The 6th Circuit’s Affirmative Action Decision: A Critique

On Friday, in a case called Coalition to Defend Affirmative Action v. Regents of the University of Michigan, a panel of the 6th Circuit Court of Appeals held, 2-1, that Proposal 2, an amendment to the Constitution of the State of Michigan that bans racial discrimination by the State of Michigan in education, employment or public contracting, is unconstitutional. The proposition that the Constitution requires public agencies to engage in race discrimination may seem counter-intuitive, but the establishment consistently turns out to defend it. The pro-discrimination parties were represented by a law firm considered by many to be the finest in New York City.

In order to evaluate the 6th Circuit’s opinion, we turned to one of the country’s foremost experts in the field, our friend Kirk Kolbo. Kirk represented the plaintiffs in the historic Gratz and Grutter cases in the United States Supreme Court. He graciously agreed to share his thoughts on the Coalition to Defend Affirmative Action case with our readers:

It is unfortunate that on the eve of our Fourth of July weekend, a federal appeals court handed down a decision delivering injury and insult to the most important of those self-evident truths for which we honor and celebrate the signing of the Declaration of Independence. The proposition that “All Men Are Created Equal” was ultimately forged into our Constitution in the form of the equal protection clause of the Fourteenth Amendment. In its 2-1 decision, the 6th Circuit Court of Appeals held—incredibly—that the Constitution’s equal protection guarantee forbids the people of Michigan from voting the elimination of racial preferences in college and university admissions.

The court’s decision came in a challenge to an amendment to the Michigan constitution enacted in 2006 after passage (by a 58% to 42% margin) of a state-wide voter initiative banning race and gender preferences in college and university admissions and other government activities. The initiative was a reaction to the decisions of the United States Supreme Court in Gratz v. Bollinger and Grutter v. Bollinger, companion cases challenging racial preferences in admissions at the University of Michigan’s flagship undergraduate college (Gratz) and Law School (Grutter). While the Supreme Court struck down the undergraduate admissions policies at issue in Gratz, it ruled in Grutter that race could be used in a limited way in the admissions process: one “plus” factor among others to achieve a racially diverse student body, and it upheld the admission policies of the Law School on that basis. Jennifer Gratz, one of the lead plaintiffs, headed up the Michigan initiative effort. After its passage, an assorted group of plaintiffs immediately challenged the new law as it applied to Michigan’s colleges and universities, and last week’s decision by the 6th Circuit is the latest word, but not likely the final one, on that challenge.

The Supreme Court has never held that the equal protection clause requires the use of racial preferences in admissions or other areas (e.g., hiring, firing, contracting). The decisions instead have all focused on whether in particular circumstances it is permissible for the government to employ those preferences by means “narrowly tailored” to accomplish what the Court concludes to be a “compelling government interest.”

So how came the 6th Circuit to its decision? The court looked principally to two decades-old Supreme Court opinions recognizing an equal protection challenge to government actions that single out race issues for a distortion of the government decision-making process to the disadvantage of racial minorities. In the first of these cases, Hunter v. Erickson, after the Akron, Ohio city council enacted an ordinance to enforce anti-discrimination in housing, the people of Akron passed by referendum an amendment to the city charter requiring all regulations of real estate on the basis of race to be approved by a city-wide referendum, while all other real estate regulation required only city council approval. In a subsequent case, Washington v. Seattle School District No. 1, an elected Seattle school board passed and implemented certain school desegregation policies, including mandatory busing of students, designed to alleviate racial imbalances in the schools due to segregated housing patterns. Opponents of the school board’s measures were successful in getting a state-wide referendum passed prohibiting any of the State’s local school boards from mandating busing for desegregation, except when ordered to do so by a court.

In both cases, the Supreme Court invalidated the referenda on grounds that they reallocated the political structure impermissibly to the disadvantage of racial minorities in violation of the equal protection clause. The decisions do not furnish any plausible basis for striking down the State of Michigan’s decision to eliminate racial preferences in admissions. The focus of the Court in Hunter and Seattle was on the removal of political decision-making authority on race issues from a locally accountable entity (city council and school board) “to a new and remote level of government” (city- and state-wide electorate). The Court compared such a restructuring to voter dilution. In both cases, the change made it more difficult for minorities to obtain “beneficial legislation” because the political restructuring made it more burdensome, onerous, and complex to “enact legislation.” The rulings in Hunter and Seattle protected “the ability of minorities to participate in the process of self-government.” (Emphasis added).

The 6th Circuit held that by removing the authority of college and university admissions officials to grant preferences based on race through the successful state-wide initiative, there had been an impermissible political restructuring. It reached this conclusion by equating the admissions officials at Michigan colleges and universities with the elected city council and school board in Hunter and Seattle. This is, of course, preposterous. The dissenting opinion lays out the record showing how admissions decisions at the schools at issue are made by assorted faculty (often tenured) and administrators not accountable to any voting electorate. And any parent or student who has gone through the admissions process knows well that those anxiously-awaited admissions decisions are made pursuant to policies over which they have no control and the workings of which are from them and the rest of the public generally shrouded in mystery and secrecy. Because neither minorities nor others in the public possess any political authority over admissions committees and decision-makers it is absurd for the court to have found that there has been a “restructuring” of such authority.

The 6th Circuit also took no account of the fact that the challenged actions in Hunter and Seattle had the effect of overturning and making it more difficult to enact anti-discrimination legislation. The racial preferences eliminated by the voters of Michigan are themselves, however, as the Supreme Court has held repeatedly, presumptively invalid under the equal protection clause. They are “potentially so dangerous” that they must be subject to strict scrutiny. In eliminating racial preferences and mandating race-neutral admissions decision-making, the voters of Michigan have furthered what the Supreme Court has repeatedly referred to as the “core purpose of the Fourteenth Amendment”—“to do away with all government imposed discrimination based on race.”

In Grutter, the Court wrote approvingly of experiments in race-neutral admissions and specifically mentioned state laws prohibiting racial preferences in admissions in California, Florida, and Texas. It also held that a “permanent justification for racial preferences would offend [the] fundamental equal protection principle.” Accordingly race-based admissions policies must be of “limited duration.”

So the 6th Circuit’s decision is neither compelled by the “political restructuring” doctrine of Hunter and Seattle, nor consistent with what the Supreme Court has held about the lawfulness and desirability of race-neutral policies. To the contrary, the court’s decision throws obstacles in the way of a body politic wanting to achieve the constitutionally favored goal of race-neutral decision-making. Under its rationale, any local or other low-level governmental authority (elected or not) could enact racial preferences which would be immune from interference or elimination by a larger government body or electorate on grounds of a “political restructuring” violation.

Even the liberal and independent-minded 9th Circuit has rejected the contention that a State is prohibited from requiring race-neutral admissions policies. It upheld California Proposition 209 against an equal protection and “political restructuring” challenge. Fortunately, the prospects are good that the 6th Circuit’s decision will be reheard by the entire court (en banc). There is a strong dissent, and the panel’s decision conflicts with the decision of an earlier panel that considered the same issues in staying a preliminary injunction against enforcement of the Michigan law. Both are good indicators for eventual review and a decision by the full 6th Circuit. Finally, while the odds are against any given case being accepted for review by the Supreme Court, should it get there, last week’s decision would almost certainly be reversed by the current Court.

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