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En banc Sixth Circuit rules Michigan’s voter-approved affirmative action ban unconstitutional as to university admissions policies

An en banc Sixth Circuit has ruled, 8-7, that a voter-approved ban on government affirmative action in the state of Michigan, as it applies to race-conscious admissions policies in public colleges and universities, violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (Coalition to Defend Affirmative Action v Regents of the University of Michigan, November 15, 2012, Cole, R). The majority of the deeply divided court ruled that the measure violated equal protection under the political process theory because equal protection does not permit the kind of political restructuring that the measure affected. The Sixth Circuit ruling was limited to the area of university admissions, but the constitutional analysis could be applicable to race-conscious decisions in state employment and the awarding of government contracts.

Background. In November 2006, Michigan voters approved a ballot initiative, Proposal 2, to amend the state’s constitution to prohibit state universities, the state, and all other state entities from discriminating against or granting preferential treatment based on race, sex, color, ethnicity or national origin. The initiative impacts the state’s use of affirmative action in a number of areas, including employment, education and government contracting. The Michigan measure was largely prompted by a June 2003 decision in which the U.S. Supreme Court, in a 5-4 vote, upheld the University of Michigan’s consideration of race in its law school admissions policy (Grutter v Bollinger). However, on that same day in a 6-3 decision, the Court held that the university’s use of race as a factor in its undergraduate admissions policy violated the U.S. Constitution (Gratz v Bollinger). In the Grutter and Gratz cases, white students who claimed they were qualified but denied admission challenged the university’s law school and undergraduate admissions systems on equal protection grounds. The Court found that the law school’s policy was narrowly tailored to achieve the compelling state interest of a diverse student body, but that the undergraduate policy was not.

In 2007, the Sixth Circuit ruled that a federal district court in Michigan should not have issued an injunction allowing three state universities a short-term delay, with respect to admissions and financial aid, in the implementation of the ban. In 2008, the district court dismissed on summary judgment a challenge by the Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality By Any Means Necessary and other interest groups and individuals to the constitutionality of the ban. The district court, which allowed Michigan’s attorney general to intervene in the case, determined that the measure did not violate the Equal Protection Clause.

On July 1, 2011, a three judge panel of the Sixth Circuit reversed by a vote of 2-1. The panel found that Proposal 2 unconstitutionally altered Michigan’s political structure by impermissibly burdening racial minorities. The Sixth Circuit then granted the Michigan attorney general’s request for en banc review, and thereby, vacated the panel opinion.

Equal protection. The majority decision of the en banc court was written by the same judge who authored the 2011 panel decision and both rulings follow similar reasoning. At the outset of its opinion, the majority noted that it was “neither required nor inclined to weigh in on the constitutional status or relative merits of race-conscious admissions policies as such.” Rather, the only issue before the court was “whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions—something they are specifically allowed to do under Grutter,” the court majority clarified.

Applying the U.S. Supreme Court’s decisions in Washington v Seattle Sch Dist No 1 (1982) and Hunter v Erickson (1969), the appeals court found that Proposal 2 unconstitutionally altered Michigan’s political structure by impermissibly burdening racial minorities. The Seattle and Hunter decisions clarify that equal protection of the laws is more than a guarantee of equal treatment under the law substantively. It is also an assurance that “the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to [minority groups],” the majority opinion explained. These decisions provide the benchmark for when the majority has not only won in the political process, but has also rigged the game to reproduce its success indefinitely. They require courts to apply strict scrutiny to enactments that change the governmental decision-making process for determinations with a racial focus.

Using a two-part analysis derived from Seattle and Hunter, the Sixth Circuit majority found that Proposal 2 deprived minority groups of equal protection because it: (1) it has a racial focus, targeting a program that “inures primarily to the benefit of the minority,” and (2) it reorders the political process in Michigan in such a way as to place “special burdens” on racial minorities. As to the first prong, the majority held that race-conscious admissions policies now barred by Proposal 2 inured primarily to the benefit of racial minorities and Proposal 2, insofar as it prohibits consideration of applicants’ race in admissions decisions, had a racial focus in targeting that program.

Looking to the second prong, the majority concluded that Proposal 2 modified the Michigan political process by placing special burdens on the ability of minority groups to achieve beneficial legislation. By amending Michigan’s constitution to prohibit university admissions units (which were governmental decision-making bodies) from utilizing race-conscious admissions policies, proponents of Proposal 2 consequently removed the authority to institute racially focused policies from Michigan’s universities and lodged it at the most remote level of Michigan’s government, the state constitution. As such, Michigan has, via Proposal 2, created less onerous avenues to effect political change to those advocating consideration of nonracial factors in admissions decisions than those advocating for consideration of racial factors.

To illustrate this point, the majority noted:

“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.”

This comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens have equal access to the tools of political change, according to the majority. Moreover, this contrast between the paths for political change available to different admissions proponents following Proposal 2 illustrated why the constitutional amendment could not be construed as a mere repeal of an existing race-related policy, the court wrote. 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. Because less onerous avenues to effect political change remain open to those advocating consideration of nonracial factors in admissions decisions, Michigan cannot force those advocating for consideration of racial factors to go down a more arduous road than others without violating the Fourteenth Amendment.

Strict scrutiny. Because Proposal 2 changed the governmental decision-making process for determinations with a racial focus, the measure had to withstand strict scrutiny in order to pass constitutional muster. Here, because the Michigan attorney general did not assert that Proposal 2 satisfies a compelling state interest, the majority concluded that it need not consider this argument.

Having found that Proposal 2 deprives the plaintiffs of equal protection of the law under the political-process doctrine, the court majority determined that it not reach the question of whether Proposal 2 also violates the Equal Protection Clause when assessed using the “traditional” equal protection analysis.

Therefore, the majority held that those portions of Proposal 2 that affect Michigan’s public institutions of higher education violate the Equal Protection Clause. In a footnote, the majority noted that because the plaintiffs’ challenge is limited to public education, the court’s ruling did not determine whether the portions of Proposal 2 that affect public employment and public contracting also violate the Equal Protection Clause.

Dissents. In a total of five separate opinions, Chief Judge Batchelder, along with Judges Boggs, Gibbons, Rogers, Sutton, Cook, and Griffin dissented. In general, the dissents asserted that the majority did not correctly follow U.S. Supreme Court precedent and that Proposal 2 did not impermissibly restructure the political process in the state of Michigan to burden the ability of minorities to enact beneficial legislation and that Proposal 2 was not unconstitutional under traditional equal protection analysis. In addition, Judge Griffon wrote that the political structure doctrine “is an anomaly incompatible with the Equal Protection Clause,” and urged the Supreme Court to do away with it.

Similar ballot measures in other states. The Michigan initiative is similar to measures passed by voters in California (1996), Washington state (1998), Nebraska (2008), Arizona (2010), and Oklahoma (2012). Colorado, in contrast, became the first state to reject an anti-affirmative action ballot measure in the November 2008 election. A similar ban is slated to appear on the Oklahoma ballot in 2012.

Pending Supreme Court case. The issue of affirmative action is also currently pending before the U.S. Supreme Court. On October 10, 2012, the High Court heard arguments in Fischer v University of Texas at Austin (Dkt No 11-345). The issue presented in Fischer is whether the High Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.