In a legal battle with potential implications for any state that bans affirmative-action preferences, a federal appeals court is weighing arguments that the ban adopted by Michigan voters in 2006 is unconstitutional because it places distinct burdens on minority residents seeking more access to the state’s public colleges.
A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit is expected to hear oral arguments in the case this week. It involves two lawsuits by opponents of the ban that a U.S. District Court consolidated into one in 2007, soon after they were filed.
The opponents are asking the appeals court to overturn a March 2008 decision by Judge David M. Lawson, of the U.S. District Court in Detroit, dismissing their lawsuits. At the heart of their appeal is a rejection of his conclusion that the Michigan ban, known as Proposal 2, in no way restricted the right of women and people from minority groups to equal protection under the law, and instead precluded them only from seeking preferential treatment from public colleges and other state and local agencies.
The plaintiffs’ argument—that Proposal 2 prevents minority members from using political means to try to obtain fair access to education—echoes those that were made in a challenge of Proposition 209, a similar amendment to California’s Constitution adopted by that state’s voters in 1996. Even though the U.S. Court of Appeals for the Ninth Circuit upheld the California measure in 1997, opponents of the Michigan ban say they have a decent chance of prevailing.
One key reason is that, following the Ninth Circuit’s decision, the U.S. Supreme Court removed much of the uncertainty surrounding the legality of race-conscious college-admissions policies with its 2003 Grutter v. Bollinger decision, which upheld the consideration of applicants’ race and ethnicity by the University of Michigan Law School.
In addition, the composition of the three-judge panel on the Sixth Circuit court handling the latest Michigan case seems promising for the opponents of Proposal 2. Two of the judges, Ransey Guy Cole Jr. and Martha Craig Daughtrey, are nominees of President Bill Clinton who have liberal reputations and were members of the Sixth Circuit majority that upheld the Michigan law school’s policies in Grutter. The third member of the panel, Judge Julia Smith Gibbons, was nominated by President George W. Bush but has a reputation as one of the court’s more moderate Republican nominees.
Regardless of how the three-judge panel rules, however, its decision is almost certain to be appealed to the full Sixth Circuit, whose membership tilts conservative.
Conflicting Agendas
One of the two lawsuits merged into the case before the Sixth Circuit was filed on behalf of students, faculty members, and prospective applicants to Michigan’s public universities, with the plaintiffs’ legal team including lawyers from the NAACP Legal Defense and Educational Fund, the Detroit branch of the NAACP, and the American Civil Liberties Union. The other lawsuit was brought by the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, an activist group, known as BAMN, that played a significant role in fighting both Michigan’s Proposal 2 and California’s Proposition 209.
The chief named defendants in the case—the governing boards and presidents of Michigan State University, the University of Michigan, and Wayne State University—have made clear that they take no position on Proposal 2 and seek, in their brief submitted to the Sixth Circuit, to be dismissed as parties to the lawsuit.
“Simply put, the universities do not belong in the case,” their brief says. “The universities did not draft Proposal 2. They did not pass Proposal 2. They cannot change Proposal 2. They are not executive branch agencies charged with enforcing Proposal 2.”
A brief filed by BAMN argues that the university officials should remain as defendants, however, because although they were not behind the measure, “they have made the choice both to implement it and how it should be implemented.”
Much of the task of fighting the lawsuits against Proposal 2 has been taken on by Michael A. Cox, Michigan’s Republican attorney general, who intervened as a defendant in the cases.
Eric Russell, a white student who was applying to Michigan’s law school at the time Proposal 2 was passed, is also seeking to intervene as a defendant with the help of lawyers for the Center for Individual Rights, a Washington-based advocacy group that has played a major role in several challenges to race-conscious admissions in the federal courts.
A Matter of Say
Much of the legal dispute pending before the Sixth Circuit boils down to rival interpretations of two Supreme Court precedents dealing with measures affecting minority members’ involvement in the political process.
In its 1969 ruling in Hunter v. Erickson, the Supreme Court struck down an amendment to the city charter of Akron, Ohio, that required a referendum on any ordinance regulating real-estate transactions “on the basis of race, color, religion, national origin, or ancestry.” The court said the amendment violated the U.S. Constitution’s equal-protection clause because it left minority members marginalized in the governmental process, given their disadvantage at the polls. In its 1982 ruling in Washington v. Seattle School District No. 1, the court used similar logic in overturning a Washington State ballot measure that effectively allowed school busing for nearly any reason except to promote racial integration.
In his ruling dismissing the challenges to Michigan’s Proposal 2, Judge Lawson of the District Court agreed that the measure was similar to those that had been at issue in Akron and Washington State in that it had a racial focus and made it more difficult for minority members to advance a political objective—in this case, greater representation at the state’s public colleges. But he said the two Supreme Court precedents applied only to measures that deny people equal protection, and not to those that preclude them from preferential treatment.
The briefs filed by the two groups of plaintiffs argue that Judge Lawson let his concern about a political outcome—preferential treatment—cloud his judgment of whether the political proc ess itself had been rendered unfair by Proposal 2. The plaintiffs say the measure forces minority advocates who seek the reinstatement of race-conscious admissions policies to undertake the daunting task of getting voters to repeal Proposal 2. Other constituencies in the state, such as residents of rural areas, do not need to clear such hurdles to influence admissions policies.
Mr. Cox’s brief argues that Proposal 2 ensures exactly what the Supreme Court advocated in its precedents dealing with Akron and Seattle: freedom from discrimination. The attorney general also challenges the idea that public colleges’ admissions policies are developed politically, arguing that the proc ess is much more “an academic one,” involving faculty members and administrators and “generally not open to public scrutiny.”
Michigan is the only state within the Sixth Circuit with a ban on affirmative-action preferences. The appeals court’s ruling could, however, influence other courts that might take up challenges to California’s Proposition 209 or similar measures adopted by Washington State in 1998 and Nebraska last year, and being contemplated in other states.
