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Affirmative Action Ban in State Constitution Violates US Constitution (8-7)

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Michigan voters adopted a state constitutional amendment that prohibits “all sex- and race-based preferences in public education, public employment, and public contracting.”

The 6th Circuit (8-7) held this provision – as it relates to education – violates the 14th amendment’s equal protection clause.

Coalition to Defend Affirmative Action v. Univ of Michigan (6th Cir 11/15/2012)

(Plaintiffs limited their challenge to racial discrimination in public education.)

The court said that a black applicant could seek adoption of a constitutionally permissible race-conscious admissions policy only through the “lengthy, expensive, and arduous process” of amending the state constitution. On the other hand, someone wishing to change any other aspect of a university’s admissions policy has four options – lobby the admissions committee, petition the leadership of the university, seek to influence the school’s governing board, or initiate a statewide campaign to alter the state’s constitution.

“The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”

Seven judges wrote five DISSENTING opinions. Six said that the majority relied on two US Supreme Court cases that “have no application here,” and one said that the majority relied on “an extreme extension” of those cases. The cases are Hunter v. Erickson, 393 US 385 (1969), and Washington v. Seattle Sch Dist, 458 US 457 (1982).

This post was originally posted on Law Memo on November 16, 2012. Reprinted with permission.

About the Author: Ross Runkel is Professor of Law Emeritus at Willamette University College of Law. He has spent 35 years specializing in employment law, employment discrimination, labor law, and arbitration.


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