Michigan Ban on College Affirmative Action Struck Down

By Mark Walsh — November 15, 2012 3 min read
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A full federal appeals court on Thursday struck down a 2006 Michigan ballot initiative that barred the use of racial preferences at state colleges and universities.

The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, voted 8-7 to invalidate Proposal 2 as it applies to state colleges and universities. The measure was promoted by Ward Connerly, the California activist who had led that state’s efforts to end racial preferences in education and government contracting.

Michigan’s Proposal 2 also bars school districts from discriminating or granting preferential treatment on the basis of race (in addition to sex, color, ethnicity, and national origin), but the challenge before the 6th Circuit deals only with the measure’s operation in higher education.

A federal district court upheld the measure, while a panel of the 6th Circuit had voted 2-1 in 2011 to strike down the measure. The full 6th Circuit agreed to reconsider the case.

Writing for the majority on Thursday in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, Judge R. Guy Cole Jr. said the dissenters on the court were seeking “a second bite” at the affirmative action issues at stake in the 2003 U.S. Supreme Court decision in Gratz v. Bollinger and Grutter v. Bollinger. The high court struck down the use of categorical racial preferences in Gratz, but in Gruttinger said that race could be taken into account as a plus factor in the individual consideration of an applicant.

(The U.S. Supreme Court is taking its own second bite at the legacy of the Michigan cases, particularly Grutter, through its review of Fisher v. University of Texas at Austin, which involve the flagship Texas campus’s narrow use of race in admissions.)

“The sole issue before us is whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions—something they are specifically allowed to do under Grutter,” said Judge Cole, who was also the author of the panel majority’s opinion last year.

The full court’s majority said Proposal 2 violated the equal protection clause of the U.S. Constitution as interpreted by two Supreme Court decisions about ballot initiatives. In Hunter v. Erickson, the high court in 1969 invalidated an Akron, Ohio, ballot measure that had overturned a fair-housing ordinance. In Washington v. Seattle School District No. 1, the court in 1982 struck down a ballot-initiated state law that prohibited busing for school desegregation.

“We find that the holistic race-conscious admissions policies now barred by Proposal 2 inure primarily to the benefit of racial minorities, and that such groups consider these policies to be in their interest,” said Judge Cole, who went on to say that the measure had a racial focus and that it unconstitutionally burdened the political interests of racial minorities in the state.

Judge Danny J. Boggs, writing one of the five dissents among the seven dissenting judges, said it was ironic that university administrators would be allowed to reverse a decision on race-conscious admissions policies at public institutions in the state while Michigan’s “entire body politic” could not make the same decision through the ballot initiative process.

Judge Julia Smith Gibbons, who was the dissenter on the panel ruling last year, said in her new dissent that “for the first time, the presumptively invalid policy of racial and gender preference has been judicially entrenched as beyond the political process.”

In another dissent, Judge Jeffrey S. Sutton said the case had turned a virtue of affirmative action programs—that they typically grow out of democratic action—into a vice by suggesting that the 14th Amendment’s equal-protection clause bars states from eliminating such programs through amendments to their constitutions.

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A version of this news article first appeared in The School Law Blog.