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Full Sixth Circuit overturns Michigan's constitutional ban on affirmative action

In 2003, the U.S. Supreme Court decided a case involving the University of Michigan's affirmative action program.  In its decision, the Court struck down racial quotas, but held that public universities could use race as one balanced, positive admissions factor in an effort to admit a diverse student population.  The woman denied admission who lost that case then combined with a black California former legislator to write the Constitutional ballot proposal that passed in Michigan, outlawing any form of affirmative action.

The Michigan constitutional amendment and the relevant admission policy then became the focus of a second case in which citizens challenged the amendment on due process and equal protection grounds.  The challengers argued that it was inappropriate for citizens to have the power to petition state universities to alter and tweak all admissions policies to grant advantage to select groups, while singling out racial minorities and denying them this power.

The District Court judge who heard the case upheld the constitutionality of the referendum, but the three-judge panel of the Sixth Circuit over-turned this decision on appeal.  This week, the full 15-judge en banc panel of the Circuit reconsidered the decision and struck down the affirmative action ban on an 8-7 vote.  The majority of judges agreed that the ban illegally denied to affirmative action supporters the petitioning right which all other citizens enjoyed.

This decision creates a conflict between the Sixth Circuit and other circuits in the country (and it obviously exposes a significant split within the Sixth Circuit).  The U.S. Supreme Court, with its 5-4 conservative majority, has been revisiting and overturning decisions like the 2003 University of Michigan decision, so it is highly likely that it will take up this issue in the near future.  It may act on an expedited basis to assure that the decision is considered while the conservatives enjoy majority status.  Michigan's Republican Attorney General has vowed that he will appeal to the high Court.

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