For those of you who follow my miscellaneous national and topical interests like signature-gathering, and Ward Connerly's SuperTuesday, you'll also know that I follow First Amendment questions of whatever type. The Paul Jacob story hits all three. Connerly is helping a group in Oklahoma collect signatures as I write. Signature-gathering difficulties there are driven largely by politics - and although the people of Oklahoma are quite rational, their Attorney General and special interests seem to have figured out that out and realize they must hamstring the people.

Enter Paul Jacob. Like him or hate him and his efforts, he helped a group in 2005 in Oklahoma collect signatures for a version of TABOR (taxpayer rights initiative). Taxpayer initiatives are serious challenges to government and special interests because when taxpayers can say no and turn the spigot off - special interests and the "governmental class" (the army of people working for the government get to vote, and self-lobby, too) get mad. Mad enough to put people who threaten them in jail.

So, when Democrat Attorney General Drew Edmonson told a grand jury to indict Jacob earlier this year, they jumped. Grand juries would indict cinder block if told to, and even under the best circumstances, a grand jury indictment is under a standard of evidence that there is simply enough evidence to warrant a trial - not that anyone is guilty. Regardless, the indictment was for "conspiracy" to "defraud the state", a stretch of that charge based on the underlying crime of ... coordinating signature-gatherers who did not intend to live in Oklahoma forever. That is, using "out-of-state" signature gatherers invalidates a signature in Oklahoma (nowhere in the Oklahoma code however, could I find a law criminalizing out-of-state gathering, merely the AG interpretation that residency means someone must intend to live in Oklahoma forever). From the non-crime of not knowing exactly where one might live in a few years, and two years following the Oklahoma state court's "referee" refusal to place TABOR on the 2006 ballot, the AG indicted 3 petition drive leaders (with no indictments for any criminal circulator below them, another hard piece of logic to follow). Now clearly this all contrived to make all signature-gathering of any type more difficult, and to plant the fear of criminal prosecution in the hearts of petition-drive leaders.

But the AG made a technical mistake in his grand jury indictment, and misused the multi-county nature of that body, so he had to drop the charges. Yesterday, he reissued the charges under his own office's direct power of prosecution, and is going full-steam ahead.

Whether you are liberal or conservative, or libertarian (I guess if you're authoritarian, you should support the AG), you should take note of this case. It's about control and power. It's about suppressing speech and petitioning. Sure, reasonable rules can invalidate bad or petitions created in error - and although there is probably no compelling interest in state residency requirements even if there were, this case is one of ambiguity in law being used as a blunt hammer to quash dissidents. Even if you are an opponent of Jacob's views, to remain silent when his speech and petition rights are subverted is to invite the same to happen to you when you disagree with the establishment.

In all, this is probably the most important First Amendment case, and clearly the most important petitioning case to arise from the year 2007. Follow it closely. Prevent it from happening in your state. Blog it if you can. Write a letter to the editor if its relevant. And be careful when you travel through Oklahoma.

If it has to do with signature-gathering (particularly if not inside Michigan where one of my sister-sites will pick it up), its a subject ripe for PP&M. And this one is ripe - Ralph Nader has sued the DNC alleging a vast conspiracy (VLWC) by the Demoncratic National Committee to obstruct his ability to get on the 2004 ballot. Frivolous lawsuits, blockers, bogus challenge-phase assertions. The suit itself details some 90 law firms that participated.

This story, from the site "Ballot-pedia", which is a brilliant use of the wiki concept to map out a small universe of specialized knowledge, details it well and provides links to the original source documents and news stories.

Needless to say, while ZR doesn't normally subscribe to conspiracy arguments because they are too complex and usually not the simplest explanation, there is some validity to this one. The DNC didn't make it a secret that it wanted to keep Nader off the ballot - in fact, it admitted it was trying to do so. And various officials admit to using frivolous legal techniques solely to drain Nader. That's abuse of process, and Nader should recover something for it.

In a lengthy article by Jonathan D. Glater and Alan Finder in today's New York Times entitled, "Schools Diversity Based on Income Segregates Some", we find some interesting statements. The story reads like a news analysis infiltrated with opinion, as is clear from its biased title.

First, in California, we have school attorneys that have forgotten where they live. Check this Bayview school general counsel.

David Campos, the general counsel to the school district, said the resegregation was so disappointing that the school board might try to test whether Justice Anthony M. Kennedy’s opinion in the recent Supreme Court case left open the possibility of using race if other methods of integration fail.

“We stopped using race at some point,” Mr. Campos said. “And then for a number of years we have tried to use a number of race-neutral factors to achieve racial diversity, which methods haven’t worked. Should the board decide to use race, and they may or may not, we are a very good test case.”

Not only did Mr. Campos forget Proposition 209 would prevent his "test case" from even getting to federal court since it wouldn't be legal under state law, he seems to have the idea that he is entitled to experiment with our taxpayer money, and the quality of schooling students in the district receive (for if the school spends big legal bucks on test cases, it is distracting from and taking resources away from education). Indeed, Campos' belief that he is the arbiter of "test cases" is institutional arrogance. Public officials should generally avoid skirting the law or pushing its boundaries - "test cases" should arise from situations where an error or incidental encroachment is made - not where a public official decides to create a test case. Indeed, this is equivalent to a frivolous filing of a lawsuit, just in a less tangible and noticeable way.

As to the rest of this Times article, look at the title. "Schools Diversity Based on Income Segregates Some". At best, the conclusion is that it "Doesn't Desegregate Enough", not that socio-economic measures actually segregate. Their is pre-existing societal segregation - socio-economic solutions produce much more economic diversity, and are estimated to replace the (alleged) need for roughly 75% of racial diversity programs because of the pre-existing socio-economic racial imbalances. The article sort of recognizes that these are different scales and types of diversity, yet it attacks socio-economic programs for not being perfect (although helping) along one of the dimensions. Maybe socio-economic programs aren't perfect, but they are the best, and most moral, of types of governmental response, if there is to even be a governmental response, to such imbalances.

If perfection were the measure of any program, no program would be acceptable. Indeed, any program that seeks "perfection" is philosophically suspect by itself. Here, the Times and racial-criteria proponents equate "perfection" with "proportional representation". For there is only standard against which to measure "racial diversity" - does it match the relative population levels for that group. The idea that society would configure itself such that every region and school would exactly match that obliviates free choice, and as such is a utopian perfection that is philosophically suspect (and in my world view anti-utopian). Indeed, this is the fundamental hidden flaw of preferentialist-reasoning. Without even touching on its vast internal contradictions (for example, that black self-segregation is good or to be encouraged), it presumes a utopian world-view that is anti-freedom.

I am reminded of another sought-after-perfection from science fiction. "Resistance is futile."

The Livingston Argus is reporting through "sources" that the secret deal between the Howell Education Association and the school bargaining team representatives essentially saves the district nothing.

Sometime soon — perhaps next Monday night — the Howell school board will vote to ratify a three-year contract with its teachers.

As with most such contracts, the details won't be revealed to the public until after the labor agreement is approved.

But if there is truth to the rumors that have leaked out about the contract, we have to wonder why the board waited a full year before signing this deal. In the final analysis, it doesn't appear that the district gained much by digging in its heels.

According to a number of off-the-record sources, there are several key parts of the contract:

# The expensive MESSA-administered health insurance remains.

# Teachers, who up until now have paid nothing toward their premiums, will now be assessed a modest amount: $600 retroactively for the year just ending and $750 for next year.

# Raises are small — a percent or less for the first two years of the contract. But remember that the majority of teachers also receive experience — or step — increments, which means their pay will increase by about 5 percent a year.

If these contract features are true — no board, administration or union spokespeople will comment — then the management in Howell schools has decided not to take a hard line in negotiations. That's too bad. For if there were ever a time to hang tough, this was it.

Zarko Research suspects the Argus is correct, although we have no way of verifying it and it may or may not be a rumor that is being spread for some other reason.

