Civil Rights Organizations Urge Appeals Court to Strike Down Ban on Affirmative Action in Michigan

November 17, 2009

DETROIT – A group of civil rights organizations asked a panel of appeals court judges today to reverse a lower court’s decision and strike down Proposal 2, the 2006 ballot initiative banning affirmative action in Michigan. The groups argued that the ban unconstitutionally discriminates against students of color by removing race from consideration in admissions, while allowing the consideration of virtually all other non-academic factors.

“Proposal 2 creates an unequal playing field for applicants of color seeking admission to state universities in Michigan,” said Mark Rosenbaum, American Civil Liberties Union attorney and University of Michigan professor who argued the case on behalf of the organizations. “Our goal all along has been to level the playing field so that racial identity is not treated as irrelevant or meaningless in this state. An identical ban in California has left UCLA classrooms with few students of color and this effort must be stopped in its tracks in Michigan.”

The federal lawsuit was filed in 2006 on behalf of 18 students, faculty and applicants to the University of Michigan by a coalition of civil rights organizations that includes the ACLU of Michigan, Detroit Branch NAACP, the New York law firm of Cravath Swaine and Moore, NAACP Legal Defense and Education Fund, Michigan State Conference NAACP, and the national ACLU. The three-judge panel that heard the case includes Senior Judge Martha Craig Daughtrey and Judges Guy Cole and Julia Smith Gibbons. They are expected to make a written decision.

The organizations argued today that Proposal 2 violates the Equal Protection Clause of the U.S. Constitution by creating a double standard in university admissions that hurts people of color. Although universities continue to give weight to a myriad of non-academic admissions factors such as geographical diversity, legacy status and athletics, they can no longer consider an applicant’s racial identity.

In addition, they argued that Proposal 2 has created an unfair political structure that allows groups to urge universities to admit students based on virtually any non-academic factor, except race. If, for example, an alumni association thought children of alumni should be given extra consideration in admissions, all it would have to do is lobby the admissions committee. However, if people of color wanted to reinstate affirmative action in admissions, they would be forced to go through the arduous and expensive task of amending the Michigan Constitution.

“It is unfortunate Michigan universities have had to discontinue programs that had already been OK'd by the Supreme Court, which has recognized that universities have a compelling interest in ensuring a racially diverse student body,” said Kary Moss, executive director of the ACLU of Michigan. “Proposal 2 has placed Michigan universities at a terrible disadvantage in attracting the brightest and the best. A wealth of perspectives, ideas, backgrounds, and cultures leads to a learning experience that can never be offered in any course catalog.”

According to published reports from the University of Michigan, since the passage of Proposal 2, the number of African-American, Hispanic and Native-American students enrolled in the freshman class at the university has declined by 11.4 percent. Many students, according to the universities records, are choosing to go elsewhere where public and private institutions are not banned from offering aid based on race, ethnicity or gender.

“Proposal 2 is a deterrent to equal access and opportunity and it continues to perpetuate the myths about the true intents of affirmative action,” said Rev. Wendell Anthony, Detroit Branch NAACP President. “However, it is important that we continue to march toward progress.”

This was the second major lawsuit addressing affirmative action at public universities in Michigan. In the first, Grutter v. Bollinger and Gratz v. Bollinger, the U.S. Supreme Court held that it is constitutionally permissible for universities to consider race and gender as one factor among many in university admissions. Moreover, the Supreme Court has explained that a state law violates the Equal Protection Clause when it makes it more difficult for certain racial minorities than for other members of the community to achieve legislation that is in their interest.

By approving Proposal 2, Michigan became the third state in a decade — joining California and Washington — to ban the consideration of race, sex, ethnicity or national origin in education, employment and contracting. Proposal 2 was backed by California businessman Ward Connerly as part of a national strategy to roll back civil rights. In 2008, similar ballot initiatives were unsuccessful in Colorado, Missouri, Oklahoma and Arizona.

To read the civil rights organization's appeals court brief, click here.

To read the district court judge's opinion, click here.

To read the executive summary, click here.

To read the complaint, click here.

To read expert affidavits, click here and here.