Tag Archives: Michigan

The Sixth Circuit Undermines Affirmative Action

On November 6 the voters of Oklahoma, following in the footsteps of voters in California (1996), Washington (1998), Michigan (2006), Nebraska (2008), and Arizona (2010), passed  a constitutional amendment that prohibits the state from offering “preferred treatment” or engaging in discrimination based on race, color, gender, or ethnicity. On November 15 eight of the fifteen judges of the Sixth Circuit Court of Appeals held, over vigorous dissents, that the nearly identical Michigan amendment requiring the state to treat all its residents without regard to their race violated the Equal Protection Clause of the 14th Amendment. Really.

As Roger Clegg just noted, this decision will almost certainly be reviewed by the Supreme Court, not primarily because it is unusually stupid but because it conflicts with both old and recent decisions of even the notoriously liberal Ninth Circuit. Ironically, this decision is so bad that it may actually do some good before the Court can review it. In flatly rejecting the same argument made in the Michigan case (by the same lawyer) against California’s Prop. 209, a three judge panel of the Ninth Circuit ruled in April that “Grutter upheld as permissible certain race-based affirmative action programs. It did not hold that such programs are constitutionally required.” In holding that states are effectively prohibited from deciding that race-based preferences are impermissible, the Sixth Circuit’s overreaching Egregious Eight may have inadvertently driven a stake through the heart of affirmative action. Their extreme decision may persuade Justice Kennedy and hence a conservative majority to hold in the upcoming Fisher decision that Grutter must be gutted, not tweaked, that the only “way to stop discrimination on the basis of race,” as Chief Justice Roberts famously said in Parents Involved, “is to stop discriminating on the basis of race.”

Noting the great gulf separating the views on racial preference held by the nation’s opinion leaders and elites, including leaders and faculty of both public and private universities, Richard Kahlenberg recently quoted Richard Sander’s and Stuart Taylor Jr.’s observation in their terrific new book, Mismatch, “We can think of no other public issue in which the leadership class displays such cohesion in the face of a largely opposite view among Americans in general.”

In large part that’s because most Americans continue to define discrimination as distributing benefits or burdens based on race while opinion leaders in editorial and university offices, Hollywood and Madison Avenue, board rooms, and nearly all elected and appointed Democrats have abandoned that traditional definition and instead regard discrimination as anything that interferes with promoting “diversity,” which in practice means discriminating against white and Asians in order to admit or hire more blacks and Hispanics. Thus the Sixth Circuit thought it unfair that the citizens of Michigan prohibited “race-conscious” admissions, i.e., preferential treatment based on race, while allowing “a legacy-conscious admissions policy.” Whatever the merits or wisdom of legacy preference, it cannot be said that its intent or effect is to discriminate against minorities. Indeed, for over a generation now minorities have been admitted to selective institutions in greater numbers than if they had been held to the same standards as whites and Asians, and thus it is quite likely that legacy preferences on balance now actually benefit minorities.

Their “legacy conscious admissions” comparison reveals that the Sixth Circuit based its decision on the assumption that “race-conscious” admissions have the intent and effect of benefitting minorities. The massive amount of evidence presented in the “mismatch” scholarship of Sander, Taylor, and now many others, however, has demonstrated that in fact “race conscious” admissions actually does serious and lasting damage to its ostensible “beneficiaries.”

I say “ostensible” and put “beneficiaries” in quotes because for anyone who credits the mantra-like justifications for “race conscious” admissions offered by its proponents, it’s clear that lowering the bar for blacks and Hispanics is not intended as a benefit to them — after all, they would receive whatever benefits “diversity” offers at less selective institutions — but to the whites and Asians whose education is said to require being exposed to them.

In any event, the noxious belief of the Sixth Circuit and all supporters of racial preference that discrimination against some groups should be legal if it benefits other groups reveals how thoroughly American liberalism has abandoned the civil rights ideal that was its heart and soul from the1830s through the 1960s.

An Unusually Stupid Court Ruling

Yesterday the full U.S. Court of Appeals for the Sixth Circuit held that Michigan’s Proposal 2 violates the U.S. Constitution’s Equal Protection Clause. 

