Reactions to Court Decision Overturning Michigan Affirmative Action Ban

National Association of Scholars

Last Thursday, November 15, 2012, the U.S. Circuit Court of Appeals for the Sixth Circuit, in an 8-7 split decision, struck down an amendment to the Michigan state constitution that banned the use of race preferences in hiring and admissions to the state’s public universities and colleges. The amendment was added to the state constitution in 2006, following a ballot initiative led by the American Civil Rights Institute’s Ward Connerly with support and assistance from NAS. The case will now proceed to the Supreme Court of the United States, where another affirmative action case, Fisher v. Texas, is currently under consideration. We’ve already signed on with the Pacific Legal Foundation’s brief in Fisher (here and here), and will certainly do battle on behalf of the appeal of the Michigan decision as well.

Scholars and writers offer some of their thoughts on the implications of the Michigan decision:

Steve Salier, journalist and founder of the Human Biodiversity discussion group for top scientists and public intellectuals writes:

From the NYT on the 8-7 decision by the Sixth Circuit Court of Appeals to overturn Ward Connerly and Jennifer Gratz's 2006 Michigan Civil Rights Initiative to ban racial preferences in Michigan government policy (e.g., racial preferences in U. of Michigan admissions), which was approved by 58% of the vote in that blue state in November 2006.

People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college’s governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but to undertake the “long, expensive and arduous process” of amending the state Constitution.

“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,” said Judge R. Guy Cole Jr., writing for the majority.

This is an extraordinarily unpersuasive argument by the Sixth Circuit majority. Before this ruling, proponents of affirmative action faced exactly the same burdens as the opponents of affirmative action faced in 2006 when they got their initiative approved. Heck, proponents don't need 58% of the vote like the ban got, they just need 50% +1 vote to amend the state Constitution.

What's good for the goose is good for the gander, right?

Oh, wait, gender equality is part of the War on Women, just like racial equality is racism. Sorry, my Newspeak is a couple of weeks behind the times, so my apologies.

Seriously, if Romney had won last week, do you think we'd see this particular decision this week? The majority's reasoning (such as it is) seems like a particularly blatant middle finger extended to the white and Asian voters of Michigan to demonstrate to them that racial preferences for blacks and Hispanics will be protected By Any Means Necessary (the title of the thuggish plaintiffs who triumphed in the Sixth Circuit.)

Christopher Caldwell once said: "One moves swiftly and imperceptibly from a world in which affirmative action can't be ended because its beneficiaries are too weak to a world in which it can't be ended because its beneficiaries are too strong." We may have permanently made that transition last week, especially if Obama gets to replace a Republican Supreme Court justice over the next four years.

Certainly, the atmosphere has changed since Election Day toward media displays of naked racial animus. Partly this is the veil dropping once the need for politeness was over, but it's also, as Gen. Patton said, that Americans love a winner.

Joshua Thompson, staff attorney at the Pacific Legal Foundation as a staff attorney writes on the PLF Liberty blog:

As we reported on Thursday, the Sixth Circuit declared Michigan’s Proposal 2 unconstitutional under the Equal Protection Clause. The decision has been roundly condemned throughout the legal community. For good reason. The decision defies both logic and common sense by holding that Proposal 2 — a state constitutional amendment prohibiting Michigan government from treating individuals differently with respect to race — violates the guarantee for “equal protection” in the Fourteenth Amendment to the United States Constitution. If that doesn’t make sense to you, then you understand the ruling perfectly.

The decision rests solely on the Sixth Circuit’s interpretation of two Supreme Court cases that are  43 and 30 years old. A 1969 case, Hunter v. Erickson, held that Akron’s repeal of an anti- discrimination law (and the requirement that any future anti-discrimination measure be voted on by  the electorate) violated the Equal Protection Clause. In a 1982 case, Washington v. Seattle School  District No. 1, the Supreme Court declared that Washington’s attempt to prohibit race-based busing  violated the Equal Protection Clause. These two cases comprise the Court’s “political structure” line  of cases and have never been used to invalidate another race-related statute, amendment,  regulation, or ordinance since. In fact, a case decided the same day as Seattle — Crawford v. Los  Angeles Board of Education — with basically the same facts (the electorate passing an ordinance  prohibiting race-based busing), was held constitutional by the Supreme Court.

If anything respectable can be said about the Sixth Circuit’s reasoning in this case, it is that it represents a plausible, albeit extreme, extension of the Supreme Court’s decisions in Hunter and Seattle. However, shouldn’t the Sixth Circuit have taken a step back – like the Ninth Circuit did when ruling on Proposition 209 — and realized the absurdity of holding a constitutional amendment guaranteeing equal protection a violation of equal protection?

