Affirmative Action or First Amendment?

While legal pundits are debating the importance of the Supreme Court’s acceptance of the University of Texas affirmative action case (Fisher v. University of Texas at Austin No. 11-345), a similar and perhaps more far reaching controversy is brewing.  In November 2006, voters in Michigan passed Proposal 2 (58 to 42%); prop 2 forbade public universities within the state from granting preferential treatment or discriminating on the basis of race, sex, ethnicity, etc.  Fisher only deals with the constitutionality of University of Texas using race as one criterion after the bulk of the University’s admissions are determined with the top ten percent plan.  In Coalition to Defend Affirmative Action v. Regents of University of Michigan (Nos. 08-1387/1389/1534; 09-1111) the broad language prohibiting any affirmative action in higher education is under scrutiny.

A three judge panel determined that Proposal 2 is unconstitutional.  “The Supreme Court has twice held that equal protection does not permit the kind of political restructuring that Proposal 2 effected. (citations omitted) Applying Hunter and Seattle, we find that Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”  Later in the opinion, “It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of important to racial minorities.  In effect, the political process theory hews to the unremarkable belief that, when two competitors are running a race, one may not require the other to run twice as far, or to scale obstacles not present in the first runner’s court.”  The University of Michigan reports that the number of Black students attending declined in each year from 2006 through 2010.  In 2010, the incoming freshman class was 5.6% African American as compared to 6.6% in 2006, prior to Prop 2.[1]

Both the ACLU and BAMN (By Any Means Necessary) are supporting the continued appeals and they are arguing this case on equal protection grounds.  BAMN’s national coordinator stated that “[Prop 2] is leading to a new form of Jim Crow—separate and unequal—in our nation.”[2]  After all, this line of argumentation convinced three judges on the Court of Appeals (one judge concurred in part and dissented in part).

In the same article Mark Rosenbaum, an attorney for the ACLU, stated, “(Under Proposal 2), if you want to argue that your racial identity should also be considered as part of the mosaic of a diverse student body, you are forbidden from raising that subject.”  Its an interesting twist on the subject and suggests that there may be an alternative way to argue the case—that the ban on affirmative action is also treading on free speech.

Rosenbaum does not specify whose speech is infringed in his statement.  However, there are two distinct possibilities: applicants and admissions officers.  The former is a bit of a stretch as there is nothing in the admissions process that prevents the argumentation.  The University requires a 250 to 500 word essay and provides several possible topics including:

  • Evaluate a significant experience, achievement, risk you have taken, or ethical dilemma you have faced and its impact on you.
  • Discuss some issue of personal, local, national, or international concern and its importance to you.
  • Indicate a person who has had a significant influence on you, and describe that influence.
  • Describe a character in fiction, a historical figure, or a creative work (as in art, music, science, etc.) that has had an influence on you, and explain that influence.
  • A range of academic interests, personal perspectives, and life experiences adds much to the educational mix. Given your personal background, describe an experience that illustrates what you would bring to the diversity in a college community or an encounter that demonstrated the importance of diversity to you.
  • Topic of your choice.

Clearly, there is room to argue that your race, ethnicity, or other status makes you an excellent candidate and will add to the diversity that the University of Michigan values.[3]  Given that the University is not yet changing its policy based upon the Court of Appeals decision (given the likelihood of further litigation), the essay would not be of much service.  Still, you are free to make your argument.  The First Amendment gives you are right to speech, but that right does not require that anyone listen.

Now, consider the admissions officer tasked with upholding the University’s interest in diversity, but unable to advocate for diversity based upon race, sex, ethnicity or national origin.  Is this a violation of his or her right to free speech?  This seems to be a thin argument at best.  As an employee of a public institution, you do not lose your right to free speech and you are still fully capable to arguing against Proposal 2 on your own time.  The restriction is on advocating for racial diversity when making admissions decisions.

The comment in the Michigan Daily by Rosenbaum certainly seems to suggest a free speech angle to the case, but it seems this is not an argument that the ACLU or BAMN should hang their hat upon.


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Filed under Discrimination, Freedom of Speech, Assembly, and Association

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