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Affirmative Action Ban in Michigan Is Rejected

4:50 pm - 11/16/2012
Affirmative Action Ban in Michigan Is Rejected

The United States Court of Appeals for the Sixth Circuit ruled, 8 to 7, on Thursday that Michigan’s voter-approved 2006 ban on affirmative action was unconstitutional.

The ruling, in Coalition to Defend Affirmative Action v. University of Michigan, was not based on racial discrimination, but rather on a violation of the 14th Amendment’s guarantee of equal protection. The ban, the court said, unfairly placed a special burden on supporters of race-conscious admissions policies.

People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college’s governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but to undertake the “long, expensive and arduous process” of amending the state Constitution.

“The existence of such a comparative structural burden undermines the equal protection clause’s guarantee that all citizens ought to have equal access to the tools of political change,” said Judge R. Guy Cole Jr., writing for the majority.

The United States Supreme Court is considering an affirmative action case, Fisher v. University of Texas, challenging the use of race as a factor in admissions. But the Sixth Circuit case raises a different issue: the legality of statewide bans on affirmative action. Seven states besides Michigan — Arizona, California, Florida, Oklahoma, Nebraska, New Hampshire and Washington — forbid the consideration of race in university admissions.

The Court of Appeals for the Ninth Circuit has upheld California’s ban, and with the Michigan ruling, the stage may be set for the issue to go before the Supreme Court.

“I think this is very likely to go to the Supreme Court, because there’s a direct conflict between the circuits, it’s of great national importance and the 8-7 split on the Sixth Circuit is a signal that some ruling is needed,” said Eugene Volokh, a law professor at the University of California, Los Angeles, who helped draft the California ban. “The only thing that might get in the way is if the Fisher case decides that all race-based action in education is unconstitutional, which would make it not technically moot, but less important.”

Bill Schuette, the attorney general of Michigan, said Thursday that he planned to appeal the case to the Supreme Court. “Entrance to our great universities must be based upon merit,” he said in a statement.

George Washington, the Detroit lawyer who argued the case, said Proposal 2, as the Michigan ban is known, does not ensure merit. “The Big Lie told by the supporters of Proposal 2 is that grades and test scores are a neutral means for judging merit,” he said. “But that system is openly biased against black, Latino and Native American applicants.”

The University of Michigan’s affirmative action battle has been roiling for decades. The affirmative action litigation led to the Supreme Court’s 2003 decision that while a university could not establish racial quotas, it could consider race or ethnicity as a “plus” factor in a holistic review.

After those decisions, Ward Connerly, a black former University of California regent who was the driving force behind California’s affirmative action ban, worked with Jennifer Gratz, a white Michigan woman who was the plaintiff in one of the Supreme Court cases, to get the issue onto the Michigan ballot.

Michigan’s affirmative action ban, which applies to government hiring, government contracting and admission to public universities, became part of the state Constitution through a 2006 voter initiative that won 58 percent of the vote.

The district court that heard the challenge to the ban upheld it, but the three-judge appellate panel whose decision was appealed to the full circuit court struck it down, using the same reasoning as the full circuit court.
thenakedcat 17th-Nov-2012 04:29 pm (UTC)
I was campaigning for Kerry the year Prop 2 went through and stood on a lot of street corners with your coworkers. That law was such wall-to wall fuckery, I swear. Starting with the language being so convoluted that it wasn't clear whether voting "yes" meant "yes, abolish AA" or "yes, I support the use of AA". And then the fact that the university had ALREADY gone through a Supreme Court case about the specific system used to rank candidates and had done an expensive overhaul of their admissions process to make sure that they were in compliance with the letter and the spirit of the law....ugh.

Edit: Woop, looks like it went through in 2006, not 2004. At any rate, I did know people who worked to defeat Prop 2 and kudos to you for fighting the good fight.

Edited at 2012-11-17 04:37 pm (UTC)
tessselate 16th-Nov-2012 06:11 pm (UTC)
my school........
(no subject) - Anonymous
tessselate 17th-Nov-2012 04:51 am (UTC)
w0o0o0o0o0o gotta love it!!
halfshellvenus 16th-Nov-2012 06:47 pm (UTC)
Just had a huge argument with my teenaged daughter on AA last night, and how white kids and POC who arrive the same place by college application time did NOT necessarily have the same struggle to get there.

The things kids of color hear along the way, the bias, the lowered expectations, all of it (and being a middle-class or upper-class POC does not make you immune to all of that) is a MUCH thornier road.

Then we got the, "Well, I can be in a store with a black person, and nobody's calling them names," which I countered with "The fact that SOMEONE ELSE IS THERE may be why that person is not being treated badly-- you don't know what happens when you're not around."

I told her several times that she needs to Google "white privelege" and become familiar with the concepts, because she is very much seeing this only from her own viewpoint. Argh! I never would have thought it.

