By Terry Baynes
Nov 15 (Reuters) - A Michigan law that bans affirmative
action in public college admissions violates the U.S.
Constitution, a federal appeals court ruled on Thursday, adding
to a growing debate on preferential treatment for minorities.
A sharply divided U.S. Court of Appeals for the 6th Circuit
in Cincinnati found that a 2006 amendment to the Michigan
Constitution imposed burdens on racial minorities in violation
of the U.S. Constitution's guarantee of equal protection.
The decision comes as the U.S. Supreme Court is considering
whether colleges and universities can continue to give special
preference to minority candidates in admissions policies,
specifically in a case involving the University of Texas.
In Thursday's ruling, the 6th Circuit said that, unlike the
Supreme Court, it was not considering whether race-conscious
admissions policies were constitutional or worthwhile.
Rather, the only issue before the court was whether the
Michigan law violated the constitution by barring university
officials from considering race as a factor in admissions
decisions, Judge Guy Cole wrote for the 8-7 majority.
Michigan voters passed the measure, known as Proposition 2,
in 2006, prohibiting public educational institutions from giving
a preference to any applicant based on race.
A coalition of supporters of affirmative action sued that
same year, saying the change harmed racial minorities in
violation of the 14th Amendment's Equal Protection Clause.
A district court upheld the law in 2008, ruling for
Michigan's attorney general. The affirmative action supporters
appealed and a divided three-judge panel of the 6th Circuit
reversed that decision last year. At the request of the state,
the full appeals court reheard the case.
The majority of the court on Thursday said the Equal
Protection Clause does more than guarantee equal treatment under
the law. It also prevents laws from being passed that change the
political process to impose extra burdens on minorities, the
court said.
A child of alumni trying to get a school to adopt a policy
that favors legacy applicants could lobby the admissions
committee or petition the school's leadership, the court said.
In contrast, a black student advocating for a race-conscious
admissions policy would have to amend the state's constitution.
"The existence of such a comparative structural burden
undermines the Equal Protection Clause's guarantee that all
citizens ought to have equal access to the tools of political
change," wrote Cole.
Seven judges dissented, with Judge Richard Griffin calling
the majority's decision the "antithesis" of the Equal Protection
Clause.
"The post-Civil War amendment that guarantees equal
protection to persons of all races has now been construed as
barring a state from prohibiting discrimination on the basis of
race," Griffin wrote.
Michigan Attorney General Bill Schuette said he would appeal
the 6th Circuit's decision to the Supreme Court.
"Entrance to our great universities must be based upon
merit. We are prepared to take the fight for equality, fairness
and the rule of law to the U.S. Supreme Court," he said in a
statement.
George Washington, a lawyer for the affirmative action
supporters, welcomed the ruling as a victory for black, Latino
and Native American students.
He said numerous other states, including California, have
adopted bans on affirmative action, which have caused
"tremendous drops" in minority enrollment.
The Michigan Department of Civil Rights, which had filed a
brief against the ban, applauded the decision for allowing
public universities to promote diversity for the benefit of
their students and society.
The Supreme Court is expected to rule on the Texas case by
the end of June 2013.
The case is Coalition to Defend Affirmative Action et al v.
Regents of the University of Michigan et al, 6th U.S. Circuit
Court of Appeals, No. 08-1387.
For the Coalition to Defend Affirmative Action et al: George
Washington of Scheff, Washington & Driver.
For Bill Schuette, Michigan Attorney General: John Bursch of
the Michigan Attorney General's Office.
For the Regents of the University of Michigan: Leonard
Niehoff of Honigman Miller Schwartz & Cohn.
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