The Sixth Circuit has granted rehearing en banc in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, No. 08-1387, 2011 WL 2600665 (July 1, 2011), discussed in our earlier posting to the listserv, which is below. The order is attached. Judges McKeague and Kethledge, both nominated by George W. Bush, recused themselves.
In a 2-1 ruling, the Sixth Circuit held that Michigan’s Proposal 2, which “prohibit[s] all sex- and race-based preferences in public education, public employment, and public contracting” in its state Constitution, violates the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. Coalition to Defend Affirmative Action v. Regents of the University of Michigan, No. 08-1387, 2011 WL 2600665 (July 1, 2011). Judge Cole authored the opinion, which Judge Daughtrey joined. Judge Gibbons dissented against the main ruling (and concurred in procedural issues related to specific parties). Both Cole and Daughtrey were nominated by Clinton. Gibbons was nominated by George W. Bush.
In 2006, Michigan voters approved Proposal 2, which amended the Michigan Constitution so that the state, its public universities, and other government institutions “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.” Multiple parties became involved in lawsuits challenging the amendment’s constitutionality in the District Court for the Eastern District of Michigan. After the cases were consolidated, the District Court granted the state Attorney General’s summary judgment motion and upheld the provision.
The Sixth Circuit reviewed the District Court’s judgment de novo and reversed. It applied “political process” Equal Protection analysis, relying mainly on Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982). It restated the Supreme Court’s principle that “a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process” (Seattle, 458 U.S. at 470).
Analogizing mostly from Hunter and Seattle, the Court applied a two-part test: First, it considered whether Proposal 2 has a “racial focus” by targeting a policy that “at bottom inures primarily to the benefit of the minority, and is designed for that purpose” (Id. at 474, 472). The Court found a racial focus even though Michigan’s affirmative action policies were also designed to benefit women and are claimed to have benefited students of other groups.
Second, it examined whether the provision effects a “reordering the political process to place special burdens on racial minorities.” It found that a “political” process is involved since admissions committees are in government-directed universities, and that, even under the dissent’s more limited definition of “political” as “electoral,” the process is political because the public universities have elected boards of directors. Then the Court found special burdens on minorities. Specifically, it reasoned that, whereas individuals seeking admissions policy changes on bases other than race could lobby various university officials and attempt to elect different directors, individuals seeking race-based changes would need to “begin by convincing the Michigan electorate to amend the Michigan Constitution” (emphasis in original) before any other avenues would be effective.
The Court rejected several counterarguments to its political process analysis. First, it declined to join the Ninth Circuit in distinguishing between preferential treatment and discrimination, remarking that doing so would render the political process test redundant with traditional Equal Protection analysis. It observed that Hunter rejected a mootness argument that the traditional analysis resolved the case (393 U.S. at 389), and that Seattle involved the repeal of reductions of discrimination that were not constitutionally mandated (458 U.S. at 460-61). The Court also dismissed arguments that minorities, added together, may constitute a majority; and that a “political process” claim requires a finding of discriminatory intent. Having found a reordering of the political process that burdens minorities, it applied strict scrutiny and found Proposal 2 unconstitutional, since no compelling state interest was advanced. The Court found traditional Equal Protection analysis unnecessary as a result.
Judge Gibbons’ dissent focused on the Supreme Court’s conflicting rulings in Grutter v. Bollinger and Gratz v. Bollinger (539 U.S. 306; 539 U.S. 244 (2003)) to suggest that the use of race-based criteria in university-based admissions are allowed “only when there is a compelling interest in doing so and when the use is narrowly tailored,” and they should have time limits, which are “first and foremost in the hands of states and their public universities.” Turning to the political process question, the dissent highlighted the difference between the non-elected academic faculties that ultimately decide admissions policies are and the local legislative bodies that were overridden in Hunter and Seattle. Perceiving statewide political campaigns as the only realistic way to induce policy changes, Judge Gibbons found that “the Michigan voters have…not restructured the political process in their state by amending their state constitution; they have merely employed it.” The dissent also found that Proposal 2 passes the traditional Equal Protection test, stating that “it does not classify racially on an impact theory because it lacks a discriminatory purpose.”