My son, however, who is younger... knew exactly what I was talking about.

Good for Michigan. Geez, even my husband (who is liberal and normally an AA proponent) said, "But is there bias in the college admissions process" to which I say, "That is several years too late to make that judgement. The bias is happening all along the way to getting there."

/rant *sorry*
kitanabychoice 16th-Nov-2012 08:20 pm (UTC)
Thank you for this comment! I once talked with a girl who was against AA because she felt it was insulting to black people who worked hard to get where they are. I told her that I disagreed because even though she and I worked hard and succeeded, other people are still coming from a disadvantaged place and had to work even harder still. The disadvantaged place was the Detroit Public School system with its outdated books, lack of funding, and overbooked, understaffed schools.

I know that I had been underprepared by school for college. I didn't get any kind of counseling for applying to universities, and I'm sure lots of other students didn't get any either. The only thing that got me up to snuff was my grandmother investing in educational materials (computer, encyclopedia set, etc) that allowed me to supplement my education.

People are so wrapped up in the illusion that everything is equal now because of MLK and Rosa Parks that you can't have these conversations without first disabusing them of that notion.
halfshellvenus 16th-Nov-2012 08:33 pm (UTC)
you can't have these conversations without first disabusing them of that notion.

Getting them to let go of the idea that "better = over" is really hard, too. I think (hope) that someday AA will not be necessary, but are we there yet? When so many people are in a froth (after 4 years already) about the President's race, or do not see that stopping people and asking for their papers in Arizona constitutes free-form harassment of ALL Hispanic people living there?

People have got to actually put themselves in other people's shoes, not just look over and say, "Well, those look pretty comfortable to me."

I'll be nagging my daughter over 'white privilege' some more, because she really, really needs to understand how her own filters are coloring her thinking.

And while I have you here... WHAT is that on your HEAD? :D
alryssa 16th-Nov-2012 09:11 pm (UTC)
Haha, I asked her about that a while ago... it's a plushie Giant Microbe - the common cold, IIRC. It's so cute :3

halfshellvenus 16th-Nov-2012 09:18 pm (UTC)
Oh, those ARE cute. Someone on my f-list just wrote a story that featured a character who had a giant plushie neuron or something, and now I know where she got the idea.

These kill me. :D
kitanabychoice 16th-Nov-2012 10:05 pm (UTC)
I basically agree with everything you've said! I guess all these posts about racism is really getting to me, I even had a dream about experiencing racism last night. o_O It was so odd.

Also, it's a common cold plushie! It was attacking me at the time of this picture. *g*
alryssa 17th-Nov-2012 03:52 am (UTC)
ngl, your icon makes me smile every time I see it. XD
romp 17th-Nov-2012 03:26 am (UTC)
Does your daughter need online resources in order to deal with the people around her who say these things? It sounds like she's hearing this sort of thing outside your house, yeah? And maybe she'd feel able to deal with the idea of privilege if she felt she had back-up. IDK, just a thought. Toddler and teen years are the worst for conformity. :(
thenakedcat 17th-Nov-2012 04:45 pm (UTC)
I've talked to admissions officers for universities who said that most schools have about 4 times more fully qualified applicants than they have open slots in their freshman class. Picking the 25% of that pool that get admitted is in a lot of ways a beauty pageant. Having a relative who donated money or playing a sport the university has a team for or winning a science fair prize might all be used to justify picking one applicant over another. If such qualitative criteria are going to be used, you can argue that race (or ethnicity, or religion, or socioeconomic background) is no worse a potential marker of an applicant's potential value to the school, because it makes the student body more representative of the general population.
lone_concertina 16th-Nov-2012 06:54 pm (UTC)
Oklahoma voted in favor of a ban this year too. Let's hope it also gets rejected.
angry_chick 16th-Nov-2012 09:42 pm (UTC)
Now, why do we trust privileged people that can't think outside of their privilege to vote on other people?
cozmic_oceanz 17th-Nov-2012 12:41 pm (UTC)
omg I seriously don't get this article. so is University of Michigan pro affirmative action or against? And what it their current policy on it?

I am a recent UMich alum so I'd like to understand.

(sorry, been a long day.)
thenakedcat 17th-Nov-2012 04:35 pm (UTC)
The university wants to be able to use race as one factor in the overall admissions process, in order to ensure that their freshman class is as representative as possible. They've tweaked admissions heavily to comply with national legal standards for how AA must be applied. Proposition 2, passed in 2006, amended the state constitution to ban all consideration of race, no matter how carefully applied. So the university is at odds with the state, here--just like they are at odds with the state over same-sex partner benefits (which the university wants to offer but the state wants to bar absolutely).
cozmic_oceanz 18th-Nov-2012 05:32 am (UTC)
WOW. Good on UMich. Thanks for the info.
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