Here’s what the Ninth Circuit said when an identical Hunter/Seattle argument was brought before it:

“The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

It is a very important, non-trivial point. Race-based affirmative action programs are barely countenanced under the Constitution’s Equal Protection Clause. The Sixth Circuit turned that truth on its head, and held that race-based affirmative action programs are required under the Equal Protection Clause. By focusing all of its reasoning power into Hunter and Seattle, the circuit court clearly lost sight of the forest for the trees.

There were 5 dissents filed in the en banc decision. Most of the dissents pick apart the Sixth Circuit’s reasoning with respect to Hunter and Seattle. And, let me be clear, I only said that the Sixth Circuit’s reasoning was a “plausible, albeit extreme” interpretation of those cases. The dissents’ points are certainly valid, and should have been used by the majority to distinguish the present case from Hunter and Seattle. [Or else it finds itself in the ridiculous predicament of striking down a guarantee of equal protection as a violation of equal protection.] Regardless, my favorite dissent was filed by Judge Rodgers, who wrote only four sentences:

Under the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law. Doing so would perforce make it harder for one minority or another to obtain a preference at the lower level. That alone can hardly render the no-race-preference act unconstitutional. Whatever Hunter and Seattle hold, the Supreme Court cannot have intended such a ban.

That’s absolutely true. One could also say that whatever Hunter and Seattle hold — thirty years after either has been applied to a race-related law — they cannot be used to strike down a state’s guarantee of equal treatment.

Defenders of equality under the law, however, may end up being thankful for this decision. As Eugene Volokh noted, the case is surely on its way to the Supreme Court. There we can expect that the Supreme Court will put the final nail in this ridiculous interpretation of Hunter/Seattle. With states around the country continuing to follow California and Michigan’s lead by prohibiting race-based governmental decision making, without some clarity in the law, such ridiculous challenges would surely spring up elsewhere. It’s that hope that leaves me somewhat relieved by the Sixth Circuit’s ridiculous decision. Over at Minding the Campus, PLF friend Roger Clegg has similar hope. In his post, titled “An Unusually Stupid Court Ruling,” he writes:

But, on reflection, we can make lemonade from this lemon.

The state attorney general has already announced that he plans to take the case to the Supreme Court – thank goodness – which will almost certainly grant review, because the decision below is not only important and outrageous, but also creates a split in the circuits since the Ninth Circuit rejected a similar lawsuit. When the Court does so, there ought to be at least five votes to overturn the Sixth Circuit’s decision – and clarify or overturn a confusing and mischievous couple of earlier Supreme Court decisions that the Sixth Circuit used to justify its result. So the case will provide the Court with an opportunity to replace bad precedent containing dubious language with good precedent and good language for future cases.

I share his optimism.

Ward Connerly, founder and President of the American Civil Rights Institute and former University of California Regent, says:

For years, the Ninth Circuit Court of Appeals has been the laughing stock of our judicial system. With this decision about Proposition 2, the Sixth Circuit can now lay claim to the dubious honor of being the most outrageous court in the land.

"There is no way to make sense of the decision handed down by the Sixth Circuit, except to say that elections have consequences. Unfortunately, in this case, the consequence is that eight judicial activists have defied the will of 58% of the Michigan electorate to embrace the continuation of race preferences - a paradigm that is being discredited with every passing day, except in the eyes of die-hard preference proponents. And, if our study of race in America teaches any lesson at all it is that justice cannot be denied forever. The ghost of George Wallace, who said "segregation now, segregation forever," can certainly confirm this fact.

Glynn Custred, professor emeritus of anthropology at California State University, East Bay, and co-author of Proposition 209 that ended racial preferences in the public sector in California, says:

On Friday, the Sixth Circuit Court of Appeals struck down an amendment to the Michigan State Constitution (passed by ballot initiative in 2006) that prohibits racial preferences in admission to Michigan's institutions of higher education. the decision was split eight to nine with the majority rejecting the principles of the landmark 1964 Civil Rights Act from which the Michigan amendment is derived, federal legislation that affirmed the principle of equality before the law regardless of race or ethnic origin.

In the 1964 debates on that landmark legislation, liberal Democrat Hubert Humphrey expressed what was probably the majority opinion within his party when he said that if the Civil Rights Act ever led to group preferences and quotas, he would eat it page by page. Yet that is precisely where bureaucrats took it, to the point where citizens in several states rejected by ballot initiative the preferential regime which subverts the letter and the intent of the 1964 legislation.

