A Michigan law banning race-conscious admissions policies at the state’s universities is unconstitutional, the U.S. Court of Appeals for the Sixth Circuit has ruled.

Judge Guy Cole Jr. wrote the majority opinion for a split en banc court in the Nov. 15 ruling in Coalition to Defend Affirmative Action v. Regents of the University of Michigan.

The decision reversed a March 2008 ruling by Judge David Lawson of the Eastern District of Michigan District that found constitutional a ballot initiative that amended the Michigan constitution to prohibit affirmative action. In November 2006, Michigan voters passed the ballot initiative, known as Proposal 2, by a margin of 58 percent to 42 percent.

The initiative amended the Michigan Constitution “to prohibit all sex- and race-based preferences in public education, public employment, and public contracting.” Proposal 2 also barred Michigan public colleges and universities or their boards from revisiting the issue without repeal or modification of Article I, Section 26 of the Michigan Constitution.

Interest groups challenged

The case involved a challenge by a collection of interest groups and individuals who sued then-Governor Jennifer Granholm, and top-ranking state university officials the day after Proposal 2 passed.

The ruling by the Sixth Circuit creates a circuit split with one by the Ninth Circuit this year upholding the constitutionality of California’s Proposition 209 ban on affirmative action, Wilson and Coalition to Defend Affirmative Action v. Brown.

George Boyer Washington of Detroit’s Scheff, Washington & Driver, who argued for plaintiff Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), called the ruling “a tremendous victory … for tens and hundreds of thousands of black, Latino and other minority students.”

“The Michigan law that was just struck down and five other state laws in Arizona, California, Nebraska, Oklahoma and Washington have “devastated minority enrollment,” Washington said. “To have laws that drive down minority enrollment by one-third is just tragically wrong and illegal,” Washington said.

In a Nov. 15 statement, Michigan Attorney General Bill Schuette announced plans to file a petition of certiorari with the U.S. Supreme Court. Schuette said that the Michigan Civil Rights Initiative, which was overturned by the ruling, “embodies the fundamental premise of what America is all about: equal opportunity under the law. Entrance to our great universities must be based upon merit. We are prepared to take the fight for equality, fairness and the rule of law to the U.S. Supreme Court.”

Judges Eric Clay, Bernice Donald, Boyce Martin Jr., Karen Nelson Moore, Jane Branstetter Stranch, Helene White and Senior Judge Martha Craig Daughtrey joined Cole’s majority opinion. Chief Judge Alice Batchelder along with judges Deborah Cook, Julia Smith Gibbons, Richard Allen Griffin, John Rogers and Jeffrey Sutton joined two sections of the majority.

Cole began his opinion by comparing an applicant who wanted a Michigan public university to consider her family’s alumni connections in her application to a black applicant who wanted the school to adopt a constitutionally permissible race-conscious admissions policy. Cole explained that the legacy applicant has several options for influencing the school, but the only option for the black applicant is to seek repeal of Proposal 2.

“The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change,” Cole wrote.

Cole cited two U.S. Supreme Court rulings, its 1969 Hunter v. Erickson ruling and its 1982 ruling in Washington v. Seattle School Dist. No. 1: “[Those two cases] emphasize that equal protection of the laws is more than a guarantee of equal treatment under existing law. It is also a guarantee that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them.”

He found that Proposal 2 affects a “political process” because the elected university boards can change admissions policies. He also held that it altered the political process in a way that burdens racial minorities.

“Because less onerous avenues to effect political change remain open to those advocating consideration of non-racial factors in admissions decisions, Michigan cannot force those advocating for consideration of racial factors to traverse a more arduous road without violating the Fourteenth Amendment.”

Dissenting opinion delivered

Judge Danny Boggs delivered a separate dissenting opinion joined by Batchelder. Rogers also filed a dissent, joined by Cook. Sutton also wrote a dissent, joined by Batchelder, Boggs and Cook. Griffin filed an additional dissent.

Gibbons wrote a dissent joined by Batchelder, Cook, Rogers and Sutton. Griffin joined Gibbons’ dissent except for a section which stated that Michigan voters “removed admissions policy from the hands of decisionmakers who were unelected and unaccountable”… and “placed it squarely in an electoral process.”

In her dissent, Gibbons wrote that “Proposal 2 is not unconstitutional under either a political restructuring theory or under traditional equal protection analysis.” She noted that the Supreme Court 2003 ruling in Grutter v. Bollinger held that race-based admissions policies must be limited in time and that states and their public universities, not courts, must decide when to end them. Grutter also held that such policies are not constitutionally required, Gibbons observed. “In short, equal protection jurisprudence regarding the use of racial classifications has developed markedly since Seattle was decided, and this development makes clear that applying the political restructuring doctrine to the enactment of Proposal 2 is hardly appropriate.”

Gibbons also wrote that “the people of Michigan have not restructured the state’s lawmaking process in the manner prohibited by Hunter and Seattle. Instead, their vote removed admissions policy from the hands of decisionmakers who were unelected and unaccountable to either minority or majority interests and placed it squarely in an electoral process in which all voters, both minority and majority, have a voice.”

Gibbons said that the evidence shows that, in practice, the university boards do not affect the admissions policies that faculty committees approve. Although someone who seeks legacy preferences in university admissions “may attempt to lobby a faculty committee or university directly, these entities — according to the clear testimony of the law school deans and the manner in which authority has been delegated — will likely be unresponsive,” Gibbons wrote.

In a one-paragraph dissent, Rogers wrote “Under the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law.”

Sutton in his dissent wrote, “A first premise for resolving this case is, and must be, that a State does not deny equal treatment by mandating it.” Sutton added that there’s “nothing unusual” an equal-protection guarantee in a constitution. “That is where individual-liberty guarantees often go, and that, after all, is where the national framers placed the federal counterpart,” he wrote.

Finally, Griffin wrote in his dissent that “today’s decision is the antithesis of the Equal Protection Clause of the Fourteenth Amendment.…In my view, racial discrimination and racial preference are synonymous.”

Judges Raymond Kethledge and David McKeague did not participate in the case decisions.

John Bursch, the Michigan solicitor general, argued for the Attorney General’s Office. Mark Rosenbaum, chief counsel of the American Civil Liberties Union of Southern California, argued for appellee Chase Cantrell.

Stephanie Setterington, a partner at Varnum in Grand Rapids, Mich., who argued for Wayne State University, declined to comment without her client’s permission.

Charles Cooper, chairman of Washington-based Cooper & Kirk who argued for would-be intervenor Eric Russell, could not be reached for comment. Leonard Niehoff, an Ann Arbor, Mich., of counsel to Detroit’s Honigman Miller Schwartz and Cohn who argued for the University of Michigan and Michigan State University, also could not be reached.

Sheri Qualters writes for The National Law Journal, a Daily Report affiliate.