US Appeals Court Strikes Down Michigan Ban on Affirmative Action

Warren Richey, Christian Science Monitor, November 15, 2012

A federal appeals court has invalidated Michigan’s 2006 ban on race-conscious admissions at the University of Michigan and other public colleges in the state, ruling that the prohibition violates the Constitution’s Equal Protection Clause.

The Sixth US Circuit Court of Appeals in Cincinnati voted 8 to 7 on Thursday to invalidate Proposal 2, a state constitutional amendment that barred race-based affirmative action programs in public education.

Michigan voters approved the amendment 58 percent to 42 percent in a state-wide referendum in November 2006.

The Sixth Circuit decision invalidates the result of that vote and denounces the ballot initiative as a form of political manipulation that placed excessive burdens on minority interests.

“We conclude that Proposal 2 targets a program that inures to the benefit of the minority and reorders the political process in Michigan in a way that places special burdens on racial minorities,” Judge R. Guy Cole wrote in the 36-page majority opinion.

Dissenting judges said the decision stands the constitutional principle of equal protection and equal treatment on its head.

“For the first time, the presumptively invalid policy of racial and gender preference has been judicially entrenched as beyond the political process,” wrote Judge Julia Smith Gibbons in a 16-page dissent.

The decision comes as the US Supreme Court is poised to decide by June a case testing the constitutionality of the use of race in admissions at the University of Texas.

The Michigan case does not involve whether race-based admissions programs violate the constitution. Instead, the Sixth Circuit decision addresses whether the act of amending Michigan’s constitution to ban race-based admissions violated the equal protection rights of minority proponents of race-based admissions.

The majority judges on the Sixth Circuit concluded that it did.


The judges said that it must be left up to school officials to decide whether race-based policies would continue or stop. They said a policy debate at the school level would better enable minority groups and other supporters of race-based admissions to effectively present their argument.

In contrast, the majority judges said, allowing all voters in Michigan to decide the question on a state-wide ballot amounted to a manipulation of the process because it would be significantly more difficult for supporters of race-based plans to mount and win a state-wide referendum to reinstate race-based admissions.


Judge Jeffrey Sutton challenged Cole’s reasoning in a 10-page dissent. {snip}


Sutton noted that while similar affirmative action initiatives have been successful in CaliforniaNebraska, and Washington, they have also been defeated in ColoradoMissouri, and Oklahoma.

Sutton said that under Supreme Court precedents, race-conscious programs are presumptively unconstitutional. Affirmative action plans at public universities must satisfy strict judicial scrutiny or be struck down as a violation of equal treatment.

“If racial preferences are only occasionally and barely constitutional, it cannot be the case that they are always required,” he wrote.

“A state that wishes to treat citizens of all races and nationalities equally is free as a matter of its own law to do so,” he said. “A first premise for resolving this case is, and must be, that a state does not deny equal treatment by mandating it.”

The case is Coalition to Defend Affirmative Action v. Regents of the University of Michigan.

Editor’s note: The reasoning followed by the court in this case is explained in an article by Jared Taylor published at Vdare about a similar case.

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  • WmarkW

    The grounds on which the case was decided, appears to be the “Political Structure Doctrine” that Jared warned about a couple of years ago on VDare:

    This doctrine holds that laws (or in the Michigan case, the state constitution) that make race preferences illegal, create a steep hurdle for those seeking race preferences. From a different story:
    People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college’s governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but
    to undertake the “long, expensive and arduous process” of amending the state Constitution.

    “The existence of such a comparative structural burden undermines the equal protection clause’s guarantee that all citizens ought to have equal access to the tools of political change,” said Judge R. Guy Cole Jr., writing for the majority.

    This is like saying, “If I want to visit a prostitute tonight, it’s unfair that I’d have to amend my states laws, while a Nevadan just has to drive the nearest facility.” The obvious premise in the logic, is that there’s some sort of right to racial preferences, that laws put an unfair burden to obtaining.

    This needs to get to the SC before Obama’s next appointment does.

    • If there is no such thing as race, how can there be race?

      If we are all equal, how can there be any racial preferences?

      If we are to treat all people as equal, where does “minority” come from? Skin color? A “race”? But, but, but….we are all equal and race is not real and we are a color blind society and we are not to judge people according to skin color……but,but ,but .but…..

      • Michael_C_Scott

        The same people who will tell you that race doesn’t matter except when they want it to are the ones who will tell you that gender roles are artificial but that homosexuality is natural.

