Until and through the latter part of 2006, the University of Michigan's admissions policies allowed for the consideration of race among the factors it considered in making admissions decisions. In 2003, this policy was expressly approved by the United States Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003).
On November 7, 2006, the people of Michigan approved by majority vote a statewide ballot initiative, Proposal 2, which amended the Michigan Constitution to prohibit discrimination or preferential treatment based on race or gender in the operation of public employment, public education or public contracting in the State. Under the Michigan Constitution, the proposal was scheduled to go into effect on December 23, 2006. In response to the enactment of Proposal 2, the University of Michigan announced that it would change its admissions and financial aid policies so that its "admissions and financial aid processes will not discriminate, nor grant preferential treatment to, any individual on the basis of race, sex, color, ethnicity or national origin," apparently by altering its admissions procedures "such that race and gender will have no effect on the decision-making process" except to "recognize exceptions provided in [Proposal 2] including one for programs that receive federal funds." Both Proposal 2 and the university's announcement triggered litigation.
On November 8, 2006, several civil rights organizations, students, labor organizations, a political organization, and a former petition circulator (for the initiative that resulted in enactment of Proposal 2) filed, as plaintiffs, a complaint in the U.S. District Court for the Eastern District of Michigan. Represented by Detroit-based private counsel, they named as defendants the state's governor and the regents of three large state universities, including the University of Michigan, as well as broadly identifying as additional defendants unnamed "trustees of any other public college or university, community college, or school district." The plaintiffs' 42 U.S.C. § 1983 lawsuit sought declaratory and injunctive relief to block the implementation of Proposal 2, claiming it violated the Civil Rights Acts of 1866 and 1964, Title IX of the Educational Amendments of 1972, the equal protection clause of the Fourteenth Amendment, and the First Amendment.
On December 12, 2006, the university defendants filed a cross-claim against the governor, saying that they were unsure of the meaning and constitutionality of Proposal 2, were in the middle of their admissions and financial aid cycles, and wanted to continue to act in accord with past policy and practices until the uncertainties about Proposal 2 were resolved. Accordingly, the universities sought an order preserving the status quo and permitting them to act until the court ruled upon the injunctive relief requested by the initial plaintiffs. The universities, too, were represented by private counsel.
Two days later, District Judge David D. Lawson granted the state attorney general's motion to intervene as a defendant in the case. The attorney general had cited his duty to defend the constitutionality of the new provision.
On December 17, 2006, the plaintiffs filed their amended complaint. Basically, the amendment added the state's attorney general as a defendant, asserted more factual detail about racial discrimination and its myriad effects, asserted that Proposal 2 violated federal constitutional and statutory law, and added the assertions that federal statutes preempted Proposal 2 and that the provision also violated Executive Order 11246. The amended complaint sought the same declaratory and injunctive relief and added a claim for an award of attorneys' fees and costs.
The next day, the district court received a stipulation from all parties consenting to the temporary injunctive relief sought by the universities and agreeing to the dismissal of the request in the cross-claim for an injunction. In an unpublished order on December 19, 2006, Judge Lawson accepted the stipulation and enjoined the application of Proposal 2 against the university defendants until July 1, 2007, unless the injunction should be earlier vacated. Also on December 19, other plaintiffs ("the Cantrell plaintiffs") filed a separate complaint in the same court, also seeking to enjoin the effect of Proposal 2 (Docket #: 06-cv-15637-DML-SDP).
Meanwhile, motions to intervene in the initial lawsuit had been filed by various parties. On December 27, 2006, Judge Lawson ruled upon three of these motions. The American Civil Rights Foundation and the Michigan Civil Rights Initiative Committee had moved to intervene as plaintiffs on December 14, while a group called Toward a Fair Michigan, and an individual seeking admission to the University of Michigan Law School in the fall, had moved to intervene as defendants on December 18. That same day, the City of Lansing filed a motion to intervene as a plaintiff. Applying federal civil procedure rules governing intervention of right and permissive intervention, Judge Lawson granted only the individual's motion to intervene. Coalition to Defend Affirmative Action v. Granholm, 240 F.R.D. 368 (E.D. Mich. 2006).
