Appeals Court Strikes Down Michigan Law Barring Use Of Race In College Admissions
A Federal Appeals Court struck down an Amendment to the Michigan Constitution today as unconstitutional.
The 6th Circuit Court of Appeals issued a decision today striking down a Michigan law passed via referendum which barred the used of racial preferences in college admissions:
A federal appeals court on Friday struck down Michigan’s ban on the consideration of race and gender in college admissions, saying it burdens minorities and violates the U.S. Constitution.
The 2-1 decision upends a sweeping law that forced the University of Michigan and other public schools to change admission policies. The 6th U.S. Circuit Court of Appeals said the law, approved by voters in 2006, violates the 14th Amendment’s Equal Protection Clause.
The court mostly was concerned about how the affirmative action ban was created. Because it was passed as an amendment to the state constitution, it can only be changed with another statewide vote. This places a big burden on minorities who object to it, judges R. Guy Cole Jr. and Martha Craig Daughtrey said.
The ban’s supporters could have chosen “less onerous avenues to effect political change,” the judges said in the court’s opinion.
Arizona, California, Nebraska and Washington state have similar bans, but they won’t be affected by the Michigan decision. The court ruling is limited to Michigan and other states in the 6th Circuit: Kentucky, Ohio and Tennessee.
The judges cited two U.S. Supreme Court cases, one involving the repeal of a fair housing law in Akron, Ohio, and the other a law intended to stop racial integration in Seattle schools.
The American Civil Liberties Union, which was part of a coalition that challenged the Michigan ban, hailed the court’s decision.
The “ruling has kept the door open for thousands of academically qualified students of color to continue to pursue the American dream through our state’s colleges and universities,” said Kary Moss, an ACLU spokeswoman in Detroit.
A dissenting judge, Julia Smith Gibbons, said there was nothing wrong with the ban or the way it passed.
“The Michigan voters have … not restructured the political process in their state by amending their state constitution; they have merely employed it,” she said
The Court appears to rely primarily on two Supreme Court decisions that dealt with local laws that attempted to limit racial desegregation and discrimination. First, in Hunter v. Erickson 393 U.S. 385 (1969), the Court found certain amendments to the City Charter of Akron, Ohio to be unconstitutional because they were primarily intended to prevent the city council from “implementing any ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the voters of Akron.” In the Second Case Washington v. Seattle School District No. 1 458 U. S. 457 (1982), the Court struck down a Washington state initiative passed in 1978 that attempted to place severe limits on the ability of any school district to implement a racial desegregation plan. Among the grounds that the Court relied on to strike down the law was the position that, because of the way it was passed, it placed an undue burden on minorities to get the law overturned:
Initiative 350, however, works something more than the “mere repeal” of a desegregation law by the political entity that created it. It burdens all future attempts to integrate Washington schools in districts throughout the State by lodging decisionmaking authority over the question at a new and remote level of government. Indeed, the initiative, like the charter amendment at issue in Hunter, has its most pernicious effect on integration programs that do “not arouse extraordinary controversy.” Id. at 393 U. S. 396 (emphasis in original). In such situations, the initiative makes the enactment of racially beneficial legislation difficult, though the particular program involved might not have inspired opposition had it been promulgated through the usual legislative processes used for comparable legislation. [Footnote 27] This imposes direct and undeniable burdens on minority interests. “If a governmental institution is to be fair, one group cannot always be expected to win,” id. at 393 U. S. 394; by the same token, one group cannot be subjected to a debilitating and often insurmountable disadvantage.
The 6th Circuit ruled that the initiative, because it took the form of an amendment to the state’s constitution, placed an undue burden on minorities who might attempt to repeal it:
We face here an enactment even more troubling than those at issue in Hunter and Seattle, as the hurdle Proposal 2 creates is of the highest possible order. An interested Michigan citizen may use any number of avenues to change the admissions policies onan issue unrelated to race. He may lobby the admissions committees directly, through written or in-person communication if the latter is available, or petition higher administrative authorities at the university: the dean of admissions, the president or dean of the university, or the university’s board. See Part II.A.1.ii.b.1, supra; see also, e.g., Univ. Defs. Admis., Dist. Ct. Docket No. 172 Ex. I, at 11, 14-15, 17-20; Wu Dep., Dist. Ct. Docket No. 203 Ex. F, at 190; Zearfoss Dep., Dist. Ct. Docket No. 205 Ex. 3, at 209-10. And there is no question that the admissions committees are very much accountable to the universities’ boards, which retain ultimate—and politically accountable—responsibility over admissions policies. See Mich. Const. art. VIII, §§ 5-6.
As with the unconstitutional enactment in Hunter, proponents of race-conscious admissions policies now have to obtain the approval of the Michigan electorate and (if they are successful) the admissions units or other university powers, whereas proponents of other admissions policies need only the support of the latter. See Seattle, 458 U.S. at 468, 474 (describing Hunter).
The stark contrast between the avenues for political change available to different admissions proponents following Proposal 2 illustrates why the amendment cannot be construed as a mere repeal of an existing race-related policy. 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. As the Supreme Court has made clear, “‘the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification.'” Seattle, 458 U.S. at 483 (quoting Crawford v. Bd. of Educ., 458 U.S. 527, 539 (1982)); accord Hunter, 393 U.S. at 390 n.5. Crawford brings this distinction into focus, because the Court-approved political action in that case (amendment of the California constitution) occurred at the same level of government as the original enactment (a prior amendment of the California constitution), thus leaving the rules of the political game unchanged. 458 U.S. at 532, 540.
We thus conclude that Proposal 2 reorders the political process in Michigan to place special burdens on minority interests
This is an interesting argument on many levels, not the least because of the possible implication these precedents hold down the line for bans on same-sex marriage that are enshrined in state constitutions rather than merely statute. Depending on how the Prop 8 case goes when it ultimately makes its way to the Supreme Court. The argument that bans on same-sex marriage enshrined as constitutional law pose an undue burden on a minority seems fairly obvious to make.
In any event, the dissent basis its argument primarily on the idea that the Michigan admissions process is not “political,” meaning that the precedents in Seattle School District No. 1 and Hunter don’t apply. As the majority points out, though, these boards derive their power from the legislative and are obliged to act in accordance with the laws that created them. Under existing precedent, which the Appeals Court is bound by, it seems fairly clear that the majority has the better argument here. But that’s just the beginning.
Clearly, this case will be appealed and its fate at the Supreme Court is highly uncertain. The Supreme Court of today is far different than the Court that decided Hunter in 1969 and Seattle School District No. 1 in 1982. Most of the recent “affirmative action” and racial discrimination decisions that have come from the Court in recent years have served to limit the broad applications of Equal Protection that were the legacy of Justices such as William Brennan and Thurgood Marshall. Given that, it seems highly likely that this case will be reversed, and the state initiative will be permitted to stand.
Here’s the opinion: