Advertisement

April 23, 2014

Sixth Circuit Strikes Down Michigan Affirmative Ban As Unconstitutional

In Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) v Regents of the University of Michigan (6th. Cir. Nov. 16, 2012), the United States Court of Appeals for the Sixth Circuit, in an en banc decision decided on an 8-7 basis, held that the provision in Michigan's Constitution prohibiting public colleges and universities from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin (commonly known as "Proposal 2") was unconstitutional.

The majority was careful to note that the Court was "neither required nor inclined to weigh in on the constitutional status or relative merits of a race-conscious admissions policy as such.  This case does not present us with a second bite at Gratz and Grutter – despite the best efforts of the dissenters to take one anyway."  Id. at 9.  Rather, the Court framed the issue as follows:  "The sole issue before us is whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions – something they are specifically allowed to do under Grutter." Id.

The Court concluded that when an enactment (1) has a racial focus and "inures primarily to the benefit of the minority" and (2) reallocates political power in a way that places special burdens on a minority group's ability to achieve its goals, that enactment violates the Equal Protection Clause of the constitution absent a compelling state interest to the contrary.  Id. at 15.  The Court held that Proposal 2 inured primarily to the benefit of racial minorities and that its enactment placed special burdens on racial minorities' access to public education.  Id. at 18, 27.

Several of the dissenting judges wrote separate opinions voicing the reasons for their dissent.  In general, the dissents echo a similar theme – that Proposal 2's mandate of non-discrimination in public education cannot be a violation of the Equal Protection Clause.  One dissent noted that the majority's opinion was out of step with the decision by the United States Court of Appeals for the Ninth Circuit in Wilson (which is generally regarded as the most "liberal" circuit court of appeals) that "impediments to preferential treatment do not deny equal protection."  Id. at 47.  Another dissent described thwae majority opinion as "the antithesis of the Equal Protection Clause of the Fourteenth Amendment."  Id. at 70.  Given the obvious circuit split created between this decision and the Ninth Circuit's decision in Wilson, it seems very likely that the issue will ultimately be decided by the United States Supreme Court.  Stay tuned.

© 2014 Varnum LLP

About the Author

Bryan R. Walters, Business, Litigation, attorney, Varnum law firm
Partner

Bryan is a partner in Varnum’s trial group specializing in federal court and bankruptcy court litigation, both in west Michigan and across the country. He also assists businesses in resolving disputes involving sales contracts, noncompete agreements, trade secrets, and other business issues.

616-336-6865

Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.