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January 23, 2007

Deans Dish: Prop 2 and Mr. Wolverine

By Nate Kurtis
and Bria LaSalle

In December, Prop 2 went into effect in Michigan, banning the use of gender and racial preferences in public education, contracting, and hiring decisions. While the legal challenges from both sides continue, Michigan’s public educational institutions have been faced with the task of ensuring their policies are compliant with the new constitutional language. The RG spoke with Dean Caminker and Dean Zearfoss about Prop 2, the Law School admissions policy, and, of course, Mr. Wolverine.

Res Gestae: Dean Caminker, while the Grutter decision was a definite win for the Law School’s admissions policy, it was also part of the impetus behind the proposal, and passage, of Prop 2. Would you now characterize Grutter as a Pyrrhic victory?
Dean Caminker: Absolutely not. In a pragmatic sense, the Law School’s successful defense of its careful race-conscious admissions policy preserved the option of affirmative action in higher education for both public and private universities across the country (private because the legal rule applicable to public universities via the Fourteenth Amendment applies as well to private ones through Title VI). The fact that several states, now including Michigan, have enacted popular initiatives prohibiting racial preferences in this and other contexts is (in my view) unfortunate, but the Grutter victory remains of enormous importance. Moreover, in a symbolic sense, the Grutter litigation demonstrated that large and historically conservative interests -- the military and Fortune 500 corporations -- have come to understand the imperative of workplace and governmental diversity in our increasingly multi-ethnic and globalized society.

RG: Looking back on the events between Grutter and Prop 2, were there opportunities to engage the proponents of Prop 2 in a dialogue that might have avoided this Michigan constitutional amendment? If so, could you comment on why such a dialogue did not take place? Was there a sense that, having had the Law School’s admissions practices OK’d by the U.S. Supreme Court, there wasn’t very much weight to the no-preference side of the coin?
Dean C: Unfortunately, it proves difficult to construct a meaningful dialogue on many racial issues, including this one. Some proponents of Proposal 2 were undoubtedly motivated by moral views concerning race consciousness, and it is difficult to hold a collective conversation about moral perspectives. Some proponents of Proposal 2 were undoubtedly motivated by a sense of unfairness; here, I think, there was room for dialogue, as many people misconceive the point of higher education admissions and wrongly assume it should reflect notions of a strict "meritocracy" rather than serve particular pedagogic and professional missions. But these are complicated concepts, and in a society where most political debate today takes place in a 30-second sound bite, it unfortunately can be a struggle to shape an effective popular dialogue about public policy. And in the end, there will always be policy issues about which, even with perfect information, well-intentioned people will disagree.

RG: In light of the recent Appeals Court ruling, do you believe that the admissions policy will have to change?
Dean C: There will likely be continuing litigation advanced by civil rights organizations that will ultimately shape the contours and interpretation of Prop 2. At the moment, the Law School is continuing to evaluate applicants in a holistic fashion, but race is no longer being taken into account as a factor for consideration. The faculty will discuss new, long-term alternatives later this spring, seeking to devise the optimal admissions policy that will continue to admit and enroll a first-year class that has outstanding academic credentials and capabilities and that remains diverse along many different dimensions, including race. We will keep our eye on the courts, following any forthcoming guidance as to the dictates of Prop 2.

RG: Proponents of Prop 2 have said "the color of a person’s skin is a poor proxy for diversity." Do you agree with that statement?
Dean C: Race certainly is not a perfect proxy for many attributes, including political ideology or intellectual outlook (which is what many people mean when they say things similar to the quote you provided). But race still matters in our society, in some obvious and some more subtle ways, and people of different races will often have different experiences growing up that influence they way they think about various problems or challenges. It would seem odd, to me, to teach in my constitutional law class a session on the widespread practice of race-based peremptory challenges to prospective jurors without having a broad range of experiences represented in the classroom -- including students who had served on juries, students who had worked in the criminal justice system, and students of different races, so that a variety of experiences and perspectives could collectively be brought to bear on the topic.

RG: To what do you attribute the 16-point voting spread in favor of Prop 2?
Dean C: It’s probably not irrelevant that many, many people believe that they or someone they know was denied admission to a selective school or denied a job or government contract because of an affirmative action program that favored minority applicants. Of course, for the most part they are wrong in their beliefs. We probably reject over 100 white applicants for every single underrepresented minority admittee whose race made any difference in the admissions process. How many of those white applicants possibly were denied a spot in the class because of race-consciousness? One out of 100. But how many believe they were denied a spot for this reason? All 100 of them.

RG: Thank you Dean Caminker. One last question: Who is your pick for "Mr. Wolverine"?
Dean C: Mark West. Hands down.

