By No Means: Michigan's Civil Rights Initiative

 by Terry Pell  

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As part of the litigation over Michigan's ban on racial discrimination, Professor Richard Sander discovered that minority students at the University of Michigan Law School failed the bar at more than eight times the rate of white students during the years 2004, 2005 and 2006.

Some means are by no means necessary.

That’s what Federal District Court Judge David Lawson decided in March about the efforts of a Michigan advocacy group that calls itself the “Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary” or, more simply, “BAMN.”  In a sweeping opinion, Lawson rejected every one of the legal arguments that BAMN and other opponents were hoping to use to strike down Michigan’s new amendment barring the use of racial preferences.  Lawson’s decision takes the steam out of the multiple legal challenges that have dogged the new amendment almost from the day it passed in November, 2006.

The legal outcome was not as surprising as Lawson’s timing. From the beginning, Lawson seemed eager to see BAMN’s case proceed.  He even issued an extraordinary preliminary injunction forbidding enforcement of the new amendment against three Michigan universities while the case got underway. Even after a panel of Sixth Circuit judges issued a stinging rebuke of this misuse of federal judicial authority, Lawson continued to find new judicial limbs on which to keep the suit perched.

Though there was little likelihood the suit would succeed on the merits, Lawson allowed the parties to gear up for a major trial that would have focused on the effects of the new amendment on minority enrollment.  Lawson possibly thought that a long period of pre-trial discovery followed by a sensational trial might slow down the new amendment or turn up a new legal basis for striking it down.  And a public airing of problems with the new amendment might help opponents of similar initiatives planned for five other states.

But then suddenly Lawson pulled the plug on all this with an opinion in March that, whatever else it did, certainly ended the prospect of further discovery and a trial.

Lawson’s about-face was no accident.  Pre-trial discovery was turning up evidence that the extensive use of racial preferences at Michigan universities was directly causing racial disparities in grades, majors, graduation and professional examination results.  Far from helping the case for racial preferences, pre-trial discovery was undermining it.

The new evidence was the result of efforts of UCLA Law Professor Richard Sander.  Sander had donated his services as an expert to Eric Russell, one of the parties in the case represented by my firm, the Center for Individual Rights.  Last fall, Sander had submitted his preliminary findings to the court, including the revelation that minority students at the UM Law School failed the bar at more than eight times the rate of white students during the years 2004, 2005 and 2006.

According to Sander, this data contradicted sworn testimony by UM experts during the trial in Grutter v. Bollinger, the Supreme Court case challenging the use of race-based admissions at the UM law school.  When called as an expert witness in that case, then UM Professor Richard Lempert testified that,

. . . not to put too fine a point on it, Michigan graduates pass the bar.  It doesn’t matter really whether you’re a minority or whether you’re white . . . I think there might of have been a statistically significant difference favoring whites, but it was substantively sort of completely trivial.  It was like 95 percent of minorities and 98 or something or 99 percent of whites.

Lempert based this conclusion on an exhaustive study he authored with David Chambers and Terry Adams of the careers of minority law school graduates during the 26-year period between 1970 and 1996.  But in Sander’s view, it was implausible that minority bar failure rates could have been stable for 26 years up until 2001 when Lempert testified, and then suddenly balloon to eight times the white failure rate in 2004, 2005 and 2006.

The evidence Sander was beginning to develop seemed to undermine the well-financed effort by the UM to reassure the Supreme Court that the racial preferences employed by the UM law school were a comparatively modest effort that produced benefits for the law school and for minority law students. Sander’s analysis suggested just the opposite: the preferences were extreme and directly harmed the academic prospects of minority students. If Sander’s analysis held for other years, it would have undermined both the UM’s expert testimony and the Supreme Court rulings based on that testimony.

Rather suddenly, the UM refused to provide the additional data Sander needed. Then, after Sander submitted an affidavit explaining his initial findings and why he needed additional data, the ACLU and NAACP — interveners in the case — moved to dismiss CIR client Eric Russell on the grounds that his document requests for “irrelevant” documents posed a hindrance to the efficient litigation of the case.

Now Lawson was left holding the bag — he couldn’t very well allow discovery to go on without granting Russell’s request for the data. Yet if he did so, he knew that Russell’s lawyers could use the subsequent trial to make a strong case against the use of racial preferences – one based on their documented effect in undermining the ability of minority students to compete academically.

Lawson’s apparent about-face is probably the final blow to the efforts of the Michigan state establishment to block Prop. 2.  Key to its strategy was a loose confederation of political leaders, college presidents and BAMN.  Michigan leaders had always been wary of BAMN, which as often as not directed its aggressive street theatre against state officials.  But after Michigan voters passed Prop. 2 by a margin of 58 to 42 percent, BAMN’s tactics looked like a good way to keep the new referendum tied up in legal knots.

BAMN’s legal challenge was a way to put the referendum itself on trial by suggesting that Michigan voters were either duped or misguided when they ended racial preferences.  Everyone from Governor Granholm to UM President Mary Sue Coleman probably figured that BAMN could stir up a lot of trouble at low cost: the established institutions could cherry-pick the BAMN tactics they liked while carefully distancing themselves from BAMN in every other way.

At first, the strategy looked brilliant. BAMN got the ball rolling by suing the state in federal court, demanding that it be prohibited from implementing Prop. 2. Instead of fighting, state officials including (Democrat) Governor Jennifer Granholm, (Republican) Attorney General Michael Cox, and the trustees of the three major Michigan state universities joined forces in asking Judge Lawson to suspend the new amendment for at least the first admissions cycle.

