Sixth Circuit Holds Michigan Ban on Affirmative Action Unconstitutional – Labor & Employment/Higher Education Law Alert

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.