While ZR doesn't advocate a "hard line," it believes fair (obviously that has hugely variant meaning) concessions should have been made on both sides and that the Board should stand on principle, and this appears to be a one-sided deal as the Argus recognizes. If the Board was right in February and there was a budget crisis necessitating its February actions, then reverting to and accepting a pre-February offer by the union proves the Board either lied then or is lying now about the fundamental fiscal position of the school. Either it had the money then to accommodate the union's requests, or it didn't. Either the future fiscal crisis of exploding health care costs is serious, or it isn't.

This is a great reason why all collective bargaining agreements should be public. Indeed, not just the final agreement, but make the meetings open. While FOIA might seem a fruitful way of getting at it, case law on the issue is confusing and FOIA would allow enough of a delay through its normal response time that it wouldn't be productive in most cases anyway. The legislature must act to reform the Open Meetings Act and FOIA to prevent this kind of secrecy. The public has a right to advance consideration of any proposed final contracts - we're not even talking about events pre-dating the final agreement here. Indeed, the entire collective bargaining process should be subject to open meetings. When you negotiate with the taxpayer for money, the taxpayer should be able to watch. Period. It's simple. It's obvious.

Someone blinked - but the School Board can still stand up for what is right.

In this investigative piece, the Flint Journal takes to task a group of school board candidates in the upcoming May 8, 2007 elections for having missed personal opportunities to vote in the past. By simply checking the qualified voter file maintained by the state, or a city or county clerk's files for local elections, one can come up with this fairly rapidly. Here's the upshot:

They're asking for your vote May 8, but five of 21 candidates for the Board of Education haven't voted in the past five Flint school elections, and five others have cast ballots in only one of them, according to city of Flint records.

None of the candidates voted in all five of the elections; five of them voted in four.

Some candidates with spotty records downplayed their significance; others said voters should take note.

"It's hypocritical to ask someone to vote for you when you don't participate in the democratic process," said candidate A.C. Dumas, among those who voted in four of the five elections.

ZR has a bit of a different take. While there is validity to the criticism that a candidate didn't previously vote, I'll bet many of you didn't even know there were school board elections on May 8, or if you knew, the elections may have been uncontested and it wouldn't be productive to spend your time casting a ballot in a non-competitive election. We suspect the lower voter turnout even among people now running for school board is that they didn't know about - or races weren't competitive enough - for them to vote in previous elections. That's a problem.

These elections are so-called "stealth elections," designed to have maximally low voter turnouts so schools or municipalities can more easily pass their millages and bonds by turning out teacher's unions members. A local election typically costs $10-50K to administer, so multiplied across the state, this would be a superb low-hanging fruit (low hanging in how it would impact government) to work on for consolidation. In 2004, Republicans lead by state Sen. Ruth Johhson thought they had a solution when they limited elections to 4 dates and encouraged localities to move elections to match larger even-year primaries or generals, but only two districts in Oakland County opted for the change. The law did have an effect on ensuring that all spring elections occur on one date (previously not the case), but the real savings haven't been realized. Politically though, this is a high-hanging fruit because unions, municipalities, and school administrators all agree on stealth elections because it increases their power in the lower turnout elections. It's corruption at its best. They have proffered two fake arguments to suggest that we need these unknown, low-turnout elections.

First, is that school board members "need the time to learn the complexity of the school board operations" and electing them in May is the only way to ensure that they come into office in June or July and have a couple months on a board before the school season starts during summer break. The variations on this are that this would "break existing law," (change it, although existing law allows Nov. elections, so school boards can choose it now) require charters to be amended (so what - do it - save the money), or allow current members to serve longer than they were elected for (shorten current terms by 7 months rather than lengthening them by 5). This is so easily solved and even flipped on its head that its laughable - ZR believes it is the first to recommend that schools vote in November for trustee positions and have an extended "Trustee-Elect" term where the members are required to actually sit in the 7 following meetings until June, when they take office. They would actually have more experience under this system. The second type of argument is that schools may need elections for bonds and millages or for unforeseen circumstances. Again, easily solved - aside from the fact that school boards are supposed to plan well-ahead for such things. ZR proposes that all school (and municipalities) elections be held in November of odd years OR August or November of even years, AND schools be given an option to hold their own special elections for millages once per year by special vote anytime they want leasing equipment from their counties (which often resides on school property anyway as they manage local precincts). The real truth of why this hasn't happened yet is that low-turnout elections are more easily controlled by a mobilized force with a vested interest in your tax money. In the meantime, ZR proposes to close the budget delay in school aid payments and make it uniform with the rest of the budget so that schools don't have to take out short-term (weeks sometimes) loans to cover gaps caused by state delays, which itself would save the state money in the long-run. If that happened, schools might actually warm up slightly to such a deal.

We need further consolidation. This legislation could easily be passed - and the time is ripe with the current budget crisis.

In a ridiculous court order that borders on the absurd, an Ottawa County judge has ruled in favor of the Michigan Education Association's (MEA) recent crusade to protect a corrupt former member of its Zeeland Schools union, Brian Beckham. Beckham resigned abruptly in January apparently without obvious cause. Here's his terse letter:

January 8, 2007

TO: Superintendent Feenstra
Board Secretary of Zeeland Public Schools

In order to pursue other career opportunities, I hereby irrevocably resign from any and all further employment with Zeeland Public Schools and its Board of Education, effective January 8,2007. I have enjoyed my association with the Zeeland Public Schools.

Sincerely,
Brian Beckham

The following day, the school wrote this cryptic message to parents:

January 9,2007

Dear Students and Parents:

Today I have to inform you that Mr. Beckham has resigned as a teacher from Zeeland Public Schools for personal reasons. He will not be returning to class. Mr. Beckham regrets he will not be able to work with you any more this year. I know many of you really liked Mr. Beckham, as a teacher and as a person and I am sure this news is a real shock to you.

Ms. Sandy Brewer is the substitute in all of Mr. Beckham's classes. Ms. Brewer has subbed often at Cityside and she knows our kids, our staff, our policies and our curriculum. Ms. Landes is already working closely with her to try to maintain the high quality education the Eagle Team has been known for.

Sincerely,
Jon Voss
Principal

That prompted the Grand Rapids Press to inquire through FOIA in February by requesting Beckham's personnel file. Before the school's record officer could release the records, the MEA sued the school under what is called a "reverse FOIA", citing a little known provision of the Bullard-Plawecki Right to Know Act (a personnel records act) requiring certain "investigatory files" to be destroyed if "no disciplinary action is taken". That provision apparently applies to "criminal" investigations, but the MEA and Beckham's attorney somehow convinced the judge this qualified, and that since the school hadn't taken "disciplinary" action because Beckham resigned before they could fire him, the files must be destroyed. The judge issued his outrageous order on April 9th, and we had already had a FOIA request similar to (but different in some ways) the Grand Rapids Press FOIA by Kym Reinstadler. If indeed the law is such - that a public employee can evade FOIA by resigning - then the law should be changed. A careful reading of the law suggests that might not be so, but the Grand Rapids Press will probably lack the courage to pursue. The judge's order was so ridiculous that he ordered the school shred the material within 14 days, hardly giving anyone a chance to appeal with the normal appeals time frames.

ZR is producing the entire FOIA response here (WARNING: 12MB PDF). Here's all we know about Mr. Beckham's problem:

For Personnel Record of Mr. Brian Beckham

At the time of Mr. Brian Beckham's resignation, Zeeland Public Schools was in the process of investigating whether Mr. Beckham had violated its technology use policy and/or engaged in unprofessional conduct. No final determination was made and the investigation ended without any conclusions being reached due to his resignation.

1/8/2007
Mary Colton

But according to our FOIA request, which sought other FOIA's, it appears that there is other craziness happening at Zeeland Schools. Laurie Jordan, a teacher, was terminated on January 11, 2007, just three days later than Beckham, although there is no evidence of a connection. Advance Newspapers Kristin Churchill made this March FOIA request:

In accordance with the Michigan Freedom of Information Act (PA 442 of 1976), I am formally requesting the following information that I believe is under the control of your agency: Any and all records pertaining to the re-hiring of office aide Laurie Jordan, Including any back pay settlement and the date and reason glven for that settlement.

Here's the shocking and deeply concerning response:

Enclosed you will find copies of the payroll documents pertaining to this matter. There is no written documentation regarding a reason for this settlement which was a verbal agreement between Mrs. Jordan and Superintendent Feenstra.

