Sixteen days from now, the ban against affirmative action in Michigan will take effect and the University will be forced to change the criteria it uses to evaluate applicants halfway though this year’s admissions cycle.

That is unless a court delays the implementation of Proposal 2, the state constitutional amendment that prohibits the consideration of race, gender and national origin by public institutions.

But despite University President Mary Sue Coleman’s public vow to fight the amendment in court, the University has yet to file a lawsuit challenging the measure. This leaves radical pro-affirmative action group By Any Means Necessary as the only organization that has filed a lawsuit to block the amendment’s implementation.

BAMN’s lawsuit – filed in federal court in Detroit by attorney George Washington the day after the Nov. 7 election – names the University Board of Regents, Gov. Jennifer Granholm and the trustees of all other public educational institutions in Michigan as defendants.

The lawsuit seeks to prohibit Michigan universities from changing their admissions policies to comply with Proposal 2 and asks the court to find the amendment unconstitutional under the equal protection clause of the U.S. Constitution.

Washington said BAMN named the University as a defendant because the administration is responsible for changing the admissions system to comply with the constitutional amendment.

Maya Kobersy, assistant general counsel for the University, said the University had only recently been served with the lawsuit and is still reviewing it.

Washington said he expects a preliminary hearing on the case sometime in January, and that BAMN would likely request a preliminary injunction barring the amendment from taking effect sometime in the next few weeks.

Will the BAMN challange work?

BAMN’s lawsuit is based on essentially the same legal premise as a challenge to California’s affirmative action ban that was rejected by the Ninth Circuit Court of Appeals a decade ago.

The lawsuit claims that the constitutional amendment violates the Equal Protection Clause of the U.S. Constitution.

Eugene Volokh, a constitutional law professor at the University of California at Los Angeles, discounted BAMN’s attempt in an interview with The National Law Journal. He said courts have ruled having race preferences in higher education is not mandatory but “sometimes permissible.”

“The Constitution, generally speaking, does not mandate race-based preferences,” Volokh told the journal.

However, University Law School Dean Evan Caminker, who worked on the challenge to California’s affirmative action ban, said BAMN’s argument has a stronger legal basis today than its predecessor did a decade ago.

“Ten years ago, people thought the Supreme Court was going to abolish affirmative action anyway and that California was just doing it ahead of time,” Caminker said.

But the Supreme Court did not abolish affirmative action. Rather, in the 2003 Grutter v. Bollinger decision, the court upheld the Law School’s carefully tailored affirmative action policy.

Caminker thinks the Grutter decision makes BAMN’s case slightly stronger.

“I am not saying it is a slam dunk,” he said. “But I think there is a strong legal footing for it.”

The legal framework

The suit that challenged California’s ban and BAMN’s lawsuit both assert that eliminating affirmative action programs violates the equal protection clause of the U.S. Constitution.

The courts subject any law dealing with race to a standard called strict scrutiny. Laws evaluated under strict scrutiny are essentially assumed to be unconstitutional unless a compelling state interest can be established.

A law can also trigger strict scrutiny if it doesn’t explicitly mention race but has the effect of preventing a racial minority from engaging in the political process.

The coalition challenging California’s affirmative action ban argued that it prevented minorities from asking for special consideration on the basis of race but did not prevent non-minority students from lobbying for special consideration because of alumni status, athletic prowess or any number of other special weights, Caminker said. Thus, those challenging the ban said it was unconstitutional because it denied disadvantaged minorities from using the same political channels – lobbying the state universities for special consideration – that everyone else still enjoyed.

Likely outcome

University Provost Teresa Sullivan said in an interview last week that the University was assuming the amendment would go into effect Dec. 23. She also said a special task force is reviewing potential changes to the admissions system and working out precisely how the admissions office would comply with the new law.

The University still has time to file a challenge, but it’s not clear whether it will.

University spokeswoman Kelly Cunningham declined to say whether University still intends to pursue legal options.

“We don’t have anything to announce right now about when or if we are taking the next (legal) steps,” Cunningham said.

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