Dec. 20, 2006

Short-Term Reprieve for Affirmative Action

Three Michigan universities on Tuesday won the right to keep their current admissions and financial aid policies — the affirmative action portions of which could have been illegal in the state by the end of the week — until July 1. But long term, the ability of colleges to challenge the ban on affirmative action remained uncertain, with some advocates saying that the day’s developments strengthened efforts to do so, and others saying just the opposite.

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A federal judge granted the universities a reprieve from the Michigan Civil Rights Initiative, known as Proposal 2, which was to take effect this week and would bar affirmative action in admissions by public colleges and universities in the state. Michigan State and Wayne State Universities and the University of Michigan sought permission to delay Proposal 2, saying that it would be impractical and unfair for the institutions to change their processes in the middle of an admissions cycle, with some applicants already evaluated and others awaiting review.

In November, 58 percent of Michigan voters backed Proposal 2 — despite widespread opposition from higher education, business and political leaders. The impact has expected to be most dramatic at the University of Michigan — both because its admissions process is the most competitive in the state and because it is the institution that in 2003 successfully defended at the U.S. Supreme Court the right of colleges to consider race and ethnicity in admissions decisions.

The day after the vote on Proposal 2, the University of Michigan signaled that it would probably challenge the measure in court, although it did not specify how it would do so, and similar challenges in other states had failed. But within a few weeks, the university — while saying it was continuing to consider legal options — changed its tone and started talking more about complying with Proposal 2. To date, the only legal challenge to the measure from the universities in the state was the request to delay the start of the ban on affirmative action.

University officials on Tuesday stressed that the court ruling affected only the immediate questions of this admissions cycle.

“What we sought was not a change on the Proposal 2 scoreboard, but merely a timeout,” said Terry Denbow, vice president for university relations at Michigan State. “I am pleased that the request was deemed reasoned and reasonable. We need time to assess — within the boundaries of the law — programs to assure fairness to students and to others, like private donors and major corporations who have designated financial aid gifts. Our due diligence is directed at being one, true to the law, and, two, true to our values.”

Whether the universities will seek to overturn Proposal 2 remains the big question. By Any Means Necessary, a group formed to defend affirmative action, has already filed a suit in federal court to do so — and Tuesday’s ruling technically came in motions related to that case, the substance of which has yet to be heard. By Any Means Necessary has criticized the University of Michigan for not fully joining the suit already, while many others in the state have criticized the university for hinting that it would sue.

Among those who criticized universities for seeking to delay Proposal 2 was Mike Cox, the state’s attorney general. But he helped broker the deal approved by the court on Tuesday. In announcing the agreement, Cox issued a statement saying that the pact settled the question of Proposal 2’s viability. “This is a historic agreement. It upholds the will of the people,” Cox said. “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 went on to say that the universities had pledged — as part of the agreement — not to file any lawsuits against Proposal 2 on the basis of their First Amendment rights to academic freedom.

The academic freedom issue is potentially important for any legal challenge to Proposal 2. While academic freedom is not an explicit part of the U.S. Constitution, it has been recognized as a right by the U.S. Supreme Court since the 1957 case of Sweezy v. New Hampshire, in which Justice Felix Frankfurter defined the four elements of academic freedom as “the freedom of an institution to decide who may attend, who may teach, what may be taught and how it shall be taught.” Many supporters of affirmative action believe the concept should be covered by the “who may attend” provision.

There is, however, a problem with Cox’s statement: It is not clear that the universities agreed to what he said they agreed to. The universities released a copy of the “stipulations” that were filed with the court as part of the request for the delay in Proposal 2. The relevant stipulation says that the universities’ claim (which includes the academic freedom argument) “shall be and hereby is dismissed in its entirety, with prejudice only as to the specific injunctive relief requested in the cross-claim.”

Donna Stern, a spokeswoman for By Any Means Necessary, noted that the specific relief requested was the delay. As a result, she said, there was no stipulation that the universities couldn’t sue on academic freedom grounds to try to block Proposal 2.

“All they’ve said is that they won’t make the same exact claim, but they couldn’t make the same exact claim because that issue is now settled,” Stern said. She said she was encouraged by the outcome to hope that the universities might join the suit.

University of Michigan officials said they were pleased with the ruling Tuesday, but didn’t comment on the possible inconsistency in what the attorney general said they had agreed to, and what the stipulation said.

A spokesman for the attorney general did not return repeated calls.

— Scott Jaschik

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