The payroll document clearly indicates termination, and a later rehiring. It is unfathomable that a rehire - or any hire - could be based on an oral agreement. Something strange is afoot at Zeeland.

A story that ZR won't comment on yet because it represents a hornet's nest of issues (and is complex), but notes to its readers as a very important story to follow for many reasons which should be self-evident, is this one by M-Live on the internal battle between 4 of the Michigan Supreme Court "conservative" Justices and the 5th conservative, Elizabeth Weaver. The two "liberal" justices have naturally sided with Weaver. It's as high of a drama as you get inside a Supreme Court, involving that perpetual spark-plug known as Geoffrey Fieger, and ultimately raises the question of how Supreme Court Justices police themselves, if they are even police-able.

This online forum by WOOD-TV (Channel 8, NBC) in Grand Rapids captures a wide array of west Michigan sentinent on Grand Rapids Mayor Heartwell's recent agitation to blow a few hundred grand of taxpayer dollars challenging MCRI (before he has even determined the impact on Grand Rapids city policies).

Proving the thesis of this blog, in a story by Forbes magazine yesterday, Justice Stephen Breyer stepped off the diving board and argued that the Constitution sometimes needs a little extra interpretation. He also accused the founders of writing a "vague" First Amendment, one which he apparently knows exactly how to (re)interpret. The story relays comments made by Breyer on Fox News Sunday.

Breyer explains recent decisions with this dangerous tack:

In his interview, Breyer argued that in some cases it wouldn't make sense to strictly follow the Constitution because phrases such as "freedom of speech" are vague. Judges must look at the real-world context - not focus solely on framers' intent, as Scalia has argued - because society is constantly evolving, he said.

"Those words, 'the freedom of speech,' 'Congress shall pass no law abridging the freedom of speech' - neither they, the founders, nor those words tell you how to apply it to the Internet," Breyer said.

No, the founders didn't directly tell us how to apply it to the "internet", which didn't exist two hundred years. They simply said Congress shall pass no law abridging freedom of speech. That includes the printing press, the word of mouth, and the occasionally meaningful electron. Stephen, which part of it don't you understand? "... no law ..." or "freedom of speech". I simply haven't heard anyone say free speech was vague. Should it be limitless? Not when it directly causes physical danger. But that's not at issue here.

Here, he admits to knowing the meaning of "freedom of speech," and seemingly ignores the "no law" in favor of some laws that "level the playing field."

Pointing to the example of campaign finance, Breyer also said the court was right in 2003 to uphold on a 5-4 vote the McCain-Feingold law that banned unlimited donations to political parties.

Acknowledging that critics had a point in saying the law violates free speech, Breyer said the limits were constitutional because it would make the electoral process more fair and democratic to the little guy who isn't tied to special interests.

"You don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money," he said.

ZR has said it before in analyzing Grutter. The First Amendment will shortly follow the sacrifice at the alter of diversitty we've already made of the Fourteenth Amendment. It appears that leveling that "playing field" in "terms of money" is sufficient grounds to think there should be "some laws" - rather than "no law" - abridging our most cherished amendment. Of course, there's nothing in violation of the principles of racial equality in leveling a monetary playing field, and while I support socio-economic alternatives to in the race preference domain, it is unjustifiable to support government intrusions that abridge speech. Breyer renders McCain-Feingold for what it was - the triumph of power over money. ZR will admit that it is a delicate balance of the three forces that keeps our system going, but we are guided by our reliance on key principles. The single most important driving principle of American democracy and economic success is free expression. If money were the only problem with our political system, we'd be in fine shape. It isn't.

Breyer sets himself up as a more extreme diviner of the meaning of the Constitution than anyone accused of being an "originalist". Rather than use the words and history of the Constitution itself in an academic effort to mine the meaning of the Constitution where it is truly vague (it isn't that often, so that effort should be relegated to the rare), Breyer simply assigns to the Constitution his view of what its purpose should have been. It's an interesting view:

"We're the boundary patrol," Breyer said, reiterating themes in his 2005 book that argue in favor of race preferences in university admissions because they would lead to diverse workplaces and leadership.

"It's a Constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful," said Breyer, who often votes with a four-member liberal bloc of justices.

Speak about vague. What is the "democratic system," compared to the precision of "pass no law that abridges freedom of speech" (which, I'd say is one specific, central part of the "democratic system", by the way)? What are "basic liberties" (again, one specific one is the First Amendment, along with others)? The "rule of (which and whose) law"? We can certainly agree that the Constitution does all those nebulous good things, but how (of course, one of the specific ways is that "division of powers" he cites to prevent anyone from getting "too powerful," but the separation of powers was a check on government, not a justification for government to check individuals and their speech)? Most telling is Breyer's phrase "a degree of equality." Hmm. Only a degree? The Declaration of Independence, certainly a greater moral authority, and I'd argue of some value legally, on the topic of divining the intent of the Constitution is again clear. "All men [and women] are created equal." Not degrees of equal. The Fourteenth Amendment though is equally clear, a divination of a truth our nation only realized as self-evident 87 years into its existence and during a bloody civil war. But Breyer places himself above that - he's the "boundary patrol". Unfortunately, Breyer is out-of-bounds.

Jon Stryker and family have invested $5.1 million into the new Coalition for Progress political action committee. Almost all of this money has been distributed in direct "independent expenditures" against a variety of Michigan Republican candidates. The amounts are amazing.

Let's begin first with where the money has been spent, since the view of where it has come from is pretty easy (99.9% from Stryker family sources, 0.01% from $10-100 donations that will eventually qualify the PAC for the minimum 50 donations to become an "independent" PAC capable of donating 10 times the individual limit (thereby allowing Stryker, in early 2007, to contribute 10 times more than most individuals, directly to campaigns).

More than $1.34 million either opposing Dick DeVos or supporting Jennifer Granholm in more than a dozen different media buys. Neither campaign has control over these independent expenditures.

Over a million in unaccounted (not listing who it supports or opposes) for media buys.

Hundreds of thousands to other states minimum wage or other progressive ballot question issues, and hundreds of thousands to national PACs.

At least (but maybe more)
$176,000 to oppose Republican State Senate candidate Laura Toy.
$65,000 to oppose Republican State House candidate David Law (here in Oakland County).
$120,000 to oppose Republican State Senate candidate John Pappageorge (here in Oakland County).
$143,000 to oppose Republican State Senate candidate Tom George.
$163,000 to oppose Republican State Senate Candidates Roger Kahn.
$29,000 to oppose David Palsrok in the Ludington-area 101st State House seat.
$14,000 to oppose David Farhat, Muskegon's 91st State House seat.
$22,000 to oppose Gerald Van Woerkom, seeking the Muskegon-area 34th State Senate seat.
...

And I stopped counting additional amounts less than $10,000 each, but there are a number of additions to each of the above below that.

In many of these race, Stryker's investment exceeds or is comparable to amount the candidate himself will spend on the race.

That's a veritable who's-who of the competitive races. It's not just that Stryker had it in for one or two politicians he didn't like, he has targeted the entire slate of important races.

Of course, given current regulations and the likelihood that the First Amendment would protect him anyway, there's nothing that could really be done to stop this, except to be aware of it and to work as hard as possible against it. I will write more about Stryker's background as time progresses.

Two separate sources of information reveal part of a pattern of data-withholding (or more elegantly, intentional non-creation) by the University of Michigan on race preference issues. As regular readers will probably know, ZR exposed a very specific, important part in this history of U-M obfuscation with regard to data about race preferences when the author penned his May 16, 2006 piece in the Wall Street Journal detailing the contradictory internal documents to one U-M "study" on the "benefits" of diversity and detailing how U-M's FOIA office had refused the public access to the underlying data so that Patricia Gurin's work could be duplicated and analyzed. The excuse then was that Gurin somehow personally owned a "commercial interest" in the data that she used to help change national policy. In 2005, Zarko Research and the Michigan Association of Scholars received that data as part of a FOIA lawsuit settlement, but it was too late to affect the lawsuit, which was the purpose of the delay.

