A divided panel of the Sixth Circuit today struck down an amendment to the Michigan constitution added by voters in 2006 that 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.” In Coaltion 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) (PDF), the panel majority ruled that the amendment, known more popularly as "Proposal 2", ran afoul of U.S. Supreme Court precedent interpreting the Equal Protection Clause.
Writing for himself and Judge Daughtrey, Judge Cole found that "Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities." In dissent, Judge Gibbons argued that the Equal Protection Clause did not clash with Proposal 2, and that Supreme Court precedent had not "require[d]" the use of rece in college admissions but, instead, merely "tolerate[d]" it, leaving Michigan free to prohibit the practice.
Proposal 2 was passed by 58% of Michigan voters, and in 2008 the federal district court in Detroit had found the amendment constitutional. In the immediate aftermath of today's ruling, reaction came swiftly, with opponents of Proposal 2 hailing the decision while supporters of the proposal denounced the ruling as "activist" and predicted reversal of the panel decision as being inconsistent with Supreme Court case law.
The Sixth Circuit Appellate Blog will keep its eye on this case for a possible petition for en banc review.