The day Judge Lawson issued the temporary injunction (December 19, 2006), the individual intervenor and Toward a Fair Michigan had filed a motion requesting a stay of the order enjoining enforcement of Proposal 2 before its effective date-December 23. Having heard nothing from the district court and with the effective date fast approaching, on December 21, these two would-be intervenor-defendants filed a notice of appeal to the U.S. Court of Appeals for the Sixth Circuit. The next day, they filed in that court both an emergency motion for a stay, pending appeal, of the preliminary injunction and a petition for a writ of mandamus directing the district court to grant their then-pending motion to intervene and to vacate its preliminary injunction. Also in the Sixth Circuit, on December 28, the organizations whose intervention was denied by Judge Lawson's December 19's ruling filed appeals of that ruling.
Circuit Judge Jeffrey S. Sutton wrote the panel opinion for the appellate court, which decided that (1) the prospective student had standing; (2) the stipulated injunction was invalid; (3) Proposal 2 did not violate the First Amendment or the Equal Protection Clause; (5) neither the Civil Rights Act or Title IX preempted Prop. 2; and (7) a stay of the district court's order granting the injunction was warranted. Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006).
On January 5, 2007, Judge Lawson issued an unpublished order consolidating the two cases seeking to enjoin Proposal 2, noting that the proposal was also known as Proposal 06-2 and, now, as Article 1, section 26 of the Michigan Constitution of 1963. Also, the parties were directed to work toward joint proposed stipulations of fact, to submit a discovery plan, and to have lead counsel for the parties attend a status and scheduling conference in March 2007.
On January 17, 2007, the first amended complaint after consolidation was filed. In more measured tones than used in the complaints filed by the initial plaintiffs, this amended complaint described a variety of plaintiffs (high school, undergraduate, and graduate and law students, as well as university professors) who sought class action status for the case and asserted that Proposal 2 violated their equal protection rights by placing on them and racial minorities a substantial and unique burden in seeking legislation, because groups seeking beneficial legislation including considerations of race face a different and much more onerous burden in the political process than do those seeking beneficial legislation based on other characteristics. The plaintiffs sought injunctive relief, attorneys' fees, and costs. This amended complaint reflected a host of attorneys serving plaintiffs, including private counsel, counsel from numerous organizations (i.e., Detroit Branch NAACP, ACLU Fund of Michigan, ACLU Foundation of Southern California, NAACP Legal Defense & Educational Fund, Michigan State Conference-NAACP, ACLU Foundation Racial Justice Program), and several law professors from a variety of law schools.
On March 28, 2007, the original plaintiffs' counsel filed a second amended petition. It added a gender discrimination component to their earlier equal protection arguments, as well as claims that that Fourteenth Amendment clause was violated by racial and gender discrimination in the very structure of government in Michigan. The second amended complaint added university presidents as defendants, sought class action status for the case, and re-asserted earlier federal constitutional and statutory claims, including those based on preemption under the Supremacy Clause. It extended the claims based on the asserted violation of First Amendment rights by contending students' rights were violated, too, by the state enactment. Plaintiffs continued to seek declaratory and injunctive relief, together with attorneys' fees and costs.
On October 5, 2007, the Cantrell plaintiffs filed a motion for summary judgment as to intervening defendant Russell, arguing that he should be dismissed from the litigation because he no longer represented an interest distinct from that of the attorney general. On October 17, 2007, the university defendants filed a motion to dismiss. On November 30, 2007, the attorney general filed a motion to dismiss for lack of standing or, in the alternative, a motion for summary judgment on the merits as to all Plaintiffs. Russell and the Cantrell Plaintiffs likewise filed motions for summary judgment the same day. On March 18, 2008, District Court Judge Lawson issued two orders ruling on these motions. In the first published order, the court denied the University Defendants' request to be dismissed as parties and the Cantrell plaintiffs' motion for summary judgment and granted the attorney general's motion for summary judgment, rejecting the plaintiffs' arguments that Proposal 2 violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Coalition to Defend Affirmative Action v. Regents of University of Michigan, 539 F.Supp.2d 924 (E.D. Mich. 2008).
