Federal appellate court finds Michigan amendment prohibiting race-conscious admissions policies unconstitutional
Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich., 08-1387/1389/1534; 09-1111 (6th Cir. Nov. 15, 2012) (en banc)
Abstract: In an 8-7 split en banc decision, the U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) has ruled that the provision in Michigan’s Proposal 2, a voter-approved ballot initiative amending the state constitution to prohibit public colleges and universities from using race-conscious admissions policies, violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The majority found that Proposal 2 barred public college and university boards or their admissions committees from considering race, “undermin[ing] the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”
The majority concluded that Proposal 2 “violates the Equal Protection Clause by impermissibly restructuring the political process along racial lines.” As a result, the majority did not reach the plaintiffs’ second argument that Proposal 2 violates the Equal Protection Clause by impermissibly classifying individuals on the basis of race.
Facts/Issues: In 2006, Michigan voters approved a statewide ballot initiative, known as “Proposal 2″, to amend the state constitution “to prohibit all sex- and race-based preferences in public education, public employment, and public contracting.” Basically, Proposal 2 sought “to amend the State Constitution to ban affirmative action programs.” Proposal 2 includes the following provisions:
“(1) 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.
“(2) The state 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.
“(3) For the purposes of this section “state” includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.”
In its implementation, Proposal 2 (1) “eliminated the consideration of ‘race, sex, color, ethnicity, or national origin’ in individualized admissions decisions”, and (2) “placed ‘this prohibition at the state constitutional level, thus preventing public colleges and universities or their boards from revisiting this issue – and only this issue – without repeal or modification’” of a part of the state constitution.
In November 2006, after Proposal 2 was passed, a coalition of interest groups and advocates filed suit in federal district court against the State and some public universities alleging that the provisions of Proposal 2 affecting public colleges and universities violated the U.S. Constitution and federal statutory law.
In March 2008, the district court granted the State’s motion for summary judgment, rejecting the plaintiffs’ arguments that Proposal 2 violates the Equal Protection Clause. On appeal in 2011, a Sixth Circuit three-judge panel reversed the grant of summary judgment to the State, concluding that the portions of Proposal 2 that affect Michigan’s public colleges and universities impermissibly alter the political process in violation of the Equal Protection Clause. The State then filed a motion for an en banc review (all active Sixth Circuit judges sitting and considering the case), which the Sixth Circuit granted and vacated the panel decision.
Ruling/Rationale: An eight-judge majority of the Sixth Circuit found Proposal 2 unconstitutional, and reversed the district court’s decision to grant the State summary judgment on the plaintiffs’ equal protection claims. It began its analysis by restating the plaintiffs’ two arguments: Proposal 2 violates the Equal Protection Clause by (1) impermissibly restructuring the political process along racial lines (the “political process” argument); and (2) by impermissibly classifying individuals on the basis of race (the “traditional” argument).
The majority made it clear that the issue in the case did not involve the “constitutional status or relative merits of race-conscious admissions policies as such.” It stressed that this case instead presents “a challenge to the constitutionality of a state amendment that alters the process by which supporters of permissible race-conscious admissions policies may seek to enact those policies.” It stated that the sole issue before the court was: “[W]hether 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 [v. Bollinger, 539 U.S. 306 (2003)].”
The majority found two U.S. Supreme Court cases, i.e., Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), which spelled out the “political process doctrine.” That doctrine states: ”[T]he Equal Protection Clause … prohibit[s] ‘a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.’”
Based on the reasoning in Hunter and Seattle, the majority stated it was required to examine Proposal 2 “to determine if it improperly manipulates the channels for change.” According to the Hunter/Seattle test, “an enactment deprives minority groups of the equal protection of the laws when it: “(1) has a racial focus, targeting a policy or program that inures primarily to the benefit of the minority; and (2) reallocates political power or reorders the decision making process in a way that places special burdens on a minority group’s ability to achieve its goals through that process.”
Applying the test to Proposal 2, the majority concluded: “Proposal 2 targets a program that ‘inures primarily to the benefit of the minority’ and reorders the political process in Michigan in a way that places special burdens on racial minorities.” It found that Proposal 2 has a “racial focus” because the amendment targets programs intended to promote school diversity and further the education of minority students.
According to the majority: “There is no material difference between the enactment in Seattle and Proposal 2, as both targeted policies that benefit minorities by enhancing their educational opportunities and promoting classroom diversity.” It, therefore concluded that “race-conscious admissions policies now barred by Proposal 2 inure primarily to the benefit of racial minorities, and that such groups consider these policies to be in their interest.”
Turning to the second prong of the Hunter/Seattle test, the majority stated it must resolve: (1) whether the affected admissions procedures lie within the “political process,” and then (2) whether Proposal 2 works a “reordering” of this political process in a way that imposes “special burdens” on racial minorities. It determined that the “key question is whether the [popularly elected governing] boards of the universities had the power to alter the universities’ admissions policies prior to the enactment of Proposal 2″ because “[i]f the boards had that power and could influence the use (or non-use) of race-conscious admissions policies, then Proposal 2’s stripping of that power works a reordering of the political process because minorities can no longer seek to enact a type of legislation that is in their interest at the board level.”
