In 2006, Michigan voters successfully passed Proposition 2, a ballot initiative that amended the Michigan state constitution and ended the state government’s use of racial preferences in employment decisions and in higher education admission systems. Even though the initiative was passed by an overwhelming majority, a group of activists and university faculty sued the state government in an attempt to declare the new amendment unconstitutional. They asserted that the Fourteenth Amendment, which prohibits racial discrimination, in turn prohibited Michigan from passing an amendment that prohibits racial discrimination. CIR intervened in the case on behalf of Eric Russell, who applied for admission at the University Of Michigan School Of Law and was denied because of the delayed implementation of the amendment. The case eventually made its way to the Supreme Court where a plurality of Justices held that the amendment did not violate the Fourteenth Amendment. In doing so, the Supreme Court affirmed the sovereignty of Michigan voters to govern their state.
Voters Decide to Take Control
In Gratz and Grutter v. Bollinger, CIR sued the University of Michigan over its unconstitutional use of racial preferences in admissions. The Supreme Court declared the system at the University of Michigan’s undergraduate campus unconstitutional, but it left the door open for the law school to continue using racial preferences under certain criteria. After Gratz and Grutter, Michigan voters took it upon themselves to do what the courts would not. Jennifer Gratz, the plaintiff in Gratz v. Bollinger, aided by Ward Connerly, spearheaded an initiative to amend the Michigan constitution and end the state government’s use of racial preferences.
The amendment instructed that the state, including public universities, “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
On November 7, 2006, the initiative was approved by 58% of voters in the 2006 election. According to Michigan law, it was to be implemented the following month. However, on November 8, the day after the initiative succeeded at the polls, a group called the Coalition to Defend Affirmative Action By Any Means Necessary (BAMN) filed a suit in federal court alleging that the new amendment violated the Fourteenth Amendment of the U.S. Constitution. BAMN took their phrase “by any means necessary” from Malcolm X, and was founded by the Revolutionary Workers League, a Trotskyist political organization.
The Michigan Attorney General defending the amendment initially agreed with BAMN’s demand to delay the amendment’s implementation. This would have meant that another academic year would pass where universities in Michigan would have been free to use racial preferences. Eric Russell, a law student at Wayne State University, was at this time attempting to apply as a transfer student to the University of Michigan. Because the amendment’s delay would have affected his chances of admission, he sought to intervene in the lawsuit and CIR agreed to represent him and defend the Michigan amendment on his behalf.
Unlike Gratz and Grutter, this case was not about the constitutionality of racial preferences. It was rather about the ability of Michigan voters to govern themselves within constitutional parameters. The Supreme Court has held that racial preferences are permitted under the constitution, but it has never held that they are required. CIR maintained that what the constitution does not prohibit is left to the discretion of the voters.
CIR Defends Efforts of Michigan Voters
CIR was the only party who challenged BAMN’s demand that the amendment be delayed. After the District Court ordered the amendment’s delay, CIR filed an emergency appeal to the Sixth Circuit. The Sixth Circuit recognized that the District Court had no authority to delay the amendment and pointed out that it was unlikely to be invalidated under the constitution. With this early victory from the Sixth Circuit, the case returned to the District Court where Judge Lawson denied BAMN’s motion for Summary Judgment. The court held that the Amendment did not violate the constitution and that Michigan voters had spoken.
BAMN appealed this ruling to the Sixth Circuit. A new panel of the Sixth Circuit reversed the District Court and held that the amendment did violate the Constitution because it altered the political process in a manner that placed minorities at a disadvantage. The court justified this holding under what is known as the “political process doctrine.” This doctrine holds that an otherwise constitutional action by voters or their elected officials can be declared unconstitutional if the result places minorities at a disadvantage in the political process.
The problem with this doctrine as expressed by the Sixth Circuit is that it assumes all members of a minority think the same way and have the same political goals. Because of this, it gives anyone who is a minority – even if they are a minority of the minority, like the Trotskyist BAMN – standing to challenge any political action. Tax, housing, and education policies could all be placed beyond the reach of the voters.
After the Sixth Circuit panel issued its ruling, the case was appealed to an en banc panel of the Sixth Circuit. That panel affirmed the political process doctrine and the case was appealed to the Supreme Court.
On appeal to the Supreme Court, CIR argued that courts may not dis-empower voters from deciding how to govern their state. All parties agreed that a university is not required to use racial preferences under the constitution, but BAMN took issue with how racial preferences were ended in Michigan. Even though the amendment was enacted in accordance with Michigan law by an overwhelming majority of voters.
Justice Kennedy, writing for the plurality of the Supreme Court, upheld the amendment. As he explained, “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
Justice Scalia, concurring in the judgment, pointed out the absurdity of the question by rephrasing it: “Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” Justice Scalia explained that the Fourteenth Amendment absolutely proscribes discrimination on the basis of race. How then, can Michigan violate the Fourteenth Amendment by forbidding racial discrimination?
CIR’s victory in Schuette is just one chapter in our continual efforts to both defend free speech and end racial preferences in higher education.
Read more about our ongoing efforts here.