Mary Sue Coleman, Standing In The Schoolhouse Door

[Last Updated 9 Nov. 8:00 PM]

The Detroit Free Press reports University of Michigan president Mary Sue Coleman now intends to argue that, apparently, the citizens of Michigan do not have the authority to ban racial discrimination in their state.

Coleman says she has questions as to whether the ban is lawful, particularly as it pertains to higher education. She said this morning she will ask the courts to allow U-M to keep using its admission system for now until the question is decided.

Since even Justice O’Connor in Grutter did not require the use of racial preferences but only allowed them in certain narrowly constrained circumstances, I’m sure Michigan voters thought they had decided that question yesterday.

UPDATE

Hans Bader of the Competitive Enterprise Institute informs me that Mary Sue Coleman will be in the (bad) company of her buddies in BAMN with this frivolous litigation.

A Michigan group backing affirmative action will file a new federal lawsuit today alleging a ballot initiative approved by state voters Tuesday is unconstitutional, an attorney for the group said.

Shanta Driver, an attorney for the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, said the lawsuit will essentially argue that university admissions and other government practices are discriminatory in the absence of affirmative action.

This exact argument was tried, and failed, in California after the passage of the almost identical Proposition 209, as I’ve discussed several times (here, here, and here). Indeed, as Bader points out in an email (quoted with permission),

When she [Coleman] asks the court to let her continue using race, she should be ordered to pay sanctions under Rule 11, and attorneys fees to the other side under 42 USC 1988.

A federal appeals court already upheld the same law in California in 1997 (and the U.S. Supreme Court denied a stay of that order), making arguments against it frivolous. See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).

UPDATE II [9 Nov. 5:20 PM]

BAMN has now filed suit. Its complaint can be found on its website, here. David Bernstein summarizes the argument, noting that the complaint claims

that the anti-preference initiative violates the Equal Protection Clause of the Fourteenth Amendment (in part because it bans only certain types of preferences), is preempted by federal civil rights laws (because it prevents universities from using the only effective technique they have at hand to integrate), and violates the First Amendment of public universities as recognized by Grutter “to determine their academic standards and to determine the criteria for admission to the university.” The latter argument is especially interesting because if it emerged victorious it would, e.g., implicitly call for the reversal of the Bob Jones University and Grove City College cases, and more generally allow any public or private university to discriminate in any way so long as they could claim they were doing so for “academic” reasons. (Okay, for public universities there might be an argument that the 14th Amendment still prohibits invidious discrimination, but certainly private schools would henceforth have a First Amendment right to discriminate in admissions).

Another interesting aspect of the complaint is that all of the defendants opposed the MCRI, making one wonder if the court will allow intervenors who have an incentive to defend the law….

Hans Bader of the Competitive Enterprise Institute has two substantive comments to that post (here and here) criticizing the complaint in more detail.

I continue to find BAMN’s argument that all discrimination is fungible — so that racial discrimination is morally and legally indistinguishable from preferences to legacies or left ends — to be both offensive and ridiculous.

Bill Hancock, another frequent contributor here, asks some intriguing questions about the threatened suit by the University of Michigan in another comment to Bernstein’s post:

Who will UofM sue? The State of Michigan? That would be like your arm suing your leg. The University of Michigan is solely a creature of the Michigan constitution. It IS the state of Michigan. A fact the university no doubt raises when it successfully invokes 11th Amendment immunity.

What would the university ask a court to do? Enjoin someone (who?) from enforcing one part of the State Constitution against a state university that exists under another part of the very same constitution? Huh?

There are cases that recognize University have a First Amendment right to determine things like who will be admitted. But those cases all arose in connection with efforts by third parties to infringe on academic decision making. But the Supreme Court has never — NEVER — held that the First Amendment operates to immunize a state university from oversight of the State that created it.

UofM is really arguing that it is Frankenuniversity. Though the people of Michigan gave it life through the state constitution, the university now has a life of its own that the creator is powerless to influence.

IT LIVES!

