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Michigan Affirmative Action Ban Illegal, Rules 6th Circuit

By Stephanie Rabiner, Esq. on July 05, 2011 | Last updated on March 21, 2019

Taking a page from the Supreme Court's 2007 decision in Seattle School District, the 6th Circuit struck down Michigan's affirmative action ban late last week on the grounds that it violates the Equal Protection Clause's prohibition of legislative changes that burden a minority's ability to participate in the political process.

Though limited to those within the court's jurisdiction, the decision could have far-reaching implications, as at least 6 other states have also banned affirmative action in higher education.

Michigan's public university system has been at the forefront of the affirmative action debate, with the Supreme Court finding in 2003 that it, and other universities, can consider race as a "plus factor" on an individualized basis in the application process.

In response, the state's voters passed a constitutional amendment, known as Proposal 2, prohibiting the use of race and ethnicity, amongst other characteristics, in public university admissions.

As the 6th Circuit points out, the Supreme Court has said that the Constitution's Equal Protection Clause prohibits "a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation."

This prohibition has been consistently used to strike down legislation that makes it more difficult for a racial minority to participate in the political process.

First determining that a public university's admissions committee is political, or governmental, in nature, the court then found that Michigan's affirmative action ban reallocates power in such a way that it makes it impossible for the committee to even consider the interests of racial minorities.

This, in effect, leaves racial minorities without any recourse, unable to achieve their goals through the political process altogether.

Thus, Michigan's affirmative action ban is unconstitutional.

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