Full Appeals Court Strikes Down Ban On Race-Conscious Admissions

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DETROIT – In a victory for equality, a 15-judge federal appeals court panel struck down Michigan’s Proposal 2 as unconstitutional because it creates an unequal political process for individuals who seek to urge universities to consider race as one of many factors in admissions.

“Today’s landmark decision reaffirms the cornerstone principle of our democracy—that the political process must be open to all Americans,” said Mark Rosenbaum, American Civil Liberties Union attorney and University of Michigan professor who argued the case. “It restores the argument that race is not to be disadvantaged when universities seek to enroll a diverse student body. Somewhere Lincoln and Dr. King are smiling.”

The lawsuit, filed in 2006 by the ACLU, NAACP, NAACP Legal Defense and Educational Fund (LDF) and the law firm of Cravath, Swaine and Moore, LLP, challenged the constitutional amendment, which eliminates the consideration of race in university admissions despite the fact that such admissions policies have been upheld by U.S. Supreme Court. For instance, in Grutter v. University of Michigan, the Court held that the Equal Protection Clause of the U.S. Constitution does not prohibit the narrowly tailored use of race in admissions decisions to further the educational benefits that come from a diverse student body. Moreover, the Court has explained that a state law violates the Equal Protection Clause when it makes it more difficult for people of color than for other members of the community to achieve legislation that is in their interest.

“This is not about leveling the playing field; it’s about getting on the playing field,” said Dennis Parker, director of the National ACLU Racial Justice Program. “This is about allowing all individuals to have a voice in the admissions process. The full appeals court has recognized that racial identity cannot be meaningless or irrelevant in our admissions process.”

For example, if an alumni association thought that legacy status should be considered in admissions, all it would have to do is lobby the admissions committee. However, those interested in the consideration of race must first undertake the arduous and expensive task of amending the Michigan Constitution before they can lobby the university.

In July 2011, a 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit struck down Proposal 2 agreeing that it violated the Equal Protection Clause. Later that month, the appeals court granted the Michigan attorney general’s request to convene the full court to reconsider the decision. A separate challenge, filed by a group called BAMN, was consolidated with this case.

Since Proposal 2 went into effect, the University of Michigan reports that the number of African-Americans enrolled as freshmen declined nearly 15 percent from 2006 to 2010. In addition, from 2006 to 2011, African-American enrollment at the University’s law school dropped by 28 percent.

To read more about the lawsuit, go to: www.aclumich.org/proposal2.