The Sixth Circuit just held, in Coalition to Defend Affirmative Action v. Regents that a state constitutional amendment banning race preferences in public education (among other contexts) violates the Equal Protection Clause, because it — as a constitutional amendment — makes it harder for those who favor race preferences to change state law to allow such preferences. The decision was by the entire court, not just a three-judge panel, and split 8 to 7.
In this the Sixth Circuit disagrees with the Ninth Circuit, and I think it nearly certain that the U.S. Supreme Court will agree to hear the case: There’s a circuit split, the issue is one of significant national importance, and the 8-to-7 disagreement among the en banc court judges helps, too. I also think it’s very likely that the Court will reverse the Sixth Circuit. The one reason for the Court to deny would be if it holds in the Fisher v. University of Texas that all race preferences in higher education are unconstitutional under the Equal Protection Clause; that might make the controversy about the constitutionality of state bans on race preferences practically moot.
Note, incidentally, that under the majority’s logic Congressional amendment of Title VII to make clear that it bans all race discrimination, with no exception for certain race-based preferences, would be just as unconstitutional. The court’s reasoning is that the Michigan state constitutional amendment preempted ordinary state laws that would allow race preferences, but a federal extension of Title VII would have an even broader effect. Here’s the Sixth Circuit’s summary of its main point:
A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution — a lengthy, expensive, and arduous process — to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.
Thanks to How Appealing for the pointer.
UPDATE: I see Jonathan beat me to it; I’m closing comments, so that all the comments can go up on Jonathan’s post.