July 1, 2011

Sixth Circuit holds Michigan's ban on discrimination is unconstitutional.

By Sixth Circuit holds Michigan's ban on discrimination is unconstitutional.

Author: Ralph Kasarda

In a disappointing 2-1 decision, the Sixth Circuit Court of Appeals today held that Article I, Section 26 of the Michigan Constitution is unconstitutional.  That provision, passed by voter initiative in 2006, prohibited the state from discriminating or granting preferential treatment based on race.  The decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan can be found here

After Michigan voters passed the anti-discrimination initiative known as Proposal 2, civil rights activists filed two lawsuits in federal district court.  The activists claimed Proposal 2 violated the United States Constitution and federal statutory law by banning race-conscious affirmative action programs.  The court initially enjoined Proposal 2's implementation at Michigan's universities, but that injunction was short-lived.  In December, 2006, the Sixth Circuit issued a stay of the injunction holding that

The First and Fourteenth Amendments to the United States Constitution, to be sure, permit States to use racial and gender preferences under narrowly defined circumstances.  But they do not mandate them, and accordingly they do not prohibit a State from eliminating them.

On remand the district court went on to dismiss the claims that Proposal 2 was unconstitutional.  Today's Sixth Circuit decision reversed that district court ruling.  In doing so, the Sixth Circuit reversed its earlier position by concluding that Proposal 2 was unconstitutional under a political structure theory of equal protection introduced by the Supreme Court in Hunter v. Erickson, and Washington v. Seattle School Dist. No. 1.  Under this doctrine, the Equal Protection Clause prohibits "a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation."

Both the Ninth Circuit and the California Supreme Court rejected a similar argument with respect to Proposition 209 – Article I, Section 31 of the California Constitution.  Those courts explained that a state ban on both discrimination and preferential treatment is not "an impediment to protection against unequal treatment" but "an impediment to preferential treatment."  Both courts held that impediments to preferential treatment do not deny equal protection. 

The fate of the Michigan voter initiative will most likely be decided by the Sixth Circuit sitting en banc, or by the Supreme Court.

For more on the history of this case and the amicus brief filed by PLF attorneys, see here.

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