the law of the land,” he declared. “A measure that eliminates any form of discrimination based on race and gender violates no one’s constitutional rights.”

In the end, 209 passed comfortably, with 54 percent of the vote. Republican Party support was “vital,” recalls Connerly. “They provided us with a lot of foot soldiers and, even more essential, a critical mass of support-because nobody ever likes to be left standing alone, especially when it comes to race.”

The same scenario played out in Washington State in 1998, where Connerly led the fight for that state’s anti-preferences measure, I-200. While some Republican moderates, including former governor Dan Evans, opposed the initiative, the conservative-controlled state GOP enthusiastically endorsed it; and though foes outspent supporters by nearly three to one-with such liberal-leaning corporate Goliaths as Eddie Bauer, Microsoft, and Starbucks contributing heavily to the “No on 200” campaign-the initiative passed by a whopping 58 to 42 percent. The margin is even more impressive when examined in its particulars. According to exit polls, 80 percent of Republicans supported I-200, but so did 62 percent of independents and 41 percent of Democrats. In fact, Democratic senator Patty Murray was one of the measure’s most vocal critics, and 43 percent of her supporters voted for it.

There’s little evidence of any change in public attitudes about racial preferences since. The Republican rank and file remains especially united: a poll of Michigan GOP voters earlier this year, for instance, showed 78 percent backing the MCRI. So the party’s turnabout on the issue can seem bewildering.

The shift on preferences clearly involves naked political calculation. With a mere 8 percent of blacks voting GOP in 2004, party leaders have made no secret of their eagerness to try to splinter the most reliable of Democratic voting blocs. Over the last year and a half, party chairman Ken Mehlman has appeared before numerous black audiences, preaching the virtues of Republicanism. As the New York Times noted in a lengthy and laudatory piece on Mehlman in July, the GOP chairman believes that “Republican advocacy of economic policies that would give more power to individuals rather than to government-like health saving accounts-would appeal to middle-class black voters as much as it would to whites.”

All well and good. But as the Times (approvingly) points out, Mehlman’s outreach agenda hardly ends there. He has also repeatedly “apologized for what he described as the racially polarized politics of some Republicans over the past 25 years” and for “what civil rights leaders view as decades of racial politics practiced or countenanced by Republicans. One example they point to is the first President Bush’s use of the escape of Willie Horton, a black convicted murderer, to portray his Democratic opponent in the 1988 election, Michael S. Dukakis, as soft on crime.”

That Republicans have long cynically exploited race is a given for the Times’s “civil rights leaders” and liberals in general. But that the Republican chairman now accepts such a proposition is astonishing. In fact, it’s easy to make the case that, in recent years, the civil rights establishment and its Democratic allies have been the true cynics-and effective ones-in playing the race card to achieve electoral and policy ends. One can argue that the Horton ad, tough as it was, made a legitimate point, highlighting a significant Dukakis policy failure. But no such claim would be possible about the ad that the NAACP produced in 2000, linking George W. Bush to the brutal murder of a black man, James Byrd, by racist thugs. Consider, too, the shameless smear campaign that Senate liberals (with a substantial assist from the mainstream media) waged against Judge Charles Pickering, a man who admirably stood up for civil rights in Mississippi at a time when few whites did so, yet who now found himself portrayed as soft on cross burners and thus unfit for a seat on the Fifth Circuit Court.

But another reality has also prompted the Republican shift on race: race remains the most volatile and, for white politicians, the most terrifying issue in American life. The mere hint of a “racism” charge transforms even normally principled leaders into panderers and cowards.

The brilliant social critic Shelby Steele gives the best explanation for this fear. Of mixed race himself, Steele writes of the paramount role that “white guilt” plays in contemporary American race relations. Conscious of the stain of the nation’s discriminatory past, whites often feel a powerful need “to demonstrate to the world that they’re not bigots.” They do so most readily by deferring, at least publicly, to the civil rights establishment on matters of racial justice.

Ward Connerly has repeatedly witnessed this dynamic at work firsthand. “I’ve often had the experience of speaking in a room of 100 people, and knowing that 99 of them agree with me,” he says. “But if there’s one angry black person in the audience who disagrees, that person controls the room. He’ll go on about the last 400 years, and institutional racism, and ‘driving while black,’ and the other 99 will just sit there and fold like a cheap accordion.”

As official Republican support has fallen away, it is largely black conservatives like Connerly and Steele who have continued to lead the challenge to government-sanctioned discrimination. Unburdened by white guilt, keenly attuned to the damage that the preferences regime has done not only to society at large but to its purported beneficiaries, they do not hesitate to speak uncomfortable truths that conventional politicians shun. They passionately argue that racial preferences, by their very nature, convey the message that-unlike other Americans-blacks can’t succeed by merit; that even as they encourage blacks to wrap themselves in the mantle of victimhood, preferences stigmatize all black achievement as illegitimate. Worse still, the racial spoils system has done nothing to help those whose lives are in the most desperate disarray: the black urban underclass.

“What affirmative action says is that blacks are fundamentally deficient and in need of special compensation based on events none of us even lived through,” asserts columnist and radio talk-show host Mychal Massie. “I frankly have to wonder whether those who continue to countenance racial preferences truly even care about the problems plaguing black America, because they obviously don’t care whether it works. It does nothing, nothing, to address out-of-wedlock births, fatherlessness, the illiteracy rate, attitudes about education, any of the issues that are destroying the black community in the country. It only allows those who support it to feel virtuous while they avoid facing those issues.”

Adds Massie: “It is frankly inconceivable to me that anyone who claims to believe in fairness would countenance that people in Michigan are being denied a seat in the classroom based on nothing more than the fact that they’re white. That is just as vile as it was when Bull Connor and Orval Faubus locked people out because they were black.”

It was an old-fashioned liberal, a veteran philosophy professor at the University of Michigan named Carl Cohen, who set in motion the events that eventually led to the Michigan Civil Rights Initiative. A former head of the state ACLU and a vigorous defender of individual rights, Cohen filed a Freedom of Information request in 1996 that forced the university to lay bare its admissions procedures. The evidence showed not only that university officials “had discriminated by race but that they intended to do so, they made no bones about it,” Cohen says. Indeed, the documents revealed that the admissions office had two distinct tracks: one for whites and the other for protected minorities.

Within months of the revelation, both the undergraduate division of the university and the law school faced legal challenges. The 17-year-old daughter of a police sergeant in a working-class Detroit suburb and the first in her family aiming for college, Jennifer Gratz had been turned down by the Ann Arbor campus that she’d long dreamed of attending in favor of “some friends of mine, kids I sat next to in class,” who clearly didn’t measure up to her academically. “I really had trouble at first believing they would do that,” she says now, laughing at her naivety. “It was so against everything I’d been taught was right-that you treat everyone fairly and equally.” In short order, she signed on as a plaintiff.

By the time the Supreme Court handed down its twin decisions in Gratz v. Bollinger and Grutter v. Bollinger in 2003, Gratz had long since graduated from college-at the University of Michigan’s less prestigious Dearborn campus. By allowing the university in effect to continue to use race as a factor in admissions-and a recent study from the Center for Equal Opportunity found the school’s discrimination against white and Asian applicants to be worse than ever-those rulings sparked the next phase of the battle against preferences: the push to institute a state constitutional ban, vi…