Prop. 2

Full Panel of the Sixth Circuit Strikes Down Prop 2, Michigan’s Anti-Affirmative Action Amendment.

Kate Fort

A split of the Sixth Circuit upheld the 3 judge panel. Our previous coverage of Prop. 2 here.

Here.

COLE, J., delivered the opinion of court in which MARTIN, DAUGHTREY, MOORE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined; and BATCHELDER, C. J., and GIBBONS, ROGERS, SUTTON, COOK, and GRIFFIN, JJ., joined in Part II.B and C. BOGGS, J. (pp. 37–40), delivered a separate dissenting opinion, in which BATCHELDER, C. J., joined. GIBBONS (pp. 41–57), delivered a separate dissenting opinion, in which BATCHELDER, C. J., and ROGERS, SUTTON, and COOK, JJ., joined, and GRIFFIN, J., joined with the exception of Part III. ROGERS (pg. 58) delivered a separate dissenting opinion, in which COOK, J., joined. SUTTON (pp. 59–69), delivered a separate dissenting opinion in which BATCHELDER, C. J., and BOGGS and COOK, JJ., joined. GRIFFIN, J. (pp. 70–74), delivered a separate dissenting opinion.

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change. We therefore REVERSE the judgment of the district court on this issue and find Proposal 2 unconstitutional. We AFFIRM the denial of the University Defendants’ motion to be dismissed as parties, and we AFFIRM the grant of the Cantrell Plaintiffs’ motion for summary judgment as to Russell.

Sixth Circuit Grants En Banc Review of Affirmative Action Decision

Kate Fort

Not surprisingly, the Sixth Circuit granted en banc review of the Coalition to Defend Affirmative Action v. Regents of the University of Michigan decision, which struck down Prop. 2, Michigan’s anti-affirmative action constitutional amendment.

The order is here.

News coverage here.

WaPo Coverage of College Affirmative Action Circuit Split

Kate Fort

Here.  Our previous coverage of the Sixth Circuit case is here.
College affirmative action back on Supreme Court’s horizon

By , Published: July 31

When the Supreme Court in 2003 narrowly approved the consideration of race in public university admission decisions, it came with loads of restrictions and a sort of expiration date.“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” Justice Sandra Day O’Connor wrote for the majority in Grutter v. Bollinger .

***

One is from Texas, where a panel of the U.S. Court of Appeals for the 5th Circuit upheld a race-conscious admissions policy at the University of Texas at Austin. An attempt to have the entire circuit hear the case failed 9 to 7, and dissenters practically invited the Supreme Court to step in.

The other is from Michigan, where voters in 2006 passed a constitutional amendment to forbid the state’s public colleges and universities from granting “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin.”

A panel of the U.S. Court of Appeals for the 6th Circuit ruled 2 to 1 that the amendment violates the Equal Protection Clause of the 14th Amendment because it restructures the state’s political structure to the detriment of minorities.

Michigan Attorney General Bill Schuette (R) on Friday asked the full circuit to review the decision, and said that the Supreme Court would be the next stop if he is unsuccessful with the circuit court.

***

The Texas case, Fisher v. University of Texas , is the farthest along. Washington lawyer Bert W. Rein, who represents Abigail Fisher and Rachel Michalewicz, two students who said UT’s policy discriminated against them, has until mid-September to file a petition with the Supreme Court asking for review.

 

Sixth Circuit Panel Strikes Down Michigan’s Prop. 2 (Anti-Affirmative Action Statute)

Matthew L.M. Fletcher3 Comments

Here is today’s opinion in Coalition to Defend Affirmative Action v. Regents of the University of Michigan.

An excerpt:

Proposal 2 is a successful voter-initiated amendment to the Michigan Constitution. In relevant part, it prohibits Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity, or national origin.” Mich. Const. art. I, § 26. Our task is to determine whether Proposal 2 is constitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Fortunately, the slate is not blank. The Supreme Court has twice held that equal protection does not permit the kind of political restructuring that Proposal 2 effected. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); Hunter v. Erickson, 393 U.S. 385 (1969). Applying Hunter and Seattle, we find that Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities. Accordingly, we REVERSE the district court’s grant of summary judgment for the Defendants-Appellees and order the court to enter summary judgment in favor of the Plaintiffs-Appellants.

DCT Dismissal of Coalition to Defend Affirmative Action Claim

Matthew L.M. Fletcher

Here’s the opinion.

Erwin Chemerinsky on Michigan’s Prop 2

Matthew L.M. Fletcher

Erwin Chemerinsky’s talk about direct democracy and Prop 2 (with the Orwellian name “Civil Rights Initiative”) has been published in our own Michigan State Law Review. The talk is called “Challenging Direct Democracy.”

