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Re: Appeals Court Invalidates Michigan’s Affirmative-Action Ban


As Roger Clegg noted below, yesterday the Sixth Circuit Court of Appeals struck down a Michigan law banning government use of racial preferences.

The majority’s holding in Coalition to Defend Affirmative Action v. Regents of the University of Michigan is a prime example of the abusive activism practiced by too many federal judges today. Such activism erodes both the limits placed on the government by the Constitution and the individual liberties enshrined in our Bill of Rights. It is also signals the continued legal decay of the Sixth Circuit. Its actions are making it look more and more like the Ninth Circuit Court of Appeals, an out-of-control court whose decisions are regularly overturned by the Supreme Court, although even the Ninth Circuit upheld a California referendum that banned the consideration of race in college admissions .

Here’s the back story to today’s decision: In 2003, the Supreme Court decisions in Grutter v. Bollinger and Gratz v. Bollinger allowed law schools in Michigan to consider race and ethnicity “as a ‘plus’ factor” in admissions . . . under certain, very limited circumstances. Three years later, Ward Connerly and Jennifer Gratz organized a ballot proposal to amend the Michigan constitution “to prohibit all sex-and race-based preferences in public education, public employment, and public contracting.” It passed by a margin of 58 percent to 42.

Having lost at the ballot box, supporters of affirmative action and racial quotas struck back with litigation that claimed the referendum violated the Equal Protection Clause of the 14th Amendment. It’s a legally and constitutionally dubious claim. The Equal Protection Clause provides that “[n]o state shall . . . deny to any person . . . the equal protection of the law.” Yet the plaintiffs, which include faculty members from the University of Michigan, claimed the referendum violated equal protection by “impermissibly restructuring the political process along racial lines” and by “classifying individuals on the basis of race.”

In some of the most duplicitous legal reasoning seen in decades, the Sixth Circuit claimed its ruling did not address the constitutional merits of “race-conscious admission policies as such.” Instead, it ruled only on whether the referendum “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.” Eight justices held that the referendum deprived the plaintiffs of equal protection under the “political-process doctrine” because it placed “special burdens on the ability of minority groups to achieve beneficial legislation.” In other words, the referendum made it difficult for supporters of racial discrimination in admissions to institute such policies.

Dissenting justice Danny Boggs charged that the majority decision relied on “an extreme extension of two United States Supreme Court cases ruling on very different circumstances.” He also provided some badly needed historical perspective:

ln 1848, the relevant local authority, the Boston School Board, decided that race should be used in making assignments in the Boston public schools. They excluded and segregated black students. However, in 1855 the ultimate political authority, the legislature of Massachusetts, established the general principle against racial discrimination in education choices. The legislature was lauded for that choice.

Over 100 years later, various Michigan local and subordinate state authorities began to implement policies of racial discrimination in decisions on…education admissions. The Supreme Court of the United States held that such actions were permissible, but certainly not that they were compelled. Subsequently the ultimate state political authority, the People of Michigan, voted to establish the same principle that Massachusetts did in 1855. This is the same principle embodied in President Kennedy’s Executive Order 10925 of 1961 – that governmental decisions should be undertaken ‘without regard to race, creed, color or national origin’ . . .

The majority of the en banc court now hold that this action of the People of Michigan was unconstitutional . . .

Dissenting justice Julia Smith Gibbons summarized the plaintiffs’ argument this way, “that Michigan must retain its racial and other preference policies in higher education and that the state’s voters cannot make the contrary policy choice that factors like race and gender may not be taken into account in admissions.” This argument, Gibbons notes, flies “in the face of the core equal protection principle of nondiscrimination — a principle consistent with the choice of the people of Michigan.” In essence, the court held the Constitution protects racial and gender preferences, “a concept at odds with the basic meaning of the Equal Protection Clause, as understood and explained through decades of jurisprudence.”

This case should be immediately appealed to the U.S. Supreme Court. The supremes should then promptly accept review and issue a summary reversal, unless the Court addresses the underlying issues at stake in this case when they rule on the Fisher v. University of Texas case that was argued recently. The Sixth Circuit’s decision shows just how far the modern “civil rights” movement and their supporters in the judiciary have gone in adopting the arguments and actions of the discriminators and segregationists of prior generations. Their support for racial discrimination makes them indistinguishable.


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