US appeals court strikes down Michigan ban on affirmative action (+video)
While the 8-7 ruling on affirmative action did not address the constitutionality of race-conscious admissions to college, the majority said Michigan's prohibition on the policy 'places special burdens on racial minorities.'
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In contrast, the majority judges said, allowing all voters in Michigan to decide the question on a state-wide ballot amounted to a manipulation of the process because it would be significantly more difficult for supporters of race-based plans to mount and win a state-wide referendum to reinstate race-based admissions.
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“Equal protection of the laws is more than a guarantee of equal treatment under existing law,” Judge Cole said. “It is also a guarantee that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them.”
Judge Cole added: “When two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course.”
Judge Jeffrey Sutton challenged Cole’s reasoning in a 10-page dissent. “I do not doubt that Proposal 2 places a burden on proponents of affirmative action: They no longer have access to it, and they must amend the constitution to get it back,” he wrote.
“But the Fourteenth Amendment insists only that all participants in the debate have an equal shot. It does not ensure victory for one side or the other in this or that policy debate,” he said.
Sutton noted that while similar affirmative action initiatives have been successful in California, Nebraska, and Washington, they have also been defeated in Colorado, Missouri, and Oklahoma.
Sutton said that under Supreme Court precedents, race-conscious programs are presumptively unconstitutional. Affirmative action plans at public universities must satisfy strict judicial scrutiny or be struck down as a violation of equal treatment.
“If racial preferences are only occasionally and barely constitutional, it cannot be the case that they are always required,” he wrote.
“A state that wishes to treat citizens of all races and nationalities equally is free as a matter of its own law to do so,” he said. “A first premise for resolving this case is, and must be, that a state does not deny equal treatment by mandating it.”
The case is Coalition to Defend Affirmative Action v. Regents of the University of Michigan.
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