Friday, July 1, 2011

Sixth Circuit Declares Michigan Proposition 2 Restricting Affirmative Action Unconstitutional

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 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.  

U Michigan

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]

Equal Protection, Fourteenth Amendment, Opinion Analysis, Race | Permalink

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There's something entirely illogical with a doctrine that says the Equal Protection Clause prohibits a law creating a race-neutral decision process. Sometimes the judges need to revert to common sense in reaching a decision.

Posted by: Dan | Jul 2, 2011 10:43:58 AM

This decision is unlikely to stand on appeal.

The vast majority of courts have rejected these challenges (including the California Supreme court last August). At the time of the political structure was held to apply to school desegregation (Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982)), those efforts were not seen as invidious. Now, school racial balancing is seen as invidious (Parents Involved in Community Schools v. Seattle School District No.1), which calls into the question the vitality of the 1982 precedent. It does not support the claim that because racial balancing schemes and affirmative action are supposedly constitutionally indistinguishable, the political structure now applies to racial preferences. In fact, the two are still not constitutionally indistinguishable., as Parents Involved did not foreclose the possibility of court-ordered desegregation plans, even though there have never been court-ordered affirmative action plans, for the reasons below.

Affirmative action is and has always been held to be invidious. Grutter v. Bollinger did not imply differently. Otherwise, Justice O’Connor would not have suggested a time limitation. Further, she referred approvingly to states that prohibit affirmative action as laboratories, which does not indicate that the Supreme Court considers these amendments unconstitutional.

What is predictive of the outcome of an en banc hearing is that when District Judge David Lawson (appointed by Bill Clinton) originally stayed enforcement of the proposition in late 2006, he was reversed at that time by the sixth circuit. The reason was that the sixth circuit judges handling the issue at the time believed that the political structure arguments had no merit.
It clear from that action and the tone of his 2008 opinion granting summary judgment that Judge Lawson personally favors affirmative action. He just realized that the law did not support the outcome the plaintiffs (BAMN, NAACP, students, etc.) desired.

It is especially unlikely that the plaintiffs would win in the U.S. Supreme Court. The Justice Kennedy would almost certainly vote against BAMN. He may not believe that constitution requires absolute race neutrality, but he believes that individual racial classifications are dangerous and has voted against racial preferences in every major case (Grutter v. Bollinger, Parents Involved, Ricci v. DeStefano, etc. ) and would be unlikely to strike down this measure. It is not clear that they would even win the votes of the four liberal justices. These justices have never held that these preferences are in any way required.

Posted by: Mike | Jul 3, 2011 9:52:12 PM

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."

So, this is now declared unconstitutional because the majority of the people of the State of Michigan voted for it?

Posted by: Luke | Jul 5, 2011 6:41:07 PM

I am curious about the galvanizaton of the bench and bar about affirmative action cases; and their transmogrification when faced with empirical evidence about what white law school graduates functioning as judges and lawyers do about the rights of blacks, inter alios,in the trial court. As to Grutter v. Bollinger, what is the qualitative difference between a white law school applicant who has a 3.7 GPA and say a 145 LSAT score; and a black applicant who has a 3.5 GPA and a 130 LSAT score? And by the way, who said that high GPA and high LSAT score makes one a better lawyer. Does a white [or black for that matter] career prosecutor who commits Batson violations to enhance her chances of winning engage in reverse affirmative action? Its okay to build your career on the backs of blacks by increased incarceration by striking blacks from juries. No galvanized bench and bar here. But God forbid if a black student is admitted to law school over a more "qualified" white student--whatever that is.

Posted by: godcent | Nov 2, 2011 9:34:30 PM

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