Affirmative action: The Michigan ruling

A federal appeals court panel has ruled that Michigan’s ban on affirmative action in higher education — similar to California’s Proposition 209 — is unconstitutional. The court’s heart is in the right place, but its legal analysis may seem too inventive to the full appeals court or the Supreme Court.

In a case involving Michigan’s universities, the three-judge panel of the U.S. 6th Circuit Court of Appeals struck down the ban, contained in a constitutional amendment, as a violation of the Constitution’s equal protection clause. The court said that the amendment “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”

This 6th Circuit’s holding is spun off two Supreme Court decisions. One, handed down in 1969, invalidated an Akron, Ohio, city charter amendment requiring that fair housing legislation be approved by a referendum. The other, from 1982, involved a Washington state referendum outlawing mandatory school busing for the purpose of racial integration. The common denominator of the two decisions in the court’s view was that the political process was restructured to disadvantage minorities.

Both Akron’s City Council and the school board in Seattle were prevented from taking action beneficial to minorities. The alteration of the political structure was obvious. That’s less clear with the education language in the Michigan initiative, which changed a university admissions process, not what dissenting Judge Julia Smith Gibbons called “the processes through which the people exercise their right to govern themselves.” A higher court is likely to be skeptical of the conclusion that Michigan’s amendment altered the structure of government.

The argument embraced by the 6th Circuit is only one approach to having statutes like Michigan’s struck down. The other is to challenge them on the grounds that they discriminate. This too is a doubtful legal strategy. Unlike Proposition 8, which explicitly enshrines discrimination, measures like Michigan’s and Proposition 209 profess to forbid it. That doesn’t mean these measures are enlightened or attuned to the importance of diversity in higher education. It does mean that they are constitutional.

So, according to the Supreme Court, is affirmative action, though the court has placed limits on it. As retired Justice Sandra Day O’Connor put it in a 2003 case: “The court endorses [the] view that student body diversity is a compelling state interest that can justify using race in university admissions.” We agree. But one can support a practice without considering it constitutionally required, just as one can oppose a ballot measure without believing it’s unconstitutional.

The Michigan decision poses a dilemma for this page. We opposed Proposition 209 and believe that some ballot measures, like Proposition 8, should be deemed unconstitutional by the courts. With anti-affirmative action measures, however, we believe the surest way to nullify them is to fight them at their source: the ballot box.