By: Cortelyou Kenney, FellowPosted on November 16, 2012 Issues: Issues Before the Courts Judges & Courts

Yesterday, in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, the Sixth Circuit by a vote of 8-7 struck down an amendment to Michigan’s Constitution prohibiting affirmative action, holding that it violated the federal Equal Protection Cause. As a result, the Sixth Circuit found that the admissions policies of Michigan’s public universities, which up until the amendment had used race as a “plus factor,” were permissible under state law.

The Michigan amendment prohibited any consideration of race, gender, and certain other factors, in admissions to public universities, including the individualized admissions practices that give some weight to race that the Supreme Court found constitutional in Grutter v. Bollinger. Yesterday’s majority did not discuss the benefits of race-conscious admissions lauded by the Supreme Court in Grutter, which proclaimed diversity in higher education was a compelling state interest. It also did not address the effect that the prohibition on gender-conscious affirmative action would have on women seeking admission to traditionally male-dominated fields of study like engineering. Rather, the Sixth Circuit’s decision centered on the inequalities that the state amendment introduced into the political process for racial minorities.

The majority explained: “[a] student seeking to have her family’s alumni connections,” which Michigan’s universities do not take into account, but which were not banned by the state constitution, could “lobby the admissions committee” to have them considered, “petition the leadership of the university,” “seek to influence the school’s governing board,” or, “initiate a statewide campaign to alter the state’s constitution.” It continued: “[t]he same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy.” That student had one and only one option: amending the Michigan Constitution, a “lengthy, expensive, and arduous process.” As such, the amendment banning affirmative action created a “structural burden” for minorities that other potential students did not share and was unconstitutional.

As the Center has previously explained, diversity in higher education is important not only to minorities, but also to women, and, in particular, women of color. We applaud the Sixth Circuit’s decision, which paves the way for race-conscious admissions to break down pernicious stereotypes by exposing students to classmates who defy them. The decision also supports improved learning outcomes and will help prepare students for a diverse workplace and society.

But the future of equal opportunity efforts like those at issue in the Sixth Circuit decision remains unclear, because of a pending Supreme Court case: Fisher v. University of Texas at Austin. Fisher challenges UT’s race-conscious admissions policy and is the first affirmative action case to reach the Supreme Court since 2003. The Justices (sans Kagan) are considering whether UT may consider race as a factor for the 20% of admittees who are not automatically chosen by the University’s “top 10%” program. If the Supreme Court finds the UT program unconstitutional, it may limit Michigan universities’ ability to pursue affirmative action, despite the Sixth Circuit’s decision. On the other hand, if the Supreme Court in Fisher affirms the permissibility of affirmative action in admissions, then it is possible it might next choose to review this case and whether the federal Constitution permits Michigan to prohibit affirmative action by state constitutional amendment.