In the second published order on the same day, Judge Lawson adjudicated a series of other motions. Among other things, the court granted the Cantrell plaintiffs' motion for summary judgment as to intervening defendant Russell, denied the motion to intervene by Jennifer Gratz, and denied as moot plaintiffs' respective motions for class certification. Coalition to Defend Affirmative Action v. Regents of University of Michigan, 539 F.Supp.2d 960 (E.D. Mich. 2008). (The Cantrell plaintiffs subsequently moved the court to reconsider the first order, but the court denied the motion on December 11, 2008. Coalition to Defend Affirmative Action v. Regents of the University of Michigan, 592 F.Supp.2d 948 (E.D. Mich. 2008).)
Multiple appeals followed the district court's decisions on March 18 and December 11, 2008. The university defendants appealed the court's denial of their motion to be dismissed as parties. Russell appealed the court's grant of the Cantrell plaintiffs' motion for summary judgment dismissing him as a party to the action. The Cantrell plaintiffs appealed the court's grant of the attorney general's motion for summary judgment and its denial of their motion for reconsideration. Similarly, the Coalition plaintiffs appealed the court's grant of the attorney general's motion for summary judgment.
On July 1, 2011, in an opinion delivered by Judge R. Guy Cole, Jr., the Sixth Circuit found that Proposal 2 unconstitutionally altered Michigan's political structure by impermissibly burdening racial minorities. Accordingly, the appellate court reversed the district court's grant of summary judgment for the defendants and ordered the district court to enter summary judgment in favor of the plaintiffs. Also, the appellate court affirmed the district court's decision granting the Cantrell plaintiffs' motion for summary judgment as to intervening defendant Russell, and affirmed the district court's decision denying the university defendants' motion to be dismissed as parties. Coalition to Defend Affirmative Action v. Regents of the University of Michigan, 652 F.3d 607 (6th Cir. 2011).
On September 9, 2011, the Sixth Circuit granted en banc rehearing; the panel decision/judgment was vacated, and the mandate was stayed. After a new round of briefing and argument, on November 15, 2012, in an opinion delivered by Judge R. Guy Cole, Jr., the Sixth Circuit en banc majority found, as the panel had, that Proposal 2 created a comparative structural burden that undermined the Equal Protection Clause (which the court calls the "political process" argument). Accordingly, the en banc court found Proposal 2 unconstitutional and reversed the judgment of the district court on this issue. The Court affirmed the denial of the University Defendants' motion to be dismissed as parties (deferential to lower court on this type of issue), and affirmed the grant of Cantrell Plaintiffs' motion for summary judgment as to Russell (because he is no longer an interested party).
The majority explained that equal protection of the laws includes "a guarantee that minority groups may meaningfully participate in the process of creating laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them." The Court found that "Proposal 2 targets a program that 'inures primarily to the benefit of the minority' and reorders the political process in Michigan in a way that places special burdens on racial minorities." It reorders the political process because admissions procedures are set by the popularly elected governing boards of the universities. To enact other preferential admissions criteria (the court uses the example of legacy applicants), a citizen need only convince the existing officials on the board or seek to elect someone who shares their views. But to enact a race-conscious preference, a citizen must first obtain a constitutional amendment, and then seek to persuade the board or elect board members who agree. It was the process, not the outcome, that the Court held to be a violation of the Equal Protection Clause. The Court did not reach the question of whether the Proposition violates Equal Protection under what it called the "traditional analysis" (impermissibly classifying individuals on the basis of race). Coalition to Defend Affirmative Action v. Regents of the University of Michigan, --- F.3d ---, 2012 WL 5519918 (6th Cir. 2012).
The Michigan Attorney General sought certiorari review in the Supreme Court, and on March 24, 2013, the Court granted cert.
On October 15, 2013 the Supreme Court heard oral argument in the case. In an opinion written by Justice Kennedy and joined by Justice Roberts and Justice Alito, the court reversed the Sixth Circuit (134 S. Ct. 1623). There were two concurring opinions and a single dissent. Writing for the Court, Kennedy asserted that this case was not about resolving the debate of racial preferences, but whether or not it is constitutional for Michigan to allow its voters to decide the issue. The Court held that there was no authority in the Federal Constitution or in the Court’s precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions. - 11/15/2012
Rachel June-Graber - 02/15/2016