Yesterday the Sixth Circuit sitting en banc declared the State of Michigan’s ban on affirmative action in university admissions unconstitutional. See Coalition to Defend Affirmative Action v. Regents of the University of Michigan, Nos. 08-1387/1389/1534 & 09-1111 (6th Cir. Nov. 15, 2012).
In 2006, the people of Michigan voted to adopt “Proposal 2,” an amendment to their state constitution stating that the University of Michigan and other public universities across the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education . . . .” Mich. Const. art. I, § 26.
The 8-7 majority held that Proposal 2 violated the Equal Protection Clause’s guarantee that “[n]o state shall . . . deny to any person . . . the equal protection of the laws” because it affected an admissions practice (i.e., the consideration of an applicant's race) that primarily benefitted minority applicants and stripped minority applicants of the ability to lobby university policymakers to adopt admissions practices that give them preference over nonminority applicants because of their race.
Dissenting, Judge Richard Allen Griffin criticized the majority for, among other things, creating a split in authority with the Ninth Circuit:
In a footnote, the majority superficially acknowledges, but does not discuss, the circuit split it creates in declining to follow the Ninth Circuit decisions upholding the constitutionality of analogous Proposition 209. See Wilson and Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. 2012). I would adopt the persuasive reasoning of Wilson and hold that, in amending their state constitution to prohibit racial discrimination and “preferential treatment,” the citizens of Michigan did not violate the Equal Protection Clause of the Fourteenth Amendment, but rather enshrined its principles into the Michigan Constitution. Like Proposition 209, Michigan’s proscription of racial preference, “as a matter of law and logic, does not violate the Equal Protection Clause in any conventional sense.” Wilson, 122 F.3d at 702.
“Under today’s en banc decision,” the dissent concludes, “not all persons are entitled to the equal protection of the laws.”
Michigan’s attorney general released a statement yesterday in which he vowed to appeal the Sixth Circuit’s decision to the Supreme Court. This case will undoubtedly find itself before the Supreme Court for several reasons.
First, by agreeing to review Fisher v. University of Texas this term, the Roberts Court has expressed a renewed interest in scrutinizing race-conscious admissions practices. “The way to stop discrimination on the basis of race,” the Chief Justice wrote in 2007’s Parents Involved in Community Schools v. Seattle School District No. 1, “is to stop discriminating on the basis of race.”
Second, while disagreement over the legality of statewide bans on affirmative action is presently limited to two circuits, the American public is deeply divided over the issue. The Sixth Circuit was similarly divided over the question in Coalition to Defend Affirmative Action, delivering an 8-7 decision declaring Michigan's affirmative action ban unconstutitional.
Finally, this case is ripe for review because it involves a seemingly innocuous amendment to a state constitution that was struck down as unconstitutional by a federal court.