Say What? (11)

  1. Xrlq November 8, 2006 at 3:11 pm | | Reply

    I agree that it’s a stretch to argue that the equal protection clause requires what it barely permits. However, I don’t understand Bader’s reasoning at all. Surely he understands that California and Michigan are in different circuits, right? Even within a single circuit, it’s not inherently “frivolous” to ask a court to reconsider its past precedents.

  2. vnjagvet November 8, 2006 at 8:45 pm | | Reply

    I posted this on Dave Bernstein’s post on Volokh, and was only half kidding:

    On the strength of this statement [by Mary Sue Coleman], it might be fun for a current applicant or two to file suit against UM seeking a mandamus in a favorable forum to require her to comply with the Constitution on this go-round in the admission process.

    If I were admitted in Michigan instead of Georgia, I would take such a case probono.

  3. M. J. Wise November 8, 2006 at 10:04 pm | | Reply

    Check out this egg Mary Sue Coleman laid today, delivered to my inbox since I am a student at UofM:

    http://www.umich.edu/pres/speeches/061103div.html

    She is sounding less and less like a University president and more like a religious zealot. For fun, replace any occurrence of “diversity” with “discrimination” and you’ll end up with a far more truthful rendition of her beliefs.

  4. Steve November 8, 2006 at 11:29 pm | | Reply

    I am so furious about this I don’t where to begin.

    This Mary Sue Coleman must be made to resign immediately.

    This mere public EMPLOYEE has somehow gotten it into her skull that she has the authority to thwart the will of the people of the state of Michigan. This is just beyond comprehension.

    Her actions are patently unconstitutional and she should resign or be fired.

  5. Anonymousponderer November 9, 2006 at 2:21 pm | | Reply

    Racial discrimination matters at Michigan, today more than any day in our history.

    It matters today, and it will matter tomorrow. It will always matter because it is what makes us the great university we are.

    I am deeply disappointed that the voters of our state have rejected affirmative action as a way to help build a community that is fair and equal for all.

    But we will not be deterred in the all-important work of creating a diverse, welcoming campus. We will not be deterred.

    Universities are models for the civil exchange of ideas, and the debate over Proposal 2 has been no exception. Still, it has been a particularly difficult campaign, and I regret the pain and concern it has caused people on our campus.

    But there has been a positive outgrowth of the debate about Proposal 2. It has brought together so many different people to say: racial discrimination matters at the University of Michigan. Many, many people were passionate in delivering this message, and I want to thank them for their hard work.

    If November 7th was the day that Proposal 2 passed, then November 8th is the day that we pledge to remain unified in our fight for racial discrimination. Together, we must continue to make this world-class university one that reflects the richness of the world.

    I am standing here today to tell you that I will not allow this university to go down the path of mediocrity. That is not Michigan. Racial discrimination makes us strong, and it is too critical to our mission, too critical to our excellence, and too critical to our future to simply abandon.

    This applies to our state as much as our university. Michigan’s public universities and our public bodies must be more determined than ever to provide opportunities for women and minorities, who make up the majority of our citizenry.

    Last week I received an email from Miranda Garcia, a Michigan graduate who shared my concern about the dangers of Proposal 2, and how it jeopardizes the fiber of our university.

    “My four years in Ann Arbor,” she said, “were a life-changing experience. I met students from every area of the country, from all different socioeconomic and cultural backgrounds.”

    She was blunt in saying her life-changing experience would not have been possible without affirmative action.

    I should add that Miranda lives in California, a state whose voters banned affirmative action 10 years ago. It has been a horribly failed experiment that has dramatically weakened the racial discrimination of the state’s most selective universities.

    It is an experiment that we cannot, and will not, allow to take seed here at Michigan.

    I will not stand by while the very heart and soul of this great university is threatened. We are Michigan and we are racial discrimination.

    I am joined on these steps by the executive officers and deans of our university. We are united on this. You have my word as president that we will fight for what we believe in, and that is holding open the doors of this university to all people.

    Today, I have directed our General Counsel to consider every legal option available to us.

    In the short term, we will seek confirmation from the courts to complete this year’s admissions cycle under our current guidelines. We believe 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.

    This is our first step, but only our first step.

    I believe there are serious questions as to whether this initiative is lawful, particularly as it pertains to higher education. I have asked our attorneys for their full and undivided support in defending racial discrimination at the University of Michigan. I will immediately begin exploring legal action concerning this initiative. But we will not limit our drive for racial discrimination to the courts, because our conviction extends well beyond the legal landscape.

    It is a cause that will take our full focus and energy as an institution, and I am ready to begin that work right now. We will find ways to overcome the handcuffs that Proposal 2 attempts to place on our reach for greater racial discrimination.

    As Susan B. Anthony said in her crusade for equal rights, “Failure is impossible.”

    I know many in our community have been wondering what this election outcome means for you in a directly personal way.

    For our current students, I promise that we will honor all financial commitments we have made to you. This is a contract we have with you, and the University of Michigan honors its contracts.

    Your scholarships, fellowships and grants will remain just that: yours. The funds we awarded you are available today, and they will be there for you tomorrow, because the University of Michigan embraces racial discrimination.

    For University employees who fear that their livelihood is at risk with the passage of this proposal, please know that you have no cause for worry. No one’s job at the University of Michigan will go away because of Proposal 2. We will continue to review all of our programs dedicated to minority affairs and campus racial discrimination to ensure that they comply with the law, as we have done for many years.

    Let me be very clear about this: Your work is more important now than ever before. I will do everything I can to support you in this work, because the University of Michigan promotes racial discrimination.

    To the hundreds of thousands of Michigan alumni, I ask for your support in recruiting the finest students for your alma mater. You more than anyone know the benefits of an education at this great university.

    I urge you to share that enthusiasm with prospective students, because the University of Michigan wants racial discrimination.

    To high school principals, counselors and teachers throughout Michigan, please know that our outreach efforts to your schools will continue. We believe this outreach is on firm legal ground, and we will continue these programs because we want your graduates at our university. Our high school partnerships are critically important pipelines for drawing great students to Michigan, and those programs will go on.

    Those programs will go on because the University of Michigan believes in racial discrimination.

    Finally, to high school students and their families, my message is simple: We want you at the University of Michigan. We want your intellect, we want your energy, and we want your ambition. We have one of the finest universities in the world, and it is remarkable precisely because of our students, faculty and staff. We want you to aspire to be part of this amazing community.

    It is amazing because the University of Michigan is racial discrimination.

    We know that racial discrimination makes us a better university—better for learning, for teaching, and for conducting research. Affirmative action has been an effective and important tool for creating this rich, invigorating environment.

    We believe so strongly in affirmative action that we went before the United States Supreme Court to defend its use, and we prevailed.

    Today, I pledge that the University of Michigan will continue that fight.

    Look around you. We are standing at the heart of our campus, where all the divergent pathways of the Diag come together.

    We still have much to do to bring together all the people of our university. All walks of life must be present and welcome at the University of Michigan.

    We should never forget a challenge issued by Henry Tappan, the university’s first president, who said, “We must take the world as full as it is.”

    Ours is a university of the leaders and best. We must always be vigilant about recruiting and retaining the best students and staff and the finest faculty—individuals of all backgrounds and experiences—so that they may further enrich the fabric of this university. We simply cannot lose these bright minds.

    As the days and weeks unfold, I know you will have questions about what this proposal means—for the University overall and for you personally, as students, faculty and staff. We do not yet have all the answers, but I vow to keep you fully informed as we explore the full effects of this initiative.

    Of course the University of Michigan will comply with the laws of the state.

    At the same time, I guarantee my complete and unyielding commitment to increasing racial discrimination at our institution.

    Let me say that again: I am fully and completely committed to building racial discrimination at Michigan, and I will do whatever it takes.

    I will need your help. As individuals and as a University, we absolutely must continue to think creatively about how to elevate Michigan’s role as a national model for racial discrimination in higher education.

    In the days and weeks ahead, you will hear from us about specific ways you can help in our cause. Starting today, I am asking all of our students and alumni of this great university to fire up their networks and spread the word. Tell people, “I am what a U-M education looks like—please join us.”

    Together, we must always work to make ours a welcoming campus. Always. Let the world know that we are a university that embraces all. No one—no one—should ever forget that every student at Michigan is highly qualified, and has rightfully earned his or her place here.

