Federal Appeals Court Rules Michigan’s Proposal 2 Unconstitutional

The U.S. Court of Appeals for the Sixth Circuit on Nov 15 ruled that Michigan’s Proposal 2 was unconstitutional and a violation of the Equal Protection Clause.

Proposal 2 was enacted in 2006 to ban race-conscious measures in education, public contracting, and public employment. Judge R. Guy Cole, Jr., authored the opinion for the Court.

The ACLU and NAACP-LDF brought suit on behalf of Chase Cantrell, an applicant to the University of Michigan, and other prospective students and faculty.

Additionally, the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality sued on behalf of prospective students and interest groups. The district court consolidated the cases.

The Equal Justice Society and more than a dozen other civil rights organizations filed an amicus brief, urging the court to strike down Proposal 2. In our brief, we argued that Proposal 2 violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution by creating procedural barriers for people of color.

“[T]he sole issue before us is whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions-something they are specifically allowed to do under Grutter,” wrote Judge Cole in the opinion.
“What matters is whether racial minorities are forced to surmount procedural hurdles in reaching their objectives over which other groups do not have to leap. If they are, the disparate procedural treatment violates the Equal Protection Clause, regardless of the objective sought.”

Quickly establishing that affirmative action is indeed for the benefit of the minority (though it also benefits the majority), Cole pointed out that while “[a]n interested Michigan citizen may use any number of avenues to change the admissions policies on an issue outside the scope of Proposal 2,” such as a change in the consideration of legacy students, a member of a racial minority seeking a policy that benefits his group has only the “last resort-the campaign for a constitutional amendment.”

The decision may be appealed to the U.S. Supreme Court, which has already taken up Fisher v. University of Texas at Austin, a case related to equal opportunity admissions policies in higher education.

Several organizations joined EJS in signing our amicus brief: the California Voting Rights Institute, Public Advocates, LatinoJustice PRLDEF, the Asian American Legal Defense and Education Fund, the National Women’s Law Center, Chinese for Affirmative Action, Worksafe, South Asian Network, the Association of Asian American Attorney and CPA Firms, the Council of Asian American Business Associations, Equal Rights Advocates, and the Asian American Justice Center and the Asian Pacific American Legal Center, the latter two both members of the Asian American Center for Advancing Justice.

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