Federal Appeals Court Rules Michigan Ban on Affirmative Action Unconstitutional

A Michigan law banning affirmative action in admissions to public colleges has been ruled unconstitutional in a federal appeals court.  The sharply divided court found that banning the controversial practice places an unfair burden on minorities, violating the US constitution’s guarantee of equal protection.  The ruling may foreshadow a decision by the US Supreme Court, which is currently considering whether colleges and universities can continue offering preferential admission to members of minority groups.

Writing for the majority, Judge Guy Cole clarified that the issue before the appeals court was not whether considering race in post-secondary admissions is a worthwhile or constitutional practice, but whether the banning of the practice is constitutional.  University officials in Michigan were banned from considering race in admissions in 2006 by popular vote.

The case has now been judicially considered three times.  A district court judge upheld the law in 2008, a decision that was appealed by affirmative action supporters.  That ruling was overturned by a divided three-judge panel at the 6th circuit appeals court, and then further appealed to the full appeals court at the state of Michigan’s request.  Michigan’s Attorney General Bill Schuette has announced the state’s intent to appeal the latest ruling to the US Supreme Court.

The majority judgment states that the Equal Protection Clause should be interpreted as more than a guarantee of equal treatment under the law.  More broadly, the Equal Protection Clause should be read as preventing extra burdens being placed on minorities by the law.

That extra burden was explained by way of example: while the child of an alumnus seeking an admissions policy that favours legacy applicants could simply lobby school officials for a change, a black student seeking an affirmative action admissions policy would have to seek a constitutional amendment.

In sharp contrast, the minority referred to affirmative action policies as contrary to the Equal Protections Clause, arguing that Michigan’s banning of affirmative action in university admissions was actually a banning of race-based discrimination.  Schuette concurred, saying that university admissions must be based solely on merit.


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