Michigan's Affirmative Action Ban Overturned

(CN) - The 6th Circuit has overturned Michigan's ban on affirmative action at public colleges and universities and in government hiring, finding the voter-approved prohibition is unconstitutional because it places an impermissible burden on racial minorities. A result of the Civil Rights movement of the 1950s and 1960s, Affirmative Act remained largely unchanged until the late 1990s.

In 2003, the Supreme Court ruled "universities cannot establish quotas for members of certain racial groups" but may "consider race or ethnicity more flexibly as a 'plus' factor in the context of individualized consideration."

In 2006, Michigan voters approved a statewide ballot proposal to amend the Michigan Constitution "to prohibit all sex- and race-based preferences in public education, public employment, and public contracting."

Proposal 2 forced Michigan's public colleges and universities "to modify the policies they had in place for nearly a half-century to remove consideration of 'race, sex, color, ethnicity, or national origin' in admissions decisions. No other admissions criteria - for example, grades, athletic ability, or family alumni connections - suffered the same fate," according to the opinion written by Judge Ransey Guy Cole, Jr.

The day after the amendment passed, several interest groups and individuals filed a federal suit against then-Governor Jennifer Granholm, the Regents of the University of Michigan, the Board of Trustees of Michigan State University and the Board of Governors at Wayne State University.

The Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality said Proposal 2 violated the U.S. Constitution and federal statutory law. Michigan's then-Attorney General Michael Cox intervened as a defendant.

A group of University of Michigan faculty members, prospective and current students filed a similar suit in District Court against Governor Granholm. Their case was consolidated with that of a U of M Law School applicant and Toward a Fair Michigan, a non-profit corporation formed to ensure implementation of Proposal 2. Attorney General Cox again intervened, and replaced Governor Granholm as the representative of Michigan in the litigation.

The District Court rejected their argument "that Proposal 2 violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." A motion for summary judgment was granted, and the appeals followed.

In the 2-1 opinion, Judge Cole wrote that the ban "unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities." Judge Martha Craig Daughtrey agreed.

The decision further states that "the stark contrast between the avenues for political change available to different admissions proponents following Proposal 2 illustrates why the amendment cannot be construed as a mere repeal of an existing race-related policy. Had those favoring abolition of race-conscious admissions successfully lobbied the universities' admissions units, just as underrepresented minorities did to have these policies adopted in the first place, there would be no equal protection problem."

Judge Julia Smith Gibbons dissented the opinion, stating, "Proposal 2 is not unconstitutional under traditional equal protection analysis."

"Michigan has chosen to structure its university system such that politics plays no part in university admissions at all levels within its constitutionally created universities," she continued. "The Michigan voters have therefore not restructured the political process in their state by amending their state constitution; they have merely employed it."

Michigan's current Attorney General, Bill Schuette, is planning to appeal the court's ruling.

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