Sixth Circuit’s Proposal 2 decision: Teetering on the brink of incoherence

January 02, 2013 | By RALPH KASARDA

Attorneys for PLF filed a brief this week in the United States Supreme Court asking that Court to review the Sixth Circuit Court of Appeals’ decision in Coalition to Defend Affirmative Action v. Regents of the Univ. Of Michigan.  In that decision, the Sixth Circuit held that the Fourteenth Amendment gives groups of a particular race the right to pursue racial preferences.  That decision not only conflicts with decisions by the Ninth Circuit and two state supreme courts, but also threatens voter and legislative action in numerous other states.  Joining with PLF in the brief are Ward Connerly, the American Civil Rights Foundation, and the Center for Equal Opportunity.

Here’s a look at the split between the Sixth Circuit and other courts concerning whether states may uniformly ban all forms of government discrimination.

In 1973, Louisiana voters approved a new state constitution which included a provision prohibiting all racial discrimination: “No law shall discriminate against a person because of race . . . .”  The Louisiana State Supreme Court upheld the provision against an equal protection challenge in Louisiana Associated General Contractors, Inc. v. Louisiana.   The court reasoned that the voters intended to prevent the evils of past discrimination from returning by providing that there can never be any discrimination against minorities on the basis of race under the laws of Louisiana – a protection minorities do not have under federal strict scrutiny equal protection analysis.  Under that analysis, states may discriminate if their actions are narrowly tailored to a compelling state interest.  But a state may choose to afford more protection to its citizens.  The court held that even racial preferences for the sake of affirmative action are forbidden in Louisiana, because “discrimination in favor of one race is necessarily discrimination against members of another race, and this is what is prohibited under the Article.”

In 1996, California voters passed the California Civil Rights Initiative, or  “Proposition 209,” amending the California Constitution to prohibit the state and its subdivisions from discriminating against, or granting 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 contracting, and public education.

When Proposition 209–now Article I, Section 31 of the California Constitution–was challenged in federal court, the Ninth Circuit Court of Appeals, in Coal. for Econ. Equity v. Wilson, held that the amendment was constitutional in all respects.  The Ninth Circuit recently rejected another attack on Proposition 209 by affirming the dismissal of an as-applied equal protection challenge to California’s ban on race-conscious college admission policies, in Coalition to Defend Affirmative Action v. Brown.

The California Supreme Court has twice interpreted and applied Proposition 209.  In 2000, the court, in Hi-Voltage Wire Works, Inc. v. City of San Jose, noted that in approving Proposition 209 California voters intended the state constitution, “like the Civil Rights Act as originally construed, ‘to achieve equality of [public employment, education, and contracting] opportunities.’” In 2010, the court in Coral Construction, Inc. v. City & County of San Francisco, firmly held that California’s statewide ban on discrimination and preferences does not violate the federal Equal Protection Clause.

In addition to California, voter initiatives prohibiting discrimination and preferences based on race in public employment, education, and contracting have passed and become law in Washington (1998), Nebraska (2008), Arizona (2010), and Oklahoma (2012).  New Hampshire and Florida ban racial preferences in college admissions through legislation and by executive order.

The Sixth Circuit’s decision invalidated a state initiative passed by Mighigan voters in 2006 – the Michigan Civil Rights Initiative, known as “Proposal 2.”  Proposal 2 amended the Michigan Constitution to specifically prohibit public universities and the state from  discriminating and granting preferences based on race in the operation of public employment, public education, or public contracting.  Proposal 2 was immediately challenged in federal court by proponents of racial preferences just like California’s Proposition 209.  But whereas the Ninth Circuit upheld the constitutionality of Proposition 209, the Sixth Circuit ultimately concluded that Proposal 2 was unconstitutional.

The Sixth Circuit’s decision has terrible consequences that can only be corrected by the U.S. Supreme Court.  The Ninth Circuit and the Sixth Circuit examined identical state initiatives under the same U.S. Supreme Court precedent, but reached opposite conclusions.  As a result, in the jurisdiction of the Ninth Circuit, which includes the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, the citizens of each state are free to amend their state constitutions to adopt policies of strict racial neutrality in the areas of public education, employment, and contracting.  Indeed, voters in three states already have.  But voters in states within the jurisdiction of the Sixth Circuit, which includes Kentucky, Michigan, Ohio, and Tennessee, may not.

When the Ninth Circuit first considered the challenge to Proposition 209, the court logically observed:

Proposition 209 amends the California Constitution simply to prohibit state discrimination against or preferential treatment to any person on account of race or gender.  Plaintiffs charge that this ban on unequal treatment denies members of certain races and one gender equal protection of the laws.  If merely stating this alleged equal protection violation does not suffice to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence.

The Sixth Circuit’s rejection of this observation turns equal protection jurisprudence within its jurisdiction on its head.