{"id":137,"date":"2013-03-07T23:22:31","date_gmt":"2013-03-08T03:22:31","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=137"},"modified":"2013-09-05T00:03:33","modified_gmt":"2013-09-05T04:03:33","slug":"can-a-state-legally-ban-affirmative-action-the-sixth-circuit-says-think-again","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2013\/03\/07\/can-a-state-legally-ban-affirmative-action-the-sixth-circuit-says-think-again\/","title":{"rendered":"Can a State Legally Ban Affirmative Action? The Sixth Circuit Says Think Again…"},"content":{"rendered":"
\"Lyndon<\/a>
Lyndon B. Johnson meeting with Martin Luther King, Jr. (left),
Whitney M. Young Jr., and James Farmer in 1964.
Photo courtesy of Universal History Archive\/Getty Images<\/figcaption><\/figure>\n

by Adam Petrun, 3L Contributor<\/p>\n

Law students: do you remember the United States Supreme Court cases of Grutter v. Bollinger<\/span> and Gratz v. Bollinger<\/span> (2003)?\u00a0 If you were (awake) in a constitutional law class, you probably recognize that these cases form the foundation for existing affirmative action precedent.\u00a0 \u00a0But do you know that the High Court\u2019s final decisions in those cases were only the beginning of the plaintiffs\u2019 legacy?<\/p>\n

Back in November, I described for you<\/a> how Grutter<\/span> is making headlines yet again, through the pending Supreme Court case of Fisher v. University of Texas<\/span>.\u00a0 In Fisher<\/span>, the Supreme Court will determine whether Grutter<\/span> remains sound precedent, and specifically examine the issue of whether higher educational institutions can continue to use race as a factor in admissions criteria.\u00a0 As of present, it appears likely that the Supreme Court will rule against the permissible usage of race, throwing the holding of Grutter<\/span> into jeopardy.\u00a0 Thus, even though Barbara Grutter might have been unsuccessful in her legal efforts back in 2003, she may end up having some delayed vindication in Fisher<\/span>.<\/p>\n

But what about Jennifer Gratz, the Michigan plaintiff from the eponymous companion case to Grutter<\/span>? In Gratz<\/span>, decided on the same day as Grutter<\/span>, Ms. Gratz ended up winning her lawsuit, as the Supreme Court struck down the admissions policy in place at the undergraduate program of the University of Michigan.\u00a0 In that case, the Court recognized the significant differences between the programs at issue in Gratz<\/span> and Grutter<\/span>: in Grutter<\/span>, race was considered as a non-determinative factor among the whole applicant pool, whereas in Gratz<\/span>, applicants received an individual admissions criteria boost simply for being a member of a qualified minority group.\u00a0 This, according to the Supreme Court in Gratz<\/span>, was a type of overt discrimination not allowable under strict scrutiny analysis.<\/p>\n

So Ms. Gratz had her day in Court\u2014and was victorious.\u00a0 But the story doesn\u2019t end there.\u00a0 Three years after the Supreme Court handed down Grutter<\/span> and Gratz<\/span>, Ms. Gratz decided to lead a concerted effort to amend the Michigan Constitution, in order to eliminate affirmative action entirely<\/i> within the state.\u00a0 Ms. Gratz had a clever proposal: she wanted the State of Michigan to \u201cnot discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.\u201d<\/p>\n

The effort was supported by a number of influential individuals, including Ward Connerly, an African-American Republican who had successfully lobbied a similar antidiscrimination measure in California, passed in 1996.\u00a0 And the amendment reads innocuous enough, doesn\u2019t it?\u00a0 How can one argue with asking the state not to discriminate on the basis of race? \u00a0The citizens of Michigan agreed, and in 2006, the amendment passed by popular referendum (as \u201cProposal 2\u201d) at the ballot box, by a margin of 58% to 42%.<\/p>\n

But not so fast.\u00a0 A plethora of public interest groups tried to prevent passage of the amendment, and promptly filed for injunctive relief to keep it off the ballot.\u00a0 In one such case, Operation King\u2019s Dream v. Connerly<\/span>, the Sixth Circuit rejected that challenge, but condemned egregious irregularities related to placing Proposal 2 on the ballot, such as duplicate signatures and signatures by nonregistered voters.<\/p>\n

