Coalition to Defend Affirmative Action v. Granholm
| Citation | 473 F.3d 237 |
| Decision Date | 29 December 2006 |
| Docket Number | No. 06-2640.,No. 06-2642.,06-2640.,06-2642. |
| Parties | COALITION TO DEFEND AFFIRMATIVE ACTION, et al., Plaintiffs-Appellees, v. Jennifer GRANHOLM, et al., Defendants-Appellees, Michael Cox, Attorney General, Intervenor Defendant, Eric Russell, Intervenor-Appellant. Toward a Fair Michigan, Proposed Intervenor-Appellant. Eric Russell; Toward A Fair Michigan, Petitioners. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
George B. Washington, Scheff & Washington, Detroit, MI, for Plaintiffs-Appellees.
James E. Long, Asst. Atty. General, Office of the Attorney General Tort Defense Division, Lansing, MI, for Defendants-Appellees.
Center for Individual Rights, Washington, DC, Kerry L. Morgan, Pentiuk, Couvreue & Kobiljal, Wyandotte, MI, Michael E. Rosman, Kerry L. Morgan, for Proposed Intervenors-Appellants/Petitioners.
Before SUHRHEINRICH, BATCHELDER, and SUTTON, Circuit Judges.
On November 7, 2006, the people of Michigan approved a statewide ballot initiative — Proposal 2 — which amended the Michigan Constitution to prohibit discrimination or preferential treatment based on race or gender in the operation of public employment, public education or public contracting in the State. Under the Michigan Constitution, the proposal was scheduled to go into effect on December 23, 2006. At stake today 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. 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 policies 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. 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 absence of any likelihood of prevailing in invalidating this state initiative on federal grounds, we have no choice but to permit its enforcement in accordance with the state-law framework that gave it birth.
Legal and policy debates about admissions preferences in the university setting are not new to the people of Michigan. In 2003, the Supreme Court invalidated the University of Michigan's race-based admissions preferences in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257, and it upheld the University of Michigan School of Law's race-based admissions preferences in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304. In apparent response to those decisions, the Michigan Civil Rights Initiative, the executive director of which is Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger, began a campaign to place a proposal on the state ballot that would amend the Michigan Constitution to prohibit race-and gender-based preferences in public employment, education and contracting. See The Michigan Civil Rights Initiative, http://www.michigancivilrights.org (last visited Dec. 26, 2006).
On January 6, 2005, Gratz announced that her organization had obtained enough signatures under Michigan law to place its proposal—technically named Proposal 06-2 but commonly referred to as Proposal 2—on the statewide ballot. See http:// www.michigancivilrights.org/media/JG-10605-remarks.pdf (last visited Dec. 26, 2006). The Michigan Board of State Canvassers eventually approved the ballot language for Proposal 2, which would amend Article I, § 26 of the Michigan Constitution if approved.
On November 7, 2006, the people of Michigan voted in favor of Proposal 2. Fifty-eight percent of the voters supported it, and 42% opposed it. See Michigan Department of State, 2006 Official Michigan General Election Results, http://miboecfr. nictusa.com/election/results/06GEN/ 90000002.html (last visited Dec. 26, 2006).
The constitutional amendment contains several pertinent provisions. First: "The University of Michigan, Michigan State University, Wayne State University and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Mich. Const. art. I, § 26.
Second: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Id.
Third: "This section" — namely the amendment — "does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state." Id.
Fourth: "The remedies available for violations of this section shall be the same . . . as are otherwise available for violations of Michigan anti-discrimination law." Id.; see, e.g., Mich. Const. art. VIII, § 2; Mich. Comp. Laws § 37.2101 et seq. (the Elliot-Larsen Civil Rights Act).
Fifth: Mich. Const. art. I, § 26.
Sixth: "This section does not invalidate any court order or consent decree that is in force as of the effective date of this section." Id.
Seventh: In accordance with the Michigan Constitution, the amendment was scheduled to go into effect 45 days after the election, which is to say December 23, 2006. See Mich. Const. art. XII, § 2.
On November 8, 2006, one day after the election, the Coalition to Defend Affirmative Action, Integration and Immigrant Rights, and Fight for Equality By Any Means Necessary, along with other organizations and individuals opposed to Proposal 2 (collectively, the "plaintiffs"), filed a lawsuit against (1) Jennifer Granholm, the Governor of Michigan, and (2) the Regents of the University of Michigan, the Board of Trustees of Michigan State University and the Board of Governors of Wayne State University (collectively, the "Universities"), seeking a declaratory judgment that the amendment was invalid and a permanent injunction against its enforcement. They filed the lawsuit in the Southern Division of the Eastern District of Michigan. In their amended complaint, plaintiffs contended that Proposal 2 violates two federal constitutional provisions (the First and Fourteenth Amendments), three federal civil rights statutes (Title VI, Title VII and Title IX) and one presidential order (Executive Order 11246). To date, plaintiffs have not independently filed a motion for a preliminary injunction or a temporary restraining order against enforcement of Proposal 2.
On December 11, the Universities filed a cross-claim against Governor Granholm, seeking (1) a declaratory judgment "that under federal law the Universities may continue to use their existing admissions and financial aid policies through the end of the current [enrollment] cycle" and (2) a preliminary injunction that "allows the Universities to continue to use their existing admissions and financial aid policies through the end of the current cycle." In support of their requests, the Universities noted that: (1) "[s]erious controversies exist regarding the validity, meaning, impact, and application of the Amendment"; (2) "[t]he Governor has requested an interpretation of the Amendment from the [state] Civil Rights Commission" in 90 days, but they cannot await the Commission's decision given the effective date (December 23) of the law; (3) "[t]he Amendment becomes effective in the midst of the Universities' current admission and financial aid cycle," which generally "run[s] from the early fall through the spring"; and (4) "[f]orcing the Universities to abandon their existing admissions and financial aid policies in the midst of this cycle would require them to apply different policies to applicants within the same cycle and different policies than they have announced" to the public.
In further support of their requests for declaratory and injunctive relief, the Universities argued that "[t]he Amendment implicates federal law." "It incorporates," they noted, "whole bodies of federal law by reference, including `federal programs,' `federal law,' and the `United States Constitution.'" The Universities, they added, "put their admissions and financial aid policies in place in reliance on the Supreme Court's reaffirmation in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), that they have an academic freedom right, based in the First Amendment to the Constitution of the United States, to select their students and that they may, in the course of doing so, give some consideration to such factors . . . as race." On the same day, they filed a motion for a preliminary injunction, seeking the same thing — to enjoin the enforcement of Proposal 2 through the end of the current admissions cycle.
On December 14, three days after the Universities filed their cross-claim, the Michigan Attorney General, Michael Cox, filed a motion to intervene in the lawsuit. See Fed.R.Civ.P. 24. The district court granted the Attorney...
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