The United States Court of Appeals for the Sixth Circuit ruled, 8 to 7, on Thursday that Michigan's voter-approved 2006 ban on affirmative action was unconstitutional.
The ruling, in Coalition to Defend Affirmative Action v. University of Michigan, was not based on racial discrimination, but rather on a violation of the 14th Amendment's guarantee of equal protection. The ban, the court said, unfairly placed a special burden on supporters of race-conscious admissions policies.
People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college's governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but to undertake the "long, expensive and arduous process" of amending the state 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," said Judge R. Guy Cole Jr., writing for the majority.
The United States Supreme Court is considering an affirmative action case, Fisher v. University of Texas, challenging the use of race as a factor in admissions. But the Sixth Circuit case raises a different issue: the legality of statewide bans on affirmative action. Seven states besides Michigan -- Arizona, California, Florida, Oklahoma, Nebraska, New Hampshire and Washington -- forbid the consideration of race in university admissions.
The Court of Appeals for the Ninth Circuit has upheld California's ban, and with the Michigan ruling, the stage may be set for the issue to go before the Supreme Court.
"I think this is very likely to go to the Supreme Court, because there's a direct conflict between the circuits, it's of great national importance and the 8-7 split on the Sixth Circuit is a signal that some ruling is needed," said Eugene Volokh, a law professor at the University of California, Los Angeles, who helped draft the California ban. "The only thing that might get in the way is if the Fisher case decides that all race-based action in education is unconstitutional, which would make it not technically moot, but less important."
Bill Schuette, the attorney general of Michigan, said Thursday that he planned to appeal the case to the Supreme Court. "Entrance to our great universities must be based upon merit," he said in a statement.
George Washington, the Detroit lawyer who argued the case, said Proposal 2, as the Michigan ban is known, does not ensure merit. "The Big Lie told by the supporters of Proposal 2 is that grades and test scores are a neutral means for judging merit," he said. "But that system is openly biased against black, Latino and Native American applicants."
The University of Michigan's affirmative action battle has been roiling for decades. The affirmative action litigation led to the Supreme Court's 2003 decision that while a university could not establish racial quotas, it could consider race or ethnicity as a "plus" factor in a holistic review.
After those decisions, Ward Connerly, a black former University of California regent who was the driving force behind California's affirmative action ban, worked with Jennifer Gratz, a white Michigan woman who was the plaintiff in one of the Supreme Court cases, to get the issue onto the Michigan ballot.
Michigan's affirmative action ban, which applies to government hiring, government contracting and admission to public universities, became part of the state Constitution through a 2006 voter initiative that won 58 percent of the vote.
The district court that heard the challenge to the ban upheld it, but the three-judge appellate panel whose decision was appealed to the full circuit court struck it down, using the same reasoning as the full circuit court.
This article originally appeared in The New York Times.