6th Circuit Court panel hears arguments in Michigan Civil Rights Initiative lawsuit

BY JOSEPH LICHTERMAN
Daily Staff Reporter
Published November 17, 2009

Opponents of Michigan’s 2006 Civil Rights Initiative that banned public institutions from using affirmative action had their day in court again yesterday.

A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati heard oral arguments from both sides regarding the legality of the state’s constitutional amendment.

The ballot initiative — when it was on the ballot as Proposal 2 — amended the state’s constitution by barring all state institutions and agencies, including public universities, from using any programs that show preference based on race, gender, national origin or ethnicity. The measure passed by a 58-42 percent margin.

The main plaintiffs in the case are the state of Michigan, University of Michigan, Michigan State University and Wayne State University.

In a brief written to the 6th Circuit Court, the universities stated that they wished to be removed from the lawsuit.

"Simply put, the universities do not belong in the case," the brief reads. "The universities did not draft Proposal 2. They did not pass Proposal 2. They cannot change Proposal 2. They are not executive branch agencies charged with enforcing Proposal 2."

Michigan Attorney General Mike Cox is prosecuting the case for the state.

Various civil rights groups, including the ACLU, NAACP and Immigration Rights and Fight for Equality By Any Means Necessary (BAMN) are opposing the amendment.

Attorney George Washington is representing BAMN. He said the fact that minority enrollment has dropped at universities throughout the state since the passage of Proposal 2 shows that the law is discriminatory.

At the University of Michigan, data released in October showed that the enrollment of underrepresentated minorities at the University has declined every year since the passage of the initiative in 2006. Underrepresented minority enrollment was down 11.4 percent from last year.

“This law got on the ballot by racially targeted fraud.” Washington said. “It results in creating second-class citizenship for Black and Latino citizens. It passed because white people outvoted Black people. Black people voted against it by 90 percent.”

“It results in the exclusion of Black and Latino students,” Washington continued. “If you put all those things together, this is the most racist law passed in Michigan in many decades.”

Washington said that while arguments were heard in court yesterday, a decision is not expected for several months.

He said that no matter the outcome, he believes the case will be appealed to the full, 16 judge 6th Circuit Court en banc and eventually to the Supreme Court.

Washington said that after the court proceedings had concluded, approximately 100 people — mostly African-American college and high school students — protested outside the courthouse.

He said the protesters chanted, “They say Jim Crow, we say hell no!”

Kevin Gaines, director of the University’s Center for Afro-American and African Studies who is also involved in the case, said in an interview yesterday that the Supreme Court previously upheld the University’s use of race as a factor — not the sole factor — in determining admissions.

Gaines said that the amendment is causing the reversal of many years of work toward racial equality.

“(The ban) has resulted in the re-segregation of higher education in Michigan, especially at the University (of Michigan),” he said.

Law School lecturer Mark Rosenbaum, a lawyer for the ACLU who is arguing the case, told Michigan Radio that the ban creates an uneven playing field between Black and white students in terms of admissions.

"You can point out your religion, you can point out you're a veteran, you can point out that you come from the Upper Peninsula, that you're an oboist, that you're an alumni, that you're an athlete,” he said. “You can talk about anything that is salient to your identity except race."

The plaintiffs are appealing a March 2008 judgment by U.S. District Court Judge David M. Lawson that dismissed their lawsuit and maintained the constitutionality of the amendment.

“Proposal 2 allows universities to use neutral criteria — grades, test scores, schools of origin, community geographics, economic factors, and a host of others — in the admissions process,” Lawson wrote in his decision. “If these factors are not suitable proxies that generate racially diverse student populations, the universities will be all the poorer, but not because of conscious discrimination.”

Two-thirds of the three-judge panel that is hearing the case was appointed by President Bill Clinton. Those two were part of the panel that upheld the lower court’s ruling in Grutter v. Bollinger on its way to the Supreme Court. In Grutter , the Supreme Court ruled in a 5-4 decision that the University of Michigan’s Law School was within its legal rights to use race as a factor for admission. The third judge on the panel, according to the Chronicle of Higher Education, is a moderate Republican appointed by President George W. Bush.