Here’s the introduction:

The Civil Rights Initiative in Michigan was adopted the day before this symposium on direct democracy was held at Michigan State University College of Law.

Let there be no doubt of its effects: it’s going to be a devastating event for individuals of color throughout Michigan. I can back this up by the experience of California, after a similar initiative, also championed by Ward Connerly, was passed there in 1996. Statistics are available about the effect on admissions at the University of California Law Schools in the five years immediately after the passage of what was called their Proposition 209. The percentage of minority students at state law schools, like UCLA and Boalt, is a fraction of what it was at comparable private schools like Stanford and U.S.C. The same effects have been seen in government contracting and employment.

Continue reading →

Coalition to Defend Affirmative Action v. Granholm – Hearing Tomorrow

Matthew L.M. Fletcher

The Eastern District of Michigan (Judge Lawson) will hear cross-motions for summary judgment tomorrow in Coalition to Defend Affirmative Action v. Granholm. Here are some of the materials:

Cantrell Motion for Summary Judgment

Continue reading →

Benson on Election Fraud and Prop. 2

Matthew L.M. Fletcher

Jocelyn Friedrichs Benson (Wayne) has posted “Election Fraud and the Initiative Process: A Study of the 2006 Michigan Civil Rights Initiative” on SSRN. The paper is forthcoming in the Fordham Urban Law Journal.

Continue reading →

More Impacts of Prop. 2 — Financial Aid

Matthew L.M. Fletcher

As the news about the 2007-2008 academic year comes out, we will be following the impact of Prop. 2 on minority students and communities in Michigan, with an emphasis on American Indian students.

Details from the Detroit News: “A record number of new freshmen flocked to Michigan public universities this fall, but some scholarship opportunities for the 40,674 students have dried up in light of Proposal 2.

“The constitutional amendment passed by voters last November not only banned preferences based on race and gender in public university admissions, but also shut down financial aid programs geared toward those targeted groups.

“Scholarships for women in engineering, single mothers, Hispanic scholars and high-achieving black students are among the programs that have been eliminated or altered at some of the state’s 15 public universities. In general, university leaders said they didn’t take away scholarships they promised students before Proposal 2 took effect Dec. 23, but the challenge has been how to help incoming classes without violating the law.”

***

“The Alumni Association of the University of Michigan decided this fall to establish race- and gender-based scholarships after assurances from lawyers that doing so wouldn’t violate the law, leaders said.

“The board set aside $650,000 in seed money and anticipates awarding the first scholarships for incoming students in 2008.

“We wanted to be able to make it possible for alumni and others who want to provide support to do so,” said alumni association president Steve Grafton. “They can’t do that with the university and we can provide that opportunity for them.

“And we are really interested in helping to maintain and build the diversity at the university. This is a recruiting tool that will help the university recruit the very brightest students of color, women in engineering and men in nursing,” he said.

“Much of the debate over Proposal 2 has focused on the University of Michigan, the only state university that admittedly used affirmative action in undergraduate admissions. But the impact of the new constitutional amendment can be felt around the state, as scholarships for students based, in part, on race, gender or ethnicity were not uncommon.

“Universities initiated reviews of all of their scholarship programs. Central Michigan University found four scholarships that involved preferences. CMU didn’t change two slated for Native Americans because they believe those scholarships are based on sovereignty status, not on race.“

U-M Minority Admissions Drops Slightly

Matthew L.M. Fletcher

From AP: “Fewer black and American Indian students are attending the University of Michigan’s main campus this fall in the wake of the passage of an anti-affirmative action ballot proposal.”Total enrollment increased by 1,017 students, or 2.5 percent, to more than 41,000 this fall, a record. But the school said Thursday that black student enrollment dropped 3.3 percent and the number of American Indians decreased 1.2 percent.

“Hispanic student enrollment was up 1 percent, while the number of white students increased 2.1 percent.”

From the Chronicle: “The University of Michigan at Ann Arbor said today it had managed to avoid a steep decline in the number of black, Hispanic, and Native American students in this fall’s entering freshman class, the first to be admitted after Michiganders voted a year ago to amend their state’s Constitution to prohibit public higher-education institutions from considering applicants’ race or ethnicity.

“Officials at the university cautioned, however, that much of this fall’s class was admitted before its admissions office began complying with the ban on affirmative-action preferences, known as Proposal 2, on January 10.

“Theodore Spencer, the university’s associate vice provost and director of undergraduate admissions, said in a statement issued yesterday that “the full impact of Proposal 2 is not reflected in the current year’s enrollment numbers because it took effect midway through the admissions cycle.” The university will “have a more accurate indication of its potential impact in fall 2008,” he said.”