David Ashenfelter and Dawson Bell are reporting in the Detroit Free Press article, Federal Court: Michigan Ban on Race In College Admissions Is Illegal
A federal appeals court today struck down Proposal 2, the 2006 Michigan referendum that banned affirmative action in college admissions, employment and contracting, setting up another U.S. Supreme Court showdown on the issue.
“It’s a tremendous victory,” Detroit attorney George Washington said today, shortly after the U.S. 6th Circuit Court of Appeals ruled in a 2-1 decision that Proposal 2 was unconstitutional.
“Affirmative action is now legal in college admissions in Michigan and that means thousands of black, Latin and native American students who would have been excluded from our best undergraduate and graduate programs will now be admitted,” Washington said….
Jennifer Gratz, who led the campaign for passage of Proposal 2 following the conclusion of her own lawsuit against the University of Michigan for using race-based admissions, said this morning that an appeal is almost certain and “I can’t imagine this ruling will stand.”
The appeals court said Proposal 2, which was overwhelmingly approved by white voters and overwhelmingly rejected by blacks, is unconstitutional because it restructured Michigan’s political process in a way that placed special burdens on minorities that deprived them of equal protection under the law…
Attorney Washington said Michigan colleges and universities provide preferential treatment to a variety of groups, including veterans, the poor and students from rural areas. He said Proposal 2 discriminated against blacks, Latinos and native Americans.
Today’s decision it the latest development in a long and bitter battle over race admission policies in Michigan colleges and universities.
The fight began in the’60s and ‘70s when blacks and other minorities pushed for affirmative action in college admissions. In 2003, the U.S. Supreme Court ruled in two lawsuits brought against the University of Michigan — one of them filed by Gratz — that universities couldn’t set quotas for specific racial groups, but that schools could consider race or ethnicity as factors in admissions.
Gratz, an honors student from Southgate Anderson High, was denied admission to U-M in 1994, a decision she said was influenced by the university’s use of aggressive affirmative action for minority applicants. The Supreme Court ultimately struck down the U-M policies in place at that time, but in a separate case involving the U-M law school said the university could continue to take race into account.
The decisions prompted Gratz and Ward Connerly, a University of California regent who led a similar effort there 10 years earlier, to get Proposal 2 on the statewide ballot to amendment the Michigan Constitution to ban all sex- and race-based preferences in public education, public employment and public contracting.
Michigan voters approved the proposal in November 2006 by a margin of 58%-to-42% and forced Michigan colleges and universities to remove race, sex, color, ethnicity or national origin as factors in college admissions.
That prompted lawsuits by various groups, including the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equity By Any Means Necessary and faculty and student organizations.
The groups appealed to the U.S. 6th Circuit after U.S. District Judge David Lawson, who ruled in favor of the defendants, rejected claims that Proposal 2 was unconstitutional.
The University of Michigan, which was a defendant in the case, said today’s decision would have no immediate effect on admissions.
The Seattle Times is reporting the story in the article, Mich. Ban On Race In College Admissions Is Illegal
The Education Commission of the States has an excellent policy brief on Affirmative Action
Policies referred to as “affirmative action” are generally those in which an institution or organization engages in an active effort to improve the employment or educational opportunities of members of minority groups or women. Such policies can be implemented in a variety of situations. For instance, the term “affirmative action” is applied equally when referring to policies or programs that govern admission to education institutions or that impact the awarding of contracts to minority-owned businesses. On this issue site, however, affirmative action is considered only in the context of the education environment.
Much of the debate in recent years surrounding the use of affirmative action policies in the realm of education has focused on the higher education admissions process. The justifications given for implementing affirmative action policies vary widely. Several arguments, however, are most frequently cited, including:
Affirmative action policies are needed to remedy the negative effects of past and present discrimination on the group in question.
There are inherent benefits to society, the higher education institution and the student body when affirmative action policies are utilized to ensure the creation of diverse student bodies.
Racially based affirmative action policies are no different from other policies long used by higher education institutions to favor specific applicant groups.
Critics attack affirmative action policies on several grounds, including:
Affirmative action can magnify racial prejudice and hinder the country’s movement towards a race-neutral society.