Now comes a biased Ann Arbor News story that contains the subtle point that U-M is intentionally not creating data so that it isn't required to disclose it (permitted under FOIA, but unethical in the sense that one shouldn't implement policies without being able to track them). This means, ironically, that even the Ann Arbor News can't use the non-existent data in their lengthy effort to list all the programs and amounts of scholarships that would be affected, which seems intended to create sympathy for the anti-MCRI forces. Dave Gersham adds this description into his article:

Peterson said there's no way for the university to say how much money is given out in race- or gender-conscious financial aid because the university doesn't track those amounts.

"For minority communities, in particular, the availability of financial aid can be very important,'' she said, because studies show those families have fewer financial resources, or are more risk-adverse to taking out loans.

Also, the scholarships are used to attract women and minorities to fields where they're particularly underrepresented, like the study of pharmacy.

The university can't say exactly how many programs would be affected by Proposal 2, but an Ann Arbor News review of application materials found seven race or gender-conscious scholarships offered by the College of Literature, Science and the Arts, which is U-M's largest school.

Well, if as Peterson suggests financial aid is important, why not track the amounts of it and whether and where it is successful? Of course, the reason is that if U-M tracked it, it would be subject to FOIA and legal discovery. U-M uses a clause in FOIA that allows it legally to not disclose what it doesn't create to evade publicity on the issue, but at the cost of good public policy. Good public policy would be to measure precisely your success and failure, subject those measurements to scrutiny, and modify your policy accordingly. Such is the impasse that the O'Connor decision in Grutter - preferences are fine so long as they aren't numerical - has left us with (in fairness to Justice O'Connor, U-Michigan was engaged in this cat and mouse game of hiding data long before Grutter was written, but her decision wierdly increased the incentive).

Regardless, this unlikely source, the Ann Arbor News in a pro-U-Michigan piece, meets secondary comfirmation from the other side. Suzette Hackney at the Detroit Free Press, reports on a study based on U-M FOIA releases done by Roger Clegg, of the Center for Equal Opportunity (CEO), (also the subject by Clegg of an op-ed) this:

The study is flawed because the university did not provide race information on all students covered by the FOIA because, in some cases, that could have identified the students and violated their right to privacy, Julie Peterson, U-M associate vice president for media relations, said Monday.

"They knew that was partial data, we were clear on that," Peterson said. Also, the center's analysis did not consider other admissions factors such as the difficulty of the high school, Peterson said.

Of course they knew it, Julie. It was all you provided to them. And you're going to blame them now? No, the "partial data" is intentional. It allows U-M to say the study is incomplete, giving them a way out. And while I'm a strong advocate of student privacy (stronger than the University of Michigan, which will violate student privacy when it suits the interests of U-M), this data can easily be compiled in ways to protect student privacy, and giving out "complete" data sets, if stripped of student identifiers, can also be done in ways that, again, protect privacy. Indeed, according to standard ethics procedures, the data can and should be COMPILED FROM THE BEGINNING in a way that keeps the identities from researchers! So privacy is yet again another excuse, one based on a compelling interest but the false claim that it applies.

Thomas Bray, former editor of the Detroit News, writes this today in Real Clear Politics:

Detroit Judges: Will Voters Connect the Dots?

If anybody needed a reason to think twice about delivering the Senate - and the White House - to the Democrats, they need only take a close look at two of the more liberal judges on the federal district court in Detroit.

First up, of course, is Anna Diggs Taylor, the Jimmy Carter appointee who issued a hyperventilating decision last week declaring the Bush wiretaps of foreign telephone calls unconstitutional.

...

Next up may be Arthur Tarnow, appointed to the federal bench in 1998 by Bill Clinton, who appears to be taking seriously an effort by a band of radical black activists seeking to block a referendum that would bar preferential state hiring and admissions. Public polls suggest the referendum might be defeated if the vote were held today, but the activists don't want to take any chances. They claim that up to 136,000 black voters were duped by petition gatherers into believing that the measure wouldn't affect current practices - though each petition they signed carried the exact wording of the measure at the top of the page.

Perhaps Judge Tarnow, despite his own prior record as a foot soldier for the civil rights movement, will resist the temptation to enjoin the referendum. Surely even he can see the absurdity of citing the Voting Rights Act as a reason to prevent people, including blacks, from voting, much less intruding the federal government even deeper into state elections. The Michigan Civil Rights Initiative, as it's known, has already been given the go-ahead by the state supreme court and the elected secretary of state.

And as the state's long-serving elections director, Chris Thomas, widely respected for his nonpartisan approach to things, testified before Tarnow's court, even if all the signatures obtained in mostly black areas of Michigan were disallowed, the referendum still gained more than enough signatures to qualify for the ballot in November. And the last-ditch argument of the radicals, that a "long-dormant referendum practice" is being substitute for "normal methods of representative democracy," is simply laughable.

...

But Tarnow's refusal to toss the case out of court already may be telling. And the Michigan preference debate has been tainted by liberal activism from the start - some of which involved the aforementioned Judge Anna Diggs Taylor, author of the wiretap decision.

When Taylor served as chief judge of the Detroit federal court several years ago, she was caught trying to take one of the University of Michigan racial preference cases out of the hands of the sitting judge, Bernard Friedman (himself now the chief judge of the Detroit district court).

...

If conservative judges had tried to do such things, of course, the outcry would have been deafening. At both the district and appeals court levels they were one-day stories - too complex, you see, to be of much interest to readers.

Let's hope voters are paying attention.

...

Alas, it may be difficult for voters to connect the dots, thanks to a press corps too much in thrall to political correctness to even acknowledge the dots.

Bray hits literally every key note.

BAMN (By Any Means Necessary) has finally pulled the trigger on the federal lawsuit I predicted would come some day more than a year ago. I had no idea they could "drag out" their show for more than a year though.

The suit is plainly frivolous, an abuse of process, and were its convoluted reasoning to somehow be accepted that result would tear away at the First Amendment and other American principles like a ripsaw.

ZR and MCRI have been working to rebuke this attack, and readers should regularly check the new MCRI website for details. More information will follow.

The title of this entry is taken from one sentence of a multi-page contribution by an anonymous person who has done an incredible piece (and amount) of work debunking the entire MCRC hearing process, and making a compelling highly specific, with legal citations, case that they abused their power and acted unconstitutionally, in violation of their own rules and Michigan law, and lied in many places to buttress their political case.

Here is the work:

The Michigan Civil Rights Commission ("Commission" or "MCRC") has issued a
report about the Michigan Civil Rights Initiative ("MCRI") petition
gathering process.

http://michigan.gov/documents/PetitionFraudreport_162009_7.pdf

Please consider the following about that report.

WHAT ARE THE COMMISSION'S REAL FINDINGS?

Nowhere in the section of the Commission report titled "Findings and
Recommendations" (Report p. 12-13) did the Commission "find" that the MCRI
had committed "discrimination". In its "findings" the Commission never
once uses the word "discrimination". This exposes the Commission's request
to the Attorney General and to the Supreme Court for the political publicity
stunt it is. Even in their supposedly "personal" letter to the Michigan
Supreme Court Commission Chair Bernstein and the Vice Chair never once
mention the word "discrimination" though they do manage to condescendingly
lecture the Supreme Court about theology ("In a free society, some are
guilty, but all are responsible").

In the absence of discrimination, the Commission of course has no
constitutional or statutory authority to investigate petition fraud. The
Commission's actions are just political theatre calculated to help defeat
the MCRI.

At worst, the Commission alleges that the MCRI targeted African-Americans
when it sent petition circulators into African-American communities. This
accusation, of course, conveniently puts the MCRC in an escapable box. If
the MCRI had instructed its petition gatherers to avoid African-American
communities then the accusation today would be that the MCRI committed
discrimination by excluding African-Americans from the petitions thereby
disenfranchising them. For the MCRC and BAMN the only way the MCRI could
have avoided an accusation of discrimination would have been to gather no
petition signatures at all which, in truth, is exactly what the MCRC and
BAMN want to make happen.

DID THE MCRC TAKE A VOTE TO APPROVE THIS REPORT?

