Court calls Prop 2 unconstitutional

by Cynthia Price

In a surprise decision, the Sixth Circuit Court of Appeals has given the opinion in Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the University of Michigan that Michigan’s Proposition 2, now Article I Section 26 of the Michigan Constitution, is unconstitutional.

The panel was split two to one, with Judge R. Guy Cole Jr. writing the opinion.

Section 26 reads: “The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

This negated the “affirmative action” policies of the universities.

The section resulted from a 2006 statewide referendum, wherein 58% of the voters voted for the proposal. There were accusations at the time that the ballot language was not clear and many voters voted the opposite of the way they felt, but prior to the vote there was a great deal of education on the wording so that is difficult to determine in the final analysis.

The U.S. Constitution’s 14th amendment, in what is referred to as the Equal Protection Clause, says “no state shall ... deny to any person within its jurisdiction the equal protection of the laws.”

In the Sixth Circuit Court of Appeals opinion, Cole indicated that the Michigan provision “impermissibly burden[s] racial minorities.”

Referring to Supreme Court decisions in Washington v. Seattle School District and Hunter v. Erickson, the opinion states that “equal protection of the laws is more than a guarantee of equal treatment under the law substantively. It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities.”

Cole gives an example which may make the court’s thought process clearer: “...when two competitors are running a race, one may not require the other to run twice as far, or to scale obstacles not present in the first runner’s course.”

Because the provision is part of the State Constitution, it is hard to say what might happen next to address the appeals court’s ruling. However, that consideration is no doubt premature, since Attorney General Bill Schuette has stated he will appeal by requesting a rehearing en banc, by all 16 judges of the court.