07 March 2013

Can a State Legally Ban Affirmative Action? The Sixth Circuit Says Think Again...

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)?  If you were (awake) in a constitutional law class, you probably recognize that these cases form the foundation for existing affirmative action precedent.   But do you know that the High Court’s final decisions in those cases were only the beginning of the plaintiffs’ legacy?
Back in November, I described for you how Grutter is making headlines yet again, through the pending Supreme Court case of Fisher v. University of Texas.  In Fisher, the Supreme Court will determine whether Grutter remains sound precedent, and specifically examine the issue of whether higher educational institutions can continue to use race as a factor in admissions criteria.  As of present, it appears likely that the Supreme Court will rule against the permissible usage of race, throwing the holding of Grutter into jeopardy.  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.
Lyndon B. Johnson meeting with Martin Luther King, Jr. (left),
Whitney M. Young Jr., and  James Farmer in 1964.
© Universal History Archive/Getty Images
But what about Jennifer Gratz, the Michigan plaintiff from the eponymous companion case to Grutter? In Gratz, decided on the same day as Grutter, 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.  In that case, the Court recognized the significant differences between the programs at issue in Gratz and Grutter: in Grutter, race was considered as a non-determinative factor among the whole applicant pool, whereas in Gratz, applicants received an individual admissions criteria boost simply for being a member of a qualified minority group.  This, according to the Supreme Court in Gratz, was a type of overt discrimination not allowable under strict scrutiny analysis.
So Ms. Gratz had her day in Court—and was victorious.  But the story doesn’t end there.  Three years after the Supreme Court handed down Grutter and Gratz, Ms. Gratz decided to lead a concerted effort to amend the Michigan Constitution, in order to eliminate affirmative action entirely within the state.  Ms. Gratz had a clever proposal: she wanted the State of Michigan to “not 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.”
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.  And the amendment reads innocuous enough, doesn’t it?  How can one argue with asking the state not to discriminate on the basis of race?  The citizens of Michigan agreed, and in 2006, the amendment passed by popular referendum (as “Proposal 2”) at the ballot box, by a margin of 58% to 42%.
But not so fast.  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.  In one such case, Operation King’s Dream v. Connerly, 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.
Specifically, the court explained that “[t]he record and the district court’s 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.”  The court arrived at this conclusion after examining, among other evidence, a 2006 Michigan Civil Rights Commission study which strongly supported the same conclusion.  In fact, as the court noted, the Defendants did not try to rebut this finding at all.  Yet the court indicated that “we must be guided by law, not outrage” and still allowed Proposal 2 on the ballot.
© CNN.com
But after its passage, in another case, the constitutionality of the amendment was challenged outright as being violative of due process and equal protection.  In a constitutional challenge led by a consortium of affirmative action supporters collectively known as the “Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality by any Means Necessary” (or, “BAMN” for short), the Sixth Circuit struck down the amendment in 2011, in BAMN v. University of Michigan.
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 “inures primarily to the benefit of the minority”; and (2) reallocated political power and the decisionmaking process, such that it placed “special burdens” on a minority group’s ability to achieve its goals through the democratic process.  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.  By a narrow 2-1 vote, the Sixth Circuit struck down the amendment, holding that Michigan cannot ban affirmative action through these means.
An en banc 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.  The holding was limited, however, in that the amendment was unconstitutional only as applied to “racial minorities”.  The seven dissenting  judges wrote with scorching language, such as:
                         “[T]oday’s decision is the antithesis of the Equal Protection Clause of the Fourteenth 
                    “What else at any rate could the people of Michigan have done?” and
                    “Today's lawsuit transforms a potential virtue of affirmative action into a vice.”
The most intriguing argument raised in support of the amendment’s constitutionality was perhaps that Grutter commanded affirmative action policies to be “limited in time.”  As was discussed in BAMN, given that Grutter commanded affirmative action to be a temporary measure, how else could this command have been implemented than by eventually ending the practice?
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, it seems likely that certiorari will be granted.  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.  The Ninth Circuit in Coalition for Economic Equity v. Wilson upheld California’s legislative ban on affirmative action, arriving at the opposite conclusion as in BAMN.
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’s holdings in Grutter and Gratz, and state legislatures which prohibit the very same admissions practices endorsed by those cases.  This issue seems fit to be resolved definitively in the near future on the heels of Fisher—but then again, who knows what the Supreme Court will do?

Adam Petrun is a 3L guest contributor for JURIS.  He earned his undergraduate degree from Duquesne University in 2010, where he majored in Political Science and Sociology, with a concentration in Criminal Justice.  He is an associate editor of the Duquesne Law Review, and has recently authored a law review comment on the Supreme Court’s upcoming decision in Fisher v. University of Texas, in particular examining the historical background behind that case.  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.,  in Pittsburgh.  He may be reached at petruna@duq.edu.