Coal. To Defend Affirmative Action v. Regents of The Univ. of Mich., Nos. 08–1387

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtWest Codenotes
PartiesCOALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al., Plaintiffs–Appellants (08–1387)/Cross–Appellees,v.REGENTS OF the UNIVERSITY OF MICHIGAN, Board of Trustees of Michigan State University; Board of Governors of Wayne State University; Mary Sue Coleman; Irvin D. Reid; Lou Anna K. Simon, Defendants–Appellees/Cross–Appellants (08–1534),Michael Cox, Michigan Attorney General, Intervenor–Defendant–Appellee.Coalition to Defend Affirmation Action, Integration and Immigrant Rights and Fight for Equality by any Means Necessary (BAMN), et al., Plaintiffs,Chase Cantrell, et al., Plaintiffs–Appellees,v.Regents of the University of Michigan, Board of Trustees of Michigan State University; Board of Governors of Wayne State University; Mary Sue Coleman; Irvin D. Reid; Lou Anna K. Simon, Defendants,Eric Russell, Intervenor–Defendant–Appellant,Jennifer Gratz, Proposed Intervenor–Appellant.Coalition to Defend Affirmation Action, Integration and Immigrant Rights and Fight for Equality by any Means Necessary (BAMN), et al., Plaintiffs,Chase Cantrell, et al., Plaintiffs–Appellants,v.Regents of the University of Michigan, Board of Trustees of Michigan State University; Board of Governors of Wayne State University; Mary Sue Coleman; Irvin D. Reid; Lou Anna K. Simon, Defendants,Michael Cox, Michigan Attorney General, Intervenor–Defendant–Appellee.
Decision Date09 September 2011
Docket Number08–1389,09–1111.,08–1534,Nos. 08–1387

652 F.3d 607
112 Fair Empl.Prac.Cas.
(BNA) 1331
94 Empl. Prac. Dec. P 44,211
79 Fed.R.Serv.3d 1212
271 Ed.
Law Rep. 720

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al., Plaintiffs–Appellants (08–1387)/Cross–Appellees,
v.
REGENTS OF the UNIVERSITY OF MICHIGAN, Board of Trustees of Michigan State University; Board of Governors of Wayne State University; Mary Sue Coleman; Irvin D. Reid; Lou Anna K. Simon, Defendants–Appellees/Cross–Appellants (08–1534),Michael Cox, Michigan Attorney General, Intervenor–Defendant–Appellee.Coalition to Defend Affirmation Action, Integration and Immigrant Rights and Fight for Equality by any Means Necessary (BAMN), et al., Plaintiffs,Chase Cantrell, et al., Plaintiffs–Appellees,
v.
Regents of the University of Michigan, Board of Trustees of Michigan State University; Board of Governors of Wayne State University; Mary Sue Coleman; Irvin D. Reid; Lou Anna K. Simon, Defendants,Eric Russell, Intervenor–Defendant–Appellant,Jennifer Gratz, Proposed Intervenor–Appellant.Coalition to Defend Affirmation Action, Integration and Immigrant Rights and Fight for Equality by any Means Necessary (BAMN), et al., Plaintiffs,Chase Cantrell, et al., Plaintiffs–Appellants,
v.
Regents of the University of Michigan, Board of Trustees of Michigan State University; Board of Governors of Wayne State University; Mary Sue Coleman; Irvin D. Reid; Lou Anna K. Simon, Defendants,Michael Cox, Michigan Attorney General, Intervenor–Defendant–Appellee.

Nos. 08–1387

08–1389

08–1534

09–1111.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 17, 2009.Decided and Filed: July 1, 2011.Rehearing En Banc Granted, Opinion Vacated Sept. 9, 2011.*


West CodenotesHeld UnconstitutionalM.C.L.A. Const. Art. 1, § 26

[652 F.3d 609]

