A three-judge panel of the US Court of Appeals for the Sixth Circuit voted 2-1 to strike down the anti-affirmative action provision of the Michigan Constitution. That provision, which was passed in a 2006 referendum, banned any preferences on the basis of ethnicity, sex, or race, particularly affecting admissions policies at state universities. This decision overturned Article I, Section 26 of the Michigan Constitution. Other states, including Arizona, California, Nebraska and Washington, have similar bans.
The 2006 referendum, also known as the Michigan Civil Rights Initiative (MCRI), was designed to "sound as if it advocated equal opportunity for minorities and women seeking public employment, public contracts or admission to public universities. In fact, it did away with programs created to support equal opportunity," as the Lansing State Journal described the initiative. Many reports on this ruling, and on the MCRI itself, fail to note that it also prohibits sex-based affirmative action, such as public school efforts to engage more girls in science and mathematics.
The passage of that referendum with 58 percent of the vote was an enormous loss for defenders of affirmative action, as well as for universities that are deeply impacted by the ban, like the University of Michigan. Following the referendum, the percentage of underrepresented minority students admitted to Michigan's freshman class dropped from 12.6 percent in the 2005 to 9.1 percent in 2008. In 2010, a class action lawsuit was filed against a similar California anti-affirmative action measure, Proposition 209, by the same Michigan-based group that brought the successful Michigan suit, arguing that the measure negatively affected the numbers of minority students, particularly at UCLA and Berkeley.
The dissenting judge and lone Republican appointee on the Sixth Circuit panel, Judge Julia Smith Gibbons, noted that the referendum actually overturned a decision that had been made by academics (i.e. admissions policies), not a political decision. She stated "Michigan has chosen to structure its university system such that politics plays no part in university admissions at all levels within its constitutionally created universities. The Michigan voters have therefore not restructured the political process in their state by amending their state constitution; they have merely employed it."
Michigan Attorney General Bill Schuette announced that he will appeal the ruling because "MCRI embodies the fundamental premise of what America is all about: equal opportunity under the law. Entrance to our great universities must be based upon merit, and I will continue the fight for equality, fairness and rule of law." Critics of affirmative action expect the decision to be overturned by the full Sixth Circuit, which contains a substantial majority of conservative judges.
Media Resources: Inside Higher Ed 7/5/2011; Office of the Attorney General 7/1/2011; National Review Online 7/1/2011; Feminist Daily Newswire 2/22/2010; Feminist Daily Newswire 12/5/1996; Courthouse News Service 2/19/2010
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