In November 2006, Michigan voters approved, by a 58-to-42 margin, a statewide ballot initiative commonly known as Proposal 2.  Proposal 2 amended the Michigan Constitution to prohibit the State of Michigan and its public universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or a national origin in the operation of public employment, public education, or public  contracting.”  The day after its passage, the underlying lawsuit began, and six years later, by an 8 to 7 vote (with Judges Kethledge and McKeague recusing themselves), the Sixth Circuit, sitting en banc, has ruled that Proposal 2 violates the “political structure doctrine” of the Fourteen Amendment and, thus, is unconstitutional.  Coalition to Defend Affirmative Action, et al. v. Regents of the University of Michigan, et al. (6th Cir., Case Nos. 08-1387/1389/1534 & 09-1111, Nov. 15, 2012) (PDF).  The Sixth Circuit Appellate Blog has followed this appeal for nearly a year and a half (see, e.g., here, here, here and here), and the present blog post is the latest installment of the saga … though, one suspects, not the last.

Judge Cole, who wrote the majority panel decision, also wrote for the en banc majority, which included Judges Martin, Daughtrey, Moore, Clay, White, Stranch and Donald.  The majority framed the issue before the Court as follows: “[T]he sole issue before us is whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions — something they are specifically allowed to do under Grutter [v. Bollinger, 539 U.S. 306 (2003)].” Op. at 9 (emphasis in original).  In answering that question in the affirmative, the majority largely relied on two U.S. Supreme Court decisions that form the basis of the “political structure doctrine”: Hunter v. Erickson, 393 U.S. 385 (1969); and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).  The majority found that, under Hunter and Seattle, “equal protection of the laws is more than a guarantee of equal treatment under existing law.  It is also a guarantee that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them.”  Op. at 10.  The majority ruled that, in enacting Proposal 2, Michigan voters violated the political structure doctrine by leaving racial minorities with only one avenue “to obtain preferential treatment“: reversing Proposal 2 by way of amending Michigan’s Constitution.  Id. at 27 (emphasis in original).  This, the majority found, violates the political structure doctrine because it changed the previous political structure in Michigan, by which racially-conscious university admissions decisions were decided by the boards of state universities, the relevant powers of which had been delegated to admissions committees and faculty members.  Id. at 20-23.  Under Proposal 2, the universities are no longer free to even consider race in their admissions decisions, which the majority found constitutes an unconstitutional “reordering of a ‘political process'” by placing a “special burden” on racial minorities to obtain preferential, racially-conscious admissions.  Id. at 24-27.  In rejecting the arguments of the dissenters, the majority concluded that “our holding does not place race-conscious admissions policies beyond the political process.  Opponents of affirmative action remain free to advocate for their preferred policies in the manner and at the same level of government as its proponents,” id. at 32 — to wit, in statewide university board elections and in lobbying efforts before those boards and admissions committees, but not by way of constitutional amendment.

Five separate dissenting opinions issued, written by Judges Boggs, Gibbons, Rogers, Sutton and Griffin.  In the main dissent, Judge Gibbons (who wrote the dissent in the earlier panel opinion) writes that “[e]lementary principles of constitutional law tell us that plaintiffs’ challenge to Proposal 2 should have little to no chance of success.”  Id. at 41 (Gibbons, J., dissenting).  Her dissent focuses in large part on Hunter and Seattle, arguing why neither precedent controls the outcome as to Proposal 2, in no small part because, owing to developments subsequent to Hunter and Seattle (i.e., the Supreme Court’s decisions in Grutter, Adarand Contractors, Inc. v. Pena, 515 U.S. 200 (1995), etc.), “the underlying policy affected by the challenged enactment was presumptively invalid.” Op. at 46 (Gibbons, J., dissenting).  Judge Gibbons also assails the majority’s logic regarding the restructuring worked by Proposal 2, arguing that, in actual fact, the state university boards have no control or oversight over admissions policies and that, as a result, “the people of Michigan made a political change at the only level of government actually available to them as voters”: constitutional amendment.  Id. at 56 (Gibbons, J., dissenting).  Judge Boggs characterized the majority opinion as an “extreme extension” of Hunter and Seattle, which, he argues, involved laws purposed to disadvantage minorities as opposed to laws, like Proposal 2, whose purpose was to eliminate discrimination.  Id. at 38 (Boggs, J., dissenting).  Commenting that the virtue of affirmative-action programs was their enactment through the democratic process, Judge Sutton expressed incredulity at the majority opinion, which he claims “turned these assumptions on their head.”  Id. at 59 (Sutton, J., dissenting).  In his view, “[a] first premise for resolving this case is, and must be, that a State does not deny equal treatment by mandating it.”  Id. at 60 (Sutton, J., dissenting).  Echoing the other dissenters, Judge Sutton asked, apart from constitutional amendment like Proposal 2, “[w]hat else at any rate could the people of Michigan have done” to eliminate racial preferences?  Id. at 61 (Sutton, J., dissenting).  And he questioned whether, under the majority’s interpretation of Hunter and Seattle, a ruling by the Michigan Supreme Court invaliding racially-conscious admissions policies would itself be constitutional?  Id. at 65 (Sutton, J., dissenting).  In his dissent, Judge Griffin states that the “political structure doctrine” is “incompatible with the Equal Protection Clause” and “urge[s] the Supreme Court to consign this misguided doctrine to the annals of judicial history.” Id. at 70 (Griffin, J., dissenting).  Finally, Judge Rogers’ dissented in a paragraph, stating that, “[u]nder the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law.  Doing so would perforce make it harder for one minority or another to obtain a preference at the lower level.”  Id. at 58 (Rogers, J., dissenting).

Both the majority and dissenters acknowledge that the Sixth Circuit’s en banc ruling is in conflict with Coalition for Econ. Equality v. Wilson, 122 F.3d 692 (9th Cir. 1997), in which the Ninth Circuit found constitutional California’s Proposition 209, an enactment materially similar to Proposal 2.  Arguably, the Sixth Circuit’s ruling sets up a circuit split on the underlying Fourteen Amendment principle.  It is also an open question how the forthcoming decision by the Supreme Court in Fisher v. University of Texas at Austin (No. 11-345), will affect the en banc ruling.  While there is considerable overlap, the case before the Sixth Circuit turned on Hunter, Seattle and the political structure doctrine and, depending on the nature of the ruling in Fisher, may therefore offer the Supreme Court an opportunity to revisit a doctrine not at issue in Fisher and which the High Court has not addressed for 30 years.  Two things seem fairly certain: 1) a petition for certiorari to the Supreme Court will be forthcoming, and 2) the Sixth Circuit Appellate Blog will keep its eye on that and any other developments going forward.