Michigan Affirmative Action Ban Struck Down By
Court
ED WHITE - 11/15/12
DETROIT — Michigan's ban on
affirmative action in college admissions was declared unconstitutional Thursday
by a deeply divided federal appeals court, six years after state voters said
race could not be an issue in choosing students.
In an 8-7 decision, the
court said the 2006 amendment to the Michigan Constitution is illegal because it
presents an extraordinary burden to opponents who would have to mount their own
long, expensive campaign through the ballot box to protect affirmative
action.
That burden "undermines the Equal Protection Clause's guarantee that
all citizens ought to have equal access to the tools of political change," said
Judge R. Guy Cole Jr., writing for the majority at the 6th U.S. Circuit Court of
Appeals in Cincinnati.
The court said having supporters and opponents debate
affirmative action through the governing boards of each public university would
be much fairer than cementing a ban in the constitution, which it referred to as
home of "the highest level" of public policy.
The court did not comment on a
portion of the amendment that deals with government hiring.
The decision is
limited to states in the 6th Circuit, which includes Kentucky, Ohio and
Tennessee. But it also raises the odds that the U.S. Supreme Court may get
involved. A very similar law in California was upheld by a San Francisco-based
appeals court, and the Supreme Court could choose to resolve the conflicting
decisions of the 9th Circuit and the 6th Circuit on voter-approved
bans.
Michigan Attorney General Bill Schuette, a supporter of the ban, said
he will ask the nation's highest court to take the case.
"Entrance to our
great universities must be based upon merit," he said.
George Washington, a
Detroit attorney for the Coalition to Defend Affirmative Action, said the ruling
is a "tremendous victory." He predicted the case will move to the Supreme
Court.
"What this really means is thousands of blacks and Latinos who would
not have had a chance to go to our most selective universities will have the
chance to become lawyers, doctors and leaders of all fields," Washington
said.
As the college admissions process for 2013 heats up, it wasn't
immediately clear what campuses would do in light of the ruling. Officials at
the University of Michigan and Michigan State University said they were reading
the decision.
At the University of Michigan, 8 percent of undergraduates this
fall are black or Hispanic, compared to almost 11 percent in 2008. The number of
black female undergraduates is down 27 percent compared to 2008, according to
university data.
This is the second time that the appeals court has examined
Michigan's affirmative action issue. A three-judge panel last year also found
the ban unconstitutional for similar reasons. But after a plea from Schuette,
the entire court decided to take a fresh look at the matter, with new filings
and arguments leading to the new ruling Thursday.
In a 32-page opinion, the
court's majority explained the difficulties that it sees for students under the
constitutional amendment. For example, there's nothing barring someone from
citing family alumni connections when applying to a college. But the court said
a student seeking to use race to influence the admissions process now is shut
out unless the constitution is changed again.
"Michigan cannot force those
advocating for consideration of racial factors to traverse a more arduous road
without violating the Fourteenth Amendment," the court said. "We thus conclude
that Proposal 2 reorders the political process in Michigan to place special
burdens on minority interests."
In dissent, Judge Danny Boggs said the
majority relied on an "extreme extension" of two Supreme Court cases to justify
its decision, one in 1969 involving the repeal of a fair housing law in Akron,
Ohio, and the other in 1982 involving an effort to stop racial integration in
Seattle schools.
"We have the citizens of the entire state establishing a
principle that would in general have seemed laudable," Boggs said of
Michigan.
Another dissenter, Judge Julia Smith Gibbons, said the will of 58
percent of voters in 2006 has been shredded.
"Michigan has chosen to
structure its university system such that politics plays no part in university
admissions at all levels. ... The Michigan voters have therefore not
restructured the political process in their state by amending their state
constitution; they have merely employed it," Gibbons said.
Besides Michigan,
six states have banned racial preferences in admissions: Washington, Nebraska,
Arizona, New Hampshire, California and Florida. In Texas and Georgia, leading
public universities use a race-neutral system, though the University of Texas
has maintained some use of affirmative action.
Since a 2003 Supreme Court
decision, universities have been allowed to use racial preferences if they
choose, though they are not compelled to do so. The court last month heard
arguments in a case that could change that precedent. Abigail Fisher, a rejected
white applicant, is suing the University of Texas.
Comment:
There may, possibly, have been some justification to
implementing the policy of “Affirmative Action” some thirty years ago when it
became law. However, in the intervening years, a program that was originally
intended to provide “a level playing field” to all applicants has proven to be
colossal failure and has long since exceeded its “shelf life”. Instead, it has
afforded college entrance as well as job opportunities and advancement in these
areas to incompetent applicants based solely on skin color, sexual orientation,
ethnicity, etc. to the detriment of far more qualified applicants. Hopefully,
the U.S. Supreme Court will not cave in to political correctness and will rule
to “pull the plug” on a program that has, arguably, hurt more people than it has
helped.
This is my personal opinion on this issue and it does not
necessarily agree with that of the various organizations with which I am
associated.
Jack Meehan
Quincy MA.