Michigan Ban on Race Preferences in Admissions Struck Down

By Mark Walsh — July 01, 2011 2 min read
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A federal appeals court on Friday invalidated a Michigan ballot initiative that barred racial preferences in admissions at state colleges and universities.

“We conclude that Proposal 2 targets a program that inures primarily to the benefit of the minority and reorders the political process in Michigan in such a way as to place special burdens on racial minorities,” said the decision by a 2-1 panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati.

The ballot measure was promoted in Michigan by Ward Connerly, the California activist who had led that state’s efforts to end racial preferences in education and government contracting. The Michigan measure came about after the high-profile U.S. Supreme Court cases about race admissions at the University of Michigan and its law school. The high court struck down the use of categorical racial preferences (in Gratz v. Bollinger) but said race could be taken into account as a plus factor in the individual consideration of an applicant (in Grutter v. Bollinger).

The 2006 Michigan measure amended the state constitution to bar not only state colleges but also school districts, other local governments, and the state itself from giving preferential treatement based on race, sex, color, ethnicity, or national origin. It was adopted by a vote of 58 to 42 percent.

The majority said the measure 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.

“The Supreme Court’s statements in Hunter and Seattle clarify that equal protection of the laws is more than a guarantee of equal treatment under the law substantively,” said the majority opinion by Judge R. Guy Cole Jr., in Coalition to Defend Affirmative Action v. Regents of the University of Michigan. “It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities.”

Judge Julia Smith Gibbons dissented, arguing that Michigan’s public universities have ceded admissions policies to faculty committees that were removed from the political process.

The Hunter and Seattle cases “without a doubt, secure racial minorities the right to equal process within the political arena,” Gibbons said. “But they do not guarantee that racial minorities will win every political battle. Nor do they hold that the repeal of those policies is impermissible, although they may be preferred by significant numbers of racial minorities.”

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