6th Circuit: Michigan Affirmative-Action Ban Stands

CINCINNATI (TDB) -- A federal appeals court in Ohio has refused to issue a preliminary injunction that would block Michigan's new state constitutional ban against all forms of affirmative action from taking effect on the state's college campuses, where students are now enrolling for classes next year. The ban -- known as Proposal 2 -- was adopted by voters on Nov. 7. In effect, the court sided with the voters, who approved the measure by a 58%-42% majority.

This type of referendum might be the kind of political issue that pops up soon in Ohio.

Circuit Judge Jeffrey S. Sutton, a former state solicitor in Ohio who served under outgoing Attorney General Betty Montgomery, wrote the decision for a three-judge panel of the 6th Circuit U.S. Court of Appeals in Cincinnati. The University of Michigan, Michigan State University and Wayne State University in Detroit sought the order to suspend the affirmative action ban from taking effect.

The state constitutional amendment outlawed discrimination or preferential treatment based on race or gender in public employment, public education, or public contracting. Sutton's opinion is 13 pages long and was issued late Dec. 29, but has not attracted much attention so far because of the long New Year's holiday weekend.

"At stake is whether the federal courts should permit this state initiative to go into effect or whether we should preliminarily enjoin it in part -- in the part, that is, that applies to public universities and to all applicants to those universities," Sutton wrote. ''While the Michigan state courts remain free to suspend enforcement of Proposal 2 under state law for all manner of reasons, including those urged upon us here -- uncertainty about the meaning of the law, uncertainty about the law's impact on current admissions policies, and uncertainty about changing admissions politices in the middle of the current enrollment season --we are unable to identify any tenable basis under federal law for suspending the law's enforcement."

Sutton added that there is nothing in federal law that requires affirmative action.

''The First and Fourteenth Amendments to the United States Constitution, to be sure, permit States to use racial and gender preferences under narrowly defined circumstances. But they do not mandate them and accordingly they do not prohibit a state from eliminating them. In the abscence of any likelihood of prevailing in invalidating the state initiative on federal grounds, we have to choice but to permit its enforcement in accordance with the state-law framework that gave it birth." (Nos. 06-2640/2642, Coalition to Defend Affirmative Action, et al. v. Granholm, et al.)

Ironically, the 6th Circuit ruled earlier this decade that the University of Michigan could use affirmative action in enrolling students, a celebrated decision that was upheld by the Supreme Court and was seen as a major victory for racial preferences. But the court now says that voters can overrule the administrators.

Judge Richard Suhrheinrich, one of the judges who upheld the ban, had long been an MSU law school official, but severed his ties years ago. Judge Alice Marie Batchelder, who lives in suburban Cleveland, also declined to issue the preliminary injunction. Sutton's opinion took the ununsual step of referring to information online about the initiative campaign.