Detroit State ban on affirmative action may get 2nd look Key question: Will judges take the case?

By Ed White

Associated Press

DETROIT (AP) -- Facing a deadline this week, Michigan Attorney General Bill Schuette has pledged to ask an entire federal appeals court to suspend and re-examine a landmark decision that overturned the state's ban on affirmative action in college admissions.

But here's the key issue: Will a majority of the court's 15 active judges agree to take the case?

The 6th U.S. Circuit Court of Appeals hears cases in three-judge panels. It would be rare for the full court to sweep aside the work of one of its panels and start from scratch, but this is not a typical case. It involves a 2006 law approved by 58 percent of Michigan voters and a very contentious issue -- the role of race and gender in decisions by public officials.

"This is a fascinating case. It's a close call," said Jonathan Adler, who teaches constitutional law at Case Western Reserve University law school in Cleveland.

Robert Sedler, an expert in constitutional law at Wayne State University law school in Detroit, said affirmative action may be "politically hot," but that's not a reason for the full court to intervene.

"The reason may be it raises an important constitutional issue," Sedler said.

On July 1, the appeals court, in a 2-1 decision, struck down Michigan's Proposal 2, which bans the consideration of race and gender in college admissions and government hiring. Judges R. Guy Cole Jr. and Martha Craig Daughtrey said it put an unconstitutional burden on minorities who would have to launch their own statewide petition drive to try to undo the law.

Proposal 2 supporters could have chosen "less onerous avenues to effect political change," the judges said.

Schuette, a Republican, has said he'll meet a Friday deadline to ask the full 6th Circuit to review the decision. "Entrance to our great universities must be based upon merit," he said earlier this month.

On its website, the Ohio-based court explains why a case may deserve reconsideration "en banc," a French phrase meaning by all judges. A chief reason is that a decision conflicts with rulings from the U.S. Supreme Court or other 6th Circuit opinions. The court says a case also could pose a "question of exceptional importance."

It is an "extraordinary procedure," the court says, that typically is "not favored."

Indeed, some 6th Circuit judges in the past have said no, even if they disagreed with a result. In December, Judge Jeffrey Sutton said having the full court regularly intervene could undermine the work of three-judge panels.

"Sometimes there is nothing wrong with letting the United States Supreme Court decide whether a decision is correct and, if not, whether it is worthy of correction," he said.

There is some conflict between the Michigan affirmative-action decision and a similar case handled by the 9th U.S. Circuit Court of Appeals in San Francisco. In 1997, a three-judge panel there said California's Proposition 209, which also bars consideration of race and gender in public education, did not violate the U.S. Constitution. The California Supreme Court also said it was legal.

Michael Steinberg of the Michigan branch of the American Civil Liberties Union said his group will argue that reopening the Michigan case by the full 6th Circuit is not necessary.

"We believe the opinion was persuasive and governed by clear precedent of the United States Supreme Court," he said.

Michael Rosman, an attorney with the Center for Individual Rights in Washington, wants the court to step in. He said the case raises "serious issues of democracy and self-governance."

"This is not some rogue state Legislature that went awry. This is the people of the state of Michigan expressing their views that they do not want race or sex or national origin to be considered in the distribution of certain public benefits," Rosman said. "Their opinion should be given substantial weight."

Published: Tue, Jul 26, 2011