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Sixth Circuit: Michigan Affirmative Action Ban Unconstitutional

By Robyn Hagan Cain | Last updated on

Voters amended the Michigan Constitution in 2006 to ban affirmative action in public education. The initiative -- known as Proposal 2 -- was a response to the Supreme Court's 2003 affirmative action rulings in Grutter v. Bollinger and Gratz v. Bollinger.

Thursday, the Sixth Circuit Court of Appeals ruled that Michigan's affirmative action ban was unconstitutional because it presents an extraordinary burden to opponents who would try to protect affirmative action, The Wall Street Journal reports.

The appellate court, in an 8-7 split, held that Proposal 2 deprives the affirmative action proponents of equal protection of the law under the political process doctrine.

The Sixth Circuit relied on two Supreme Court decisions in its analysis, Hunter v. Erickson and Washington v. Seattle School District No. 1.

The majority observed that Hunter and Seattle "expounded the rule that an enactment deprives minority groups of the equal protection of the laws when it: (1) has a racial focus, targeting a policy or program that "inures primarily to the benefit of the minority"; and (2) reallocates political power or reorders the decision-making process in a way that places special burdens on a minority group's ability to achieve its goals through that process."

Here, the Sixth Circuit concluded that Proposal 2 targets a program that "inures primarily to the benefit of the minority" and reorders the political process in Michigan in a way that places special burdens on racial minorities.

Michigan Attorney General Bill Schuette has announced that he will appeal the decision, the Detroit Free Press reports.

Regardless of the Supreme Court's ruling in Fisher v. University of Texas, we think this decision will probably stand because the issue here is the application of the political process doctrine precedent instead of a facial challenge to affirmative action.

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