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En Banc Briefing Complete, Oral Argument Approaches in Michigan Affirmative Action Appeal

Posted in En Banc Watch, News and Analysis

This post is the Sixth Circuit Appellate Blog’s latest update and analysis in a series that has been tracking developments in the ongoing, blockbuster appeal involving Michigan Proposal 2.

Last summer, a divided panel of the Sixth Circuit struck down as unconstitutional Proposal 2, which prohibited Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity, or national origin.”  See Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (6th Cir. Nos. 08-1387, 08-1389, 08-1534, 09-1111, July 1, 2011) (“CDAA“) (PDF).  Writing for himself and Judge Daughtrey, Judge Cole reversed the district court’s grant of summary judgment against the plaintiffs and ruled that Proposal 2 violated equal protection; in a strenuous dissent, Judge Gibbons argued that Proposal 2 was consistent with equal protection and relevant caselaw of the U.S. Supreme Court.  On September 9, 2011, the full Court — with Judges McKeague and Kethledge having recused themselves — voted for rehearing en banc, subsequently establishing a briefing schedule that concluded in December 2011.  In addition to briefing by the parties, the matter has attracted an outsized number of amicus briefs, and has recently been set for oral argument on March 7, 2012.  With oral argument approaching, the Sixth Circuit Appellate Blog has examined the arguments that will confront the full Court this March.

First, the Court will examine two briefs from two different collections of plaintiffs.  The Coalition plaintiffs consist of several organizations established for the promotion and defense of affirmative action.  In their brief (PDF), the Coalition plaintiffs assert that Proposal 2 “denies racial minorities equal political rights and subjects them to a special law restricting minority admissions alone.”  In doing so, the Coalition rejects what it argues is the Michigan Attorney General’s effort to characterize “political rights” as attempts by minorities to obtain “‘preferences.’”  The Coalition argues that the Attorney General’s interpretation of the U.S. Supreme Court’s decision in Grutter v. Bollinger, 539 U.S. 306 (2003), is errant, and also that the Attorney General’s proposed means of assuring admissions based upon “‘merit’” — reliance on grade-test score criteria and grade point averages — “impose[s] an enormously disparate burden on minority applicants — and confer[s] a converse advantage on white applicants.”

The Cantrell plaintiffs, a separate group of plaintiffs composed of students, faculty and prospective applicants to Michigan’s public universities, also filed a brief.  Their brief (PDF) concedes from the outset that “race-conscious” admissions policies “are not constitutionally required,” and also that repeal of such policies “through the ordinary political process … would be constitutionally permissible.”  Proposal 2 differs, they argue, because it “singles out otherwise permissible considerations of race” by placing control over such policies “in the hands of the electorate” while leaving other admissions practices to the discretion of state universities or their boards.  This, the Cantrell plaintiffs argue, amounts to a “racially selective restructuring of the political decision-making process” that politically disadvantages minorities from pursuing “‘legislation that is in their interest.’”

Second, the en banc Court will also have to consider several briefs filed by the defendants in rejoinder.  The principal brief (PDF) of the defendants was filed by Michigan’s Attorney General, Bill Schuette.  This brief leads off by asserting that Proposal 2 “is nearly identical to [California's] Proposition 209″ and arguing that, following enactment of Proposition 209, underrepresented minorities actually improved their standing in California in terms of college admissions offers, enrollment and graduation rates.  Following such factual/policy-based assertions, the Attorney General then distinguishes Proposal 2 from the initiatives found to be politically discriminatory in Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), and argues that Proposal 2 places no burden on minority participation in the political process.

The university defendants also submitted a brief (PDF), but they refrain from engaging the main issue.  Instead, the university defendants argue that the district court wrongly concluded that they were proper parties to the case, asking the Sixth Circuit to reverse on that issue and to dismiss them.  But the university defendants also request the Court to “clarify the role of [the universities'] governing boards with respect to admissions policy.”  Specifically, the university defendants argue that, under the Michigan Constitution, they have “plenary power over their institutions; their bylaws …; and their proceedings … including admissions.”  Similar arguments and questions of law were set forth in a separate brief (PDF) that was independently filed on behalf of defendant Wayne State University.

Third, not surprisingly, the CDAA matter has attracted substantial attention from interested amici.  To date, a total of 12 amicus briefs were filed for the en banc court to consider, the substantial majority of which — 10 briefs — sided with the plaintiffs: the Michigan Civil Rights Commission (PDF); the City of Grand Rapids, Michigan (PDF); several Michigan-based corporations (PDF); numerous organizations acting in defense of Asian-American, Latino and women’s interests (PDF); the California State Conference NAACP (PDF); the City of San Francisco, California (PDF); and numerous law professors (PDF), historians (PDF), political scientists (PDF) and social scientists (PDF). Two briefs were filed in support of the Attorney General: one by the Michigan Civil Rights Initiative Committee (PDF) together with allied organizations, and one by four former attorneys (PDF) of the U.S. Department of Justice’s Civil Rights Division.

Given their number, the arguments of the amici supporting the plaintiffs defy easy summation.  Even so, several trends are apparent.  Most of these amici seek to lend support to the panel majority’s conclusion that Proposal 2 constitutes political discrimination against minorities, violating the rules established by the U.S. Supreme Court in Hunter and Seattle School District.  But the amici also advance a host of legal or policy considerations to support the panel decision, as well.  For instance, the Michigan Civil Rights Commission argues that Proposal 2 violates a federally guaranteed right to academic freedom by preventing universities from seeking diversity in their student bodies.  The City of Grand Rapids argues that power over such decisions should reside in individual universities exercising home rule, rather than through statewide constitutional amendment.  Corporate amici Cascade Engineering, Inc. DTE Energy Co., Herman Miller, Inc. and Steelcase Inc. argue that Proposal 2 will impede minority college admissions, depriving Michigan businesses of important “human capital.”  And the various scholars’ briefs advance arguments that stress the historical bases purportedly underlying the enactment of Proposal 2, along with the purportedly deleterious political or social impact that Proposal 2 threatens.

The amici siding with the Attorney General do so straightforwardly.  The Michigan Civil Rights Initiative Committee does not venture into the policy, wisdom or results of Proposal 2 — or its California counterpart, Proposition 209.  Instead, the Committee directly supports the Attorney General’s legal argument distinguishing Proposal 2 from the Hunter and Seattle School District cases.  The brief of the former DOJ attorneys makes similar arguments, but hits with blunter force, characterizing the plaintiffs’ appeal as “ask[ing] this Court to supplant the People of Michigan as the ultimate source of authority over admissions to the State’s public universities, and undo the electorate’s overwhelming adoption of colorblindness and equality of opportunity as Michigan’s governing standard.”

Taken together, the amicus briefs significantly broaden the range of arguments facing the en banc Court.  As this Blog has previously observed (here, here and here), it is an open question as to how influential such arguments ultimately prove to be, but there is certainly no shortage of them in CDAA for the Court to consider.

Set for March 7, oral argument is now a month and a half away.  Perhaps second only to the Sixth Circuit’s ruling on the national healthcare legislation last year, the CDAA panel decision was among the most watched and significant of the Sixth Circuit’s rulings in 2011.  There is every reason to believe that the Court’s forthcoming en banc decision in CDAA will be atop the 2012 list, as well.