In a 2-1 decision July 1 by the Sixth U.S. Circuit Court of Appeals, the ban on the use of race-based criteria in making Michigan's public education, public contracting and public employment decisions was reversed. The Court's opinion, with Judge Julia Smith Gibbons dissenting, held that amending the state constitution using Proposition 2 "modifies Michigan's political process to place special burdens on the ability of minority groups to achieve beneficial legislation."
The case is a result of a Ward Connerly-led ballot referendum in November 2006, supported by 58 percent of Michigan voters, which amended the state's constitution to prevent discrimination against and preferential treatment of individuals or groups based on "race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting." A lawsuit was filed the day after the amendment was enacted by the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary, which after many changes in defendants and being merged with another case, became Coalition to Defend Affirmative Action (BAMN), et. al. v. Regents of the Univ. of Michigan, et. al., on which the Court made their ruling.
At issue for the Court, in the opinion delivered by Judge R. Guy Cole, was not the underlying issue - that affirmative action should be a prevailing policy and mandate - but the way the change was accomplished. The opinion spells out that the resulting situation violates both tests of the 14th Amendment's Equal Protection Clause: the "political process" argument by "impermissibly restructuring the political process along racial lines" and the "traditional" argument by "impermissibly classifying individuals on the basis of race."
Professor Lisa Crooms, director of the Constitutional Law Center of the Howard University School of Law, said the decision relies on a U.S. Supreme Court precedent that was generated during a different time, referring to the 1969 Hunter v. Erickson and the 1982 Washington v. Seattle that were heavily referenced by the opinion. From these cases the Court gleaned tests it applied to the circumstances in BAMN v. Michigan.
The opinion steps through the logic of the majority, at times addressing concerns of the dissenting judge, showing how it applied what it believed to be the relevant points in Hunter and Seattle. "The evil condemned by the Hunter Court was not the particular political obstacle of mandatory referenda imposed by the Akron charter amendment; it was, rather, the comparative structural burden placed on the achievement of minority interests," the opinion states.
A central theme of the reversal is that now, for race-related policies, especially as related to university admissions, instead of being able to directly lobby the university, "a Michigan citizen seeking that Michigan universities adopt race-based admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution. ... Only after traversing this difficult and costly process would the now exhausted Michigan citizen reach the starting point of his opponent who sought a non-race related admissions policy change [a change to the legacy policy, or standardized test requirements]."
Crooms reiterates that it's the mechanism to achieve the goal that the Sixth Circuit objects to, saying, "They didn't deny the constitutionality of the aim to be achieved."
"It's significant that a court overruled a referendum process," said Professor Jose Anderson, University of Baltimore School of Law. He added that it was a big statement of the strength the courts possess over the legislative process.
"Who gets to decide which of these tools [referendum, policies, laws] get to survive? ... Sooner or later the Supreme Court is going to have to say whether these tools [policies, laws] can be pushed away by simple majority vote."
Pointing out that the country has to make a decision about diversity and the different forms it may take, he added, "We finally have to decide, as a matter of public policy, whether it's valuable or not."
Citing an appreciation for the research of the Court and their application of these cases, Crooms said, "It's an interesting decision. It's most definitely going to be appealed."
Michigan Attorney General Bill Schuette told The Associated Press that his appeal would include a request for review by the entire appeals court. This type of request is usually denied.
"It stands a good chance of being reviewed by the Supreme Court," said Anderson. "But it's too far away to know if there will be five justices that will vote to overturn."
Crooms phrased it a bit differently. "I don't know whether it [Sixth Circuit's decision] will survive on appeal."