    Martin Luther King Jr. told us: “The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.”

    Let’s stand together to tell the state and the nation that the University of Michigan embraces … promotes … wants … and believes in racial discrimination.

    Let’s stand together to say we value all those on our campus who make this such a remarkable institution.

    Let’s stand together to say: We are Michigan and we are racial discrimination.

  6. Bill November 9, 2006 at 5:59 pm | | Reply

    Wouldn’t the proper defendant be “The People of the State of Michigan”?

  7. Bill November 9, 2006 at 6:03 pm | | Reply

    Michigan must have been a pretty mediocre school before the 1970’s, if, as MSC asserts, diversity is what makes it great. Silly me, I thought it was multi-generational academic excellence…

  8. eddy November 10, 2006 at 12:29 am | | Reply

    John — I noticed in the Volokh comments that you were troubled by the allegation “that a state can’t ban racial preferences unless it bans every kind of preference as [being as]offensive as it is bizarre”.

    The Ninth Circuit case that Hans Bader cited –Coalition for Economic Equity v. Wilson –addresses this issue.

    The BAMN argument has slightly more merit than it appears on its face. It is the “political structure” (rather than “conventional”) analysis of the Equal Protection Clause.

    In Washington v.Seattle School District No. 1, a Washington state initiative tried to remove busing decisions from local school boards. They had restructured the State’s educational decisionmaking process to differentiate “between the treatment of problems involving racial matters and that afforded other problems in the same area.” That differentiation burdened minority interests “by lodging decisionmaking authority over the question at a new and remote level of government.”

    The fact that the state seized only that small racially-tinged component of school decisionmaking rendered that unconstitutional. Minority children were disadvantaged by needing to go to the state rather than local level to deal with busing.

    The BAMN argument is roughly that they are disadvantaged that they cannot solicit preferences at the local level, but need to do their own state-wide referendum to obtain preferences. They’ll claim that only banning sex and race preferences are too small of the preference field to be constitutional under Washington v. Seattle.

    The good news is that this argument failed in the Prop. 209 case. As the court put it:

    Nothing in the Constitution suggests the anomalous and bizarre result that preferences based on the most suspect and presumptively unconstitutional classifications–race and gender–must be readily available at the lowest level of government while preferences based on any other presumptively legitimate classification–such as wealth, age or disability–are at the mercy of statewide referenda.

  9. John Rosenberg November 10, 2006 at 1:34 am | | Reply

    Eddy – I appreciate your comment, but, with respect, I continue to believe that the argument that a statewide ban on racial, ethnic, and gender preferences by government agencies violates the Equal Protection clause is every bit as bizarre and offensive as it appears on its face.

    I am familiar with the Washington school district case; as you say, it was relied on by the plaintiffs in their failed attempt to overturn Proposition 209. I disagree with it on its own terms, in addition to agreeing with the reasons the 9th Circuit failed to give it any weight. Busing, for example, whatever one may think of it, was not a benefit provided to minorities so that ending it deprived them alone of something. It was school policy intended to benefit all students (think “diversity” before the use of that term in this context), and thus minorities were no more burdened by having to go to the state rather than their local school board to deal with it than were any other students.

  10. eddy November 10, 2006 at 2:24 am | | Reply

    Justice Powell thought that the Seattle decision was absurd:

    Justice Powell had lamented in dissent what a “strange notion” it was, “alien to our system–that local governmental bodies can forever preempt the ability of a State–the sovereign power–to address a matter of compelling concern to the State.” He questioned how a statewide repeal of

    busing created a racial classification when identical action by the local government would not.

    I love the way that the Ninth Circuit addressed the Prop. 209 “conventional” Equal Protection question:

    Plaintiffs charge that this ban on unequal treatment denies members of certain races and one gender equal protection of the laws. If merely stating this alleged equal protection violation does not suffice

    to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence.

  11. Tim November 10, 2006 at 7:52 am | | Reply

    If University of Michigan president Mary Sue Coleman is correct, maybe the next vote so should be to close the University of Michigan because they cannot provide a good college education.

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