Proposal 2 was a ballot initiative that amended the state constitution to provide that state and local government agencies (including public universities) in Michigan “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”  The Equal Protection Clause provides that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

The mind boggles.  Proposal 2 not only does not violate the Equal Protection Clause, and is not only quite consistent with it, but is indeed nothing more than an elaboration on it.

But here is the court of appeals’ reasoning:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution–a lengthy, expensive, and arduous process–to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.

To which the answer is:  The same might be said of a member of the Ku Klux Klan who wanted the University of Michigan to adopt a whites-only policy of racial segregation.  Would this court have ruled that the Klansman’s equal-protection rights are violated by Proposal 2?

That seems unlikely.  The decision was driven by its politically correct result, which is why the decision was 8-7 along partisan lines:  Every vote in the majority was by a Democrat-appointed judge (except, technically, for one who was originally nominated by President Clinton late in his term and then, in a misguided gesture of conciliation, renominated by President Bush at the beginning of his), and every dissenter was appointed by a Republican president.  Elections do indeed have consequences.

One’s first reaction is anger and frustration. 

Consider:  The saga may be said to begin in 1978, when a majority of the Supreme Court in the Bakke case decided that Title VI of the 1964 Civil Rights Act does not prohibit racial discrimination in university admissions, even though it reads, “No person in the United States shall, on the ground of race, color, or national origin … be subjected to discrimination [by federally funded universities]….”  The fact that the national legislature had, by the clear terms of a statute it had passed, banned racial preferences in university admissions was just ignored.

So those opposing such discrimination would have to meet the standard the Court uses in constitutional cases, which allows the discrimination if it is “narrowly tailored” to a “compelling” interest.  As the discrimination became more and more widespread and entrenched, hard-fought lawsuits were in fact brought in Texas and then Michigan and taken through the courts of appeals, and then finally in 2003 the Supreme Court agreed to revisit the issue.  Alas, the Court struck down some of the discrimination but also held by a 5-4 margin that the “educational benefits” from “diversity” provided such a compelling interest, at least for another 25 years (!). 

So it was back to the political process in Michigan, where thousands of petition signatures were gathered and then Proposal 2 was passed with 58 percent of the vote after a bruising campaign.  And now we are told that this was a waste of time because using the political process this way is unconstitutional.  Again, it’s frustrating.

All this, in the courts and at the ballot, and all because of this seemingly unexceptionable desire:  That universities not discriminate in admission on the basis of skin color or what country someone’s ancestors came from.

But, on reflection, we can make lemonade from this lemon.

The state attorney general has already announced that he plans to take the case to the Supreme Court – thank goodness – which will almost certainly grant review, because the decision below is not only important and outrageous, but also creates a split in the circuits since the Ninth Circuit rejected a similar lawsuit.  When the Court does so, there ought to be at least five votes to overturn the Sixth Circuit’s decision – and clarify or overturn a confusing and mischievous couple of earlier Supreme Court decisions that the Sixth Circuit used to justify its result.  So the case will provide the Court with an opportunity to replace bad precedent containing dubious language with good precedent and good language for future cases.

And wait, there’s more:  It has already been my hope that the recent election results, and in particular the demographic spin being put on them, should push the conservative justices to ban racial preferences, period, in the recently argued Fisher v. University of Texas.  It’s clear that the composition of the Court is not going to get any better and may get worse, and it’s clear that the political branches are not going to address this problem – and, indeed, the country is getting to the point where political power is wielded in a way to create a racial spoils system in university admissions, contracting, you name it.   Therefore, our justices will reason, we have to take this off the table now.

The fact that the Court knows that the Sixth Circuit case is now in the wings may make this course of action even more attractive in Fisher.  Yesterday’s decision underscores the need for a clear statement from the Court in this area, and it is, after all, even easier to explain why banning racial preferences is not unconstitutional when there is a Supreme Court decision that holds that using racial preferences is unconstitutional.

