Focus, Higher Education, and Law

Sixth Circuit strikes down affirmative action

Michigan’s public colleges and universities are waiting to see what happens next.

December 1, 2012
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Sixth Circuit strikes down affirmative action
Passage of Proposal 2 amended the state’s constitution and made it illegal for public bodies, including universities, to discriminate against or give preferential treatment to any individual or group on the basis of race, gender, color, ethnicity, or national origin. ©iStockphoto.com/ monkeybusinessimages
It’s fairly certain that officials at Michigan’s 15 public universities and colleges were pleased with a recent ruling handed down by a federal appellate court. But it’s also fairly certain officials like Grand Valley State University’s Jeanne Arnold aren’t making party reservations — at least, not yet.

“We have obtained a copy of the recently issued United States Court of Appeals, Sixth Circuit, which is a very lengthy opinion, and we are in the process of reviewing it. Essentially, the court struck down Proposal 2 as unconstitutional, and we are encouraged by the court’s ruling,” said Arnold, GVSU vice president for inclusion and equity, in a statement.

“We will see what opportunities this decision may provide that could help us with our ongoing efforts to enhance the diversity and inclusiveness of our student body at GVSU,” she added.

Arnold tempered her enthusiasm for the ruling because the U.S. Supreme Court is reviewing the use of affirmative action in college admissions in a case involving the University of Texas, and the nation’s top justices aren’t expected to rule until next year.

“In the meantime, while we await the Supreme Court’s decision, we will continue to comply with Michigan’s constitution,” she said.

Educators aren’t the only ones likely encouraged by the ruling. Grand Rapids City Attorney Catherine Mish and top executives at Cascade Engineering, Herman Miller and Steelcase are probably feeling the same: The city and the employers filed briefs supporting the lawsuit that challenged the admissions portion of Proposal 2.

On the other side of the issue is Michigan Attorney General Bill Schuette. On the day the court’s ruling was made known, Nov. 15, Schuette said he intended to ask the U.S. Supreme Court to hear an appeal of the Sixth Circuit Court’s narrow decision that overturned Article 1, Section 26, of the Michigan Constitution, also known as the Michigan Civil Rights Initiative.

“MCRI embodies the fundamental premise of what America is all about: equal opportunity under the law. Entrance to our great universities must be based on merit. We are prepared to take the fight for equality, fairness and the rule of law to the U.S. Supreme Court,” he said.

Schuette has 90 days from the ruling to file what is known as a petition for writ of certiorari, which asks the court to review the case. The court can refuse — and has done so with a vast majority of the thousands of petitions it receives annually. The state’s top attorney also has 90 days to ask for a stay of the ruling.

Proposal 2 was on the November 2006 ballot, and 58 percent of Michigan voters approved it. The measure grew from a lawsuit filed against the University of Michigan by a white female who sought admission to the law school but was denied. She alleged that minority students who were less qualified than she was were admitted that year.

Passage of Proposal 2 amended the state’s constitution and made it illegal for public bodies, including universities, to discriminate against or give preferential treatment to any individual or group on the basis of race, gender, color, ethnicity, or national origin for public employment, education or contracting.

The ballot measure was modeled after similar successful initiatives in California and Washington.

Since the proposal’s passage, U-M reported that the number of African-Americans enrolled as freshmen had fallen by 15 percent through 2010. Through 2011, the number of African-Americans enrolled at the university’s law school had dropped by 28 percent.

Also in 2006, the American Civil Liberties Union and the National Association for the Advancement of Colored People filed a lawsuit against Proposal 2 that challenged the college admission portion of the state’s constitutional change. The organizations argued that the new admission standard violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

In July of last year, a three-judge panel of the Sixth Circuit Court agreed with the plaintiffs and struck down Proposal 2 as unconstitutional. But a few weeks later, the same court granted a request from Schuette, who asked that the full court reconsider the decision. A few weeks ago, the full court upheld the panel’s ruling by a razor-thin 8-to-7 vote.

Michael Steinberg, legal director for the ACLU of Michigan, told the Business Journal that the proposal violated the Equal Protection Clause because it skewed the political process and made it more difficult for people of color to achieve favorable admission status.

“It’s really a political-process argument. It’s not like other Michigan affirmative-action cases like the Grutter case and it’s not like the Fisher case out of Texas,” Steinberg said.

“This deals with the political process, and what the Sixth Circuit said is that Proposal 2 rigged the political system against people of color because it allows groups to lobby admissions committees to give weight to virtually any non-academic factor under the sun but race.

“So those who want race-conscious admission policies can’t go to the local decision makers, like a board of regents or a university president. They have to go through the arduous task of amending the state constitution.”

What the difference means is, if an alumni association wants legacy status as an admissions standard or if a group that represents a geographic portion of the state wants its area to be one, Steinberg said they can simply approach a board of regents or a president with their requests. But the same doesn’t hold for race or ethnicity.

“By treating race differently and making it harder for people of color to achieve qualities that are in their interest, the state has violated the Equal Protection Clause,” said Steinberg.

“This is precisely the unfair political structure that the U.S. Supreme Court has struck down,” added Kary Moss, executive director of the ACLU of Michigan.

Steinberg felt that most Michigan public universities and colleges are likely to wait to add race and ethnicity as admission standards until the legal smoke clears next year, when the Supreme Court makes a decision to hear or not hear the state’s case. If the justices refuse to hear the case, Steinberg said the schools likely will return to establishing race and ethnicity as standards.

The ban on other public entities such as city and county governments in using race, gender, color, ethnicity, or national origin for employment and contracting purposes still stands.

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