by Ed White
Associated Press Writer
DETROIT (AP) — Michigan’s ban on affirmative action in college admissions was declared unconstitutional Thursday by a deeply divided federal appeals court, six years after state voters said race could not be an issue in choosing students.
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| STILL FIGHTING— In this Nov. 7, 2006 file photo, Jennifer Gratz, a White woman who sued after being denied admission to the University of Michigan and who later led the successful ballot campaign to write a ban on affirmative action into the Michigan Constitution, speaks on election night in East Lansing, Mich., when voters approved Proposal 2. The 6th U.S. Circuit Court of Appeals on Nov. 15, ruled that the ban violates the U.S. Constitution. Gratz told The Associated Press that she will continue the fight against racial preferences. (AP Photo/Detroit Free Press, Kathleen Galligan)
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In an 8-7 decision, the court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action.
That 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 at the 6th U.S. Circuit Court of Appeals in Cincinnati.
The court said having supporters and opponents debate affirmative action through the governing boards of each public university would be much fairer than cementing a ban in the constitution, which it referred to as home of “the highest level” of public policy.
The court did not comment on a portion of the amendment that deals with government hiring.
The decision is limited to states in the 6th Circuit, which includes Kentucky, Ohio and Tennessee. But it also raises the odds that the U.S. Supreme Court may get involved. A very similar law in California was upheld by a San Francisco-based appeals court, and the Supreme Court could choose to resolve the conflicting decisions of that court and the 6th Circuit on voter-approved bans.
Michigan Attorney General Bill Schuette, a supporter of the ban, said he will ask the nation’s highest court to take the case.
“Entrance to our great universities must be based upon merit,” he said.
George Washington, a Detroit attorney for the Coalition to Defend Affirmative Action, said the ruling is a “tremendous victory.” He predicted the case will move to the Supreme Court.
“What this really means is thousands of Blacks and Latinos who would not have had a chance to go to our most selective universities will have the chance to become lawyers, doctors and leaders of all fields,” Washington said.
This is the second time that the appeals court has examined Michigan’s affirmative action issue. A three-judge panel last year also found the ban unconstitutional for similar reasons. But after a plea from Schuette, the entire court decided to take a fresh look at the matter, with new filings and arguments leading to the new ruling Thursday.
In dissent, Judge Danny Boggs said the majority relied on an “extreme extension” of two Supreme Court cases to justify its decision, one in 1969 involving the repeal of a fair housing law in Akron, Ohio, and the other in 1982 involving an effort to stop racial integration in Seattle schools.
“We have the citizens of the entire state establishing a principle that would in general have seemed laudable,” Boggs said of Michigan.
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