Judge Lawson went along with this collusive arrangement between “opposing” parties without so much as hearing from the only true opposing party in the case, a lone applicant to the UM, one Eric Russell, who asked for representation from the Center for Individual Rights.  Lawson issued an injunction that purported to prohibit enforcement of Prop. 2 against the admissions and financial aid policies of the three universities for a period of slightly more than six months. BAMN was on a roll.

The gambit lasted only a week before the Sixth Circuit stayed Lawson’s order and bluntly stated that his authority to overturn the provisions of a state constitution was not likely supported in this case. Lacking the cover of Lawson’s order, UM President Mary Sue Coleman was forced to implement the new amendment and to begin admitting students without regard to race.

Thanks to their decision to join forces with BAMN, state officials were then saddled with BAMN’s plans for the lawsuit. Right away, BAMN made clear this case was not going to be decided on the basis of narrow legal principles. Rather, BAMN envisioned a long process of court-enforced legal discovery into such questions as what had happened to minority enrollment a decade ago in California after that state passed Prop. 209.  Also on BAMN’s shopping list were depositions of initiative organizers Ward Connerly and Jennifer Gratz to probe their attitudes toward racial minorities.

Of course, little if any of the information sought by BAMN was likely to be relevant to the legal issue in the case, namely the authority of a federal judge to set aside a state law prohibiting racial preferences in Michigan. But BAMN’s goal always seemed broader than a legal decision. It wanted a high profile lawsuit to set the public agenda and shape public opinion. In BAMN’s mind, the lawsuit was a useful platform on which to conduct a noisy seminar on race in America, regardless of any narrow legal objective.

CIR opposed all of this as a waste of time. None of the evidence BAMN sought was relevant to the legal theory of its suit, which the Sixth Circuit had just ruled was unlikely to succeed in any event. CIR urged Judge Lawson to dismiss the case outright. But having engineered the Sixth Circuit reversal of Judge Lawson’s stay, CIR was not high on the list of Lawson’s favorite parties.

CIR asked well-known Washington litigator Charles Cooper to take the lead in defending the new initiative in the ongoing litigation. Cooper decided that if BAMN and its allies could have a full year to dig into the legally irrelevant question of whether ending racial preferences reduces minority enrollment, then Russell ought to have the same opportunity to collect information about the ways in which racial preferences harm minority interests.

UCLA Law Professor Richard Sander was just then getting national notice for a 2005 Stanford Law Review article demonstrating the ways in which the widespread use of large racial preferences tended to produce a “mismatch effect.”  Because the top-tier law schools use racial preferences to pull in minority students who otherwise would attend second-tier schools, the second-tier schools must use slightly greater preferences to pull in minority students who might otherwise attend third-tier schools and so on, down the line.  According to Sander, the overall effect is that minority law students as a group attend law schools where their credentials are one or two standard deviations lower than those of their classmates.

Sander’s article had included an analysis of data the University of Michigan had produced in the Gratz and Grutter litigation.  Sander’s findings demonstrated that the University of Michigan Law School actually gave greater weight to race than did Michigan’s undergraduate college.  Sander’s finding directly undermined Justice O’Connor’s view that the undergraduate system was the more egregious of the two. 

Whereas Justice O’Connor believed that the law school considered race in a less mechanical way, she missed the more important point that regardless how “individualized” and “holistic” the law school system might appear to be, it nonetheless made the element of race more decisive than did the supposedly “mechanical” undergraduate system.  Sander’s conclusions about the relative weight given to race by the two admissions systems were corroborated in later analyses by Yale academics Ian Ayres and Sydney Foster.

Before the UM clamped down on CIR’s request for data, Sander was able to confirm his earlier finding that the undergraduate system may have produced fewer harms than the law school system.  For one thing, the newly-produced data showed that a substantial number of minorities with strong credentials attend the UM undergraduate college.  These students could have been admitted without any consideration of race and presumably resisted offers from more competitive schools to attend the UM.  It was thus possible for Sander to compare, for the first time, the academic records of UM undergraduate minorities who did not receive a racial preference with those who undoubtedly did.

According to Sander, there were dramatic differences between the two groups.  Undergraduate blacks at the UM who were admitted without a preference had a graduation rate of 93% — higher than the rate for comparable white students, and far higher than the graduation rate of the school as a whole.  In stark contrast, UM undergraduate blacks who received a preference had a graduation rate of 47%.  If Sander is right, it raises a real question whether this latter group benefited from the UM’s heavy use of race or whether they would not have had better academic outcomes at less prestigious schools.

While Judge Lawson now has dismissed the case, the reason probably has less to do with the law and more to do with the what the evidence was starting to show about the real harms of the preferential admissions policies followed for years by the UM and other schools.  For the time being, Judge Lawson has sidelined the effort to get a full decade’s worth of data as part of this litigation.  But given what even three years worth of data seems to show, schools like Michigan will find it increasingly difficult to keep this data secret.  If even the “holistic” use of race makes it difficult for minority students to compete academically, the moral and legal imperative to publicize and analyze this information becomes great.

All of this is a far cry from last January when Mary Sue Coleman, Governor Granholm and the rest of the political establishment said they would keep Prop. 2 tied up in legal knots for years. While BAMN’s decision to sue seemed like a good idea last year, it’s a good idea that turned into their worst nightmare.  Too bad for them.

First published by the National Association of Scholars.  Republished by permission of the National Association of Scholars.

Political Theory, Humanities, Language, Academia, Histo, Race & Ethnicity, Multiculturalism

Read more articles by Terry Pell