Two longstanding Supreme Court precedents prohibit states from forcing racial minorities to jump through special hoops in order to enact a law which benefits them as a group. Thus, for example, a state may choose to repeal all of its affirmative action programs, but it may not then impose an additional requirement that reinstating these programs will require supermajority support. Racial justice laws must stand on the same footing as all other laws, and be enacted through the same procedures.
Given these two cases, last week’s Sixth Circuit decision striking down Michigan’s recent ban on affirmative action in university admissions is a slam dunk. Under a recently enacted Michigan ballot initiative, Michigan’s constitution now forbids state universities from considering race in admissions, an amendment that leaves supporters of affirmative action on grossly uneven footing with supporters of other admissions policies. As the court explains:
An interested Michigan citizen may use any number of avenues to change the admissions policies on an issue unrelated to race. He may lobby the admissions committees directly, through written or in-person communication if the latter is available, or petition higher administrative authorities at the university: the dean of admissions, the president or dean of the university, or the university’s board. […]
Meanwhile, a Michigan citizen seeking that Michigan universities adopt race-based admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution. Placing a proposed constitutional amendment abrogating Proposal 2 on the ballot would require either the support of two-thirds of both the Michigan House of Representatives and Senate, or the signatures of a number of voters equivalent to at least ten percent of the number of votes cast for all candidates for governor in the preceding general election. A majority of the voting electorate would then have to approve the amendment.
Only after traversing this difficult and costly process would the now-exhausted Michigan citizen reach the starting point of his opponent who sought a non-race-related admissions policy change.
Yet, regardless of what the Supreme Court’s precedents say about the issue, last week’s victory for affirmative action is likely to be short lived. The Sixth Circuit is notorious for requiring the full court to rehear politically charged cases where progressives triumph through a procedure known as “en banc,” and last week’s decision has all the hallmarks of a case the court’s conservatives will want to en banc. The case not only presents an issue that divides progressives and conservatives, but last week’s panel split 2 to 1, with two Democrats in the majority and a Republican in dissent.
The Sixth Circuit also has a bizarre and sordid history with affirmative action cases that will likely motivate many of its conservative judges to seek en banc review. Ten years ago, the last time that a major affirmative action issue presented itself to the Sixth Circuit, the en banc court split 5–4 and upheld the law. One of the dissenters, Judge Danny Boggs, responded to this loss with a vitriolic dissenting opinion accusing then-Chief Judge Boyce Martin of somehow manipulating the court’s rules in order to bring about this result.
Ten years later, Boggs remains a leader among the Sixth Circuit’s conservatives, and the right now controls nine of the court’s 15 active judgeships. It’s highly unlikely that Boggs won’t try to seize this opportunity to refight this decade-old battle, and only slightly less likely that a majority of the court won’t let him.