RG: Thank you. Dean Zearfoss, do you want to comment on anything Dean Caminker said?
Dean Zearfoss: No, I agree with everything Dean Caminker said. Except for "Mr. Wolverine," I don’t agree with him on that.

RG: Well, if not Mark West, who do you think should be "Mr. Wolverine"?
Dean Z: I think, obviously, it should be someone in a position of authority. And, obviously, it should be someone with great hair. So: Dean Baum

RG: Ok, though come to think of it, I’m not sure either is in the running. Anyway, Dean Zearfoss, do you believe that the admissions policy, as it now stands, will have to be changed?
Dean Z: We changed our policy as soon as Prop 2 took effect. But it was a very minor change. The change is: we use the exact same policy, but race is no longer one of the many factors that we take into account. And we will continue applying that policy at least through the end of the season. As Dean Caminker explained, the Faculty Admissions Committee is considering what to do for a longer term policy. One very possible outcome will be that we continue with this policy because it is a very good policy. We like this policy. We liked having race as a factor; we thought that was important. But even without race as a factor, it is a very good policy that gives us the tools to select an excellent class. So, it is quite possible that there won’t be a completely, radically different policy. But, it is also true that we are considering all options; people are giving us ideas and we are talking to other people to pick their brains. We’ve been thinking about these questions for many, many years, but we’re not taking anything for granted, and we are really thoroughly considering all the possible options.

RG: Is there a sense, then, that the admissions policy --as it stands and has been articulated: the holistic, totality of the circumstances-- really doesn’t require any particular weighting, and lets you admit whomever you want? Would that be an accurate statement?
Dean Z: Well, yes. We can always admit whom we want, but there certainly is a difference following Prop 2. It’s not like this policy, post-Prop 2, will result in the exact same decisions as it would have pre-Prop 2. It definitely will make a difference that race is not one of the factors. It is just hard for me to know at this stage what the precise outcome will be. It may not make a huge difference. I don’t think it will make the kind of difference that Prop 209 seemed to make at Berkeley and UCLA, when the next year they had almost no one in the class who was African-American. I don’t see that happening here at all.

RG: How is it possible to remove race as a consideration from the decision? Even if it is removed from the application, you are rumored to be only human. If you were to learn an applicant’s race, either through meeting them or through an essay, how could you separate that from everything else you would consider?
Dean Z: I do that all the time. I know that people are married. I know that people are disabled. There are all kinds of things I know about people that aren’t factored into the decision process. On the one hand, I’m at the very beginning of employing a policy where race is not a decision-making factor, so I can’t claim to be at all certain how this is going to work out. I’ve been doing this a couple of weeks and in that time I haven’t had a lot of applications that, as far as I know, appear to be from minority applicants. So I don’t know. I understand the exercise: sure, I’m only human. But it doesn’t seem impossible to me to say race is not a factor. I mean, people’s gender, for example, has never been a factor in our process. We’ve never given gender any weight in the admissions process at this law school, and so to not give race any weight seems analogous.

RG: You mentioned possibly finding a more permanent policy. How would that policy be chosen? By committee? When would you hope to have that policy in place?
Dean Z: It is a committee, and we’re in the process right now. Actually, we’ve been working on it informally and thinking about it for some time. We hope to get it done by the end of the semester. As to who makes the final decision, once the committee is done writing and is satisfied, the new policy will go to the whole faculty, and the faculty will vote on it.

RG: Had you admitted anyone before Prop 2 went into effect?
Dean Z: Yes. Probably around 40%, which is typical for that time of year.

RG: Do you foresee any strange results from having admitted students both in the pre- and post-Prop 2 world?
Dean Z: No, I really don’t. It’s not ideal to switch systems in the middle of the year, just because it’s hard. We spend a lot of time every summer coming up with our processes. It’s a complex system, and it’s hard to change everything when you’re also in the midst of getting five hundred applications a week. Getting a ton of work done and simultaneously strategizing is difficult. But I think we’ve succeeded in changing our process, and I think it will be fine.

RG: Less than one year ago, you commented in a piece in the Dayton Law Review that, though changes to the admissions policy could be made, you doubted that any would be made for a long while owing to the fact that the Law School’s admissions policy was the only one in the country that was known, absolutely, to be constitutional. Do you care to revise your statement in light of recent events?
Dean Z: Well, I turned out to be wrong; we’ve in fact made changes to our policy. Even though the policy is constitutional within the context of the U.S. constitution, the state constitution is now such that our old policy would violate the current state constitution. But I don’t care to revise my statement, because it was absolutely correct when I made it.

