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Wednesday, December 2, 2009
Federal Appeals Court Hears Challenge to Affirmative Action Preference Bans
The case involves two lawsuits that have been consolidated into one. One of the two was filed on behalf of students, faculty members, and prospective applicants to Michigan's public universities, with the plaintiffs' legal team including lawyers from the NAACP Legal Defense and Educational Fund, the Detroit branch of the NAACP, and the American Civil Liberties Union. The other lawsuit was brought by the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, an activist group, known as BAMN, that played a significant role in fighting both Michigan's Proposal 2 and California's Proposition 209.
As discussed in depth here in The Chronicle of Higher Education, the plaintiffs appear to stand a good chance of success, at least initially. Two of the three judges handling the case at this level--Ransey Guy Cole Jr. and Martha Craig Daughtrey--are nominees of President Bill Clinton who have liberal reputations and were members of the Sixth Circuit majority that upheld the Michigan law school's policies in Grutter. The third member of the panel, Judge Julia Smith Gibbons, was nominated by President George W. Bush but has a reputation as one of the court's more moderate Republican nominees.
How the plaintiffs will fare in the long run is another matter. Regardless of how it rules, the three-judge panel's decision is almost certain to be appealed to the full Sixth Circuit, whose membership tilts conservative.
Both of the joined lawsuits argue that the Michigan measure discriminates against minorities by leaving them uniquely burdened in the political process. While other Michigan constituencies, such as Upper Peninsula residents, can seek greater access to universities by merely appealing to officials of those institutions to favor them, minority residents who seek the reinstatement of race-conscious admissions policies to gain greater access must first pull off the difficult feat of getting voters in that predominantly white state to repeal its preference ban.