The Commission report itself is unsigned. Nowhere in the "personal" letter,
the Commission report, or the materials posted on the Commission website is
there provided any actual vote of the members of the Commission that
resulted in this "report". MCL 37.2601(3) requires that "A majority of the
members [of the Commission] is required to take action on matters not of a
ministerial nature." That would certainly seem to include the decisions to
hold hearings, and to write and issue this report. That means that four of
the seven members of the Commission had to vote in favor of issuing the
report. So which commissioners voted on the MCRC resolution authorizing the
adoption and release of the report and how did each commissioner vote?

State law requires the Commission to conduct all of its business in
compliance with the Open Meetings Act. MCL 37.2601(4). While the
Commission seems quite able to pursue its political agenda via its
state-provided website, it seems unable to post its meeting minutes or
public notices on-line. (The only Commission public meeting notice presently
on the MCRC website is for an "upcoming meeting" to be held on Monday,
January 23, 2006, 10:00 AM. The Commission website is obviously seriously
out of date.) So when was the open meeting where a majority of the members
of the Commission voted to issue this report? When and where was the notice
of that meeting posted as required by the Open Meetings Act? Violating the
Open Meetings Act is a misdemeanor. MCL 15.272

THE COMMISSION ADMITS THAT IT DID NOT MAKE A COMPLETE ASSESSMENT OF THE ALLEGATIONS AND THAT IT CANNOT MAKE AN EDUCATED ANALYSIS.

HOW THEN CAN THE COMMISSION JUSTIFY ITS CONCLUSIONS?

In several places in its own report the Commission acknowledges that its
investigation is incomplete. For example the Commission report states:

"[W]ithout the information requested in the MCRC Order and without the
voluntary cooperation of MCRI to answer questions and concerns about the
petition gathering process THE MCRC CANNOT MAKE AN EDUCATED ANALYSIS OF WHO
IS ACTUALLY AT THE ROOT OF THE FRAUD THAT HAS OCCURRED." [editorial emphasis added]
(Report, p. 6)

The Commission further admits that its assessment of the allegations is not
"complete":

"Every effort was made to obtain testimony from MCRI including the issuance
of a valid, lawful, narrowly tailored Order to produce relevant information.
The failure of MCRI to comply with the MCRC Order EFFECTIVELY PRECLUDED A
COMPLETE ASSESSMENT OF THESE ALLEGATIONS." (editorial emphasis added) (Report, p. 11)

This reinforces the conclusion that the Commission's biased and speculative
result is not the product of a thorough investigation but is only
politically motivated.

If the Commission's assessment of the allegations is not complete and its
analysis is uneducated, as the MCRC itself admits it is not, how then could
the Commission have possibly reached the conclusions it did? In the absence
of a complete assessment and educated analysis the MCRC certainly could not
have arrived at these conclusions fairly.

Despite the Commission's own acknowledgment of the deficiencies of its
investigation and its confessed inability to make an educated analysis, the
Chair and Vice Chair of the MCRC nevertheless recklessly libel agents of the
MCRI in their "personal" letter to the Michigan Supreme Court:

"This report presents evidence of shameful acts of deception and
misrepresentation by paid agents of the Michigan Civil Rights Initiative
("MCRI")." (personal letter from Bernstein/ Abdrabboh to Michigan Supreme
Court dated June 7, 2006")

This is a reckless drive-by group libel that cannot be based on any facts
since its authors admit in the MCRC report that the Commission's own
assessment of the allegations is incomplete and its analysis of the
allegations is uneducated?

Mr. Bernstein and Mr. Abdrabboh, both attorneys, are quite careful not to
name anybody specifically. An eye toward tort law no doubt motivated their
caution.

DID THE COMMISSION COMPLY WITH ITS OWN RULES IN UNDERTAKING THIS
INVESTIGATION?

The Administrative Rules governing the Commission and the Department are
found at the Michigan Administrative Code, R.37.1 - 37.27.
http://www.state.mi.us/orr/emi/admincode.asp?admincode=Department&Dpt=CR
These rules govern the procedure for Commission and Department actions.
This procedure is generally: (1) the filing of a complaint identifying the
complainant. (R.37.4); (2) conference and conciliation (R. 37.5); (3)
issuance and service of a charge of discrimination (R.37.6 - 37.10); (4)
Answer to charge (R. 37.11); (5) Hearing on the charge; (6) issuance of
preliminary order and findings of fact (R. 37.16(1); (7) Opportunity for
parties to review preliminary Commission order and file exceptions to it.
(R. 37.16(1); (8) issuance of order and findings of fact, and
recommendation of remedial action or dismissal of charge (R.37.16(2); and
(9) Appeal of MCRC order to circuit court.

The Commission complied with none of these rules in doing what it has done.
Further, nothing in the MCRC rules, the Constitution, or any other state law
empower the Commission to communicate directly with the Michigan Supreme
Court about a matter pending before the Commission.

WAS A PROPER COMPLAINT EVER MADE TO THE MCRC?

The Commission report does not state that any formal discrimination
complaint was ever filed with it. The report states only that the MCRC
somehow "became aware" of allegations. (Report, p.4) Note the MCRC does not
report that it received any complaint as defined by its own rules which
would have triggered the due process protections provided in the Commission
Rules. These protections include giving the MCRI notice of the complaint,
an opportunity to file an answer to the complaint, an opportunity for the
MCRI to have the Commission obtain subpoenas on the MCRI's behalf; and an
opportunity to appeal the MCRC's findings to the circuit court.

IS THE COMMISSION VIOLATING THE MICHIGAN CAMPAIGN FINANCE ACT?

There is a very real question whether the Chair and the Commission violated
Section 57 of the Michigan Campaign Finance Act which prohibits the use of
public resources to defeat a ballot question. Given the emphasis the
Commission and almost every witness placed on supporting affirmative action
and opposing the MCRI, it is now obvious that the Commission undertook its
actions in conducting four hearings around the state not for the purpose of
any legitimate MCRC business but, rather, for the purpose of politically
rallying opponents to the MCRI. Consider this statement made by
Commissioner Kelvin Scott at the first hearing:

"We want the citizens - we want all the citizens of this state involved in
this process before going to the polls to hear the information before they
decide if we are going to remain a state that values diversity, fairness,
equality, and equal opportunity.

For all its citizens through the programs that have been a Part of this
society for the past 40 years and that have been repeatedly sanctioned by
the U.S. Supreme Court or go back to a system where the rights of minorities
are ignored." (MCRC hearing Detroit January 11, 2006 p. 127-128)"

Mr. Scott's rant is an anti-MCRI campaign speech paid for by the public
dime, nothing more.

ARE BAMN'S COMPLAINTS TO THE COMMISSION EVEN TIMELY?

MCRC Rule 37.4(6) requires a complaint to be filed within 180 days of the
alleged occurrence. For any complaint related to petition gathering that
means that at the latest a complaint had to be made was within 180 days of
the date the last alleged fraudulent petition signature was gathered. A very
liberal interpretation would be that a complaint had to be filed within 180
days of the date the MCRI filed its petitions.

The MCRI filed its petitions on January 5, 2005. Using this as a base date,
that means that any civil rights complaint concerning the petition gathering
had to be filed with the MCRC/MDCR no later than July 5, 2005. The actual
complaint relied on by the Commission to undertake its investigation cannot
be found on-line so it is not known when it was filed. (There probably was
not one.) But in its report, the Commission allowed that it only became
aware of the complaints others were making in the Fall and Winter of 2005.
(Report, p. 4). This is well beyond July, 2005 and the 180 days time frame
discussed above. The Commission did not announce its intention to take up
this issue until January 2006. That too is well beyond the deadline. It is
reasonable to infer that any complaint the Commission was acting upon -
assuming there was any complaint at all -- was not timely filed under the
MCRC's own rules.

CAN THE COMMISSION EVEN CONDUCT A HEARING WHERE NO CHARGE HAS BEEN ISSUED?

R 37.12(1) suggests that a charge must first be made and served before the
MCRC can even conduct a "hearing": "Upon or after the issuance and service
of a charge, the commission or director may schedule and summon the parties
to a hearing thereon."

In this matter no charge has ever been issued, either before or after the
MCRC conducted its hearing.

WHY DID THE COMMISSION NOT USE ITS SUBPOENA POWER TO CONDUCT A THOROUGH
INVESTIGATION OF BAMN'S CLAIMS?