        • Yes, and that Israel for Jews is not racists, but Deutchland for Germans is.

          • Bon, From the Land of Babble

            The hypocrites who support White genocide claim the White race doesn’t exist — yet fiercely support their own ethnic interests.

            People who don’t exist are easy to eliminate.

            Ask the Russians or the Palestinians who were also told they “don’t exist.”


      • Bon, From the Land of Babble

        White-hating progs have a strange habit of constantly stating “we’re all the same,” “there’s no such thing as race,” or “race is a social construct” — while at the same time having NO problem identifying who is White and who is not when it comes to blame for slavery, racism, the holocaust or discrimination.

        There is nothing dumber than a leftist prog.


      • StillModerated

        It’s because some animals are more equal than others. And this comment is both racist and anti-semitic.

  • not1984but1776

    On the positive side, this does open the possibility that the Supreme Court will grant certiorari. I don’t know whether the Sixth Circuit has a reputation for being liberal, but if it’s as goofy as the Ninth, I think the odds are pretty good that SCOTUS will hear the case and possibly overturn the ruling from the Sixth Circuit.

    • Xerxes22

      Even if this decision is overturned, the Obama administration will not enforce the law. Universities and Federal agencies will continue to discriminate and the the wimpy Republicans won’t utter a word in protest.

  • Please understand, good people. If race was not used then so many Africans would never get into college.

    They, and us, know they don’t have sufficient intelligence for college level studies. We all know that Thus, if we did not use Skin Color, then very few would get in.

    So, let’s give them a chance. If having Black Skin is good enough for them to “go to Kollege”, and if it makes them feel “White” and uppity, then let us entertain their small minds and let us make them feel good. It is like letting a dog play in the park.

    • Bon, From the Land of Babble

      True. But when this put into action there are real world consequences.

      Ask the Whites and Asians who were passed over in favor of blacks and browns at universities that practice “social justice” or “leveling the playing field.”

      Notice there is not one single university that brags about the graduation rates of its AA admitees — who, the U will tell you are “highly qualified.” Universities and the government keep the data on AA admitee outcomes well hidden and buried from the public and media.

      This is the very reason California’s Prop 209 was passed — and the reason California’s UCs are rated in the top ten of American public universities, with Berkeley often coming in at #1– after unqualified blacks and browns were rejected for admission. The UCs in California are also tiered with blacks and brown shuttled off to U of Merced, more qualified Whites and Asians to Berkeley and UCLA — so it looks fair to the AA Kommissars on paper and Berkeley gets to keep its #1 public university rating.

      As California’s demographics continue to change for the worse, and both houses of the legislature now have a super-majority, I expect Prop 209s (and Prop 13s) demise any day now.


  • Eagle_Eyed

    Not even Orwell himself could come up with such lunacy. War is peace, freedom is slavery, and banning race favoritism at universities is actually racially discriminatory against minorities.

    • You Are Now Enriched

      Here’s what you get with the “conservative” GOP:

      Georgia Gov. Nathan Deal said Friday the state will not build its own online health insurance exchange where hundreds of thousands of consumers will shop for affordable coverage – ceding control to the federal government instead.

      • Puggg

        That’s a feature, not a bug. Turns out the thing which might make the affirmative action house of cards called ObamaCare come crashing down are states refusing to set up exchanges. Then maybe Obama and the Democrats will agree to hit the big red reset button and then negotiate on what could be good reform.

      • Eagle_Eyed

        do you know what “non sequitur” means?

      • A republican not participating in his own destruction —- that’s a rare animal indeed.

  • GB101

    The judges said that it must be left up to school officials to decide whether race-based policies would continue or stop.

    This is truly amazing. The court has said that the school may stop race-based policies if it chooses to do so. But the citizens of Michigan, WHO OWN THE SCHOOL, can’t tell the school what to do.

    • Yup–what’s almost as bad is the sentence right after what you quoted: “They said a policy debate at the school level would better enable minority groups and other supporters of race-based admissions to effectively present their argument.” But all universities make it next to impossible to create white student unions that can make arguments against race-based policies. The anti-affirmative action side is not allowed to have a voice at the school level.

    • SFLBIB

      It is up to the school officials anyway. Just look at the results of California’s Prop 209 which banned affirmative action and passed court challenges. The school officials just ignored it. See “Affirmative Action Showdown,” by Heather MacDonald
      City Journal | January 30, 2007

    • The new upcoming majority demographics in the U.S apparently stands to benefit from Affrimative Action Programs just as the former majority demographic population benefited by denying blacks and other minorities from attending these schools. The people will speak.

