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Michigan affirmative action ban nullified

Splitting 8 to 7, the Sixth Circuit Court on Thursday ruled that Michigan’s voters acted unconstitutionally six years ago in adopting a flat ban on any use of race in deciding who enters the state’s public colleges and universities.  The majority of the en banc court did so, however, without saying anything new about the constitutionality of any such affirmative action program.  The decision (found here) was based solely on a finding that the voters had made it harder for minorities to get state government even to consider adopting race-conscious programs, thus making the political process itself unequal.

By imposing a total ban on any consideration of a race-based education policy, the main opinion said, the majority of voters who opposed affirmative action created a situation in which they not only had won on a policy point, “but rigged the game to reproduce [their] success indefinitely.”   Minorities are not guaranteed that they will win when they enter into political policy debates, the opinion stressed, but they must not be put at a special disadvantage in seeking policies that they favor and that will benefit them in particular.

At a time when the Supreme Court itself is already examining anew whether race-based college admissions programs are constitutional, Thursday’s ruling against Michigan’s so-called “Proposition 2” sets up the next constitutional challenge for the Justices, focused on issues of competition to shape public policies affecting the races.   The Supreme Court held a hearing on October 10 on Fisher v. University of Texas (docket 11-345), and is expected to issue a decision next year on that flagship university’s use of race in freshman admissions.  An appeal in the Michigan case may not reach the Justices in time to be heard and decided during the current Term, unless such an appeal were put on a very fast track.

The Circuit Court majority opinion, written by Circuit Judge R. Guy Cole, Jr., relied explicitly upon two Supreme Court rulings, both based on the same “political process” reasoning used by Judge Cole.  The first was Hunter v. Erickson, a 1969 decision striking down a move by voters in Akron, Ohio, to change the city charter to make it much harder for city officials to adopt any housing policy to benefit racial minorities.  The second was Washington v. Seattle School District No. 1, a 1982 decision striking down a voter-approved statewide law that bar the use of busing to achieve racially integrated public schools.

Those two decisions, Judge Cole wrote, “expounded the rule that an enactment deprives minority groups of the equal protection of the laws” when it “has a racial focus, targeting a policy or program” that benefits minorities, and “reallocates political power or reorders the decision making process in a way that places special burdens on a minority group’s ability to achieve its goals through that process.”

Concluding that college and university affirmative-action plans are adopted primarily to benefit the minority, the Circuit Court majority ruled that “Proposition 2” “reorders the political process in Michigan in a way that places special burdens on racial minorities.”   Under that voter-approved ban, no college or university leadership could even consider adopting a race-conscious program in public education.   While Proposition 2 also banned the use of race in the state’s employment policies and in public contracting, Thursday’s decision dealt with the measure only as it impacted public education.

In considering the constitutional challenge to Proposition 2, the majority said, it was not required or inclined “to weigh in on the constitutional status or relative merits of race-conscious admissions policies as such.”  The case did not raise that issue, it said, and, in any event, the Supreme Court had already decided — in a University of Michigan admissions case in 2003 — that some use of race can be made in admissions policies if that is not the sole deciding factor.

After finding that “Proposition 2” had a racial focus, the majority turned to the second question of whether it worked a change in the political process that put minorities at a disadvantage, and concluded that it did. Decisions by the boards that operate public colleges and universities in Michigan, and thus previously had the authority to adopt race-conscious admissions programs, are a part of the political process, the court concluded.  And, before voters took it away from those publicly elected boards, they definitely had the authority — and used it — to put such programs into place.  In 2006, the voters took it away, leaving minorities in the state with only one remote chance of getting such policies put back into place: a new amendment of the state constitution.

Anybody else who wanted to influence admissions policies, such as a student whose parents went to a Michigan university seeking a guarantee of admission as a “legacy” applicant, does not have to amend the constitution to achieve that goal; they only need to convince university officials.   That means their political burden is considerably less than that facing minorities seeking race-conscious programs, the majority said.

The majority also ruled that what “Proposition 2” did was not just a repeal of existing race-conscious admissions policies.  The ballot measure went a step further, the court noted, and permanently barred any re-adoption of such an approach.  The majority noted that the Constitution would not bar college and university officials from deciding to do away with affirmative action programs, if the policy choice were left to them.

Judge Cole’s opinion for the Circuit majority was supported by Circuit Judges Boyce F. Martin, Jr., Martha Craig Daughtrey, Karen Nelson Moore, Eric L. Clay, Helene N. White, Jane Branstetter Stranch, and Bernice B. Donald.

There were five separate dissenting opinions.   Those dissenting from the decision to strike down “Proposition 2” were Chief Judge Alice M. Batchelder and Circuit Judges Danny J. Boggs, Julia Smith Gibbons, John M. Rogers, Jeffrey S. Sutton, Deborah L. Cook, and Richard Allen Griffin.

The lead case decided by the ruling is Coalition to Defend Affirmative Action v. Regents of the University of Michigan (Circuit docket 08-1387).  It reversed a District Court decision that had upheld “Proposition 2.”   The ballot measure was proposed in Michigan after the Supreme Court’s 2003 decision permitting some use of affirmative action in admissions to Michigan Law School.  The effort to put it on the ballot was led by Ward Connerly, a former regent of the University of California who had proposed a similar bar in his state, and by Jennifer Gratz, who had been denied admission to the university and was involved in the litigation leading to the Supreme Court’s 2003 decision.

(NOTE TO READERS:  Readers will find, in some news accounts about this decision, references to the political party affiliation of the Presidents who named the judges to the bench, referring to them as Republican or Democratic appointees.  The author of this blog will provide that information only when it is clearly demonstrated that the political source of a judge’s selection had a direct bearing upon how that judge voted — admittedly, a very difficult thing to prove.  Otherwise, the use of such references invites the reader to draw such a conclusion about partisan influence, without proof.)


Recommended Citation: Lyle Denniston, Michigan affirmative action ban nullified, SCOTUSblog (Nov. 15, 2012, 3:23 PM),