Fallacies of the Sixth Circuit’s Michigan Proposal 2 decision

April 05, 2013 | By RALPH KASARDA

In this excellent post from Discriminations, John Rosenberg describes the five fallacies of the Sixth Circuit’s “jaw-dropping” decision in Schuette v. Coalition to Defend Affirmative Action.  In Schuette, the court said Michigan’s voters had somehow violated the U.S. Constitution’s Equal Protection Clause by enacting the Michigan Civil Rights Initiative (MCRI), which guarantees equal protection for all people in education, employment and contracting.  PLF attorneys have posted many times about this case, the latest being here and here.

The five fallacies described in the Discriminations post are:

  1. The fallacy of fungible discriminations;
  2. The fallacy that affirmative action “inures to the benefit” of minorities: Intent;
  3. The fallacy that affirmative action “inures to the benefit of minorities: Effect;
  4. The fallacy of fungible minorities; and
  5. The fallacy that discrimination and freedom from discrimination are constitutionally indistinguishable.

Professor Rosenberg’s post is definitely worth taking a read if you are interested in that rare form of equal protection analysis called the political structure doctrine.

PLF attorneys have filed numerous briefs in support of the Michigan initiative, and have been active in successfully defending the California Civil Rights Initiative, which was approved by California voters as Proposition 209 in 1996.