      • A Swain

        “The new upcoming majority demographics in the U.S apparently stands to
        benefit from Affrimative Action Programs just as the former majority
        demographic population benefited by denying blacks and other minorities
        from attending these schools. The people will speak.”

        First up, the founding race of America, ie, the White population is still in the majority albeit narrowly. Get your facts straight.

        Secondly, if anyone wishes to know why Blacks were not previously admitted to White establishments of education and enough evidence as to why keeps amassing day by day on a non-stop basis, it is because of their backward and wayward tendancies including hysteria, innate anti-White race hatred and violence. Then there’s their inability to rationalize and reason due to their being unable to progress beyond a juvenile level of intelligence.

        With other non-White minorities the reasons were mixed and probably based on the premise that one should put one’s own race first by making sure available places in education and jobs are always allocated to them since they are the following generation who would become future leaders and rulers of their own people.

        The Chinese do that in China, the Asians do that in India, the Middle East and Far East, the Hispanics and Latinos do that in Mexico and Latin America which means these non-White nations are following natural law. It’s only the White West having been infiltrated by Marxists and Zionists that has been corrupted and brainwashed into guilt-tripping and self-loathing which is leading to its orchestrated and planned destruction and demise, in other words, worldwide territorial dispossession and genocide.

        The question that subsequently herein arises is

        1. Do you advocate territorial dispossession and cultural/material disenfranchisement of the White race across the world?

        If you do then you are guilty of advocating White genocide.

        You must bear in mind that where you are in favour of non-White human rights that include sole territorial ownership, cultural freedoms and unrestricted free speech, but would deny all of these natural law rights to the White race then you are most definitely guilty of the above outlined crime.

        What goes around comes and payback on you could well come about at the hands of your beloved non-Whites one day. In fact, the likelihood of that being the case is pretty high in the present times we live.

  • fabius

    Judge R. Guy Cole Jr. is a black Clinton appointee. Judge Julia Smith Gibbons is a white Bush appointee. Over the next four years, Obama will be appointing a lot more judges like Cole.

    • The__Bobster

      Maybe he’ll pull a Jimmy Carter and double the number of Federal Judges. Of course he’ll get to appoint all of them.

  • RJSNS16

    Because of the insanity of Affirmative Action, universities across the US admit unqualified non-whites and assure them they are qualified. When non-whites struggle, they blame institutional racism and an “alien” curriculum.

    No matter how absurd the charges, the university caves in and makes the white students and faculty the scapegoats for a racial inequality that the university created by admitting the unqualified non-whites in the first place.

    The end result is that whites are demonized as racists and are systematically silenced, while their civilization is attacked as unrepresentative and illegitimate while being steadily dismantled and replaced.

    The great irony is that the admission of non-whites is supposed to prove that the university is not racist. But the more unqualified non-whites are admitted, the more racist and unfair the university seems.

    And we crank out even more incompetent doctors, engineers, scientists…

    • I think fighting affirmative action at universities is counterproductive. Ultimately if a university wishes to load up on dullards it is only hurting itself. The longer-term solution is for non-Hispanic whites to work to defund public universities from taxpayer support as well as by not attending its sporting or cultural events, attend and build up schools that give whites a fair shake, look for alternative ways of getting an education that don’t involve fattening the University Industry, or attend schools (possibly online ones) that don’t have athletic departments (a major source of minority entrance affirmative action).

      • MikeofAges

        Good point, but you realize, if individuals developed their qualifications outside of approved educational institutions, the hiring of these people will be deemed discriminatory. The affirmative action system is diabolical to the point of being satanic. And no wonder. It real godfathers were the twisted Thurgood Marshall and tricky Dick Nixon, who thought affirmative action would divide and weaken the left. Nixon also thought he could gin up minority support for his party enroute to his goal of achieving the greatest election victory ever. He did get about 20 percent of the national black vote in 1972 — mostly thanks to his promotion of minority home ownership, however.

        My advice, folks, is to stop worrying about what happens to the other guy and focus your agenda on what you want to have happen to you. Nothing for everyone is never going to fly as a political agenda.

        • Yes, hiring a no-degree white who chooses to self-educate over a degree-having black might attract attention of the EEOC Nazis, but ultimately U.S. public universities are white-hating swamps that need to be drained–let them go private so they can discriminate against whomever they want without us taxpayers needing to finance them.