Specifically, the court explained that \u201c[t]he record and the district court\u2019s factual findings indicate that the solicitation and procurement of signatures in support of placing Proposal 2 on the general election ballot was rife with fraud and deception. . . . By all accounts, Proposal 2 found its way on the ballot through methods that undermine the integrity and fairness of our democratic processes.\u201d \u00a0The court arrived at this conclusion after examining, among other evidence, a 2006 Michigan Civil Rights Commission study which strongly supported the same conclusion.\u00a0 In fact, as the court noted, the Defendants did not try to rebut this finding at all. \u00a0Yet the court indicated that \u201cwe must be guided by law, not outrage\u201d and still allowed Proposal 2 on the ballot.<\/p>\n\n\n\n
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But after its passage, in another case, the constitutionality of the amendment was challenged outright as being violative of due process and equal protection.\u00a0 In a constitutional challenge led by a consortium of affirmative action supporters collectively known as the \u201cCoalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality by any Means Necessary\u201d (or, \u201cBAMN\u201d for short), the Sixth Circuit struck down the amendment in 2011, in BAMN v. University of Michigan<\/span>.<\/p>\n

As the Sixth Circuit reasoned, strict scrutiny applied to the amendment, because it: (1) had a patently racial focus, targeting a goal or program that \u201cinures primarily to the benefit of the minority\u201d; and (2) reallocated political power and the decisionmaking process, such that it placed \u201cspecial burdens\u201d on a minority group\u2019s ability to achieve its goals through the democratic process.\u00a0 In other words, the racial majority of voters created significant and unfair democratic obstacles for minority groups to try and reverse the course of this legislation, and keep affirmative action alive.\u00a0 By a narrow 2-1 vote, the Sixth Circuit struck down the amendment, holding that Michigan cannot ban affirmative action through these means.<\/p>\n

An en banc<\/i> rehearing ensued by the Sixth Circuit, and in November 2012, yet another bitterly divided opinion handed down by the full circuit affirmed this decision, by a margin of 8-7.\u00a0 The holding was limited, however, in that the amendment was unconstitutional only as applied to \u201cracial minorities\u201d.\u00a0 The seven dissenting\u00a0 judges wrote with scorching language, such as:<\/p>\n

\u201c[T]oday\u2019s decision is the antithesis of the Equal Protection Clause of the Fourteenth
\nAmendment\u201d<\/p>\n

\u201cWhat else at any rate could the people of Michigan have done?\u201d and<\/p>\n

\u201cToday’s lawsuit transforms a potential virtue of affirmative action into a vice.\u201d<\/p>\n

The most intriguing argument raised in support of the amendment\u2019s constitutionality was perhaps that Grutter<\/span> commanded<\/i> affirmative action policies to be \u201climited in time.\u201d\u00a0 As was discussed in BAMN<\/span>, given that Grutter<\/span> commanded affirmative action to be a temporary measure, how else could this command have been implemented than by eventually ending the practice?<\/p>\n

Certiorari has already been filed to the United States Supreme Court, and given that the issue of affirmative action is one of national importance, already on the horizon in Fisher<\/span>, it seems likely that certiorari will be granted.\u00a0 The decision to grant certiorari should be bolstered by the presence of a circuit split, as Arizona, California, Florida, Oklahoma, Nebraska, New Hampshire, and Washington all have similar legislation in place.\u00a0 The Ninth Circuit in Coalition for Economic Equity v. Wilson<\/span> upheld California\u2019s legislative ban on affirmative action, arriving at the opposite conclusion as in BAMN<\/span>.<\/p>\n

As these events have demonstrated, there is currently a grand game of cat-and-mouse being played out in courts across the country, creating tension between the Supreme Court\u2019s holdings in Grutter<\/span> and Gratz<\/span>, and state legislatures which prohibit the very same admissions practices endorsed by those cases.\u00a0 This issue seems fit to be resolved definitively in the near future on the heels of Fisher<\/span>\u2014but then again, who knows what the Supreme Court will do?<\/p>\n

 <\/p>\n

Adam Petrun is a 3L guest contributor for JURIS.\u00a0 He earned his undergraduate degree from Duquesne University in 2010, where he majored in Political Science and Sociology, with a concentration in Criminal Justice.\u00a0 He is an associate editor of the Duquesne Law Review, and has recently authored a law review comment on the Supreme Court\u2019s upcoming decision in Fisher v. University of Texas, in particular examining the historical background behind that case.\u00a0 Adam will graduate from the Duquesne University School of Law in June 2013, and currently is a law clerk for Swensen Perer & Kontos, P.C.,\u00a0 in Pittsburgh.\u00a0 He may be reached at <\/i>petruna@duq.edu<\/i><\/a>.<\/i><\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

by Adam Petrun, 3L Contributor Law students: do you remember the United States Supreme Court cases of Grutter v. Bollinger and Gratz v. Bollinger (2003)?\u00a0 If you were (awake) in a constitutional law class, you probably recognize that these cases form the foundation for existing affirmative action precedent.\u00a0 \u00a0But do [\u2026] <\/p>\n

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