JURIST - Paper Chase: Sixth Circuit strikes down Michigan affirmative action ban

[JURIST] The US Court of Appeals for the Sixth Circuit [official website] ruled Thursday that Michigan's voter approved initiative to ban consideration of race for applications to public universities is unconstitutional [opinion, PDF]. In a split 8-7 decision, the court struck down Proposal 2 [text, PDF; JURIST news archive], which banned affirmative action in public employment, public education and state contracting. The court, sitting en banc, reasoned that Proposal 2 made the process for college admissions unequal by preventing universities from employing race-conscious programs, thus disadvantaging minorities. Proposal 2 modified the Michigan political process by banning any legislation that would be beneficial to minorities in the application process for employment and for university admissions. As a result of this burden on minorities, the legislation was examined under a strict scrutiny standard, meaning the Attorney General had to prove that the legislation was necessary to advance a "compelling state interest." Circuit Judge R. Guy Cole, Jr. wrote the majority opinion, stating:

In Seattle, the Court did not consider whether a compelling state interest might justify a state's enactment of a racially-focused law that restructures the political process, because the government made no such argument. ... Likewise, because the Attorney General does not assert that Proposal 2 satisfies a compelling state interest, we need not consider this argument. Therefore, those portions of Proposal 2 that affect Michigan's public institutions of higher education violate the Equal Protection Clause.

Although Proposal 2 also addressed employment policies, the court's decision was limited to the ban on race for the purposes of public university admissions.

A three-judge panel of the Sixth Circuit previously found the proposal unconstitutional [JURIST report] in July 2011. The panel ruled that the proposal unduly burdened minorities by abusing a political process where minorities were likely to have no redress. The ruling reversed a 2008 decision by the US District Court for the Eastern District of Michigan to dismiss the challenge [JURIST report] with prejudice. Michigan Attorney General Bill Schuette made a formal request for a rehearing [JURIST report] in July 2011 stating that the Sixth Circuit's decision conflicted with prior decisions of the court. In September 2011 the Sixth Circuit agreed to a rehearing en banc to determine the constitutionality of Proposal 2, which was approved by voters [JURIST reports] in 2006. The US Supreme Court heard arguments last month in in Fisher v. University of Texas at Austin [JURIST report], in which the plaintiff is challenging the constitutionality of that university's affirmative action program. A ruling is expected by June.