- The Washington Times - Wednesday, November 28, 2012


In 2006, Michigan voters approved an amendment to their constitution prohibiting racial, gender and ethnic discrimination in public employment, public contracting and public education. Yet the U.S. Court of Appeals for the 6th Circuit in Cincinnati struck it down last year.

The language approved by 58 percent of the voters of the Great Lakes State is straightforward:

“The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting” (Article 1, Section 26).

This amendment, known as Proposal 2, or the Michigan Civil Rights Initiative (MCRI), stands for the reasonable proposition that public contracts, public employment and admission into our public universities and colleges must be colorblind, gender-neutral and free of any ethnic bias or prejudice. The underlying rationale is the belief that when a student knocks at the door of one of Michigan’s outstanding colleges or universities, seeking admittance, the educational door should swing open based on talent, merit and ability.

MCRI states that there shall be no discrimination in public college admissions because of race, gender or ethnicity. As often is the case, lawsuits were filed, and judicial review followed. The constitutionality of Proposal 2 was upheld at its first stop, in the U.S. District Court in Detroit. The most recent en banc decision by the 6th Circuit took the opposite path, however, by a razor-thin margin of 8-7, with two judges not voting.

In that decision, the 6th Circuit declared the efforts of the people of Michigan to prohibit discrimination in the admission policies of our public educational institutions violated the Equal Protection Clause of the U.S. Constitution. In an opinion that can only be construed as “what is up is down, and what is down is sideways,” the court stated that the Michigan approach of treating everyone equally and banning racial, gender and ethnic discrimination actually perpetuates discrimination.

Confused? Join the crowd. Many were puzzled by the decision, including legal scholars and observers across the country.

The most surprising part is that the language of Proposal 2 is nearly a mirror image of California’s Proposition 209, approved in that state 16 years earlier. Courts on the West Coast, including the U.S. Court of Appeals for the 9th Circuit and the California Supreme Court, have upheld the constitutionality of Proposition 209.

To say this ruling defies common sense is putting it mildly. The 14th Amendment to the U.S. Constitution, adopted in 1868, states, “No state shall deny to any person within its jurisdiction the equal protection of the laws.” That is precisely what MCRI affirms.

The majority of judges ruled that MCRI is unconstitutional because it “reorders the political process in Michigan to place special burdens on minority interests.” This doctrine espoused by the 6th Circuit represents a tortured reading of both the law and the U.S. Constitution.

The court’s reasoning takes a fundamental principle of America — equality under the law — and removes it from its pedestal to place it among all other competing political interests, such as alumni relationships, football scholarships and the need to have a piccolo player in the marching band.

The entire point of the Michigan Civil Rights Initiative is to ensure that there is no discrimination in higher education. Ironically, this fight is being waged at a time when both Michigan and America are becoming more multiracial, a fact the just-concluded presidential election underlined with emphasis.

The people of Michigan have voted for equal treatment for all. This is a fight worth fighting. It is why I will continue this battle in the U.S. Supreme Court, joining the 6th Circuit’s dissenting Judge Richard Allen Griffin, who urged the Supreme Court to reverse his court and “consign this misguided doctrine to the annals of judicial history.”

I am convinced that upon review by the Supreme Court, Michigan’s principle of equal protection under the law and its declaration that admission policies must be colorblind, gender-neutral and free of bias and prejudice will prevail. After the Supreme Court issues its ruling reversing this misguided decision, the doors of Michigan’s tremendous universities and colleges will swing open for admission based on talent, merit and ability, providing equality and opportunity for decades to come.

Bill Schuette is the attorney general for Michigan.

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