          That the University of Michigan will resume discriminating against non-Hispanic whites is not the immediate problem; rather, it’s that 70,000 non-Hispanic whites will be buying tickets to U of M college football games. For the amount of anti-white propaganda you’re funding with those purchases, those 70K might as well be writing checks to the SPLC instead. Granted, athletic department money is probably only a small part of the total revenue the U of M generates, but any effort to avoid feeding the beast should be taken. Sometimes, the baby *does* need to be thrown out with the bathwater… 🙂

        • Nixon also promoted Black businesses too. Something that is well needed. Whites should get over the fact that they are doing the “Happy Trails to You hope we will never meet again” and fade on into the sunset.

          • seek

            And, of course, Tea Party types take pride in the fact that Republicans have engaged in this black “reachout” strategy for decades. After all, Democrats, the party of the Klan, are “the real racists.” Rush Limbaugh and Michelle Malkin told them so.

      • Steel_Quake77

        More Whites should attend vocational schools.

        This would further help to ‘defund’ the Affirmative Action University system.

        • StillModerated

          Whites should just have more kids and game the gimmedat system so that the entire house of cards collapses faster.

    • Just wait until the ‘Dream Act’ is forced on us….the ‘affirmative action’ for illegals will further crowd out more qualified Whites… Just watch…

    • 2+2 = 5. It’s not enough to admit it, you have to believe it!

    • When we remove the teacher’s union (AFT and NEA) and the Dept of Ed out of public education and also move to a tangible school choice initiative much of these failures will change. Let communities decide what the curriculum and skills programs are offered to their children. Move away from these stiffling deseg programs and let merit be the norm.

  • APaige

    The REAL question is not ‘if affirmative action’, but rather “why affirmative action?” Why do some racial minorities need to be judged on lower standards? Are they members of groups whose achievements, past and present, on any objective scale is woefully lacking? Racial groups are either equal or not, which is it? If they are equal they should be judged by equal standards and if they are not equal they should still be judged by the same standards.

  • humura

    In his 2012 State of the Union speech President Obama spoke of the need for all Americans to play by the same rules. He repeated the phrase at the Democratic Convention, during one of the Presidential debates, and several campaign speeches. Affirmative action is the means to guarantee that we do NOT play by the same rules. Yet Obama supports AA and seeks to expand it. Romney never bothered to call Obama a hypocrite and liar on this issue.

    Like the phrases “equal opportunity,” “civil rights,” “play by the same rules,” all appeal to what most people deem to be fair. Yet the EEOC and the civil rights spokespersons want favoritism, want special rules for their pet groups, and they HATE when we all play by the same rules. Clearly for the Democrats, and the liberal Republicans, whites ought not to have basic civil rights, ought to be denied equal opportunity, and should have the rules bent against them!————-Hugh Murray

    • Steel_Quake77

      Yes it was very galling watching Dictator Barack Ogabe talking about all races getting together or sum such… while just a few weeks earlier his administration had filed an amicus brief with the Supreme Court in favor of Affirmative Action!!!

      Also Romneys absolute refusal to even touch the issue was awful. Even McCain… yes McCain was courageous enough to discuss this:

      • humura

        Republican Richard Nixon made affirmative action a national policy. Also, the Michigan court’s excuse was that the pro-aa crowd could not do well in a general election. In that election in which the anti-a-a vote was 58%, a Democrat won the governorship. Democratic AND Republican leaders AND church leaders were all pro-a-a, but they lost decisively. Most Americans opposed affirmative action. That is why the leaders of both parties try to keep it off the ballot, and behind closed doors.

  • negrolocaust

    blacks always need a handicap. i wonder why? name one invention, discovery, innovation etc by a black. i cant. Galileo, Newton, Leonardo, Einstein all invented on their own in their minds without special treatment why couldnt a black have sat on a farm by himself and thought about physics. i wonder why?

    • Philo T Farnsworth, the guy who invented the Television, did so as a White farm boy, while riding his dad’s tractor, looking at the rows of corn and while being only 14 years old.

      Oh, did I tell you he was White?

      • IstvanIN

        …and guess who stole his idea for electronic TV? The same “type” of person who is orchestrating the destruction of our entire nation.

