The Michigan case does not involve whether race-based admissions programs violate the constitution. Instead, the Sixth Circuit decision addresses whether the act of amending Michigan’s constitution to ban race-based admissions violated the equal protection rights of minority proponents of race-based admissions.
The majority judges on the Sixth Circuit concluded that it did.
They cited two US Supreme Court precedents from 1969 and 1982 for the proposition that Michigan’s state-wide ban created an unconstitutional burden on minority groups and minority support of affirmative action programs.
The judges said that it must be left up to school officials to decide whether race-based policies would continue or stop. They said a policy debate at the school level would better enable minority groups and other supporters of race-based admissions to effectively present their argument.
In contrast, the majority judges said, allowing all voters in Michigan to decide the question on a state-wide ballot amounted to a manipulation of the process because it would be significantly more difficult for supporters of race-based plans to mount and win a state-wide referendum to reinstate race-based admissions.
“Equal protection of the laws is more than a guarantee of equal treatment under existing law,” Judge Cole said. “It is also a guarantee that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them.”
Judge Cole added: “When two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course.”
Judge Jeffrey Sutton challenged Cole’s reasoning in a 10-page dissent. “I do not doubt that Proposal 2 places a burden on proponents of affirmative action: They no longer have access to it, and they must amend the constitution to get it back,” he wrote.