Two Sixth Circuit Court of Appeals Judges Deal a Shocking Blow to the Concept of Equality under the Law

R. Lawrence Purdy

“All men are created equal” . . . except in Michigan, where Circuit Court Judges R. Guy Cole, Jr. and Martha Craig Daughtrey have decided they’re not.  

In 2006, the voters in the State of Michigan, following the lead of the voters in California and other states as well, decided to add to the language of their state constitution the bedrock principle contained in landmark federal civil rights legislation adopted almost a half century earlier. Title VI (section 601) of the Civil Rights Act of 1964 said, simply:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” (Emphasis added.)

On November 7, 2006, Michigan’s voters overwhelmingly approved Proposition 2 which added the following words to their own state constitution:

Civil Rights . . . (1) The University of Michigan . . . and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education, . . .” (Emphasis added.)

Almost five years later, in a shocking 2-1 decision issued the day before the July 4, 2011 weekend when Americans began celebrating the 235th anniversary of the Declaration of Independence, two Clinton-appointed judges on the Sixth Circuit Court of Appeals struck down Michigan’s voters’ unambiguous decision to engraft the principle enshrined in the 1964 federal civil rights law into its own state constitution. See Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), et al. v. Chase Cantrell, et al. (Nos. 08-1387/1389/1534; 09-1111) United States Sixth Circuit Court of Appeals, ___ F.3d ___ (decided July 1, 2011).

One can only presume that if today they were faced with deciding whether the 1964 federal Civil Rights Act was “constitutional,” these two judges, R. Guy Cole, Jr. and Martha Craig Daughtrey, might well find it wanting for the same reason they found Michigan’s voter-approved amendment to be “unconstitutional.” A more perverse ruling is hard to imagine.

Indeed, most lay people and perhaps even the great majority of lawyers will find Circuit Judge Cole’s opinion all but impossible to read, much less comprehend. It would be too kind merely to characterize it as “poorly reasoned.” Incoherent is a more apt description. For anyone other than trained lawyers, my quick suggestion is: “Don’t even try.” For lawyers who may be willing to attempt it, beware! Your assumption that a law degree from an elite law school somehow guarantees an opinion based on sound legal reasoning will be sorely tested.

First, it is ironic that Judge Cole—perhaps unintentionally—makes a mockery of the phrase “affirmative action” by falsely implying that the proponents of Prop. 2 characterized the effort as “a proposal to amend the State Constitution to ban affirmative action programs.” (Internal quotes deleted.) See Slip Opinion at 4. In fact, it was the radical plaintiffs’ groups who promoted the use of this definition knowing full well that vast majorities of all voters among all races—including both Ward Connerly and Jennifer Gratz, who bravely spearheaded the effort—unquestionably favor traditional “affirmative action” programs when designed to guarantee equal opportunity and full and equal access to public benefits regardless of a person’s race or ethnicity.

In fact, Judge Cole and the specific minority groups he has now favored, are the real opponentsof “affirmative action.” What is obvious is that neither Judge Cole nor Judge Daughtrey possessed even the slightest understanding of the original meaning and intent of “affirmative action.” Had they done the most basic research, it would have revealed that the phrase was coined by President John F. Kennedy on March 6, 1961 in Executive Order 10925. President Kennedy’s directive bears repeating:

“WHEREAS discrimination because of race, creed, color or national origin is contrary to the Constitutional principles and policies of the United States; . . . the contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.” (Emphasis added.)

As anyone can see, President Kennedy’s use of the phrase “affirmative action” intended to remove rather than add race as a factor in government decision-making. 

Affirmative action as opposed to the use of racial preferences is something all Americans should support—and vast majorities of every racial and ethnic group do support. And, most importantly, the desire to end all discrimination based on race is the essence of what Prop. 2 accomplished when Michigan’s voters overwhelmingly approved it in 2006.

For two federal circuit court judges in 2011 to strike down a state constitutional amendment that sought nothing more than to solidify the grandest of all American principles that “all men are created equal . . . ,” and which added to it the guarantee of equal treatment under law to every person (following the ratification of the Fourteenth Amendment to the U. S. Constitution), is astonishing. That it happened as we enter the second decade of the 21st Century is bewildering. Not only the citizens of Michigan but all Americans have a right to be puzzled and disappointed—if not outraged—over this decision.

However, the people of Michigan need not despair. Judge Cole’s and Judge Daughtrey’s rationale is so hopelessly incoherent and bereft of principle (as politely but bluntly pointed out in the reasoned dissent authored by Circuit Judge Julia Smith Gibbons) that it is unlikely to withstand further appeal. Either the entire Sixth Circuit (sitting en banc) or the United States Supreme Court will, I predict, reverse this temporary and tragic decision and reinstate America’s most important principle—as enshrined in the Declaration of Independence; as later declared in Brown v. Board of Educ. in 1954 and 1955; as dreamed about by Dr. King in 1963; as succinctly legislated by Congress in 1964, and reaffirmed by the voters in Michigan in 2006.

As a participant in the Supreme Court cases that served as the catalyst for the passage of Prop. 2, I am confident its constitutionality will—indeed, must—be reaffirmed.

Larry Purdy was one of the pro bono trial and appellate lawyers for Jennifer Gratz and Barbara Grutter in the landmark cases, Gratz, et al. v. Bollinger, et al., and Grutter v. Bollinger, et al., decided by the U. S. Supreme Court in 2003. He is the author of “Getting Under the Skin of ‘Diversity’: Searching for the Color-Blind Ideal” (Robert Lawrence Press, 2008). His 2003 law review article discusses the factual background of the Grutter trial and appeal (“Prelude: Bakke Revisited,” 7 Tex. Rev. Law & Politics 313).

Image: Public Domain

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