US appeals court strikes down Michigan ban on affirmative action

A federal appeals court has invalidated Michigan’s 2006 ban on race-conscious admissions at the University of Michigan and other public colleges in the state, ruling that the prohibition violates the Constitution’s Equal Protection Clause.

The Sixth US Circuit Court of Appeals in Cincinnati voted 8 to 7 on Thursday to invalidate Proposal 2, a state constitutional amendment that barred race-based affirmative action programs in public education.

Michigan voters approved the amendment 58 percent to 42 percent in a state-wide referendum in November 2006.

The Sixth Circuit decision invalidates the result of that vote and denounces the ballot initiative as a form of political manipulation that placed excessive burdens on minority interests.

“We conclude that Proposal 2 targets a program that inures to the benefit of the minority and reorders the political process in Michigan in a way that places special burdens on racial minorities,” Judge R. Guy Cole wrote in the 36-page majority opinion.

Dissenting judges said the decision stands the constitutional principle of equal protection and equal treatment on its head.

“For the first time, the presumptively invalid policy of racial and gender preference has been judicially entrenched as beyond the political process,” wrote Judge Julia Smith Gibbons in a 16-page dissent.

The decision comes as the US Supreme Court is poised to decide by June a case testing the constitutionality of the use of race in admissions at the University of Texas.

The Michigan case does not involve whether race-based admissions programs violate the constitution. Instead, the Sixth Circuit decision addresses whether the act of amending Michigan’s constitution to ban race-based admissions violated the equal protection rights of minority proponents of race-based admissions.

The majority judges on the Sixth Circuit concluded that it did.

They cited two US Supreme Court precedents from 1969 and 1982 for the proposition that Michigan’s state-wide ban created an unconstitutional burden on minority groups and minority support of affirmative action programs.

The judges said that it must be left up to school officials to decide whether race-based policies would continue or stop. They said a policy debate at the school level would better enable minority groups and other supporters of race-based admissions to effectively present their argument.

In contrast, the majority judges said, allowing all voters in Michigan to decide the question on a state-wide ballot amounted to a manipulation of the process because it would be significantly more difficult for supporters of race-based plans to mount and win a state-wide referendum to reinstate race-based admissions.

“Equal protection of the laws is more than a guarantee of equal treatment under existing law,” Judge Cole said. “It is also a guarantee that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them.”

Judge Cole added: “When two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course.”

Judge Jeffrey Sutton challenged Cole’s reasoning in a 10-page dissent. “I do not doubt that Proposal 2 places a burden on proponents of affirmative action: They no longer have access to it, and they must amend the constitution to get it back,” he wrote.

“But the Fourteenth Amendment insists only that all participants in the debate have an equal shot. It does not ensure victory for one side or the other in this or that policy debate,” he said.

Sutton noted that while similar affirmative action initiatives have been successful in California, Nebraska, and Washington, they have also been defeated in Colorado, Missouri, and Oklahoma.

Sutton said that under Supreme Court precedents, race-conscious programs are presumptively unconstitutional. Affirmative action plans at public universities must satisfy strict judicial scrutiny or be struck down as a violation of equal treatment.

“If racial preferences are only occasionally and barely constitutional, it cannot be the case that they are always required,” he wrote.

“A state that wishes to treat citizens of all races and nationalities equally is free as a matter of its own law to do so,” he said. “A first premise for resolving this case is, and must be, that a state does not deny equal treatment by mandating it.”

The case is Coalition to Defend Affirmative Action v. Regents of the University of Michigan.