In an opinion issued July 1, 2011, the Sixth Circuit Court of
Appeals struck down Michigan's constitutional amendment known
as "Proposal 2," finding it unconstitutional under the
Equal Protection Clause of the U.S. Constitution's Fourteenth
Amendment. Proposal 2, which passed by public referendum in 2006,
targeted affirmative action programs in public colleges and
universities and added language to the Michigan Constitution which
bans "preferential treatment" on the basis of "race,
sex, color, ethnicity, or national origin" in public
employment, education, and contracting. The Sixth Circuit's
decision may allow Michigan's public colleges and universities
to revive any minority scholarships or other programs that
considered race as a criterion, but the full effect of the
court's decision will not be known until the time period for
challenging the decision has been exhausted.
The plaintiffs in Coalition to Defend Affirmative Action et al. v.
Regents of the Univ. of Mich. et al challenged Proposal 2 on two
constitutional equal protection arguments. They argued that the
amendment violated the Equal Protection Clause both by
impermissibly classifying individuals on the basis of race (what
the Sixth Circuit called the "traditional" argument) and
by impermissibly restructuring the political process along racial
lines (the "political process" argument). In deciding the
case, the Sixth Circuit only addressed the "political
process" argument, holding 2-1 that Proposal 2
"unconstitutionally alters Michigan's political structure
by impermissibly burdening racial minorities."
In finding Proposal 2 unconstitutional, the Sixth Circuit looked to
previous U.S. Supreme Court cases in which the Court found that
state laws requiring a more rigorous process to pass certain local
laws involving race were unconstitutional because they placed
special burdens on minorities by making it more difficult for them
to enact laws for their benefit. From these case precedents, the
Sixth Circuit culled a two-part test for when enactment of a law
deprives minority groups of equal protection of the laws. An
enactment is unconstitutional under this test when (1) the law
"has a racial focus, targeting a goal or program that inures
primarily to the benefit of the minority" and (2) results in a
"reallocation of political power or reordering of the decision
making process that places special burdens on a minority
group's ability to achieve its goals through that
process."
The court then applied this test to Proposal 2 and found it to be
unconstitutional. The majority found that Proposal 2 had a racial
focus because it was targeted at affirmative action programs. It
also found that Proposal 2 reordered the political process to place
special burdens on minorities because it requires citizens who want
Michigan's public universities to adopt affirmative action
programs to "begin by convincing the Michigan electorate to
amend the Michigan Constitution," while citizens seeking any
non-race-related change would only have to lobby the school's
admissions committee or attempt to elect supportive candidates to
the university's board. The Sixth Circuit's opinion
emphasized that "Michigan cannot force those advocating for
consideration of racial factors to go down a more arduous road than
others without violating the Fourteenth Amendment."
Circuit Judge Julia Smith Gibbons dissented from the court's
opinion, arguing that Proposal 2 does not impermissibly restructure
the political process in a way that burdens minorities because the
university faculty committees to which admissions decisions have
been delegated by the universities' governing boards are not
politically accountable to the people of Michigan, and therefore
are not part of the "political process." Judge Gibbons
also pointed out that even if these institutions were considered
part of the political process, Proposal 2 does not require a more
onerous process for changing the law. She noted that the governing
boards of Michigan's public universities are entities created
by Michigan's Constitution, and Michigan voters "lack a
viable electoral mechanism to change university admissions policies
at a sub-constitutional level." By enacting Proposal 2 at a
constitutional level, therefore, Michigan voters have not
"restructured the political process," but "merely
employed it."
In overturning Proposal 2, the Sixth Circuit reversed the decision
of the Eastern District of Michigan court, which had held the
amendment to be constitutional. The Sixth Circuit's decision
also conflicts with decisions of the Ninth Circuit and California
Supreme Court which have found a similar constitutional amendment
in California not to violate the Equal Protection Clause,
dismissing the constitutional arguments that the Sixth Circuit has
now endorsed.
The Michigan Attorney General (a defendant in the case) has already
indicated that the Attorney General's office will be
challenging the decision. Given the nature of the subject matter
and the conflict with the Ninth Circuit, the Sixth Circuit may
agree to reconsider its decision or the U.S. Supreme Court may
grant review. If the Attorney General requests a rehearing by the
Sixth Circuit, the court's July 1 decision will not go into
effect until after the petition for rehearing is considered. If the
Attorney General petitions the Supreme Court for a writ of
certiorari, this would not automatically stay the Sixth
Circuit's decision, although the Sixth Circuit may grant a stay
of its July 1 decision if requested and for good cause shown.
Either development could delay the current Sixth Circuit decision
from going into effect for months, if not longer.
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