ARGUED: George Boyer Washington, Shanta Driver, Scheff, Washington & Driver, P.C., Detroit, Michigan, Karin A. DeMasi, Cravath, Swaine & Moore LLP, New York, New York, Mark D. Rosenbaum, ACLU Foundation of Southern California, Los Angeles, California, for Plaintiffs. Margaret A. Nelson, Office of the Michigan Attorney General, Lansing, Michigan, Leonard M. Niehoff, Len Niehoff & Associates, Chelsea, Michigan, Jesse Panuccio, Cooper & Kirk, PLLC, Washington, D.C., for Defendants. ON BRIEF: George Boyer Washington, Shanta Driver, Scheff, Washington & Driver, P.C., Detroit, Michigan, Karin A. DeMasi, Cravath, Swaine & Moore LLP, New York, New York, Mark D. Rosenbaum, ACLU Foundation of Southern California, Los Angeles, California, Kary L. Moss, Michael J. Steinberg, Mark P. Fancher, ACLU Fund of Michigan, Detroit, Michigan, Joshua I. Civin, NAACP Legal Defense & Educational Fund, Inc., Washington, D.C., for Plaintiffs. Margaret A. Nelson, Heather S. Meingast, Office of the Michigan Attorney General, Lansing, Michigan, Leonard M. Niehoff, Len Niehoff & Associates, Chelsea, Michigan, Jesse Panuccio, Charles J. Cooper, David H. Thompson, Cooper & Kirk, PLLC, Washington, D.C., Kerry L. Morgan, Pentiuk, Couvereur & Kobiljak, Wyandotte, Michigan, Michael E. Rosman, Center for Individual Rights, Washington, D.C., for Defendants. Daniel M. Levy, Michigan Department of Civil Rights, Detroit, Michigan, for Amicus Curiae.

[652 F.3d 610]

Sharon L. Browne, Pacific Legal Foundation, Sacramento, California, for Amicus Curiae.Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.COLE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. GIBBONS, J. (pp. 633–46), delivered a separate opinion concurring in part and dissenting in part.
OPINION
COLE, Circuit Judge.

Proposal 2 is a successful voter-initiated amendment to the Michigan Constitution. In relevant part, it prohibits Michigan's public colleges and universities from granting “preferential treatment to[ ] any individual or group on the basis of race, sex, color, ethnicity, or national origin.” Mich. Const. art. I, § 26. Our task is to determine whether Proposal 2 is constitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Fortunately, the slate is not blank. The Supreme Court has twice held that equal protection does not permit the kind of political restructuring that Proposal 2 effected. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969). Applying Hunter and Seattle, we find that Proposal 2 unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities. Accordingly, we REVERSE the district court's grant of summary judgment for the Defendants–Appellees and order the court to enter summary judgment in favor of the Plaintiffs–Appellants. Also, we AFFIRM the district court's decision granting the Cantrell Plaintiffs' motion for summary judgment as to Eric Russell, and AFFIRM the district court's decision denying the University Defendants' motion to be dismissed as parties.

I. BACKGROUND
A. Factual Background

These appeals are the latest chapter in the battle over the use of race-conscious admissions policies at Michigan's public colleges and universities. This saga began during the 1960s and 1970s, when African–American and other minority students and citizens first successfully lobbied for the adoption of these policies. The policies remained largely in place until challenges to them in the late 1990s, culminating in the Supreme Court's decisions in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), and Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), which held that “universities cannot establish quotas for members of certain racial groups” or treat their applications uniquely. Grutter, 539 U.S. at 334, 123 S.Ct. 2325. But the universities may “consider race or ethnicity more flexibly as a ‘plus' factor in the context of individualized consideration,” along with other relevant factors. Id.

Following these decisions, Ward Connerly, a former University of California Regent who had championed a proposition in California similar to the one at issue here, and Jennifer Gratz, the lead plaintiff in Gratz, mobilized to place on Michigan's November 2006 statewide ballot a proposal to amend the Michigan Constitution “to prohibit all sex- and race-based preferences in public education, public employment, and public contracting.” Operation King's Dream v. Connerly, 501 F.3d 584, 586 (6th Cir.2007). The initiative—officially designated Proposal 06–2 but commonly known as “Proposal 2”—was characterized as a proposal “to amend the State Constitution to ban affirmative action programs.” See Notice of State Proposals for November

[652 F.3d 611]

