En Banc Sixth Circuit Voids Michigan Civil Rights Initiative

By an 8-7 vote, the U.S. Court of Appeals for the Sixth Circuit has held that Michigan’s Proposal 2, aka the Michigan Civil Rights Initiative, is unconstituional. The Court split along predictable ideological lines, with Democratic nominees siding with the plaintiffs, and Republican nominees voting to uphold the initiative.

Judge Cole delivered the opinion for the court, joined by judges Martin, Daughtrey, Moore, Clay, White, Stranch, and Donald. His opinion begins:

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.

In other words, it is unconstitutional for a state constitution to prohibit the consideration of race by state actors.

Several judges filed dissents, including Boggs (joined by Chief Judge Batchelder, Gibbons (joined by Batchelder, Rogers, Sutton, Cook, and Griffin (in part)), Rogers (joined by Cook), Sutton (joined by Batchelder, Boggs and Cook), and Griffin.

My prior posts on this case are here and here.

In case it’s not obvious enough, this case has certiorari written all over it. Paging Justice Kennedy. [Update: Of course, as Eugene notes above, if the Supreme Court bars any use of racial preferences in university admissions — a possible, but I think unlikely, outcome in Fisher — there would be no need for the Court to consider this case.]

UPDATE: Judge Rogers’ dissent is rather short. Here it is in its entirety:

Under the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law. Doing so would perforce make it harder for one minority or another to obtain a preference at the lower level. That alone can hardly render the no-race-preference act unconstitutional. Whatever Hunter and Seattle hold, the Supreme Court cannot have intended such a ban.

Also, here is the opening of Judge Sutton’s dissent:

Today’s lawsuit transforms a potential virtue of affirmative action into a vice. If there is one feature of affirmative-action programs that favors their constitutionality, it is that they grow out of the democratic process: the choice of a majority of a State’s residents to create race-conscious admissions preferences at their public universities not to benefit a majority race but to facilitate the educational opportunities of disadvantaged racial minorities. Such democratically enacted programs, like all democratically enacted laws, deserve initial respect in the courts, whether the particulars of a program satisfy the Fourteenth Amendment, see Grutter v. Bollinger, 539 U.S. 306, 343 (2003), or violate it, see Gratz v. Bollinger, 539 U.S. 244, 275–76 (2003).

Yet this lawsuit turns these assumptions on their head. Democracy, it turns out, has nothing to do with it. Plaintiffs insist that the Fourteenth Amendment’s guarantee of “equal protection of the laws” imposes two new rules on the policy debates surrounding affirmative action in higher education. Rule one: States not only may establish race-conscious affirmative-action programs, but they must do so to comply with the Fourteenth Amendment. Rule two: even if the Fourteenth Amendment does not mandate that States establish affirmative-action programs at their public universities, it bars them from eliminating such programs through amendments to their constitutions.

SECOND UPDATE: Just a quick clarification on the line up in this case. Judge White was originally nominated to the Sixth Circuit by President Clinton but never confirmed. She was later renominated by President Bush as part of a deal with Michigan’s Senate delegation under which they agree to drop their opposition to one of Bush’s other Michigan nominees.

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