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Affirmative Action Ban Rejected

11/20/2012, 1:30 p.m.

A federal appeals court ruled Thursday that Michigan's ban on affirmative action, enacted by voters in 2006, is unconstitutional.

In an 8-7 decision, the U.S. Circuit Court of Appeals for the Sixth Circuit struck down the amendment to the state's constitution, known as Proposal 2, on the grounds that it creates unfair barriers to minority participation in the political process. A three-judge panel of the same court had overturned the ban on race-conscious admissions in 2011, but later vacated the decision.

Thursday's decision explains: A white student who wanted to alter the University of Michigan's admissions policies to include alumni relationships as a factor could petition university leadership or present her case to the board, but a black student seeking to have race included as a factor in admissions would be forced to attempt to amend the state's constitution. Such a structure, the court found, is a violation of the equal protection clause of the U.S. Constitution, which guarantees all citizens fair opportunity to enter the political process.

"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," the decision says.

Proponents of Proposal 2 argued that changing a university's admissions policy is not part of the political process, but the court countered that because an elected board is ultimately in charge of all university policies, policy changes are a political process.

The decision explicitly notes it is ruling on whether or not the proposal violates the equal protection clause, not on the constitutionality of affirmative action, an issue that has been tried before in Michigan in the Grutter v. Bollinger case, which concluded in a U.S. Supreme Court decision allowing for the consideration of race in admissions.

The constitutionality of affirmative action is once again being discussed by the Supreme Court this year, and experts note that a decision in the Fisher v. University of Texas case could impact the eventual outcome in Michigan, potentially making Thursday's decision moot -- if the Supreme Court rules against race-conscious admissions. Likewise, that ruling could affect whether the Supreme Court would hear an appeal of the Sixth Circuit Court's ruling.

The dissent in the case stressed that the Grutter ruling found that consideration of race in admissions decisions was "permissible," but not "compelled." The dissent argued that Michigan's voters were following the principles that have led states over the years to ban racial discrimination, and that they had every right to do so, just as Massachusetts did so (in the context of barring discrimination against minority students) in 1855.

Some experts see the decision as less of a pro-affirmative action posture and more of a stance against legislating higher education by way of ballot measure.

"This victory, which few observers expected, means that a major federal appeals court has recognized that elimination of minority rights through referenda campaigns changing state constitutions in ways that make it virtually impossible for minority communities to ever reverse the decisions is a critical and unjust limitation on American democracy," Gary Orfield, co-director of the Civil Rights Project at the University of California, Los Angeles, wrote in an e-mail.

Proposal 2 in Michigan was put on the ballot thanks to the efforts of Ward Connerly, a former regent at the University of California, where he also led the charge against affirmative action. Several other states have also considered ballot proposals looking to end affirmative action in admissions, and some states that have passed those measures have seen court cases trying to overturn them.

Michael Olivas, director of the Institute of Higher Education Law and Governance at the University of Houston Law Center, said it's unlikely Thursday's decision will inspire similar lawsuits in states with affirmative action bans, but he hopes it will encourage states and legislatures to take a hard look at how they decide education policy.

"Each [ballot measure] has a different trajectory and different pathways, so it's hard to draw national inferences or national lessons," he said. "The only thing in my view that cuts through all of them is it's a bad way to make higher education policy."