6th Circuit Revives Prop. 2, Slams BAMN & Michigan Officials

In an unusually sharp rejection of the arguments for delaying implementation of Michigan’s Proposition 2 put forward by BAMN and three Michigan universities, a three judge panel of the 6th Circuit Court of Appeals has lifted the preliminary injunction ordered by U.S. District Court Judge David Lawson.

The 6th Circuit opinion is very impressive, as were the arguments of the Center for Individual Rights that contributed heavily to it (here and here). As Center president Terence Pell said in a press release Friday night, “This is the re-birth of Prop. 2 and the end of racial preferences in college admissions in the state of Michigan.”

ADDENDUM [31 Dec.]

Again, let me encourage you to read this entire opinion. Meanwhile, here are a few highlights to whet your appetite:

… the request for a stipulated injunction was not premised on any agreement, or even suggestion, that Proposal 2 violated any federal law—constitutional or otherwise….

Also unhelpful is the Universities’ position that the federal courts should “determin[e] their rights and responsibilities under the Amendment” and delay the effective date of the law until that task has been completed…. We know of no authority (and none has been supplied to us) saying that uncertainty over the meaning of a state law by itself supplies a basis for a federal court to suspend the law’s effective date.

….

The First Amendment. In their response to the stay motion, the Universities argue that the amendment violates the First Amendment, specifically the Universities’ right to select a diverse student body in the name of academic freedom. But it is one thing to defer to a state university’s judgment in deciding who may attend that university … in determining whether the university has run the gauntlet of defending presumptively unconstitutional racial classifications. It is quite another to say that the First Amendment in general and academic freedom in particular prohibit a State from eliminating racial preferences. Were it otherwise [as CIR client Eric Russell points out] “state laws requiring colleges to give preferences to state residents or to admit those in the top 10% of their high school classes” would routinely violate the First Amendment. Stay Motion at 17.

The Universities mistake interests grounded in the First Amendment—including their interests in selecting student bodies—with First Amendment rights. It is not clear, for example, how the Universities, as subordinate organs of the State, have First Amendment rights against the State or its voters….

The Equal Protection Clause…. The plaintiffs in the underlying action offer a host of other arguments for sustaining the preliminary injunction. In addition to invoking the First Amendment, they claim that the amendment likely violates the Equal Protection Clause of the Fourteenth Amendment. We do not agree. In contending that the Equal Protection Clause compels what it presumptively prohibits, plaintiffs face an uphill climb. The Clause prevents “official conduct discriminating on the basis of race,” Washington v. Davis, 426 U.S. 229, 229 (1976), and on the basis of sex, United States v. Virginia, 518 U.S. 515 (1996), not official conduct that bans “discriminat[ion] against” or “preferential treatment to” individuals on the basis of race or sex—as Proposal 2 does.

If “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,” Hirabayashi v. United States, 320 U.S. 81, 100 (1943), and if racial distinctions “threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility,” Shaw v. Reno, 509 U.S. 630, 643 (1993) (citations omitted), a state constitutional amendment designed to eliminate such “distinctions” in state government would seem to be an equal-protection virtue, not an equal-protection vice. After all, the “color-blind” goal of the Equal Protection Clause, Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), is “to do away with all governmentally imposed discrimination based on race,” Palmore v. Sidoti, 466 U.S. 429, 432 (1984) (citation and footnote omitted), making it difficult to understand how the same constitutional provision could prohibit a State from doing away with race- and sex-based classifications sooner rather than later….

Grutter, it is true, says that States may still use racial classifications as a factor in school admissions when they can establish a compelling interest for doing so and when they can satisfy the demanding requirements of narrow tailoring. But Grutter never said, or even hinted, that state universities must do what they barely may do.

….

… The challenged enactments in Hunter, Seattle and Romer made it more difficult for minorities to obtain protection from discrimination through the political process; here, by contrast, Proposal 2 purports to make it more difficult for minorities to obtain racial preferences through the political process. These are fundamentally different concepts….

Indeed.