Last Thursday, by an 8-7 vote (with two judges not participating), the Sixth Circuit Court of Appeals decided Coalition to Defend Affirmative Action v. University of Michigan, finding a provision of the Michigan Constitution to be, well, unconstitutional. That provision was known, a few years ago, as “Proposal 2” and, at the risk of oversimplification, Proposal 2 banned the use race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
Because the challenge to Proposal 2 was limited to public education, the Court did not decide whether the portions of Proposal 2 that affect public employment and public contracting also violate the Equal Protection Clause of the United States Constitution. So stated, it is still presumably unlawful for, say, a city to discriminate in favor of (or against) any certain racial, ethnic, or other enumerated class in making hiring and other employment-related decisions.
Why, you ask, is it unconstitutional to constitutionally ban so-called affirmative action in public education in Michigan? And when we say “public education,” the real impact here is on Michigan’s Big 3 state universities—i.e., the University of Michigan, Michigan State University, and Wayne State University.
Well, say eight judges, when Proposal 2 amended the State Constitution (by a 58 percent - 42 percent vote of the people), it made it more difficult for minority groups to achieve “affirmative-action” ends than for other groups not covered by traditional affirmative-action programs. What would those be? According to those same eight judges, an applicant who wants preferential admission due to his/her family’s alumni connections, or perhaps someone with a particular athletic, musical, or other talent, does not need to change the Michigan Constitution to attempt to convince a university to grant a preference. But someone who wants a preference based on race would have to get the Michigan Constitution amended before the university could consider that criterion, and therefore is being discriminated against on the basis of their race.
It is fair to say the seven dissenting judges appear to be stunned by the reasoning of the (slim) majority, and can’t understand why banning discrimination is discriminatory. One is reminded of Lewis Carroll’s Through the Looking Glass, where Humpty Dumpty tells Alice that, when he uses a word, it means only what he chooses it to mean.
Where will this wind up? Likely, the United States Supreme Court. Until that Court may decide, Michigan’s public universities are not banned from offering various preferences, but Michigan’s cities and counties are still subject to Proposal 2.