Friday, July 1, 2011
In Coalition to Defend Affirmative Action v. Regents of the Univ. of Michigan, the Sixth Circuit issued its divided panel opinion today holding that Michigan's Proposition 2, now Michigan Const.art. I, § 26, is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
Section 26(1) provides "The University of Michigan, Michigan State University, Wayne State University,
and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."
Relying in large part upon Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969), the panel found that the provision "unconstitutionally alters
Michigan’s political structure by impermissibly burdening racial minorities" and reversed the district judge. The panel reasoned:
The Supreme Court’s statements in Hunter and Seattle clarify that equal protection of the laws is more than a guarantee of equal treatment under the law substantively. It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities. In effect, the political process theory hews to the unremarkable belief that, when two competitors are running a race, one may not require the other to run twice as far, or to scale obstacles not present in the first runner’s course. Ensuring the fairness of political processes, in particular, is essential, because an electoral minority is by definition disadvantaged in its attempts to pass legislation; and “discrete and insular minorities” are especially so given the unique hurdles they face.
Ensuring a fair political process is nowhere more important than in education. Education is the bedrock of equal opportunity and “the very foundation of good citizenship.” Safeguarding the guarantee “that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” “Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. . . . [T]o cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Therefore, in the context of education, we must apply the “political process” protection with the utmost rigor given the high stakes.
Opinion at 9 - 10, citations to Carolene Products, Brown v. Board of Education, and Grutter v. Bollinger, omitted.
The panel articulated the test, derived from Hunter and Seattle, as inquiring whether a law violates the equal protection clause as asking whether the law (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 decisionmaking process that places “special burdens” on a minority group’s ability to achieve its goals through that process.
Easily finding that the Section 26 has a racial focus, the panel discussed whether the implementation of the law reallocated political power. In answering that question in the positive, the panel observed:
the admissions committees [of universities and colleges] are “political” because they are governmental decisionmaking bodies. And even if they had to be tied to the electoral system, they are, because the individuals delegated with principal responsibility for admissions policies at Michigan’s public colleges and universities are appointed by the institutions’ governing boards—which are either elected by the citizens of Michigan or appointed by elected officials—and the boards are free to reassign this responsibility as they see fit.
As for reordering, the panel stressed the fact that Section 26 was now a state constitutional amendment that could not easily be changed by a minority. "Had those favoring abolition of race-conscious admissions successfully lobbied the universities’ admissions units, just as underrepresented minorities did to have these policies adopted in the first place, there would be no equal protection problem." Instead, Section 26 shifts the balance: "less onerous avenues to effect political change remain open to those advocating consideration of non-racial factors in admissions decisions. . . ." The panel concludes that "Michigan cannot force those advocating for consideration of racial factors to go down a more arduous road than others without violating the Fourteenth Amendment."
Sixth Circuit Judge Julia Smith Gibbons dissented as to the equal protection violation (concurring on some proecdural matters). Gibbons distinguishes between unelected faculty admissions committees and the legislative bodies from which lawmaking authority was removed in Hunter and Seattle. Her larger point, however, is that the majority misconstrues current equal protection doctrine:
equal treatment is the baseline rule embodied in the Equal Protection Clause, from which racial-preference programs are a departure. We therefore must review them with utmost care. Governing precedent is clear on this point: “‘A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race,’” and “all governmental use of race must have a logical end point." Because racial preference programs are exceptional, it is not altogether clear that the political structure doctrine would invalidate Proposal 2 even if it worked a restructuring of the political process in Michigan.
Opinion at 58, citations to Grutter v. Bollinger omitted. Moreover, she rejects the conclusion that Proposition 2/Section 26 should be evaulated as a race-based classification:
Proposal 2 does not establish a facial racial classification because its text does not draw distinctions on the basis of race; in fact, it prohibits them. Additionally, Proposal 2 does not classify racially on an impact theory because it lacks a discriminatory purpose.
The Defendant Regents and Attorney General of Michigan are certain to seek en banc review, and if unsuccessful, certiorari from the United States Supreme Court.
[image: University of Michigan Campus via]