It is morally and ethically wrong to exclude white or male students with high grades and standardized test scores while accepting minority or female students with lower corresponding grades and scores.
Unqualified students admitted to an institution based on their membership in a particular racial or gender class can be demoralized and stigmatized by having to compete with more qualified classmates who have greater academic ability.
A few states have passed laws or taken executive action to eliminate affirmative action in higher education. In 1996, California passed Proposition 209 amending the state constitution to specifically prohibit public universities from granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin (Article I, Section 31). In 1998, Washington State voters passed Initiative 200, which barred the consideration of race or ethnicity in college admissions decisions (similar to California’s Proposition 209). In 1999, as part of his “One Florida” initiative, Governor Jeb Bush issued Executive Order 99-281 banning all use of affirmative action in admissions to state schools.
For the most part, however, the legality of affirmative action policies has been left for the courts to decide. The U.S. Supreme Court first attempted to establish the “law of the land” regarding higher education affirmative action policies in Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978). In a heavily divided opinion, the court struck down the use of policies that apply strict “quotas” on the number or percentage of students of a particular racial or ethnic background who are admitted to an education institution. The court, however, allowed the consideration of race to be used as one factor among several for the specific purpose of achieving student body diversity. Promoting student body diversity evolved into the primary rationale for affirmative action relied upon by selective colleges and universities and became the main focus of continued legal challenges.
The split in the Supreme Court’s opinion regarding the diversity rationale and changing public attitudes towards the fairness of affirmative action policies in general gave rise to a series of conflicting appellate court decisions attempting to interpret Bakke and the constitutionality of affirmative action. The fracturing of opinion in the lower federal appellate courts meant that the legality of a specific affirmative action policy used to promote campus diversity depended largely on the jurisdiction in which a lawsuit was brought.
In a much anticipated June 23, 2003 ruling, however, the Supreme Court reaffirmed the basic holding of the 1978 Bakke case and held that colleges and universities can consider race in making admissions decisions for the purpose of promoting student body diversity. The ruling — which combined cases involving both the University of Michigan’s undergraduate program and law school (Grutter v. Bollinger and Gratz v. Bollinger) — represents the court’s most significant statement on the legality of affirmative action in 25 years.
The Court did not grant a blank check on the use of affirmative action. Instead, the justices attempted to provide a roadmap establishing some limits for how such programs can be legally operated. For instance, in its 5-4 decision regarding the University of Michigan’s law school, the justices upheld an admissions process that considered a candidate’s race, but did not assign a specific weight to this factor. The court, however, struck down Michigan’s undergraduate admissions program, which automatically awarded 20 points to minority candidates. A candidate that achieved 100 points was guaranteed admission to the school.
The court found the Michigan law school admissions program acceptable because, although race was certainly considered, it was not by itself a decisive factor in gaining admittance. In contrast, the court found the undergraduate system weighted race alone heavily enough to virtually ensure the admittance of every minimally qualified minority student. What also seemed to appeal to the court was that the law school admissions process used a more intensive, individual review of each applicant’s file that considered other factors in addition to race. The court rejected arguments that such an intensive review may be too costly or burdensome to implement, especially for larger universities.
The court’s decision has had an immediate impact in states where lower courts previously held the consideration of race in admissions unconstitutional. And some colleges and universities have already indicated that they will undertake a more intensive review of each individual applicant in order to meet their diversity goals. The ruling will not, however, have any direct impact on the admissions programs in states such as California, Florida and Washington, where consideration of race in admissions was banned by either citizen initiatives or a governor’s executive order.
Nor is the ruling likely to put this policy issue definitively to rest. Some policymakers continue to explore “race-neutral” alternatives to affirmative action, such as mandating acceptance into a state’s public universities for a top percentage of students from all high schools in the state. California (top 4%), Texas (top 10%) and Florida (top 20%) have already instituted such polices. It is not clear whether these programs, which are still very much in their infancy, are effective replacements for traditional affirmative action. What is clear, however, is that the passion affirmative action naturally engenders guarantees that policymakers will continue to face pressure through ballot initiatives, litigation and proposed legislation from those groups who believe their interests have not been adequately or fairly addressed.
This case will be appealed. Stay tuned to see if the Supremes accept it for review and then, if the case is accepted, the decision from the Supremes.
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