While the Supreme Court prepares to consider whether a University of Texas affirmative action policy violates the Fourteenth Amendment Equal Protection clause, the Sixth Circuit Court of Appeals is deciding whether it will uphold Michigan's ban on affirmative action.
The Cleveland-based court heard arguments on Wednesday about Proposal 2, Michigan's five-year-old, voter-approved ban on university affirmative action, reports The Detroit News.
Last year, a three-judge appellate panel ruled that the state's university affirmative action ban violated the Equal Protection Clause's prohibition of legislative changes that burden a minority's ability to participate in the political process.
Michigan Attorney General Bill Schuette asked for en banc rehearing on the issues, claiming that the law was rooted in fundamental American values and ensured that everyone has equal opportunity under the law, according to The Detroit News. But ACLU Attorney Mark Rosenbaum, who is arguing against the affirmative action ban, said "If the trend is not reversed, we are creating 'separate but unequal' before our very eyes ... It's a fundamental case to the meaning of democracy."
The defining case on university affirmative action, Grutter v. Bollinger, dealt with admissions policies at the University of Michigan Law School. In Grutter, the Court ruled that schools could consider race as a "plus factor" in admissions decisions. Several states, however, responded to Grutter with state bans on university affirmative action. California, for example, adopted Proposition 209, a ban similar to Michigan's Proposal 2. (The Ninth Circuit Court of Appeals is currently considering the constitutionality of Prop 209.)
Considering that the Sixth Circuit Court of Appeals previously endorsed university affirmative action in Grutter, the Michigan ban seems destined to fail.
- Coalition to Defend Affirmative Action BAMN v. University of Michigan Board of Regents (FindLaw's CaseLaw)
- Michigan Affirmative Action Ban Rejected by 6th Circuit (FindLaw's Sixth Circuit Blog)
- Don't Mess With Texas ... University Affirmative Action? (FindLaw's Fifth Circuit Blog)