Though affirmative action became legal again in Michigan on Thursday, the change may be short-lived, according to University experts.
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The U.S. 6th Circuit Court of Appeals in Cincinnati, Ohio effectively changed Michigan law on Thursday by lifting the ban on affirmative action, overturning the decision of the U.S. District Court for the Eastern District of Michigan at Detroit in the case of Coalition to Defend Affirmative Action v. Regents of the University of Michigan.
In April, the U.S. 9th Circuit Court of Appeals in San Francisco, Calif. upheld a ban on affirmative action in California instated by the state’s voters, ruling in opposition to the 6th Circuit. The discrepancy, according to some, makes it a near certainty that the U.S. Supreme Court will take up the issue of ballot initiatives banning affirmative action in state constitutions.
Residential College Prof. Carl Cohen, a leading proponent of Michigan’s Proposal 2, said the Supreme Court often intervenes when two circuit courts issue opposite rulings on the same issue.
“They almost have to (take up the case),” Cohen said. “They’re almost obliged to do so because of the conflicting decisions in the 6th Circuit Court of Appeals and the 9th Circuit Court of Appeals in California.”
Cohen said the Supreme Court is not sympathetic to race-based admissions, and would reverse the 6th Circuit decision should they decide to take up the case.
“The likelihood that they will pick up the case is 97 percent, I’d say, maybe 98,” Cohen said. “There’s no likelihood of their turning it down. It’s absolutely made for them — that’s their job. Their job is to resolve conflict between the circuit courts.”
Regent Julia Darlow (D–Ann Arbor) said in an interview at Thursday’s meeting of the University’s Board of Regents that she expects the Supreme Court to take up Proposal 2, but is nevertheless pleased with the 6th Circuit’s decision.
“It’s a very compelling issue and I think it’d be a very, very important development for equal justice everywhere.”
Regent Martin Taylor (D–Grosse Pointe Farms) said he not only expects the Court to take up the case, but is pessimistic about what he thinks their decision will be.
“I don’t know if I’d say optimistic,” Taylor said. “Not with this Supreme Court, maybe with a few more appointments by our new president maybe I can be a little more confident.”
Cohen said despite some outspoken University support for affirmative action policies, he doesn’t expect Thursday’s decision to have a significant effect on the University’s admissions processes.
“I think the immediate impact on the University of Michigan is nil, except that they will be watching very closely of course, at what happens at the United States Supreme Court.”
He added that for that reason, the University is not likely to take action in response to the decision.
“The University of Michigan is very unlikely to re-introduce preferences only to have the rug pulled out from them again,” Cohen said. “So my guess is that (University leaders) will be saying to themselves, ‘Let’s just see wait and see how it comes out in the Supreme Court.’”
Michigan Attorney General Bill Schuette already said he plans to appeal the ruling to the U.S. Supreme Court. Cohen said he expects the Supreme Court to take up the case, despite the fact that it has already heard oral arguments for another affirmative action case this year.
In October, litigants in Fisher v.