Sixth Circuit Strikes Down Constitutional Amendment On Race In Education

The Sixth Circuit Court of Appeals issued a controversial decision last Thursday which struck down a voter-enacted amendment to the Michigan Constitution that banned consideration of race in school admission, employment, and public contracting.  The challenge to the Amendment, known as Proposal 2, was strictly on the basis of education policies.  The Court explicitly did not address the impact of the amendment to the employment and public contracting components.

The Sixth Circuit’s opinion comes in the form on an en banc decision that polled the Court’s roster of Judges in an 8 to 7 split for striking down the Amendment.  The Court used the “political process” doctrine which basically holds that a law which burdens a minority from seeking favorable legislation—in this case favorable admission policies from university governing boards—is unconstitutional.  The Court used two Supreme Court cases, Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, (1982) and Hunter v. Erickson, 393 U.S. 385, (1969) as the basis for its decision.  Those cases struck down referendum-based legislation as impermissibly burdening the political process for minorities.

The dissents skewered the majority for reasoning they believed turned the Equal Protection Clause on its head.  Even though race may be taken into limited consideration under Grutter v. Bollinger, 539 U.S. 306 (2003), doing so is permissive rather than mandated by the decision.  The dissents reason that under these circumstances the majority has moved considering racial preferences as beyond the political process.  They find Hunter and Seattle as an “extreme” application of the political process doctrine.

The decision may not matter in the long run as the Supreme Court is essentially considering the issue of how far race can be used in the admissions process in Fisher v. University of Texas at Austin.  The question presented in that case is:

Whether this Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin's use of race in undergraduate admissions decisions.

The prediction of many commentators based on the oral argument transcript is that the Court will strike down the use of race in admissions.  The Court has been pretty divided on this issue since the Bakke decision in 1978.  One factor in the Fisher case is that Justice Kagan is not participating in the decision.  The Michigan Attorney General’s Office has said it will appeal the Sixth Circuit decision to the Supreme Court.

The case is Coal. to Defend Affirmative Action, et al. v. Regents of the Univ. of Mich., et al., (Nos. 08-1387/1389/1534; 09-1111).  [MG]