State law empowers the Commission to, among other things, "compel through
court authorization the attendance of witnesses and the production for
examination of books, papers, or other records relating to matters before
the commission." This means the MCRC can have subpoena power. But despite
having subpoena power the Commission never even tried to use it for any
person associated with the MCRI or with any person involved in the petition
circulating process. Why not? Instead, the Commission report criticizes
the MCRI organizers for not voluntarily submitting themselves to the show
trial the Commission was orchestrating. Is not the Commission's failure to
use its statutory subpoena power strong evidence that the Commission
recognized that it was skating out onto legally thin ice and that the
Commission did not want to risk putting its inquisition of the MCRI before a
real judge, and that the Commission merely wanted to create the false
impression that its kangaroo court and its foreordained report had legal
legitimacy?

The issue of the Commission's subpoena power and its failure to exercise it
was raised on several occasions by persons demanding the Commission issue
subpoenas to investigate their allegations. For example, at the February
8, 2006, hearing, at p.50-51 one person demanded to know of Mr. Bernstein:

"Ms. Miller: . But my question is, can't you as a body subpoena MCRI's
records and find out who these people were? I mean, there has to -- they
have to have kept records. This was a business; right? They paid people
millions of -- this must have cost millions of dollars. Can't we subpoena
and find out who those people are?..."

This witness seems to have a much better idea how to conduct a competent
investigation than did Mr. Bernstein or the Commission staff, professionals
though they are supposed to be. Not surprisingly, Mr. Bernstein responded
to this by quickly evading the issue of Commission subpoenas altogether:

"MR. BERNSTEIN: I'd just like to keep this on the topic of circulation and
circulator activity. Is there anybody else that has a question on the
commission?"

The last thing Mark Bernsein wanted to risk was for the Commission to go
into court to obtain a subpoena of the MCRI. Real courts have not been much
disposed toward BAMN's imaginative complaints. Moreover, had the Commission
done that the MCRI could have opposed the subpoena request before an
impartial and unbiased judge. One thing that might have occurred then
would have been that Mark Bernstein himself might have been subpoenaed by
the MCRI to testify in a show cause hearing and he might have had to explain
the actions of his MCRC to a judge under oath. Mr. Bernstein might even
have been cross examined and compelled to publicly explain the authority
under which his MCRC was even entertaining the issue of alleged petition
fraud at all.

The MDCR order to the MCRI to produce its records is very revealing. In its
report the MDCR described the issuance of this Order this way: "In order to
have as much information as possible to assist the Court, and to have a
fully informed Commission, the MCRC issued a Commission Order for MCRI to
produce evidence. The requested evidence would assist MCRC in identifying
circulators and their managers, and to determine what they were told about
how to gather petitions and what they actually were telling voters who
signed the petition." (Report, p.6)

The MDCR report posted on the Commission's website does not provide these
exhibits including this Order. However, they were obtained independently via
a Freedom of Information Act request and are now available online. A review
of this Order establishes the following. First, the Order is unsigned and
therefore it never had any legal effect. The Commission never sought the
records listed in the order until very late in its investigation. The Order
required the MCRI to produce the requested records to the Commission only on
May 30, 2006. This was just seven days before the MDCR ultimately issued
the report. Yet, on May 22, 2006, even before the MCRI response to the
Order was due, it is clear that Mr. Bernstein had reached his conclusion.
At page 91-92 he stated at the close of the May 22 hearing:

"At the end of the day I'll just concede to everybody, I wish our Commission
had more power than it does, to be very honest."

Mr. Bernstein would not have been publicly wishing for more power for
himself unless he had already determined that some power needed to be
exercised. But how could he have concluded that by May 22 when, by his own
admission, he had yet to hear from the MCRI and the MCRI's response to the
Commission's discovery request was not even due for eight more days?

But Commission Chair Mark Bernstein often was not honest, even with his own
allies in BAMN. A review of the hearing transcripts establishes that Mr.
Bernstein misled the public attending the hearings about the Commission's
efforts to obtain discovery from the MCRI. For example, Mr. Bernstein
states at p.93 of the hearing transcript for May 22, 2006:

"[A]nd additionally we have issued -- I issued personally on my signature an
order to MCRI to comply with and to deliver and produce documentation
related to the circulation activities of their circulators."

Good thing for Mr. Bernstein that he was not under oath when he said this
since no Order produced by the Commission has his signature on it. Mr.
Bernstein's statement may not be perjury in a strictly technical sense, but
it is certainly false and misleading.

Mr. Bernstein just plain lied when he told the crowd on May 22, 2006, also
at p. 93, that:

"And so I just want to let everybody here know that we are executing to the
fullest possible power every one of the tools in our toolbelt, so to speak,
to get to the bottom of this.

Mr. Bernstein's toolbelt included going to court for a subpoena. He never
even reached for that tool even though it was a tool that mere lay witnesses
repeatedly urged him to use.

The Commission report itself misrepresents the MCRI's response to the
Commission discovery order. The Commission reported at p. 6 that: "[the]
MCRI refused to comply with the narrowly tailored order that was issued
under the authority of the MCRC as codified in the Michigan Constitution,
the Elliott-Larsen Civil Rights Act, and the Rules of the MCRC."

Contrary to this false insinuation the MCRI did respond to the Commission's
order. It did so by reminding the Commission - heavily populated and
staffed by lawyers though the Commission is -- that under the state
Constitution the Commission must first obtain authorization from a court
before it can demand records. The MCRI informed the Commission that it
would comply with any court order to it to produce the records requested by
the Commission. This is a very different response than what the Commission
falsely stated in its report - "[the] MCRI refused to comply."

It was the Commission that refused to comply - with the Michigan
Constitution.

The Commission's statement that it could not investigate BAMN's allegations
without the MCRI's voluntary cooperation is nonsense. Every petition
submitted is a matter of public record and bears upon it the identity and
address of the circulator. The Commission did not need MCRI's cooperation
to identify petition circulators. The Commission had only to read the
petitions themselves to get that information. Again, if the Commission
really wanted to hear from petition circulators or MCRI officials, all Mr.
Bernstein had to do was exercise the Commission's statutory subpoena power
to compel them to testify. But the Commission did not seek to issue
subpoenas because it was not really interested in doing a real
investigation. Mark Bernstein and the MCRC were interested only in working
hand in glove with BAMN to provide a public forum for, and MCRC legitimacy
to, BAMN inspired fantasies of petition fraud.

Despite the Commission's own admission that its investigation was incomplete
and that it lacked evidence to "make an educated analysis of who is actually
at the root of the [alleged] fraud" the MCRC nevertheless reached the very
same conclusion that BAMN urged on it from the outset - that the MCRI
tricked people into signing the petition. No Maoist show trial was ever
more efficient in reaching its foreordained outcome or was more lacking in
basic fairness.

THE COMMISSION'S REPORT DOES NOT ESTABLISH ANY DISCRIMINATION.
THE COMMISSION HAS NO JURISDICTION TO INVESTIGATE PETITION GATHERING FRAUD.

It is clear from the Commission's report that much of the so-called fraud
arises from the bizarre notion that BAMN and company have a monopoly over
the term "civil rights" and that use of that phrase is limited exclusively
to what BAMN and company want it to mean. In their minds any other use of
the phrase "for civil rights" is ipso facto fraud. Consider the testimony
of Ms. Pollak at the Lansing hearing:

"I think this thing does is it bans the best tool we have to remedy the
reasons why we needed a civil rights movement. And so, you know, it is not a
civil rights measure, and to begin with, that was a misnomer that should not
have been allowed to be even on a descriptive language." (May 8, 2006
hearing, p. 25.)

For another example, the Commission relates the story of Reverend Nathaniel
Smith. He claims that at a petitioner orientation he attended that
petitioners were told that this ballot proposal was about keeping and
maintaining civil rights.

Rev. Smith was informed correctly. It is. Perhaps the MCRI is not about
"civil rights" as BAMN would self-servingly define that term but the MCRI is
about civil rights nonetheless.