What the Sixth Circuit Court of Appeals has shown in its decision, is how far the party, whose leaders have appointed the judges who voted in the majority, has strayed from liberalism, and how far it has gone backwards towards a preference for a race-based regime in public policy. It also shows how little regard leftist judges have for Asians and whites who might be displaced by racial preferential admissions, and for those very students who are supposed to benefit from racial preferences.

The latter has been documented in a recent book by UCLA law professor Richard Sander and journalist Steward Taylor appropriately titled "Mismatch: How Affirmative Action Hurts Students It's Intended to Help and Why Universities Won't Admit It". The real focus of the left and their enablers in the domain of racial politics is "politics"; reducing principle, policy and people to political maneuvering. There are various reasons why the number of officially designated minorities are not proportionally represented among the students of the top tier universities. One of those reasons is the failure of public education in preparing students for higher education. An insistence on bureaucratically designed and enforced racially biases admissions policies masks those problems, pretending that they can be reduced to bureaucratic fiat.

This focus is clearly and unashamedly admitted in the words of Judge R. Guy Cole Jr. who wrote for the majority in the Michigan case. Cole said that the amendment places an extraordinary burden on opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action, as indeed the proponents of the amendment had to do to overturn the regime which had subverted race-neutral policies which have subverted the 1964 Civil Rights Act. Cole believes that it would be fairer to deal with preferential policies in the governing boards of each institution of higher education, once again showing his disregard for principle, proper public policy and for people in favor of political maneuvering.

George W. Dent, Professor of Law, Case Western Reserve University, and president of the Ohio Association of Scholars:

The decision of the U.S. Court of Appeals for the 6th Circuit in Coalition to Defend Affirmative Action v. University of Michigan not only ignores the 14th Amendment of the Constitution but virtually turns it on its head and effectively usurps the right of the people of Michigan to democratic government. In 2006, Michigan citizens voted to amend the state constitution to forbid racial discrimination in admissions to state universities. By an 8-7 vote the 6th Circuit holds that the voters cannot do this because it hinders those who want to institute racial discrimination in admissions. And this is done in the name of the 14th Amendment, a provision adopted to forbid racial discrimination. The decision is an outrage to logic and justice and should be quickly reversed by the Supreme Court.

Jonathan Bean, Professor of History at Southern Illinois University, president of the Illinois Association of Scholars, and author of Race and Liberty in America, recently joined with other civil rights officials in signing an amicus brief in the Fisher case:

This was a bad day for civil rights. In defending the indefensible, judicial activists on the Left have no shame. The civil rights movement resulted in passage of the Civil Rights Act of 1964--a bright shining moment for the classic liberal belief in nondiscrimination. Since then, however, activist liberals on campuses and in the courts have turned the "plain meaning" of the Civil Rights Act on its head. Equality now means discrimination in the Orwellian world they have constructed.

Still, courageous advocates of nondiscrimination passed a constitutional amendment in Michigan restoring the principle of nondiscrimination. But never underestimate the Left's capacity to resist "by any means necessary" and to put up the most strained arguments that equality means inequality and good-intentioned democracy is tyranny with bad intent. Witnessing decisions like this I am reminded of George Wallace's infamous stand at the schoolhouse door loudly proclaiming that nondiscrimination may be the law of the land but he stood for segregation today, segregation tomorrow and segregation forever. The eight judges who struck down the nondiscrimination amendment are the heirs of George Wallace.

We’re disappointed but undaunted by the Sixth circuit decision, and will continue to oppose racial preferences as we have since our founding. Racial discrimination can't be dressed up as something other than it is, the Appeals Court’s decision notwithstanding.

More News on the Michigan Affirmation Action Decision

John S. Rosenberg, Minding the Campus: “The Sixth Circuit Undermines Affirmative Action

Roger Clegg, Minding the Campus: “An Unusually Stupid Court Hearing

Jonathan H. Adler, Volokh Conspiracy: “En Banc Sixth Circuit Voids Michigan Civil Rights Initiative

Eugene Volokh, Volokh Conspiracy: “Coming Soon to the U.S. Supreme Court (Unless the Court Bans Race Preferences First

Tamar Lewin, New York Times: “Affirmative Action Ban in Michigan is Rejected

Peter Schmidt, The Chronicle of Higher Education: “Court Strikes Down Michigan's Ban on Race-Conscious College Admissions

Alexandra Tilsley, Inside Higher Ed: “Affirmative Action Ban Rejected

John Rosenberg, Minding the Campus:"Title IX: Not About Discrimination."

Hans Bader, College Insurrection: "Equality is Unconstitutional."

Larry Purdy, National Association of Scholars: "Sixth Circuit Court of Appeals Derails Dr. King's Dream"

Peter Wood, National Association of Scholars: "Racial Color-Blindness Won't Defend Itself"

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