New Round on Affirmative Action

Appeals court vacates decision that invalidated 2006 vote in Michigan. Full court will reconsider challenge to ban on consideration of race in admissions.
September 12, 2011

Since California voters in 1996 passed an amendment to the state constitution to ban the consideration of race and ethnicity in public college admissions decisions and other state government functions, proponents of affirmative action have sought the help of federal courts to block such referendums.

Since then, the U.S. Supreme Court has upheld the right of public colleges to consider race and ethnicity in admissions (in some circumstances), but federal courts have been reluctant to block states from opting out of such considerations. In July, five years after Michigan voters approved such a ban, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit found that the measure was unconstitutional, handing supporters of affirmative action a major victory. But on Friday, the full appeals court vacated the July decision and announced that it would reconsider the case.

When the three-judge panel issued its decision in July, many legal observers -- including some supporters of affirmative action -- were surprised, given the way courts had until then treated such cases. But many also expected that an appeal to the full appeals court would result in a decision to rehear the case, and then a reversal. While the full appeals court at the time of the July decision consisted of five Democratic and 10 Republican appointees, the three judges who considered the case initially included two Democrats and one Republican (who split 2-1 on the case). Since then, one nominee of President Obama has been confirmed to the court, and Friday's announcement by the appeals court said that two Republican appointees had recused themselves from consideration of the case.

While judges do not always vote along party lines, the recusals left some critics of affirmative action predicting that the appeals court could decide this case by a single vote, and that this case could be headed to the U.S. Supreme Court.

The announcement Friday by the full appeals court did not indicate why it decided to rehear the case, or why two judges recused themselves. (The lack of such detail is standard.)

But the July ruling was somewhat unusual within the extensive litigation about affirmative action in higher education. Many of the landmark decisions are based on such issues as the value of diversity in the classroom, the nature of discrimination and disadvantage among those who might not gain admission to leading colleges and universities without the consideration of race, and the impact on white or Asian students of policies to consider race.

But the July ruling was based on the impact of Michigan's 2006 referendum on minority citizens and their right to influence state policy (in this case, on public university admissions). Fifty-eight percent of Michigan voters backed the measure, but exit polls suggested that only 14 percent of black voters did so.

The appeals court found that the referendum "unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities." An individual seeking to change an admissions policy in Michigan can (if the change does not involve the consideration of race) lobby various faculty and university committees or campaign to elect trustees (as Michigan's three universities have trustees elected in statewide elections). But someone seeking to restore the consideration of race in admissions would have to push for a new vote by the state -- a much more difficult task to accomplish.

"The stark contrast between the avenues for political change available to different admissions proponents following Proposal 2 [the Michigan referendum] illustrates why the amendment cannot be construed as a mere repeal of an existing race-related policy," said the decision. "Had those favoring abolition of race-conscious admissions successfully lobbied the universities’ admissions units, just as underrepresented minorities did to have these policies adopted in the first place, there would be no equal protection problem."

In a brief seeking the full hearing, Bill Schuette, Michigan's attorney general, noted that the U.S. Court of Appeals for the Ninth Circuit in 1997 rejected very similar arguments used against the California referendum. He also argued that federal courts should have very compelling reasons to reject the decisions of state voters. In this case, he argued that there was "no evidence" to suggest that the purpose of the referendum was to discriminate against anyone -- and that federal courts should thus let Michigan voters decide the matter.

Critics of the referendum have noted the negative impact it had on the enrollment of some minority groups at the University of Michigan and at professional schools elsewhere in the state (drops that have bounced back since the measure was passed). But Schuette said that this alone was not reason to invalidate the vote. "Public universities in other states have successfully pursued the goal of equal access without resorting to racial preferences; there is no reason why Michigan universities cannot do the same," he wrote.

Several legal organizations that oppose the consideration of race by public universities filed a brief backing the attorney general, and they were joined by one academic group, the National Association of Scholars, which argues for a traditional curriculum and against what it sees as political correctness in academe.

The brief argued that Proposal 2 has in fact helped minority students in Michigan -- contrary to the views of critics. It acknowledged that black enrollment at the University of Michigan has fluctuated since the passage of the amendment, but noted that the enrollment of Asian Americans has risen, consistently. And statewide, the brief said that minority enrollment has increased in raw numbers and as a share of all students for every minority group.

"With Proposal 2, Michigan voters made a choice that prohibits Michigan's public universities from considering the skin color of applicants," the brief says. "The data available since that decision was made shows that minorities do not need preferences to succeed in Michigan's university system."

Another brief -- by the Michigan Civil Rights Commission, a state agency acting independently of the attorney general -- argued that the July decision should have been allowed to stand. The commission noted that the 2003 ruling by the Supreme Court upholding the legality of consideration of race was based in part on the idea that "universities are better able to tailor admissions decisions to the best interests of their students, than are courts." Michigan's referendum was an "attempt to take this function away from the universities and give it to a majority vote of the general public, but only when it involves minorities," the commission said.

Relating this argument to July's ruling, the commission noted that the appeals court panel in July didn't ban a referendum that would have turned over all admissions policy decisions to the state's voters. It only banned a referendum to let state voters decide a set of issues related to race and ethnicity, and no other topic.

The commission's brief also argued that the logic of those seeking to reverse the July ruling ignored the ideas upheld by the Supreme Court as justifying the consideration of race in admissions. The brief noted that not only university leaders but business leaders have endorsed the idea that all students gain when educated in a diverse environment.

"Preventing a university from ensuring diversity comes at the expense of every student who is admitted," the brief said. "And not only do they lose the educational setting, they are at a disadvantage when seeking employment and advancement."


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