Reverend Smith then went on to admit that he never actually read the
petition he had in his own hands until after he had gathered "at least 500
signatures". It was only after someone explained to him what the papers he
was holding actually said that he stopped gathering signatures.

(Interestingly, the Commission report fails to mention the rather relevant
fact of whether any of the petition signatures that were supposedly
collected by Rev. Smith were among the more than half-million signatures
that the MCRI submitted to the Board of Canvassers.)

THE COMMISSION REPORT IS BASED ON UNRELIABLE AND DEFECTIVE "EVIDENCE".

While the Commission report makes reference to "the weight of the evidence"
(Report p. 12), it is impossible to know what legal standard or evidentiary
threshold the MCRC relied on in reaching its conclusion. The Commission
report makes no distinction whatsoever between witnesses who allegedly were
the victims of fraud and those who came before the Commission just to "voice
outrage" despite the fact that they "[w]ere neither directly or indirectly
involved in the petition signing process." (Report, p. 6) The Commission
excluded no "evidence", no matter how legally deficient.

THE AFFIDAVITS RELIED ON BY THE COMMISSION ARE DEFECTIVE UNDER MICHIGAN LAW.

The Commission informed the Supreme Court that it had received over 200
affidavits. What the Commission did not inform the Supreme Court was that
many of these are form affidavits where the material facts are the same on
each form and blanks were provided for witness name, address, phone and
signature. These form affidavits are defective under Michigan law. These
affidavits are not notarized. To be valid an affidavit must be verified by
oath or affirmation. This means the affiant must make his statement before
a person capable of administering an oath or affirmation, i.e. a notary.
Also, in these "affidavits" the witnesses do not state that the material
statements are made on personal knowledge. In the affidavits the witnesses
do not show affirmatively that if sworn as a witness, the affiant can
testify competently to the facts stated in the affidavit. All these defects
render these "affidavits" legally meaningless under Michigan law.

These form affidavits are illuminating for another reason. In none of them
do the witnesses claim to be have been the victims of discrimination, again
refuting the MCRC's jurisdiction over this matter.

THE COMMISSION RELIED ON UNRELIABLE HEARSAY.

Much of the "evidence" the Commission recounts is textbook hearsay. For
example, "Robert Womak, who hosts a radio talk show on WJNZ, 1140 AM,
targeted to the African-American community, testified about allegations of
fraud that he heard from callers when he read the names of Grand Rapids
petition signers on his radio program." (Report p. 10)

Anecdotes like this one certainly raise the specter of intimidation; but its
not intimidation by the MCRI. Imagine being an African American and having
your name broadcast over the radio as a petition signor and therefore a
possible "traitor to your race." You must then explain your signature on the
petition to BAMN and to your friends, your family, and your community. This
leaves you with just three options: (1) admit to signing the petition
voluntarily. That makes you a traitor; (2) admit to signing the petition but
not knowing what you signed. That makes you a fool and a traitor; or (3)
claim to have been duped into signing the petition. That makes you only a
mere victim. Ask, which of the three options is most appealing, especially
when confronted by agents of an outfit like BAMN?

The Commission report, not surprisingly, does not even acknowledge the
possibility that those now claiming to be victimized by fraud could be
motivated by social and professional pressures to do so. The Commission
could not have been more credulous of the persons coming before it.

Some anecdotes actually refute the Commission's conclusions of fraud. For
instance, Debra Gomez told the MCRC that she signed a petition that was left
on a table in her housing complex with no circulator present. (MCRC report,
p.10) This is an admission by Ms. Gomez that she signed the petition
entirely free from any circulator fraud or coercion. Since there was no
circulator present to commit any "fraud" all Ms. Gomez had to influence her
decision to sign was the plain text of the petition and she signed it
nonetheless. (Ms. Gomez' anecdote underscores BAMN's worst nightmare about
the MCRI and explains its abiding determination to keep the MCRI off the
ballot. BAMN knows that on its face the MCRI is so fair and reasonable that
when left alone to consider its plain language on the merits -- like in a
voting booth -- even those who publicly have to proclaim their support for so-called
"affirmative action" will nonetheless vote in favor of the MCRI.)

The Commission report is replete with unsupported conclusions, qualified
claims, and equivocating use of the passive voice. For example the
Commission reports: "About one-quarter of the total number of signatures
gathered by MCRI are likely from African American individuals. It was felt
that these communities were targeted by MCRI who hired African American
circulators, suggesting to them that the petition drive would ensure civil
rights." (Report, p.9)

Parse that even just a little. On what "evidence" is the "likely"
one-quarter statistic based? Who is it who "felt" that these communities
were targeted and on what evidence is that "feeling" based. Why is what some
unidentified person or group "felt" even relevant to whether the MCRI
committed discrimination? Poorly reasoned and utterly unsupported
statements like this are the best explanation for why no MCRC commissioner
actually signed the Commission report.

The only "evidence" the Commission does cite in support of it conclusion
that discrimination was somehow a factor in petition gathering is based on
the insulting and discriminatory stereotype that African-Americans can have
only one possible opinion about so-called "affirmative action":

"Although the testimony came from both African American and White citizens, it became clear to the MCRC that the conduct of the circulators was not limited to a small number
of isolated incidents, but rather a strategy that targeted African American
citizens on a statewide basis. THE PETITION CIRCULATORS FREQUENTLY CHOSE
LOCATIONS WHERE IT WOULD BE EXPECTED THAT A LARGE NUMBER OF SUPPORTERS OF
AFFIRMATIVE ACTION WOULD CONGREGATE, SUCH AS CHURCHES AND COMMUNITY
GATHERINGS IN AFRICAN AMERICAN NEIGHBORHOODS. It was at these venues that
African American circulators would ask voters to sign a petition to support
affirmative action." (emphasis added) (Report, p. 5-6)

Implicit but unstated in this patronizing and insulting statement by the
Commission is the insinuation by BAMN / MCRC - not the MCRI - that group-thinking African-Americans could also be counted on to: either not read the
petition they were being asked to sign, or to not understand the petition if
they did read it, so as to make such a strategy even possible and productive.

THE COMMISSION REPORT MISSTATES THE LAW OF SO-CALLED "AFFIRMATIVE ACTION" AND MICHIGAN
ELECTION LAW.

In its zeal to assist BAMN by providing a forum for those opposed to the
ultimate passage of the MCRI the Commission confused the purpose of the
petition gathering process. A signature on a petition means only that the
signor approves placing the candidate or the question on the ballot.
Nothing in Michigan law requires a petition signor to vote in favor of the
ultimate election of the candidate or the passage of the ballot question.
That is what the election is for. Every single witness testifying in the
Commission kangaroo court called remains perfectly free to vote against the
MCRi in November.

The Commission report also displays an ignorance of current "affirmative
action" jurisprudence. For example while the Commission notes that in the
Grutter v University of Michigan, law school case the United States Supreme
Court has upheld "affirmative action" (Report, p.1) the Commission failed to
report that the same Supreme Court decision approved of race-neutral plans
like the MCRI is and which are similar to those used in California and
Washington and the MCRI. The Court specifically encouraged states to
experiment with race-neutral plans ("Universities in California, Florida,
and Washington State, where racial preferences in admissions are prohibited
by state law, are currently engaged in experimenting with a wide variety of
alternative approaches [to preferential treatment]. Universities in other
States can and should draw on the most promising aspects of these
race-neutral alternatives as they develop.")

In a footnote to that same sentence the Commission states that it is taking
as its operating definition of "affirmative action" the one from Black's Law
Dictionary. ("positive steps designed to eliminate existing and continuing
discrimination, to remedy lingering effects of past discrimination, and to
create systems and procedures to prevent future discrimination; commonly
based on population percentages of minority groups in a particular area.
Factors considered are race, color, sex, creed and age.") (Report p. 1 n.1)

But nowhere in the Grutter decision did the Supreme Court ever adopt the
Black's definition quoted by the Commission. Further, nowhere in the
Black's definition will one find concepts such as "critical mass" or
"educational benefits" or "diversity". These are the justifications for
so-called "affirmative action" that the Supreme Court upheld in Grutter and that are the
ones most often offered in support of affirmative action. Remedial measures
which the Commission misunderstands present-day affirmative action to
involve were not addressed in Grutter. Basing affirmative action "on
population percentages of minority groups in a particular area" (i.e.,
quotas) was specifically struck down by the United States Supreme Court in
Bakke. Someone should tell the Commission.

