Here on campus, where about three-fourths of voters in campus precincts said no to Proposal 2 last week, University President Mary Sue Coleman might seem like a defiant hero. Her speech on the Diag last Wednesday after Proposal 2 passed was the single most visible act of leadership to date in a presidency that hasn’t been marked by much more than her skill as a fundraiser. Coleman’s speech reassured campus that the University would maintain its commitment to diversity at a time when an awful lot of people needed reassuring.
But across the rest of this state – which, after all, voted 58 percent in favor of the Michigan Civil Rights Initiative – Coleman’s speech hasn’t won her many fans.
“I believe there are serious questions as to whether this initiative is lawful, particularly as it pertains to higher education,” Coleman said last week as she announced the University’s intention to look into legal action against the initiative. In letters to the editor and on blogs, angry Michigan residents have begged the University Board of Regents to fire Coleman, voicing their contempt for a public university president who just won’t accept that her school’s policies lost at the ballot box. Underlying all the criticism, I suspect, is fear that those liberal activist judges, everyone’s favorite bogeymen-jurists, are eagerly waiting to give Coleman the green light to ignore the sanctified Will of the People.
I can’t imagine, though, that in announcing the University would look into legal action, Coleman thinks she can retroactively strike Proposal 2 from the ballot. I suspect she used such defiant language more for rhetorical effect than anything else, and I’ll call her bluff right here: There aren’t serious questions about whether Proposal 2 prohibits the University from using a race-conscious admissions policy. It just does.
There might be some very smart lawyers racking their brains right now to think up a successful courtroom strategy against applying Proposal 2 to admissions. They’ll have to think hard, because none of the obvious strategies will work. The University’s default position against any interference by state government – arguing that the autonomy the state Constitution grants it makes it immune – seems hopeless against a state constitutional amendment that singles out the University of Michigan by name.
The Michigan Supreme Court, which has a 5-2 supermajority of Republican justices, already denied a challenge earlier this year seeking to keep MCRI off the ballot amid allegations that petition signatures were fraudulently obtained. There’s little reason to think it would be receptive to some challenge in state courts seeking to overturn Proposal 2.
That leaves the federal courts. In fact, everyone’s least favorite activist group, the Coalition to Cause Havoc, Label Opponents as Racists and Make Everyone Cringe By Any Means Necessary, has already filed a lawsuit in federal court challenging Proposal 2. Its basic argument is that prohibiting affirmative action somehow violates the equal protection clause of the 14th Amendment. That’s the same argument BAMN used in California after a similar proposal passed there in 1996; it’s the same argument that the 9th U.S Circuit Court of Appeals – you know, the guys who took “under God” out of the Pledge of Allegiance – shot down.
A BAMN lawyer interviewed by the Detroit Free Press seemed to think that the U.S. Supreme Court ruling in Grutter v. Bollinger would somehow lead to a different outcome this time around. But Grutter merely allowed the University to use affirmative action to foster diversity; it didn’t require affirmative action.
I don’t have a friendly anonymous source in the Office of General Counsel to let me know exactly what the University’s legal strategy is. My guess, though, is that rhetoric aside, Coleman and her administration are smart enough to focus their legal efforts where they have a chance – protecting outreach efforts and programs on campus that will face challenges over the coming months and years.
The language that was on the ballot makes it clear that voters’ intent was to prohibit affirmative action as we knew it, but the exact words in the constitutional amendment Michigan voters supported – “preferential treatment” – are open to interpretation. In passing Proposal 2, did voters want to ban outreach efforts to minority communities? Programs to get junior high girls interested in science? Paying Coleman’s salary? Only time, and litigation, will tell for sure.
Maybe the demise of affirmative action will spur our state into addressing its unconscionable education inequalities, though something tells me that the folks who brought us Proposal 2 aren’t going to retool the MCRI organization into a massive effort to ensure every student receives a quality K-12 education. Given those inequalities, the simple fact is that the University’s goal of building a diverse student body just got a lot harder. If observers on campus are hoping Coleman’s speech means she has a secret plan to free the University from Proposal 2, they’re going to be disappointed.
Christopher Zbrozek is a Daily editorial page editor. He can be reached at zbrozek@michigandaily.com.