Rejecting the State’s contention that “admissions decisions lie outside the political process because the governing boards of the universities have ‘fully delegated’ responsibility for establishing admissions standards to politically unaccountable admissions committees and faculty members,” the majority pointed that such delegation is “irrelevant” for purposes of determining board authority because the state constitution and laws “vest full governing authority in the board, including the power to enact bylaws and regulations to promote and achieve the university’s educational mission.”
The majority, addressing the State’s concerns about delegation, said, “When an elected body delegates power to a non-elected body for the day-to-day implementation of policy, it does not remove the policy from the political process.” It noted, “[W]hether it is the board or a delegated body that sets the rules for consideration of race in admissions, these decisions fall under the umbrella of the elected board and are thus part of the political process.”
In regard to the question of whether Proposal 2 reordered the political process in a way that places special burdens on racial minorities, the majority found that under Hunter and Seattle both implicit and explicit reordering violates the Fourteenth Amendment. It stated: “Because less onerous avenues to effect political change remain open to those advocating consideration of nonracial factors in admissions decisions, Michigan cannot force those advocating for consideration of racial factors to traverse a more arduous road without violating the Fourteenth Amendment.” As a result, the majority concluded “Proposal 2 reorders the political process in Michigan to place special burdens on minority interests.”
The majority next addressed the State’s objections to the applicability of the Hunter/Seattle test. It found without merit the State’s argument that the test was not applicable to Proposal 2 because unlike the government enactments in Hunter and Seattle, which burden racial minorities’ ability to obtain protection from discrimination through the political process, Proposal 2 burdens racial minorities’ ability to obtain preferential treatment.
In response, the majority stated: “The only way to find the Hunter/Seattle doctrine inapplicable to the enactment of preferential treatment is to adopt a strained reading that ignores the preferential nature of the legislation at issue in Seattle, and inaccurately recast it as anti-discrimination legislation.” It concluded that the distinction made by the State “erroneously imposes an outcome-based limitation on a process-based right.”
The majority also confronted the State’s argument that Proposal 2 is a mere repeal of the universities’ race-conscious admissions policies, rather than the kind of political restructuring that implicates the Hunter/Seattle doctrine. It is a crucial difference between “undoing an act of popularly elected officials by simply repealing the policies they created” and the voters’ passage of Proposal 2. Specifically, “Michigan voters repealed the admissions policies that university officials created and took the additional step of permanently removing the officials’ power to reinstate them.”
In addition, the majority addressed the dissenters on the court, saying:
“More generally, the dissenting opinions criticize our holding today in broad and strident terms. At their core, these opinions express disapproval of the political-process doctrine itself, dissatisfaction that Grutter allowed for even modest race-conscious admissions policies, and incredulity at the possibility that a state constitutional amendment forbidding consideration of race could violate the Equal Protection Clause. But Hunter and Seattle have not been overruled; Grutter continues to permit the same holistic race-conscious admissions policies Proposal 2 seeks to permanently eliminate; and courts must decide equal protection challenges by application of precedent, rather than resort to syllogism. Most importantly, our holding does not place race-conscious admissions policies beyond the political process. Opponents of affirmative action remain free to advocate for their preferred policies in the same manner and at the same level of government as its proponents.”
Finally, the majority concluded that Proposal 2 did not survive strict scrutiny under the “political process doctrine” because the State had failed to demonstrate that it furthered a compelling state interest. Because the majority reached the conclusion that Proposal 2 did not survive challenge under the “political process doctrine,” the majority did not address the question of whether Proposal 2 also violates the Equal Protection Clause when assessed using the “traditional” argument, i.e., an impermissible classification of individuals on the basis of race).
The seven dissenting judges issued five separate opinions in which the common thread is the rejection of the applicability of the “political process doctrine” to equal protection claims and hostility toward the U.S. Supreme Court’s decision in Grutter, which established the constitutional ground rules for the use of race as a factor in college and university admissions policies.
Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich., 08-1387/1389/1534; 09-1111 (6th Cir. Nov. 15, 2012) (en banc)
[Editor's Note: In November 2006, Legal Clips summarized an article in Education Week, which provided background on the suit challenging the constitutionality of Proposal 2. The article noted that critics of Proposal 2 feared it would have the same effect on minority admissions in Michigan as California’s Proposition 209 did in that state.
In October 2012, Legal Clips summarizing from a number of media sources, which reported that the U.S. Supreme Court had heard oral arguments in Fisher v. University of Texas (UT), No. 11-345. The question before the eight justices (Justice Kagan recused herself due to prior involvement in this case before joining the Court) is whether UT’s admissions process permitting the consideration of race/ethnicity as part of a holistic evaluation of a candidate’s application is constitutional.]