Winter break wasn’t particularly relaxing for the University’s administrators and lawyers. Courtroom wrangling over a federal lawsuit led first to a delay of the implementation of Proposal 2 for the current admissions cycle – and then, on appeal, to the ban’s immediate enforcement.
The University has announced it will hold off on making any further admissions decisions until Jan. 10 while it evaluates what to do next. The delay is a particularly visible marker of the confusion that leaves a stay of Proposal 2’s implementation for the current admissions cycle as the only fair option for implementing the new law. The University needs to exhaust its options for seeking a stay – including considering action in state court – if it is to judge this year’s applicants by a uniform set of criteria.
Along with Wayne State University and Michigan State University, the University of Michigan sought an injunction in federal court against Proposal 2 in mid-December, citing the difficulty and unfairness of attempting to follow the new law in the middle of an admissions cycle despite ongoing uncertainties over the interpretation of the state constitutional amendment. That stay was granted in a federal district court on Dec. 19, but a three-judge panel of the 6th Circuit Court of Appeals blocked it on Dec. 29. Because Proposal 2 was otherwise scheduled to go into effect on Dec. 23, it immediately went into effect after that ruling.
The ruling by the panel of the 6th Circuit undid a broad agreement reached Dec. 18 between the various parties to Proposal 2 litigation to delay its application to admissions and financial aid decisions until July 1, an agreement that led to the ill-fated injunction issued by a federal district court. It is particularly worth noting that Attorney General Mike Cox signed off on the delay. Cox was a vocal supporter of the Michigan Civil Rights Initiative and has vowed to defend Proposal 2 in the courts. Even he, however, realizes it would be unjust to apply Proposal 2 in the middle of the admissions cycle. It was left to outside groups, like the Washington-based Center for Individual Rights, to mount the legal challenges that led to the ruling by the panel of the 6th Circuit.
In its ruling, the three-judge panel found inadequate grounds to challenge the legality of Proposal 2 under federal law, as the radical civil rights group By Any Means Necessary has done, and as such denied that it is appropriate for a federal court to prevent its implementation. While that’s bad news for BAMN’s long-shot lawsuit, it doesn’t address the valid concerns the state universities brought forward in seeking an injunction.
The University’s concerns – like the unfairness of judging this year’s applicants by two sets of standards and the fact that a ruling by the Michigan Civil Rights Commission on the interpretation of Proposal 2 won’t be available until February – deserve a full hearing. The University sought an injunction in federal court in part because it was already named as a defendant in the BAMN lawsuit. With much of the public deeply hostile to any effort by the University to challenge Proposal 2 or to delay its implementation, filing a motion in federal court as part of its defense against a lawsuit filed against it may have seemed politically more palatable than filing an independent motion.
With that avenue apparently closed, the University must look hard at seeking an injunction through a separate motion in state court. It can’t delay making admissions decisions indefinitely, after all, and the other option – hastily pulling together a revised admissions system partway through the cycle – is unlikely to be fair or painless.