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Federal court rules Proposal 2 unconstitutional

BY THE ASSOCIATED PRESS

Published July 1, 2011

DETROIT (AP) — A federal appeals court on Friday struck down Michigan's ban on the consideration of race and gender in college admissions, saying it burdens minorities and violates the U.S. Constitution.

The 2-1 decision upends a sweeping law that forced the University of Michigan and other public schools to change admission policies. The 6th U.S. Circuit Court of Appeals said the law, approved by voters in 2006, violates the 14th Amendment's Equal Protection Clause.

The court mostly was concerned about how the affirmative action ban was created. Because it was passed as an amendment to the state constitution, it can only be changed with another statewide vote. This places a big burden on minorities who object to it, judges R. Guy Cole Jr. and Martha Craig Daughtrey said.

The ban's supporters could have chosen "less onerous avenues to effect political change," the judges said in the court's opinion.

Arizona, California, Nebraska and Washington state have similar bans, but they won't be affected by the Michigan decision. The court ruling is limited to Michigan and other states in the 6th Circuit: Kentucky, Ohio and Tennessee.

The judges cited two U.S. Supreme Court cases, one in 1969 involving the repeal of a fair housing law in Akron, Ohio, and the other in 1982 involving an effort to stop racial integration in Seattle schools.

"They provide the benchmark for when the majority has not only won, but also rigged the game to reproduce its success indefinitely," Cole and Daughtrey said.

The American Civil Liberties Union, which was part of a coalition that challenged the Michigan ban, hailed the court's decision.

The "ruling has kept the door open for thousands of academically qualified students of color to continue to pursue the American dream through our state's colleges and universities," said Kary Moss, an ACLU spokeswoman in Detroit.

A dissenting judge, Julia Smith Gibbons, said there was nothing wrong with the ban or the way it passed.

"The Michigan voters have ... not restructured the political process in their state by amending their state constitution; they have merely employed it," she said.

A message seeking comment was left with the Michigan attorney general's office, which defended the law and could ask the full appeals court to take the case. Such requests are rarely granted. Gov. Rick Snyder, a Republican who has said he opposed the 2006 constitutional amendment, had no immediate comment. He was elected last year.

The ban, which also affected government hiring, was approved by 58 percent of voters. In 2008, a federal judge in Detroit upheld it, saying it was race-neutral because no single race can benefit.

Jennifer Gratz, a Michigan native who successfully sued the University of Michigan over racial preferences before the 2006 referendum, predicted Friday's decision eventually will be thrown out.

"It's just a blip. The full 6th Circuit or the Supreme Court will take it," Gratz said. "Judges are not supreme rulers. The people voted."

A business group, Michigan Roundtable for Diversity and Inclusion, praised the ruling.

"This is one place where government should be acting more like a business, and the 6th Circuit court decision gives governments and universities the tools they need to improve diversity and inclusion," said Debbie Dingell, a former General Motors executive.


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