RG: Looking forward, now that the people of Michigan have "spoken," is one solution to sever the University’s ties to the state? Would you support such a move?
Dean Z: No, I wouldn’t. Everyone who knows me knows I wasn’t happy at the outcome of the election. I thought our policy was a really good policy. If I hadn’t thought that, I would have been working to change it without an election. But I also think it is an incredibly important part of the character of this university, of this law school, that it is a public institution. It is one of the things that makes us different from our peers. And I’m proud of its history. I wasn’t happy about the election, but I’m very proud of its history, and I feel confident that we’ll make it work. We will go on being a great law school despite the change in our admissions policies.
Dean C: [Besides, t]he University of Michigan is a public entity by virtue of the state constitution. It would therefore require an amendment to the constitution for the University to change its status.

RG: Alright. But, speaking hypothetically, if the University were to secede from the State of Michigan, there wouldn’t really be much of a reason to keep it in Michigan. Where would you move the University if you could?
Dean Z: [laughs] I happen to love Ann Arbor, and that’s why I live here. If I didn’t work at the Law School, I’d find something else to do in Ann Arbor. Now, the Law School is the best game in town, but I’d figure something else out. And, I’ve got to tell you, at my son’s elementary school, there’s a culture of winter toughness. There is a constant dialogue between the months of January and February about whether it is or is not appropriate to wear shorts and t-shirts to school. I would like to see a little more of that kind of toughness at the Law School. I think it’s character building, cold weather. Look at all the character I have, after all!

RG: I’d be willing to bet you’d have that character even if you lived in a warm weather environment.
Dean Z: I don’t know, where would you move?

RG: I’d move it all to Maui.
Dean Z: Well, you came to Ann Arbor, so I don’t know what you’re talking about. You are obviously drawn to cold weather.

RG: There wasn’t as good a law school on Maui, at least at the time….
Dean Z: You know, it is expensive in Hawaii. And, let me tell you, I read this interesting book over the break about volcanoes and stuff. I don’t know. I don’t know that Hawaii is a good bet these days. You’ve got global warming, you’ve got volcanoes, you’ve got tsunamis. The Midwest is quite safe. I like that about Ann Arbor. It’s a very safe town.

RG: I guess you’re right. But, even if we stay in town, can we at least put a dome over the Law School? That way we’d still be around Ann Arbor and the cold weather, but the Law School could enjoy warm temperatures year-round.
Dean Z: Okay. I’m not really much of an architecture person. But, if it can look good, okay. I won’t object. But I like the cold weather.
Dean C: Look, I’m a born-and-raised former beach volleyball player from Southern California. If can handle it, so can you. Suck it up.

RG: Alright, alright. Dean Zearfoss, you’ve MC’ed the "Mr. Wolverine" competition every year since its inception.
Dean Z: Yeah. Isn’t that weird?

RG: Definitely! Especially since January, just after a big application deadline, is such a busy month for you in the admissions cycle. Why do you take the time to MC the "Mr. Wolverine" competition?
Dean Z: I’m going to give you an answer that is not actually smart-alecky, which is against my usual practice. I really love the spirit of this contest --I think it’s a lot of fun! And, it helps remind me why I love this law school. With the exception of Ron Garber’s performance last year, that is…. You can put that in, because he knows how I felt about that. Anyway, I really feel like it shows what a great community we are, and it helps remind me why I love this law school. And, I’ve got to tell you, it kinda invigorates me to do this job. Also, it reminds me that I’ve got to look for good dancers, and good singers, and choreographers when I’m reviewing these applications. I might otherwise forget.

RG: Let me see if I have this straight. The Law School is great -except Ron Garber’s ass.
Dean Z: [laughs] That’s right.

RG: In the past you’ve been known to use a "Mr. Wolverine" contestant’s application against him during the competition. Can we expect similar material this time around?
Dean Z: I only did that the one year. And then last year no one could even hear what I said. I wasn’t using application info, anyway. This year I’m not going to say anything about the contestants at all because Paul Mata is keeping us on the clock. He’s a harsh taskmaster.

RG: Would you support a forum whereby we male law students could hear the dirt on our female classmates?
Dean Z: Well, Nate, the sad truth is: there’s much less dirt on the women. Sorry about that. [laughs]

RG: Why do you think that is?
Dean Z: I’ve got to tell you, there are a lot of public urination charges in the male camp here, and not so much with the women. It’s very rare to see women with public urination charges in their past.

RG: Would you be more or less likely to admit a woman with a public urination charge?
Dean Z: I am required by law to no longer care about the gender of any urinators.

RG: Fair point. And, thank you both very much.