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