You have to hand it to our opponents (in this case the lawsuit was brought by an organization whose name promises to defend affirmative action By Any Means Necessary, or “BAMN”):  They never give up.  So we can’t either.  They have the advantage of being unprincipled, but we have the advantage of being right – of wanting to end racial and ethnic discrimination and preference, which is the only tenable legal regime for our increasingly multiethnic and multiracial nation.


Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined amicus briefs filed by Pacific Legal Foundation in the Sixth Circuit case and in Fisher.

In History—the Obsession with Race, Class and Gender

The University of Michigan history department has 28 tenured or tenure-track professors whose research specialties in some way relate to U.S. history after 1789. Race is the favorite topic; at least eleven of the department’s professors indicate that their research in some way deals with race in America. Gender is the next prominent area of specialization; at least seven of the professors offer research in this area (with some overlap with race). Race and gender are, obviously, important themes in U.S. history. But are they of such importance that they should dominate to this extent the Americanist wing one of the nation’s major departments? And is Michigan fulfilling its mission of preparing future citizens by offering such a limited view of the nation’s past?

With the rise of the race/class/gender approach, subfields perceived as excessively “traditional" or overly focused on “dead white males” have gone into decline—or, in the case of political history, have been “re-visioned” in the hopes of transferring focus to topics oriented around themes of race, class, and gender. Since (at least in large departments, or at elite institutions) U.S. history hires in the national (post-1789) period come in subfields, looking at personnel specialties can give a sense of exactly how a university does—or does not—fulfill its obligation to train future citizens in the foundational events of their nation.

Continue reading In History—the Obsession with Race, Class and Gender

FERPA and a Student Who Might Make a Professor Cringe

In a case highlighted by FIRE,
Oakland University in Michigan issued a three-semester suspension to a student
named Joseph Corlett, allegedly in response to some of Corlett’s in-class
writings that passed well beyond the bounds of good taste (in a writing journal, he ruminated on the sexual attractiveness of his female professors) and to Corbett’s stated position in favor of allowing guns on campus, which some at Oakland seem to have interpreted as threatening. Interpreting the material about the case in the light most favorable to Corlett, he seems like the type of student whose name would cause a professor to cringe if he or she saw it on the class roster. Nonetheless, as FIRE’s Adam Kissel pointed out, “It is not against the law to be–or to be perceived as–a creep.”

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Campus Diversity: Taking Allport Seriously

Gordon Allport.jpg

Some key questions are rarely asked about the success or failure of affirmative action programs on college campuses.  Among them are: Does ignorance foster negative racial stereotyping?  Does the greater opportunity for contact between people of diverse races and ethnicities brought about by “race-sensitive admissions” help prejudiced whites overcome their prejudice against blacks and other “people of color”?

Unfortunately, not many good studies out there address these issues in any systematic or candid manner.  Most high-level college administrators and college presidents, however, are quick to assure us that the racial mix they strive to achieve on campus through their affirmative action initiatives promotes greater interracial understanding and good will.  This is certainly what we hear from the leading champions of greater “diversity” on university campuses.  It is the line we get, for instance, from Lee Bollinger, former president of the University of Michigan and now president of Columbia; from William Chace, former president of Emory; and from both Derek Bok and William Bowen, former presidents, respectively, of Harvard and Princeton, who in their influential study, The Shape of the River, tried to convince doubters that preference policies at elite universities have none of the harmful effects critics have long ascribed to them.

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From the Sixth Circuit: Good News, Bad News

There’s good news out of the U.S. Court of Appeals for the Sixth Circuit: On Friday, the full court agreed to rehear a now infamous decision in which a three-judge panel had earlier struck down the state of Michigan’s Proposal 2.  Proposal 2, in turn, is a ban on government discrimination and preference on the basis of race, ethnicity, and sex, passed by Michigan voters in 2006 in large measure because the U.S. Supreme Court in 2003 had upheld the state universities’ use of racial preferences in admissions.  The Sixth Circuit panel reasoned that this ban violates the Equal Protection Clause of the U.S. Constitution.

You can’t make this stuff up, folks.  That’s right: The people of Michigan, according to this court, violated the Equal Protection Clause when they demanded that their state treat all citizens equally–without regard to race, ethnicity, or sex–in government contracting, employment, and education, including university admissions.  Unbelievable.

