Law & Courts

In Michigan, Ban on Affirmative Action Prompts Lawsuit

By Sean Cavanagh — November 14, 2006 4 min read
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Just days after Michigan voters approved a ballot measure to bar “preferential treatment” for women and minorities in university admissions and state programs, a coalition of civil rights and labor advocates and students launched a court challenge seeking to prevent it from taking effect.

The lawsuit, filed last week in federal court in Detroit, came shortly after Proposal 2 cruised to passage on Nov. 7, with 58 percent of voters supporting it.

The measure amends the state’s constitution to bar affirmative action in state programs, making Michigan the third state, after California and Washington, to approve such a proposal.

The plaintiffs in the lawsuit include By Any Means Necessary, a Detroit organization that supports affirmative action, and several black high school students from Michigan who say their chances of university admission could be hurt by the policy. It also is backed by several labor unions, who say their members will also suffer as a result of the change.

The ballot measure’s passage was viewed as a major setback by officials at the University of Michigan in Ann Arbor, whose president, Mary Sue Coleman, also vowed last week that her school was prepared to defend its admissions practices in court. Three years ago, her university revamped its policies to comply with a pair of 2003 decisions by the U.S. Supreme Court, which upheld Michigan’s consideration of race as one factor in admissions decisions but rejected policies that awarded bonus points to “underrepresented” minority-group members.

“Diversity makes us strong,” Ms. Coleman said in a Nov. 8 speech on her school’s campus, one day after Proposal 2 passed. “It is too critical to our mission, too critical to our excellence, and too critical to our future to simply abandon.”

Familiar Backers

The ballot measure was championed by a familiar player in the battle over racial preferences: Jennifer Gratz, who sued the University of Michigan in 1997 after being denied undergraduate admission. That case, along with a second legal dispute centered on the university’s law school admissions, went to the Supreme Court and formed the basis of its landmark rulings.

Ms. Gratz, who is white, is now the executive director of the Michigan Civil Rights Initiative, an organization that supported the ballot initiative. The organization was assisted by Ward Connerly, a former member of the University of California board of regents who successfully fought against affirmative action policies in California and Washington.

While Proposal 2 would apply to all 15 of Michigan’s state universities, it is regarded as having the greatest impact at the flagship institution, where admissions are competitive, and efforts to increase diversity have stirred controversy.

Critics of Michigan’s Proposal 2 point to the experience of the prestigious University of California system since that state’s passage of Proposition 209, which banned racial preferences in admissions. Undergraduate freshman enrollment in the UC system, which has nine undergraduate campuses, fell for blacks and Hispanics—considered to be underrepresented in the system—after UC adjusted its admissions policy in 1997 to comply with the ban. It remains near or below the levels before the policy took effect.

However, black and Hispanic freshman enrollment at UC’s two most competitive campuses, in Berkeley and Los Angeles, remains well below pre-Proposition 209 levels. By contrast, enrollment among whites and Asian-Americans has risen at those two campuses since then.

Observers say it is unclear what effect Michigan’s measure will have on programs outside of university campuses, such as K-12 single-sex and minority-recruitment programs. A law allowing single-sex education programs took effect this year in Michigan. But that law requires that schools balance those classes and efforts with program serving the opposite gender, as well as co-ed programs.

That policy could help them withstand legal scrutiny under Proposal 2, said Jill N. Roof, a research associate for the Citizen’s Research Council of Michigan, a nonpartisan organization that studied the initiative.

State-funded programs that seek to spark female and minority students’ interest in mathematics, science, and engineering face similar legal questions. Ms. Roof speculated that programs with relatively restrictive gender and racial policies could be forced to adjust. “If there are programs that completely exclude boys, they may be invalidated,” she said.

At the University of Michigan, officials believed they had already adopted policies to bring more race-neutrality to admissions. Prior to the high court’s 2003 ruling, Michigan used a system that assigned points to undergraduate applicants based on factors such as grade point average, socioeconomic background, and race.

After the rulings, the university changed its policy to place a heavier emphasis on readings of individual student applications, aimed at considering race in a less-regimented way.

The university uses outreach programs that target K-12 minority students for recruitment, as well as scholarship programs. Ms. Coleman said last week her school would defend those policies.

Roger Clegg, the president and general counsel of the Center for Equal Opportunity, a think tank in Sterling, Va., that opposes race-based admissions policies, did not think the ballot measure would directly influence the policies of universities outside Michigan, except to convince their leaders that the public opposes race-based programs. “As more leading universities end the use of racial and ethnic preferences,” he said, “it becomes harder for the remaining schools to argue that those preferences are essential.”

A version of this article appeared in the November 15, 2006 edition of Education Week as In Michigan, Ban on Affirmative Action Prompts Lawsuit


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