U.S. appeals court decision may impact CA Prop. 209

A federal appeals court declared a voter-approved ban on affirmative action to be unconstitutional in Michigan last week ““ a case that experts say may impact a similar ban in California if it makes its way to the Supreme Court.

In the case, Coalition to Defend Affirmative Action v. University of Michigan, a group of individuals sued the university, alleging that provisions of the state’s ban on affirmative action, which affect public colleges and universities, violate the U.S. Constitution.

“We are neither required nor inclined to weigh in on the constitutional status or relative merits of race-conscious admissions policies as such,” stated the U.S. Court of Appeals for the Sixth Circuit in its official opinion.

The court ruled 8 to 7 that Michigan’s ban on affirmative action violates the 14th Amendment’s equal protection clause, which states no person may be denied equal protection of the law.

The ban is similar to California’s Proposition 209, which prohibits public universities and state and local governments from discriminating against applicants and employees on the basis of race, sex, color, ethnicity or national origin.

Currently, in order to establish a race-conscious admissions policy in Michigan, individuals must amend the state constitution ““ “a lengthy, expensive, and arduous process,” according to the court’s opinion. Individuals looking to change other aspects of admissions policies, however, have multiple avenues to do so, such as lobbying or petitioning.

Because individuals looking to change admissions policies with regard to race are limited to one option to do so, the Michigan ban on affirmative action is unconstitutional, according to the appeals court’s written opinion.

Because it questions the legality of a state ban on affirmative action, the Michigan case is relevant to California, said Jonathan Varat, a professor at the UCLA School of Law.

“It is possible (the Michigan case) will end up at the U.S. Supreme Court,” said Steve Montiel, a University of California spokesman. “We’ll see what happens there.”

The Supreme Court started hearing arguments last month for a separate affirmative action-related case ““ Fisher v. University of Texas at Austin ““ that involves a white student who claims she was racially discriminated against because of the university’s consideration of race in its admissions decisions.

The ruling on Fisher v. University of Texas at Austin will be the Supreme Court’s first ruling since 2003 on affirmative action in higher education, which allows public colleges and universities to consider race in order to ensure diversity on campus. The 2003 ruling, Grutter v. Bollinger, also determined that public universities cannot use a point system to reward minority applicants.

In August, the UC submitted amicus curiae, or “friend of the court,” briefs siding with the University of Texas.

“The educational and societal benefits from a diverse student body cannot be realized fully at the nation’s largest highly selective University system without the judicious use of tools that take race into account during undergraduate admissions decisions,” UC President Mark Yudof said in a statement after the briefs were filed. “Telling that story is the appropriate thing to do in the context of this legal case.”

Earlier this year, the Ninth Circuit Court of Appeals upheld California’s Proposition 209, siding with a 1997 lower court ruling that also affirmed the measure’s constitutionality.

Opponents of Proposition 209 had the option to resubmit the case to the Supreme Court, but are not planning to do so for the time being, said George Washington, lawyer for an advocacy group that appealed the decision on Proposition 209.

The group is hoping the Michigan case will make its way to the Supreme Court, said Washington, who also argued against the affirmative action ban in the Michigan case.

“I think it’s as good as if our case in California had gone to the Supreme Court,” he said.

Varat said he does not expect a resolution to be reached anytime soon.

There is also a chance the outcome of the Fisher case, which is expected to be determined in June, would apply broadly to affirmative action-related policies nationwide, rendering the Michigan case moot, Varat said.

Even if the case makes its way to the higher court, Varat said he expects the Supreme Court would uphold Michigan’s affirmative action ban because the recent ruling seems to be a “stretch” between the case and the 14th amendment.

Meanwhile, the UC will continue to follow developments in the Fisher and the Michigan cases.

“At this point there’s not much (else) we can do,” Montiel said.