A narrowly divided federal appeals court on Thursday struck down a voter-passed ban on the use of race-conscious admissions by Michigan's public colleges, holding that the measure had unconstitutionally put racial-minority members at a distinct legal disadvantage in seeking from public colleges the same preferential treatment that other categories of students enjoy.
The ruling, by the U.S. Court of Appeals for the Sixth Circuit, creates a clear division among the federal courts over the issues raised, because a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit this year upheld a nearly identical California ban in a ruling that the full Ninth Circuit declined to reconsider. The existence of such a split between the federal circuit courts greatly increases the likelihood that the U.S. Supreme Court will feel compelled to weigh in on such bans on affirmative-action preferences, which have been adopted by voters in Michigan and five other states: Arizona, California, Nebraska, Oklahoma, and Washington.
Michigan's attorney general, Bill Schuette, responded to the Sixth Circuit's ruling by announcing he would appeal the decision to the U.S. Supreme Court. In a written statement, he said the Michigan measure, passed by that state's voters in 2006, "embodies the fundamental premise of what America is all about: equal opportunity under the law."
Ward Connerly, who played a central role in the 1997 campaign for the California ban and then helped lead the campaigns for similar ballot initiatives in Michigan and other states as president of the American Civil Rights Institute, expressed hope that in the Supreme Court "a voice of sanity might prevail, and we can get these ridiculous damn challenges to our initiatives out of the way once and for all."
The Sixth Circuit's decision was cheered by George B. Washington, who mounted the challenge against the Michigan measure as a lawyer for the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, an advocacy group known as BAMN. He called the Sixth Circuit ruling "a tremendous victory for tens of thousands of black, white, and Latino students who have fought for affirmative action for years" and said "it means that, at the very moment the country is becoming majority minority, black and white people will have equal rights to fight to get their children into the best public universities."
Mr. Washington said he planned to do nothing to discourage the Supreme Court from taking up the Michigan case. In fact, he said, BAMN, which also filed the lawsuit challenging the similar ban passed by California voters in 1996, had not appealed the Ninth Circuit's decision to uphold that measure precisely because he regarded the Michigan case as a better vehicle for the Supreme Court to review the legal questions at the core of both disputes, effectively putting the California ruling back in play. "We are confident of victory in the Supreme Court," he said.
The talk of a Supreme Court battle over such ballot measures comes as the Supreme Court is weighing the constitutionality of a race-conscious undergraduate admission policy at the University of Texas at Austin. It is possible that the Supreme Court could next year hand down a ruling broadly striking down all such policies as discriminatory, which probably would render the legal debate over state bans on such policies moot.
A Rigged Process?
The Sixth Circuit's ruling did not deal with the entirety of the Michigan measure, which amended that state's Constitution to bar state agencies and public colleges from granting preferential treatment in public employment, public education, or public contracting based on race, sex, ethnicity, or national origin. Instead, the Sixth Circuit focused narrowly on the measure's prohibition against preferential treatment in public education, a hot-button issue in that state as a result of a legal battle over race-conscious admissions at the University of Michigan at Ann Arbor. Michigan's passage of the ban came just three years after the Supreme Court upheld the use of a race-conscious, holistic admissions system by the University of Michigan's law school.
By a tally of 8 to 7, the full Sixth Circuit voted—as a three-member panel of its judges had done earlier—to strike down the Michigan ballot measure and overturn a 2008 federal district-court ruling that had upheld it.
The majority's decision did not delve into the legality of race-conscious admissions policies but focused instead on the constitutionality of ballot measures that restrict the government's consideration of race. It relied heavily on two U.S. Supreme Court precedents: the court's 1969 ruling in Hunter v. Erickson, involving an Akron, Ohio, ballot initiative that required voter approval of any city ordinance regulating real-estate transactions based on race, and the court's 1982 ruling in Washington v. Seattle School District No. 1, involving a state ballot measure that prohibited school districts from voluntarily adopting busing policies to promote school desegregation.
In both cases, the Sixth Circuit majority noted, the Supreme Court struck down the laws at issue as violating the equal-protection clause of the 14th Amendment, based on its conclusion that the laws had a racial focus—being aimed at policies or programs that benefit minority members—and changed the political decision-making process in ways that put obstacles in the way of minority members' efforts to lobby for their own political goals.
The Sixth Circuit majority's opinion held that the Michigan measure was similar, in that it required advocates for minority students to repeal an amendment to the state Constitution if they wished to gain the same sort of preferential treatment in admissions that other segments of the population can attain much more easily.
The majority opinion drew a comparison between minority students seeking preferential consideration based on race and students seeking preferential treatment because of connections to alumni, noting that a student seeking preferential treatment based on legacy status could lobby an admissions committee, petition the university's leadership, or seek to influence the university's governing board. "The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy," the majority opinion said.
Several of the dissenting judges disputed the idea that college admissions decisions can be influenced through the political process, arguing that most such decisions are made by faculty members and admissions committees that are politically unaccountable.
Correction (11/16/2012, 6:37 a.m.): This article originally misstated the middle initial of the lawyer representing opponents of the Michigan ballot measure. He is George B. Washington, not George W. Washington. The article also gave the wrong date for the passage of a similar ballot measure in California. It was 1996, not 1997. The article has been updated to reflect those corrections.