By Andrew Schulman, Daily News Editor
Published November 30, 2012
On Friday, the U.S. 6th Circuit Court of Appeals issued an order to stay its Nov. 15 decision striking down Michigan’s ban on affirmative action, putting the ruling on hold until the U.S. Supreme Court decides if it will hear the case.
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The order came a day after Michigan Attorney General Bill Schuette filed a petition with the nation’s highest court to review the 6th Circuit Court’s ruling. The Court’s affirmation means the University cannot use affirmative action in its admissions processes until the Supreme Court chooses whether to review the case or until the Supreme Court issues a ruling.
“The ruling is on hold until the Supreme Court says it will take the appeal,” said Joy Yearout, a spokeswoman for Schuette.
The University had been hesitant to express whether it would implement affirmative action before the order. At the Nov. 26 meeting of the Senate Advisory Committee on University Affairs, University President Mary Sue Coleman told faculty that the University would not immediately change its admissions policies since the Supreme Court is now reviewing Fisher v. Texas, another affirmative action case.
“Right now we are taking a wait-and-see attitude and trying to carefully analyze everything at this time,” Coleman said at the meeting.
University spokesman Rick Fitzgerald said in an interview Sunday that the stay only confirms the University’s approach.
“All the stay does is formalize that by saying you can’t make changes until it’s appealed,” Fitzgerald said. “That’s what the University had planned all along.”
Reviewing the case en banc, the 6th Circuit Court of Appeals ruled in an 8-7 decision on Nov. 15 that Proposal 2, the state-wide ban on racial preferences that was passed by popular vote in 2006, was unconstitutional.
Judge R. Guy Cole Jr. wrote in the majority opinion that Proposal 2 violates the Equal Protection Clause by placing an undue burden on those seeking affirmative action.
After the decision, George Washington, a lawyer for the pro-affirmative action group By Any Means Necessary, and University philosophy Prof. Carl Cohen, who authored Prop. 2, said they expected the Supreme Court to take up the case.
Cohen estimated the odds to be “97 percent, I’d say, maybe 98.”
If the Supreme Court opts to rule on the case, the Court might need “a still picture” of affirmative action and the effects of absence on universities to rule effectively, according to Law Prof. Mark Rosenbaum, who argued the case in favor of affirmative action.
While Rosenbaum called the order to stay the ruling a disservice to the state, he said it was a practical necessity given that the ruling came down in the middle of an admissions cycle.
“Everything would be topsy-turvy,” he said. “It would be changing the rules in the middle of the process, and that would lead to mass confusion and claims of unfairness.”
The Supreme Court could wait until October of next year to decide whether to review the ruling, Rosenbaum said. If that is the case, the Court might not issue an opinion until the spring of 2014, meaning this admissions cycle and the next could proceed without the University being able to use affirmative action in its admissions decisions.
The Associated Press contributed to this report.