As anticipated, Michigan's attorney general today filed a petition (PDF) for rehearing en banc in Coalition 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). As previously reported by this blog, on July 1, 2011, Judge Cole, writing for himself and Judge Daughtrey, struck down an amendment to the Michigan constitution popularly known as "Proposal 2," which was passed by voter referendum in 2006 and which 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.” The panel ruled that Proposal 2 ran afoul of U.S. Supreme Court precedent interpreting the Equal Protection Clause. In dissent, Judge Gibbons argued that the Equal Protection Clause presented no obstacle to Proposal 2 and that Supreme Court precedent merely "tolerate[d]" the use of race in college admissions, leaving Michigan free to prohibit the practice.
Michigan's attorney general, Bill Schuette, now seeks en banc review of the divided panel decision. In his petition, the attorney general characterizes the issue as follows: "whether a state violates the Equal Protection Clause by prohibiting discrimination based on race or sex" (emphasis in original). In urging the full court to hear the matter, Michigan argues that the panel's ruling opened a circuit split, citing the Ninth Circuit's 1997 order upholding the constitutionality of California's Proposition 209, a measure akin to that of Proposal 2. Michigan further claims that the panel decision is at odds with the Sixth Circuit's earlier decision at the preliminary injunction stage of the case at bar when, according to Michigan, "three members of this Court followed [the Ninth Circuit's ruling] and rejected the exact claim the panel majority has now upheld." Finally, Michigan draws the Court's attention to the fact that the panel decision "invalidates a provision of Michigan's Constitution that was ratified by 58% of Michigan's voters," which it observes is "no small matter."
The Sixth Circuit Appellate Blog will keep an eye open for the Court's decision on the petition.