Bench Memos

Crazy Sixth Circuit En Banc Ruling Against Racial Preferences

Still catching up on developments while I was away, I’ll briefly highlight the sharply divided ruling of the en banc Sixth Circuit in Coalition to Defend Affirmative Action v. Regents of the University of Michigan. By an 8 to 7 vote, the Sixth Circuit ruled that the state constitutional amendment (Proposal 2) that Michigan voters adopted in 2006 to bar state universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin” violated the Equal Protection Clause of the federal Constitution. In what Judge Danny J. Boggs, in dissent, called an “extreme extension” of two Supreme Court rulings (Hunter v. Erickson (1969) and Washington v. Seattle School Dist. (1982) (with Justice O’Connor among the four dissenters)), the majority ruled that the embedding of the nondiscrimination rule in the state constitution somehow violated the “political-process doctrine.”

Whether or not the majority ruling was a defensible application of those Supreme Court precedents (something that I have not had time to study), the result—a state constitutional guarantee of equal treatment violates the Equal Protection Clause—is patently absurd. Either by distinguishing or limiting those precedents, the Supreme Court should overturn the Sixth Circuit ruling.

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