Federal Appeals Court Rejects Michigan Affirmative Action Ban — Again

Michigan’s ban on affirmative action was struck down for a second time by a federal appeals court Thursday – this time on rehearing by the full panel of judges on the U.S. Court of Appeals for the Sixth Circuit.

In a strong defense of minorities’ access to the political process, an eight-judge majority struck down the state constitutional amendment passed in 2006, holding that the amendment imposed a constitutionally impermissible burden on those seeking to implement a race-conscious admissions policy above and beyond the burden imposed on others seeking to change admissions criteria. Judge R. Guy Cole Jr. wrote for the majority:

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.

The Sixth Circuit first heard the case more than a year ago, and rejected the ban under similar reasoning. As in the initial ruling, when the judges split 2-1, the full panel of judges split in the case 8-7, signaling a continuing ideological divide on the contentious issue of affirmative action.

Citing existing Supreme Court precedent, the majority in this case assumed the constitutionality of the university’s power to “even consider using race as a factor in admissions”, but this power may take a fatal blow this term when the John Roberts-led court reviews the University of Texas’ race-conscious admissions policy.