Continue reading From the Sixth Circuit: Good News, Bad News

College Presidents–Do They Make Too Much Money?


The Chronicle of Higher Education‘s recently released annual survey of the salaries of university presidents provides empirical support for the proposition that higher education today appears to be less about achieving lofty goals like disseminating knowledge, building character, promoting virtue and expanding the frontiers of what humans can do than it is about something far more mundane: keeping the members of the academy happy and well fed.

I believe strongly that free markets work remarkably well and that includes the market for labor. The reason LeBron James, Oprah Winfrey and CEOs of highly profitable top corporations (including for-profit universities) are exceedingly well paid (many millions of dollars annually) is that their contribution to their employers is huge and can usually be pretty well measured–so markets dictate that they are paid, roughly, what they contribute to output at the margin. The Cleveland Cavaliers sank as a basketball power when Mr. James moved to Miami, and with that the revenue stream generated by Mr. James’s talents fell as well.

Traditional higher education, however, is a different matter. Markets are not truly “free” (indeed, they are rather expensive!) Gordon Gee, the president of Ohio State, cost that institution over $1.8 million in compensation last year (double the next highest paid public university president). But did that school have a good year because of President Gee? Who knows? Are students learning more?  Is Ohio State broadening our horizons of human potentialities more than in the past? Is President Gee worth roughly three times the salary of his predecessor? Is he well over twice as productive as the long-time president of the school’s arch athletic rival, Mary Sue Coleman of the University of Michigan? Again, who knows?

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Upholding Religious Freedom in the Classroom

Wendy Kaminer has an important post at The Atlantic asking why free speech organizations—with the notable exception of FIRE—aren’t doing much of anything to stand up for the rights of students and educators punished for their opposition to issues associated with gay rights. Regarding the treatment of students, I fully agree with Kaminer. But should we evaluate policies toward students and teachers through different standards?

Kaminer first example—that of Eastern Michigan student Julea Ward—is especially egregious. Ward, enrolled in EMU’s counseling graduate program, had a religious objection to homosexuality. She didn’t force her agenda on others, and instead asked permission to refer gay clients to other counselors. While hardly an ideal solution on a broad scale, this approach reasonably accommodated both the student’s religious beliefs and the patient’s right to fair treatment.

In response, EMU ordered Ward into a “remediation” program so she could recognize the “error of her ways”; when she declined to do so, she was terminated from the program. EMU defended its action on the grounds that “we are a diverse campus with a strong commitment not to discriminate on the basis of gender, race, disability, religion, sexual orientation, gender identity or expression.” How its treatment of Ward reflected a desire not to discriminate against students on the basis of religion EMU didn’t say.

Ward’s experience mirrors that of the students victimized by NCATE’s “dispositions” criteria. In both instances, faculty ideologues used “professional” guidelines to force out students whose beliefs (such as opposition to affirmative action) the professors found objectionable—and in the process to deny those students their preferred career choice.

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Deciphering Grutter V. Bollinger

By Edward Blum

As the saying goes, “fuzzy law begets controversy”, and nothing has proven this maxim better than the Supreme Court’s 2003 landmark ruling on “diversity” in higher education. Lacking clarity, the ruling has left individual institutions to interpret how to achieve diversity on their campuses, stoking never-ending conflict over race and admissions. However, a new lawsuit from Texas that is working its way up the appellate ladder—the New Orleans-based 5th Circuit Court of Appeals took the case this week— may compel the justices to clarify—and limit—how race and ethnicity may be used in the admissions process.

Some background is in order. Six years ago, the high court handed down a decision from a University of Michigan case that addressed the use of race as a factor in university admissions. In Grutter v. Bollinger, a challenge to Michigan’s law school admissions practices, the justices ended a debate that had bedeviled college administrators for decades by permitting institutions of higher education to employ racial and ethnic preferences in order to create a “diverse” student body.

The Grutter opinion was significant in that it held that the creation of a racially diverse student body was so beneficial to the educational experience of everyone that there was a “compelling state interest” to lower the admissions bar for some applicants, and raise it for others.

