Michigan’s affirmative action ban found unconstitutional

The Sixth Circuit is on a roll in dealing with polarizing political issues.

Earlier this week, it made news by finding the health care mandate constitutional under the Commerce Clause. Today, in Coalition of Defend Affirmative Action v Regents of the University of Michigan, it strikes again, finding Proposal 2, Michigan’s ban on affirmative action, to be unconstitutional under the Equal Protection Clause of the 14th Amendment.

Judge Guy Cole, writing for the majority:

Hunter and Seattle thus expounded the rule that an enactment deprives minority groups of equal protection of the laws when it: (1) has a racial focus, targeting a goal or program that “inures primarily to the benefit of the minority”; and (2) works 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. Seattle, 458 U.S. at 470; Hunter, 393 U.S. at 391.

Applying this rule here, we conclude that Proposal 2 targets a program that “inures primarily to the benefit of the minority” and reorders the political process in Michigan in such a way as to place “special burdens” on racial minorities.

Proposal 2, like Initiative 350 [from Seattle], has a “racial focus,” because the Michigan universities’ affirmative-action programs “inure[] primarily to the benefit of the minority, and [are] designed for that purpose,” for the reasons articulated by the Court in Seattle.  …  Just as the desegregative busing programs at issue in Seattle were designed to improve racial minorities’ representation at many public schools, … race-conscious admissions policies increase racial minorities’ representation at institutions of higher education[.]  Indeed, underrepresented minorities lobbied for the
adoption of such policies at Michigan’s universities in the first place for this reason … and, further, the unrebutted evidence in the record indicates that Proposal 2 will likely negatively impact minority representation at Michigan’s institutions of higher education.  Ample evidence thus grounds our conclusion that race conscious admissions policies “inure[] primarily to the benefit of the minority.”

The 6th Circuit slapped down former Attorney General Mike Cox’s argument that the law affected women, therefore wasn’t racially based.

The court found that Proposal 2 sets up racially based obstacles in that anyone seeking to change the admissions policy based on race must first to convince the public to repeal Proposal 2 before trying to convince the board running the respective university to change its policy, whereas if a person sought to change an admission policy based on other factors, it need only do the latter.

Judge Julia Smith Gibbons dissented from the Equal Protection analysis, finding Proposal 2 didn’t restructure the political process “to burden the ability of minorities to enact beneficial legislation” thus wasn’t unconstitutional.

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Michigan affirmative action redux, it’s different, I promise

This story was reported last week, but the Michigan Daily grabbed a copy of the briefs and included the plaintiffs’ arguments that they should be excluded from Proposal 2, Michigan’s anti-affirmative action statute.

The main plaintiffs in the case are the state of Michigan, University of Michigan, Michigan State University and Wayne State University.

In a brief written to the 6th Circuit Court, the universities stated that they wished to be removed from the lawsuit.

“Simply put, the universities do not belong in the case,” the brief reads. “The universities did not draft Proposal 2. They did not pass Proposal 2. They cannot change Proposal 2. They are not executive branch agencies charged with enforcing Proposal 2.”

I’m not a constitutional scholar by any stretch of the imagination, but this seems a lot like arguing with a police officer that you didn’t draft speed limit ordinances, didn’t pass them and can’t change them, so you shouldn’t have to abide by them.