Federal Court Tosses Michigan Affirmative Action Ban

Posted November 21, 2012 in Government by

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A federal court this month threw out Michigan’s ban on affirmative action in college admissions, the latest volley in the nationwide debate over if and to what extent race can be considered when deciding who gets admitted to institutions of higher education.

The 6th U.S. Circuit Court of Appeals in Ohio decided in an 8-7 vote that the affirmative action ban was in violation of the U.S. Constitution. A district court had previously upheld the ban, which could be appealed to the U.S. Supreme Court next.

“This is a tremendous day for black and Latino students in the entire country,” said attorney George B. Washington, who challenged the law on behalf of the By Any Means Necessary Coalition.

In 2006 the state passed a ballot initiative “to prohibit all sex- and race-based preferences in public education, public employment, and public contracting,” language that was added to the state’s constitution. The amendment came after Michigan universities were the subject of the landmark 2003 Supreme Court ruling Grutter v. Bollinger that stated race could be a factor in determining college admissions, as long as it isn’t the only factor.

The 6th Circuit decision reasoned that the ban was a violation of the Equal Protection Clause of the Constitution, because a minority student seeking recourse to challenge the policy would have fewer options than students who challenged other aspects of the admissions policies that aren’t codified in the state constitution.


Equal Protection in the Political Process

Ruthann Robson

“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,” wrote Judge R. Guy Cole in the majority decision. “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,” the judge concluded.

In one of two dissenting opinions, Judge Julia Smith Gibbons wrote, “The people of Michigan have not restructured the state’s lawmaking process . . . Instead, their vote removed admissions policy from the hands of decisionmakers who were unelected and unaccountable to either minority or majority interests and placed it squarely in an electoral process in which all voters, both minority and majority, have a voice.”

“[The affirmative action ban] embodies the fundamental premise of what America is all about: equal opportunity under the law,” Michigan Attorney General Bill Schuette said in a statement that announced his intention to appeal to the Supreme Court. “Entrance to our great universities must be based upon merit.”

The decision comes as the high court is already considering Fisher v. University of Texas, in which a white Texas student sued after she was denied admission to the state university, claiming that she was unfairly excluded by a minority-preference policy. The court could issue a narrow ruling on the case about Texas schools specifically, or could potentially make a decision with national ramifications, including in Michigan.

“If the United States Supreme Court were to take a very broad approach and declare that all racial affirmative action policies in education were per se unconstitutional, the rationale of [the Michigan decision] would be seriously undermined,” wrote CUNY School of Law Professor Ruthann Robson on the Constitutional Law Prof Blog.

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