Among the many instances where the Commission tries to invent new legal
standards is this:

"The events at issue in this report highlight the gap between two
responsibilities: first, the responsibility of voters to read and understand
the content of ballot language when signing a circulator's petition; second,
the responsibility of MCRI and its agents to be truthful. A failure of the
first responsibility should not permit abrogation of the second. The conduct
of MCRI to avoid false and misleading statements is of paramount importance
irrespective of all other events."
(MCRC Report, Findings and Recommendations, p. 12)

In the BAMN and Commission universe, however, the merest allegation that there
might have been some failure of the second responsibility entirely negates
the first responsibility. It abrogates any responsibility an individual has
to read a petition before signing. The Commission believes this to be so
despite the sworn testimony of Ms. Kim Peterson, " ... that a petition
circulator told them (sic) that the petition was against discrimination and
"for affirmative action." She read the proposed amendment and determined
this was not at all "for" affirmation action and she did not sign the
petition." (Report, p. 8).

But if Kim Peterson could withstand the wily petition circulator, read the
petition, and decide not to sign it because of what she read, then so could
everyone else who claims they were duped by a circulator; including the two
circuit court judges who admitted under oath that they sign legally
significant documents without first reading them. (Report, p. 7-8). (Now
THAT is something the Supreme Court should look into in fulfilling its Constitutional duty
to oversee the competency of the state's judges.)

Likewise, young Eric Glover, a high school junior, has a better appreciation
of civic responsibility and accountability than do his elders in BAMN. Eric
certainly has a better appreciation than the lawyers on the MCRC do. At the
hearing on February 18, 2006, Eric told the Commission at p.113:

"So what I'm basically saying is, to make sure next time you sign a paper,
read it, read the whole thing over. And if you don't get it, read it over
again and ask the person what it's about."

Governor Granholm should make Eric a judge. With a year of high school yet
to go, Eric has a better appreciation for the importance of reading things
before signing them than Judge Hayman or Judge Ziolkowski do.

(Eric likewise has a pretty good handle on the depressed state of the
Michigan economy and educational system under Governor Granholm. A Cool
City® Eric Glover's Flint is not. At page 114, Eric said: "Flint is
basically broke already. I ain't going to get racial, but there's not much
black people graduating these days."

Sadly, Eric's understanding of the relevance of so-called "affirmative action" and
preferential treatment for his own educational plans seems rather
ill-informed. At p. 114 he said: "I plan to go down to North Carolina A&T.
That's basically a black college. It's basically 90 percent black and 10
percent Latino and stuff like that. And in order for me -- this is a good
college, but I want to get out of Michigan. No offense. But in order for
that to happen, I need affirmative action to take place. And if that don't
happen, what's a black college to go to, to learn more about your culture.
That's all I've got to say."

None of the Commissioners saw fit to tell young Eric that as an
African-American he most certainly does not need affirmative action in order
to be admitted to the historically African-American college he plans to
attend.

Contrary to what the Commission's claims about the two relative responsibilities,
the law governing petitions and petition gathering says otherwise. The
constitution requires that every petition to amend the state constitution
have on it the full text of the proposed amendment. The reason for this is
obvious - so people can know for themselves the subject matter of the
petition they are signing. State law imposes no requirement that persons
signing petitions actually understand and appreciate what they are signing.
(Oddly, the same people who complain that such a high burden of
comprehension should exist for persons signing petitions - that is, petition
gatherers must affirmatively verify that petition signers appreciate the
substance and impact of the petition; a literacy test of a sort -- are the
same people who oppose the least regulation of voting in any other context,
such as photo identification to prevent voter fraud.)

Perhaps most offensive of the many falsehoods contained in the Commission
report is this patronizing one: "... In turn the African American circulators,
motivated by money, unwittingly persuaded fellow African Americans to sign a
petition for an amendment that they would not have knowingly supported.."
(Report, p. 9)

That groundless speculation quite nicely skirts the thorny
dilemma posed by the fact that much of the so-called petition fraud
discrimination was supposedly committed by one African-American against
another African-American. That one African-American would discriminate
against another by duping them into signing a petition is an intuitively
unlikely scenario that the Commission responds to only by patronizingly and
insultingly slapping at the intelligence of both the circulators and the signors and by
harking back to some of the ugliest aspects of the African-American
experience -- that some mercenary Africans tricked other Africans into the
slave traders net.

IS THE COMMISSION COLLUDING WITH BAMN?

The political motivation behind the MCRC report is obvious from its timing.
On Friday June 9, 2006, the Commission issued a press release advising that
it would release its "report" on Monday June 12, 2006.

And so it did.

Yet, the report the MCRC released on June 12 was accompanied by two letters
dated June 7, both addressed to the Michigan Supreme Court and transmitting
the report, presumably that same day. Why wasn't the report released to the
public in conjunction with the MCRC's June 7 transmittal of it to the
Supreme Court or even two days later in conjunction with the June 9 press
release? Why did the MCRC delay for five days between June 7 and the
release of the report? The answer has to be that the Commission hoped to
have the benefit of the Sunday papers without the report itself being
subjected to too much scrutiny.

It is alarming that BAMN clearly knew what was in the Commission's report in
advance of its transmittal to the Supreme Court and its release to the
public. On June 6, 2006, Dan Heaton of the Macomb Daily News reported:
"...Shanta Driver, co-national chairwoman of the Detroit-based coalition to
defend affirmative action, integration, immigrant rights and fight for
quality by any means necessary -- more popularly known as BAMN (by any means
necessary) -- said a report due out later this week by the Michigan Civil
Rights Commission will ask the state Supreme Court to reconsider its earlier
ruling that put the proposal on the ballot..."
http://www.macombdaily.com/stories/060606/loc_affirm001.shtml

How did Ms. Driver of BAMN know so accurately what the Commission's report
was going to say even before the Commission had officially submitted it to
the Supreme Court? The answer can only be that there is collusion between
the Commission and BAMN. That collusion cries out for investigation into
the relationship between BAMN and the Commission, particularly between BAMN
and the Commission Chair Mark Bernstein.

Mr. Bernstein and Mr. Abdrabboh arrogantly presume to lecture the Michigan
Supreme Court when they write that: "We live in a time of increasing
cynicism about issues of public interest. This distrust flows less from the
content of public policy than from the conduct of those who attempt to
influence policy. In this case, the conduct of MCRI and its agents add fuel
to this destructive fire."

The real audience for Mr. Bernstein's and Mr. Abdrabboh's inspiring sermon
are the fantasists in BAMN, not the Justices of the Michigan Supreme Court.

But in preaching about the increase in public cynicism Mr. Bernstein and
Mr. Abdrabboh willfully ignore the fascist tactics practiced by their allies
in BAMN. BAMN has tried - sometimes violently - to deny to Michiganians
their most basic political right - the right to make their own constitution.

The Trotskyites in BAMN, aided now by the veneer of legitimacy given to
them by Mark Bernstein and the Commission, want to deny 500,000 Michiganians
access to their state constitution's ballot initiative process.

Going under-reported in the mainstream media, news of Governor Granholm's veto of legislation that would change the way the Board of Canvassers' does business is found here, at Michigan Votes, a project of the Mackinac Center. The veto, on May 12, seems almost non-sensical. The legislation apparently did not seek all of the reforms that one of its sponsors, Sen. Alan Cropsey, wanted, which the Governor found objectionable because it might result in a perception of an endorsement of MCRI. Indeed, the bill only encompassed the language "pre-approval" phase, and transferred that authority to the Director of Elections of the Secretary of State. Cropsey's original idea was to abolish the Canvassers entirely and tranfer all authority to the Secretary. Since the language approval phase of the process usually winds up in a Court of Appeals (the original House version of the bill would have transferred it directly to the Court, a common-sensical move that was unfortunately amended by the Senate-version).

Regardless, the Governor's veto here is strictly for show. The petition review process is desperately in need of reform. There have been some good ideas out there, and some bad ones, but an effort should be made to straighten out the process.