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Affirmative Action Ban Overturned

November 16, 2012
Labor and Employment Advisory

In an important decision for Michigan's public universities and proponents of affirmative action, the full Sixth Circuit Court of Appeals has struck down Michigan's "Proposal 2."  Proposal 2 was enacted by voters in 2006 as an amendment to the Michigan constitution and banned the use of affirmative action in Michigan public university admissions decisions, public employment, and public contracting.

The Sixth Circuit found that Michigan's Proposal 2 violates the federal constitution, by denying all citizens equal access to the tools of political change. The Court reasoned that, under Proposal 2, while other groups had numerous methods by which they could petition for change to  university admissions policy, persons seeking any race-based change that was lawful under the federal constitution could only do so only at the most remote level of government, by securing an amendment to the Michigan Constitution.The Court found that this inequity violated the equal protection clause of the U.S. Constitution.

The Michigan Attorney General has stated the case will be appealed to the United States Supreme Court.  Unless overturned at that level, the Sixth Circuit decision will restore to Michigan's public universities the ability to consider race as a factor in university admissions decisions, provided they do so within the legal limitations set by federal law.

The Court of Appeals' decision will be stayed if a request for review is filed with the Supreme Court, and will remain stayed until a final decision. Higher education institutions should continue the status quo for the time being, until the 90 day time period for filing an appeal is passed or, if an appeal is filed, until a final determination by the Supreme Court.

The outcome of Fisher v University of Texas, another affirmative action case currently pending before United States Supreme Court, could also impact the meaning of this ruling for Michigan and its higher education institutions.

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