Over the past months, we have reported on developments in Coalition to Defend Affirmative Action, et al. v. Regents of the University of Michigan, et al (See here, here, here, and here). In the latest development in this Michigan affirmative action case, the Sixth Circuit held oral arguments in an en banc rehearing yesterday afternoon. 

From the atmosphere both inside and outside the courthouse, it became clear how strongly people feel about this case: Proposal 2 protestors circled the courthouse yelling and chanting; the courtroom filled to capacity nearly an hour before the oral arguments were scheduled to begin; and during oral arguments, a court employee sharply rebuked a man in the audience for clapping in favor of the appellants. 

The en banc panel was comprised of eleven active judges and Senior Judge Daughtrey, continuing her participation from the panel at the original hearing. The court first heard oral argument from the appellants, who contend that Michigan’s Proposal 2 referendum is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Although the appellants proposed various arguments, they focused on the idea that Proposal 2 amounts to political restructuring, which is both “toxic” to the Fourteenth Amendment and precludes a “fair fight” for minorities in admissions decisions. One appellant went so far as to characterize Proposal 2 as a “gag order”. The rhetoric was intense and heated. 

The appellees’ arguments were more varied, as some of the appellees contest their position as proper parties to the suit, while others focus on the constitutional issues. The last appellee to speak was Michigan’s Solicitor General. He argued that Proposal 2 does not violate the Equal Protection Clause. The Supreme Court, according to the appellee, encouraged race-neutral policies in Grutter v. Bollinger, which have become “salutary” to minorities in admissions decisions.  He also explained that while diversity should be achieved through the admissions process, “artificial proxies” for diversity should be eliminated. Although both sides agree that Hunter v. Erickson and Washington v. Seattle Sch. Dist. No. 1 control this case, they diverge in their analyses and applications of the two cases. They also disagree as to whether Proposal 2 applies to the sex of applicants as well as their race. Appellants contend that Proposal 2 applies only to race, while the appellees argue that it applies to race, sex, ethnicity, and national origin. 

With judges also seeming to disagree on various points during oral arguments yesterday, we expect this case to be under review for the next few months. We will keep you abreast of developments as they occur.

Thanks to Lauren Henderson, a law clerk at Squire Sanders, for attending the oral argument and providing this update.