DETROIT (AP) — Michigan’s ban on affirmative action in
college admissions was declared unconstitutional Thursday by a deeply
divided federal appeals court, six years after state voters said race
could not be an issue in choosing students.
In an 8-7 decision,
the court said the 2006 amendment to the Michigan Constitution is
illegal because it presents an extraordinary burden to opponents who
would have to mount their own long, expensive campaign through the
ballot box to protect affirmative action.
That burden "undermines
the Equal Protection Clause’s guarantee that all citizens ought to have
equal access to the tools of political change," said Judge R. Guy Cole
Jr., writing for the majority at the 6th U.S. Circuit Court of Appeals
in Cincinnati.
The court said having supporters and opponents
debate affirmative action through the governing boards of each public
university would be much fairer than cementing a ban in the
constitution, which it referred to as home of "the highest level" of
public policy.
The court did not comment on a portion of the amendment that deals with government hiring.
The
decision is limited to states in the 6th Circuit, which includes
Kentucky, Ohio and Tennessee. But it also raises the odds that the U.S.
Supreme Court may get involved. A very similar law in California was
upheld by a San Francisco-based appeals court, and the Supreme Court
could choose to resolve the conflicting decisions of the 9th Circuit and
the 6th Circuit on voter-approved bans.
Michigan Attorney General Bill Schuette, a supporter of the ban, said he will ask the nation’s highest
court to take the case.
"Entrance to our great universities must be based upon merit," he said.
George
Washington, a Detroit attorney for the Coalition to Defend Affirmative
Action, said the ruling is a "tremendous victory." He predicted the case
will move to the Supreme Court.
"What this really means is
thousands of blacks and Latinos who would not have had a chance to go to
our most selective universities will have the chance to become lawyers,
doctors and leaders of all fields," Washington said.
As the
college admissions process for 2013 heats up, it wasn’t immediately
clear what campuses would do in light of the ruling. Officials at the
University of Michigan and Michigan State University said they were
reading the decision.
At the University of Michigan, 8 percent of
undergraduates this fall are black or Hispanic, compared to almost 11
percent in 2008. The number of black female undergraduates is down 27
percent compared to 2008, according to university data.
This is
the second time that the appeals court has examined Michigan’s
affirmative action issue. A three-judge panel last year also found the
ban unconstitutional for similar reasons. But after a plea from
Schuette, the entire court decided to take a fresh look at the matter,
with new filings and arguments leading to the new ruling Thursday.
In
a 32-page opinion, the court’s majority explained the difficulties that
it sees for students under the constitutional amendment. For example,
there’s nothing barring someone from citing family alumni connections
when applying to a college. But the court said a student seeking to use
race to influence the admissions process now is shut out unless the
constitution is changed again.
"Michigan cannot force those
advocating for consideration of racial factors to traverse a more
arduous road without violating the Fourteenth Amendment," the court
said. "We thus conclude that Proposal 2 reorders the political process
in Michigan to place special burdens on minority interests."
In
dissent, Judge Danny Boggs said the majority relied on an "extreme
extension" of two Supreme Court cases to justify its decision, one in
1969 involving the repeal of a fair housing law in Akron, Ohio, and the
other in 1982 involving an effort to stop racial integration in Seattle
schools.
"We have the citizens of the entire state establishing a
principle that would in general have seemed laudable," Boggs said of
Michigan.
Another dissenter, Judge Julia Smith Gibbons, said the will of 58 percent of voters in 2006 has been
shredded.
"Michigan
has chosen to structure its university system such that politics plays
no part in university admissions at all levels. … The Michigan voters
have therefore not restructured the political process in their state by
amending their state constitution; they have merely employed it,"
Gibbons said.
Besides Michigan, six states have banned racial
preferences in admissions: Washington, Nebraska, Arizona, New Hampshire,
California and Florida. In Texas and Georgia, leading public
universities use a race-neutral system, though the University of Texas
has maintained some use of affirmative action.
Since a 2003
Supreme Court decision, universities have been allowed to use racial
preferences if they choose, though they are not compelled to do so. The
court last month heard arguments in a case that could change that
precedent. Abigail Fisher, a rejected white applicant, is suing the
University of Texas.
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AP Education Writer Justin Pope contributed to this report from Ann Arbor, Mich.
Copyright 2012 The Associated Press.