7, 2006 General Election, http:// www. michigan. gov/ documents/ sos/ ED– 138_ State_ Prop_ 11– 06_ 174276_ 7. pdf, at 5 (last visited June 24, 2011). Though Proposal 2 “found its way on the ballot through methods that undermine[d] the integrity and fairness of our democratic processes,” Operation King's Dream, 501 F.3d at 591, once there it garnered enough support among Michigan voters to pass, on November 7, 2006, by a margin of 58% to 42%, see Mich. Dep't of State, 2006 Official Michigan General Election Results, http:// miboecfr. nicusa. com/ election/ results/ 06 GEN/ 90000002. html (last visited June 24, 2011).

Proposal 2 amended the Michigan Constitution by adding the following pertinent provisions to Article I—titled “Affirmative action”:

(1) 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.

(2) 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.

(3) For the purposes of this section “state” includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.

Mich. Const. art. I, § 26. It took effect in December 2006 and wrought two significant changes to the admissions policies at Michigan's public colleges and universities. First, it forced them to modify the policies they had in place for nearly a half-century to remove consideration of “race, sex, color, ethnicity, or national origin” in admissions decisions. No other admissions criteria—for example, grades, athletic ability, or family alumni connections—suffered the same fate. Second, Proposal 2 entrenched this prohibition at the state constitutional level, thus preventing the public colleges and universities or their boards from revisiting this issue without repeal or modification of Proposal 2. We review these changes later in greater detail, and there discuss their significance.

B. Procedural Background

The litigation surrounding Proposal 2 has been lengthy and complicated. On November 8, 2006, the day after Proposal 2's approval, a collection of interest groups and individuals, including the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary (“Coalition Plaintiffs”), filed suit in the United States District Court for the Eastern District of Michigan. They named as defendants then-Governor Jennifer Granholm, the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University (“University Defendants”) and alleged that the provisions of...

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4 practice notes
  • Schuette v. Coal. to Defend Affirmative Action, No. 12–682.
    • United States
    • United States Supreme Court
    • April 22, 2014
    ...judgment. 592 F.Supp.2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F.3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633–646. The panel majority held that Proposal 2 had violated the principles elabo......
  • Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by any Means Necessary(Bamn) v. Regents of the Univ. of Mich., Nos. 08–1387
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 15, 2012
    ...process in violation of the Equal Protection Clause. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VII), 652 F.3d 607, 631–32 (6th Cir.2011). This Court also affirmed the district court's dismissal of Russell and the denial of the University Defendants' motion t......
  • Schuette v. Coal. to Defend Affirmative Action, No. 12–682.
    • United States
    • United States Supreme Court
    • April 22, 2014
    ...judgment. 592 F.Supp.2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F.3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633–646. The panel majority held that Proposal 2 had violated the principles elabo......
  • Schuette v. Coal. to Defend Affirmative Action, No. 12-682.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 22, 2014
    ...592 F. Supp. 2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F. 3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633-646. The panel majority held that Proposal 2 had violated the principles elaborated b......
4 cases
  • Schuette v. Coal. to Defend Affirmative Action, No. 12–682.
    • United States
    • United States Supreme Court
    • April 22, 2014
    ...judgment. 592 F.Supp.2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F.3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633–646. The panel majority held that Proposal 2 had violated the principles elabo......
  • Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by any Means Necessary(Bamn) v. Regents of the Univ. of Mich., Nos. 08–1387
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 15, 2012
    ...process in violation of the Equal Protection Clause. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VII), 652 F.3d 607, 631–32 (6th Cir.2011). This Court also affirmed the district court's dismissal of Russell and the denial of the University Defendants' motion t......
  • Schuette v. Coal. to Defend Affirmative Action, No. 12–682.
    • United States
    • United States Supreme Court
    • April 22, 2014
    ...judgment. 592 F.Supp.2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F.3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633–646. The panel majority held that Proposal 2 had violated the principles elabo......
  • Schuette v. Coal. to Defend Affirmative Action, No. 12-682.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 22, 2014
    ...592 F. Supp. 2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F. 3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633-646. The panel majority held that Proposal 2 had violated the principles elaborated b......

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