Recent tumult over a Michigan constitutional amendment forecasts concerns that could affect both business interests and efforts to lobby for those interests at the state level. Last month, the United States Court of Appeals for the Sixth Circuit held that Proposal 2, a duly enacted amendment to the Michigan Constitution, violated the Equal Protection Clause of the Federal Constitution. Coal. To Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Mich., No. 08-1387; No. 08-1389; No. 08-1534; No. 09-1111, 2012 U.S. App. LEXIS 23443, 2012 F. App’x 0386P (6th Cir. Nov. 15, 2012). The en banc decision struck down the amendment by a one-vote margin, with eight judges in the majority and seven dissenting, and a petition for Supreme Court review of the ruling was filed less than two weeks after it was issued. The Sixth Circuit’s ruling was limited to Proposal 2’s proscription against affirmative action in public education in Michigan, but because Proposal 2 sought “to prohibit all sex- and race-based preferences” in public employment and government contracting as well, its treatment by the courts has broad implications for business interests across the country.
Proposal 2 was an outgrowth of the Supreme Court’s companion decisions in Gratz v. Bollinger¹ and Grutter v. Bollinger² in 2003, which invalidated the University of Michigan’s affirmative action program but upheld the version employed by the University of Michigan Law School. In response to those decisions, Michigan voters adopted Proposal 2, which prohibits discrimination and the granting of preferential treatment on the basis of race, sex, ethnicity, or national origin in public education, government contracting, and public employment. While facially innocuous, the amendment is controversial because it removes the decision of whether to employ affirmative action programs of the kind upheld in Grutter from the hands of university administrators and disperses it among the voters of the state. That, according to the Sixth Circuit, places a “comparative structural burden” on those who might want to lobby for affirmative action programs and unconstitutionally limits their ability to participate in the political process:
A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy:  she could lobby the admissions committee,  she could petition the leadership of the university,  she could seek to influence the school’s governing board, or, as a measure of last resort,  she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2.
Observing that affirmative action programs primarily benefit underrepresented groups, the Sixth Circuit noted that “all citizens ought to have equal access to the tools of political change” and found Proposal 2 unconstitutional under the political process doctrine of equal protection.
Thirteen days after the Sixth Circuit’s decision was issued, Michigan Attorney General Bill Schuette applied to the Supreme Court for review. His petition echoes many of the concerns of the decision’s dissenting judges, one of whom urged the Supreme Court to “consign this misguided [political process] doctrine to the annals of judicial history.” Both the dissenters and the attorney general noted that, faced with a similar constitutional amendment, the United States Court of Appeals for the Ninth Circuit and the California Supreme Court had reached the opposite conclusion of the Sixth Circuit’s.³ According to the Attorney General, “It is intolerable that California voters can pass laws guaranteeing the protection of equal treatment in higher education but Michigan voters cannot.”
The attorney general and the dissenters also took issue with what they saw as the en banc majority’s usurpation of the democratic process. According to Judge Gibbons, who authored the primary dissent, the majority’s decision “must be understood for the marked departure it represents—for the first time, the presumptively invalid policy of racial and gender preference has been judicially entrenched as beyond the political process.” And as Attorney General Schuette observed, “[T]he Sixth Circuit invalidated a state constitutional provision that 58% of Michigan voters ratified. The result turns the democratic process on its head.”
The brief in opposition to the attorney general’s petition has not yet been filed, and, thus, it remains to be seen whether the Supreme Court will agree to review the Sixth Circuit’s decision. The Court is already considering one affirmative action case this term, Fisher v. Univ. of Texas at Austin, Docket No. 11-345, but that case concerns the continuing vitality of Grutter and its application to a state university’s affirmative action program. In contrast, the present case involves the constitutionality of divesting, by ballot initiative, state universities of the power to implement affirmative action programs in the first place. Thus, the present case is unique. Additionally, the split in federal authority created by the Sixth Circuit’s and Ninth Circuit’s divergent decisions may provide a reason for the Supreme Court to address the present case.
Whatever the Court decides, however, business owners will need to keep a close eye on this case and others like it. As Proposal 2 demonstrates, affirmative action policies affect far more than merely public education. Many of the considerations related to affirmative action that universities regularly confront also are reflected in the financing, contracting, and hiring decisions of the business community. As a result, questions of whether and to what extent affirmative action policies will endure – and whose prerogative it is to answer those questions – are relevant to us all.
¹ 539 U.S. 244 (2003).
² 539 U.S. 306 (2003).
³ See Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Brown, 674 F.3d 1128 (9th Cir. 2012) (discussing with approval the court’s previous decision in Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997)) and Coral Constr. v. San Francisco, 235 P.3d 947 (Cal. 2010).