DETROIT-A new ban on affirmative action in Michigan has many in the legal profession speculating on how the measure will affect the state’s universities and law schools, and has already triggered a legal challenge.
On Nov. 7, Michigan became the fifth state to adopt a prohibition on affirmative action in college admissions, joining California, Florida, Texas and Washington. The new measure, which bans using race and gender affirmative action in university admissions, has many lawyers fearing that the University of Michigan Law School could become an all-white school that caters to the privileged.
While University of Michigan lawyers have been researching the legalities of the new measure, several other attorneys predict that the new law will inspire scores of new lawsuits. One action was already filed the day after voters approved the ballot proposal on Nov. 7.
“It’s going to resegregate the universities. There’s no question about it,” Michigan attorney George Washington, who filed the first lawsuit challenging the ban, said of the new measure.
Washington is representing an affirmative action group called By Any Means Necessary (BAMN), which claims the ballot measure is pre-empted by the Civil Rights Act of 1964 and violates the equal protection clause of the 14th Amendment. BAMN v. Granholm, No. 2:06-CV-15024 (E.D. Mich.).
“If you tell people that they can’t do the only thing that they can do to integrate their student bodies, you are interfering with their ability to comply with civil rights laws,” he said.
Washington of Detroit’s Scheff & Washington acknowledged facing “a tough challenge,” but noted that he does have some ammunition: the 2003 U.S. Supreme Court ruling Grutter v. Bolinger, 539 U.S. 306.
In that case, the high court held that it is sometimes permissible to have race preferences in higher education, and recognized a university’s right to pick students, faculty and curriculum as it sees fit. Washington is seeking an injunction to prevent Michigan’s new law from going into effect on Dec. 22.
Eugene Volokh, a constitutional law professor at the University of California at Los Angeles, doubts the BAMN lawsuit, and future challenges to the Michigan ban, will succeed. He noted that courts have generally ruled that it is “sometimes permissible”-not mandatory-to have race preferences in higher education.
“The Constitution, generally speaking, does not mandate race-based preferences,” Volokh said. “Even the Supreme Court has allowed states to institute certain relatively narrow, race-based preferences, but it hasn’t mandated that states institute such preferences.”
Volokh also noted that a similar challenge failed in California a decade ago, when the 9th U.S. Circuit Court of Appeals refused to invalidate a voter-approved measure-Proposition 209, banning affirmative action. Coalition for Economic Equity v. Wilson, 122 F.3rd 692 (9th Cir. 1997).
In that case, plaintiffs argued that the ban on affirmative action for minorities violated the Constitution’s equal protection requirements. The 9th Circuit rejected that theory.
Fears of ‘death of diversity’
Earlier this month, to mark the approaching 10th anniversary of the measure, groups of University of California at Los Angeles law students and undergraduates briefly disrupted classes at the law school, then rallied to protest the “death of diversity.”
University of Michigan Law School Dean Evan Caminker, one of the attorneys who filed the challenge to the California measure a decade ago, believes the chances of defeating the Michigan proposal are better.
“The legal theory is on a much stronger footing now that it was a decade ago,” said Caminker.
“Proposal 2, when it goes into effect, would clearly constrain us from considering race in the same way that we have in the past,” Caminker said. “But it will not change our commitment to diversity.”
But attorney Alan Ackerman, a University of Michigan Law School grad and currently a prominent eminent domain attorney in the Detroit area, worries that his alma mater is in trouble as far as minority enrollment goes.
“It may create a school which is limited in its diversity,” Ackerman said of the new affirmative action ban. “Without diversity it’s not a good law school. We’ve got to have diversity at that school.”