Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. by any Means Necessary(Bamn) v. Regents of the Univ. of Mich.
| Citation | 701 F.3d 466 |
| Decision Date | 15 November 2012 |
| Docket Number | 08–1534,08–1389,09–1111.,Nos. 08–1387,s. 08–1387 |
| Parties | 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), Bill Schuette, Michigan Attorney General, Intervenor–Defendant–Appellee. Coalition to Defend Affirmative 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 Affirmative 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, Bill Schuette, Michigan Attorney General, Intervenor–Defendant–Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
OPINION TEXT STARTS HERE
Held Unconstitutional
M.C.L.A. Const. Art. 1, § 26ARGUED:George Boyer Washington, Scheff, Washington & Driver, P.C., Detroit, Michigan, for Appellant/Cross–Appellee in 08–1387/1534. John J. Bursch, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee in 08–1387/1534. Leonard M. Niehoff, Len Niehoff & Associates, Chelsea, Michigan, Stephanie R. Setterington, Varnum LLP, Grand Rapids, Michigan for Appellees/Cross–Appellants in 08–1387/1534. Charles J. Cooper, Cooper & Kirk, PLLC, Washington, D.C., for Appellant in 08–1389. Mark D. Rosenbaum, ACLU Foundation of Southern California, Los Angeles, California, George Boyer Washington, Scheff, Washington & Driver, P.C., Detroit, Michigan, for Appellees in 08–1389. Mark D. Rosenbaum, ACLU Foundation Of Southern California, Los Angeles, California, for Appellant in 09–1111. John J. Bursch, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee in 09–1111. ON BRIEF:George Boyer Washington, Shanta Driver, Scheff, Washington & Driver, P.C., Detroit, Michigan, Winifred Kao, Asian Law Caucus, San Francisco, California, for the Coalition Plaintiffs. Mark D. Rosenbaum, ACLU Foundation Of Southern California, Los Angeles, California, Karin A. DeMasi, Cravath, Swaine & Moore LLP, New York, New York, for Cantrell Plaintiffs. Michael E. Rosman, Center For Individual Rights, Washington, D.C., Charles J. Cooper, David H. Thompson, Cooper & Kirk, PLLC, Washington, D.C., for Appellant in 08–1389. Leonard M. Niehoff, Honigman Miller Schwartz & Cohn, LLP, Ann Arbor, Michigan, for the Universities Defendants. John J. Bursch, Margaret A. Nelson, Office of the Michigan Attorney General, Lansing, Michigan, for Defendant Attorney General. Stephanie R. Setterington, Varnum LLP, Grand Rapids, Michigan, for Defendants Wayne State University and Irvin Reid. Wilson R. Huhn, The University of Akron School of Law, Akron, Ohio, Kenneth C. Yeager, Drociak, Yeager & Associates, Los Angeles, California, Daniel M. Levy, Michigan Department of Civil Rights, Detroit, Michigan, Eugene Driker, Barris, Sott, Denn, Driker, P.L.L.C., Detroit, Michigan, Catherine M. Mish, Kristen Rewa, City of Grand Rapids, City Attorney'sOffice, Grand Rapids, Michigan, Doyle O'Connor, Detroit, Michigan, Allison S. Elgart, Equal Justice Society, San Francisco, California, G. Scott Emblidge, Moscone Emblidge & Sater LLP, San Francisco, California, Derek T. Ho, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., Barry Levenstam, Jenner & Block LLP, Chicago, Illinois, Michael Francis Smith, The Smith Appellate Law Firm, Washington, D.C., Sharon L. Browne, Pacific Legal Foundation, Sacramento, California, for Amici Curiae.
Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, DAUGHTREY, MOORE, COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN, WHITE, STRANCH, and DONALD, Circuit Judges.*
COLE, J., delivered the opinion of court in which MARTIN, DAUGHTREY, MOORE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined; and BATCHELDER, C.J., and GIBBONS, ROGERS, SUTTON, COOK, and GRIFFIN, JJ., joined in Part II.B and C. BOGGS, J. (pp. 491–93), delivered a separate dissenting opinion, in which BATCHELDER, C.J., joined. GIBBONS (pp. 493–505), delivered a separate dissenting opinion, in which BATCHELDER, C.J., and ROGERS, SUTTON, and COOK, JJ., joined, and GRIFFIN, J., joined with the exception of Part III. ROGERS (pg. 505) delivered a separate dissenting opinion, in which COOK, J., joined. SUTTON (pp. 505–11), delivered a separate dissenting opinion in which BATCHELDER, C.J., and BOGGS and COOK, JJ., joined. GRIFFIN, J. (pp. 511–14), delivered a separate dissenting opinion.
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. The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change. We therefore REVERSE the judgment of the district court on this issue and find Proposal 2 unconstitutional. We AFFIRM the denial of the University Defendants' motion to be dismissed as parties, and we AFFIRM the grant of the Cantrell Plaintiffs' motion for summary judgment as to Russell.
These appeals are before us as an epilogue to the long-running battle over the use of race-conscious admissions policies at Michigan's public colleges and universities. The saga began during the 1960s and 1970s, when racial minorities first successfully lobbied for the adoption of such policies. They remained largely in place until challenges in the late 1990s culminated 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 Court allowed universities to continue “consider[ing] race or ethnicity more flexibly as a ‘plus' factor in the context of individualized consideration,” along with other relevant factors, id., a holding we do not today address or upset.
Following these decisions, Ward Connerly, a former University of California Regent who had championed a similar proposition in California, 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”—sought “to amend the State Constitution to ban affirmative action programs.” See Notice of State Proposals for November 7, 2006 General Election, http:// www. michigan. gov/ documents/ sos/ ED- 138_ State_ Prop_ 11- 06_ 174276_ 7. pdf, at 5 (last visited May 22, 2012). 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 by a margin of 58% to 42%.
Proposal 2 amended the Michigan Constitution to include the following provisions, entitled “Affirmative action,” in Article I:
(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. Proposal 2 took effect in December 2006 and wrought two significant changes to the admissions policies at Michigan's public colleges and universities. First, it...
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