Continue reading Deciphering Grutter V. Bollinger

Campus Madness, Part 346

– A leader of Michigan State’s student government could be suspended for emailing a critique of changes in campus policies to faculty members and asking for their views. Kara Spencer wrote an analysis of the university’s proposed changes in the academic calendar and freshman orientation and emailed it to 391 members of the faculty. As a result, she was called to a disciplinary hearing and charged with sending unauthorized “spam” to faculty members. She was told that her message was “considered a disruption of the activities of the person receiving the email.” The results of the hearing are expected next week.
– The University of Ottawa “social justice agency” refused to fund a speech sponsored by the campus Hillel Society on grounds that Hillel has a “relationship to apartheid Israel.” The agency, the University of Ottawa Public Research Interest Group, added that “Zionist ideology does not fit within OPIRG’s mandate of human rights, social justice.” The speech had nothing to do with Israel. It was given by Israel Sariri, head of a Ugandan group working on sustainable development projects. He talked about schools that feed and educate 500 Jewish, Muslim and Christian children in Africa. This is the second strange recent decision at an Ontario university. A week ago, the students’ association at Carleton University voted to drop cystic fibrosis as the beneficiary of its annual fundraiser because the disease is not multicultural enough—most of its victims are white males. Stricken by second thoughts and bad publicity, the association reversed its decision.

Across The Great Midwest

– The University of Michigan has opened a Computer and Video Games Archive

Now, as the Michigan Daily reports, students can study video games at their library. “Or just play them.” How exactly will this work?

Once traffic picks up, the library will use a reservation system, with priority going to researchers.


Because of budget limits, Carter said, the archive will focus on games with cultural and critical significance. But, archive officials intend to have a broad representation of the variety of video games available.

Current offerings include Guitar Hero III and Smash Brothers Melee. You never know what researchers might require. In case culturally-vital sequels come along, the center is equipped with $10,000 per year for purchasing. Presumably, no precious cultural resources will slip lost into history this way. It makes you ponder how many boardwalk peepshows were lost for lack of forward-thinking academic librarians.

– Speaking of academically vital offerings, the Reverend Jeremiah Wright will be delivering a lecture at Northwestern University. For Members Only, a black student group that protested the decision to rescind Wright’s honorary degree last spring, has invited him to speak at their “State of the Black Union” event. I’ve no doubt his academic insights will go over well.

Ending Racial Preferences: The Michigan Story

Book Review:
Ending Racial Preferences: The Michigan Story by Carol M. Allen (Lexington Books, 2008, 422 pp.)

I like this book, but fairness to the prospective reader requires disclosure of three facts: (a) it is an odd book, (b) I am an odd reader, and (c) it costs ninety dollars, for Pete’s sake.

The last point speaks for itself, and the book is a mere 422 pages long, with no elaborate photos or foldouts or anything like that and not even a book jacket, so go figure. The reason I describe myself as an odd reader is that my lot in life is to write, speak, and debate against racial preferences, so all of the book’s variegated parts are of interest and value to me.

The variegation is the reason I say the book is odd. The author is Carol M. Allen, who is secretary of Toward A Fair Michigan (TAFM), which was created when the movement in Michigan led by Ward Connerly and Jennifer Gratz to ban racial, ethnic, and gender preferences by state programs there was launched in 2003. Probably the most valuable part of the book is its impressively documented and on-the-ground account of how the resulting ballot initiative came to be passed by voters in 2006, despite opposition from every part of the state establishment–business, labor unions, educators and academics, both political parties, the media, and even the clergy. The TAFM folks did their best to lend some civility and thoughtfulness to a campaign in which the initiative’s opponents frequently lived up to the name of their most notorious organization, By Any Means Necessary–whose national chairman threatened Jennifer Gratz with a switchblade, just to give you some idea of the level of discourse it preferred. (BAMN carries on, by the way, in its opposition to similar ballot initiatives this year in Colorado, Arizona, and Nebraska, harassing those collecting signatures and attempting to buy the signatures once collected, presumably so that they can be destroyed.)

Continue reading Ending Racial Preferences: The Michigan Story