Michigan to appeal decision deeming affirmative action ban illegal



A federal appeals court today struck down Proposal 2, the 2006 Michigan referendum that banned affirmative action in college admissions, employment and contracting, setting up another U.S. Supreme Court showdown on the issue.

“It’s a tremendous victory,” Detroit attorney George Washington said today, shortly after the U.S. 6th Circuit Court of Appeals ruled in a 2-1 decision that Proposal 2 was unconstitutional.

“Affirmative action is back on the agenda,” Washington said. Washington, who represents members of a coalition of organizations that fought the 2006 ballot proposal, said he expects the state to ask the entire U.S. 6th Circuit to review the decision and, if that fails, ask the U.S. Supreme Court to take up the issue. But Michigan Attorney General Bill Schuette said this afternoon the decision will be appealed to the full 6th U.S. Circuit, and that, in the mean time, Proposal 2 will remain in effect.

"MCRI embodies the fundamental premise of what America is all about: equal opportunity under the law," Schuette said in a statement. "Entrance to our great universities must be based upon merit, and I will continue the fight for equality, fairness and rule of law."

Jennifer Gratz, who led the campaign for passage of Proposal 2 following the conclusion of her own lawsuit against the University of Michigan for using race-based admissions, said this morning that an appeal is almost certain and “I can’t imagine this ruling will stand.” The appeals court said Proposal 2, which was appealed by a 58-42 percentage margin, is unconstitutional because it restructured Michigan’s political process in a way that placed special burdens on minorities that deprived them of equal protection under the law.

“The majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities,” Judge R. Guy Cole said in an opinion joined by Judge Martha Daughtrey. Judge Julia Gibbons dissented, saying she didn’t think Proposal 2 impermissibly restructured the political process.

Cole and Daughtrey were appointed by President Bill Clinton. Gibbons was appointed by George W. Bush. Gratz, however, said the majority opinion is “ludicrous and illogical.”

“This court is saying that we place a burden on minorities by treating them equally with non-minorities…that we have to treat people unequally in order to treat them equally,” Gratz said, “That is insane.” Attorney Washington said Michigan colleges and universities provide preferential treatment to a variety of groups, including veterans, the poor and students from rural areas. He said Proposal 2 discriminated against blacks, Latinos and native Americans.

Today’s decision it the latest development in a long and bitter battle over race admission policies in Michigan colleges and universities.

The fight began in the’60s and ‘70s when blacks and other minorities pushed for affirmative action in college admissions. In 2003, the U.S. Supreme Court ruled in two lawsuits brought against the University of Michigan — one of them filed by Gratz — that universities couldn’t set quotas for specific racial groups, but that schools could consider race or ethnicity as factors in admissions.

Gratz, an honors student from Southgate Anderson High, was denied admission to U-M in 1994, a decision she said was influenced by the university’s use of aggressive affirmative action for minority applicants. The Supreme Court ultimately struck down the U-M policies in place at that time, but in a separate case involving the U-M law school said the university could continue to take race into account. The decisions prompted Gratz and Ward Connerly, a University of California regent who led a similar effort there 10 years earlier, to get Proposal 2 on the statewide ballot to amend the Michigan Constitution to ban all sex- and race-based preferences in public education, public employment and public contracting. Michigan voters approved the proposal in November 2006, forcing Michigan colleges and universities to remove race, sex, color, ethnicity or national origin as factors in college admissions .

That triggered lawsuits by various groups, including the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), and faculty and student organizations.

“The university is reviewing the possible implications of the court’s decision and recognize that there may be further legal steps as well,” said U-M spokeswoman Kelly Cunningham.

The ACLU of Michigan, which filed its own lawsuit that was consolidated with the BAMN suit, applauded the decision, saying it is a “tremendous victory for equality.” “Through this lawsuit, we set out to level the playing field so that racial identity is not treated as irrelevant or meaningless in this state,” said Kary Moss, the Michigan ACLU’s executive director.

She said Proposal 2 discriminated against students of color by removing race from consideration in admissions while allowing consideration of virtually all other nonacademic factors.

Since Proposal 2 was passed, she said, the number of black, Hispanic and American Indian students enrolled in the freshman class at U-M has declined by 11.4%. She said many students are going to public and private institutions which weren’t banned from offering aid based on race, ethnicity or gender.

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