        • You are correct. I can’t recall his name. Something like Sarkov. He was from Russia and in the books I read about him and Farnsworth, on a trip across the Atlantic, circa 1928, he was told by a “banker friend” to sell everything he had in the stock market.

          He ended up running RCA. Farnsworth ended up broke

          • David Sarnoff. He also ruined Edwin Armstrong’s life, he invented Frequency Modulation.

          • Michael_C_Scott


      • StillModerated

        Television was invented by John Logie Baird an impoverished Scotsman, who also was white. The invention was ruined by program producers.

        • It is my understanding about the invention of television is that it wasn’t quite any one “A-Ha” moment on the part of one person, but it was instead a hobbling together of related concepts and inventions.

          • To Farnsworth, it was a A-Ha moment. When he saw the parallel rows of corn, he knew then how to build the TV tube from a Cathode Ray tube, controlled by magnetic effects on the electron beam across a phosphorous screen.

            One of this school teachers made note of this when Philo told him of his design and why it would work.

            He is regarded in the industry as the true inventor of the Television.

  • IstvanIN

    The people vote to amend their constitution to ban state-sanctioned discrimination and that violates equal protection? If that isn’t proof that the Federal Government should be put out of our misery, what is?

  • eunometic

    What are the names of the judges and lawyers?

    • StillModerated

      and where do they live?

  • LHathaway

    “Not even Orwell himself could come up with such lunacy”

    “A first premise for resolving this case is, and must be, that a state does not deny equal treatment by mandating it”.

    As if Orwell has switched to comedy. By this time in our PC era, why not?

  • In reading articles such as these we shouldn’t forget that the first sin of any taxpayer-financed U.S. public university is admitting foreign nationals over U.S. citizens. Admittance of Americans not being based on merit is only the second sin, which is the one covered here. A nation needs to take care of and develop its own first. Words cannot express how stupid we look to the Chinese when taxpayer-financed Public U assigns 20% of its admittances to foreigners (including them) while Americans are bickering amongst themselves the allotment of the remaining 80%, completely oblivious to the fact that the 20% are rightfully theirs too. The way the mainstream media misinforms us, one gets the feeling that if 80% of positions were reserved for foreigners American whites and blacks would continue arguing over the 20% while still not questioning the assignment of the 80%.

  • anarchyst

    There is a way to reign in the schools that push affirmative action . . . stop the public funding . . . yes, cut them off . . . they will get the message.

    • Bon, From the Land of Babble

      Private funding too. White alums need to stop any/all donations to universities that
      openly discriminate against their children. Sports fans as well — stop attending and supporting sports teams at any university that discriminates against White children.

      Like Hollywood, the ONLY color colleges and universities care about is green.

      Turn off the money spigots, ALL of them and they will get the message.


  • EndTimesComing

    So colleges must be allowed to hold the debate and vote as to whether they use affirmative action or not, and the State be damned and have no input and cannot vote on it as a State. But homosexuals are to be allowed to use the State voting process and the power of the State’s enforcement to dictate to individual colleges and businesses that they MUST allow homosexuals be included despite personal conviction to the contrary. Judges and courts are insane these days. They, being staffed with liberals more and more, make rulings that are constantly contradictory in logic one and at the same time. They rule on things of which they have NO purview. They rule in ways guaranteed to destroy the very fabric of the nation. By their actions they destroy all faith in the judicial process and in the rule of law. That in itself is destined to eventually result in anarchy and armed rebellion against such an establishment.

    • IstvanIN

      Having different admissions standards for different races in a state institution is discrimination. Allowing gay students, who meet the same academic standards as other students, to attend state colleges is a very different thing. The state should have one set of rules for everyone, regardless of race or other characteristics. This whole discussion has nothing to do with gays.

  • Bon, From the Land of Babble

    This is one more example of judicial tyranny. We Californians are well aware of this fascist tactic after Prop 187 was overturned by a single judge.

    “The court says the ban puts an extraordinary burden on those who have to mount a long expensive campaign if they want to protect it.”

    So it was the “extraordinary burden” of legal fees that led to the overturning of MCRI? Since when did “legal fees” become the basis of overturning American laws?

    Let’s hope sanity prevails in Michigan:

    The state attorney general vowed to go to the U.S. Supreme Court. The ACLU said the decision reaffirms a cornerstone of democracy.

    “MCRI embodies the fundamental premise of what America is all about: equal opportunity under the law. Entrance to our great universities must be based upon merit. We are prepared to take the fight for quality, fairness and the rule of law to the U.S. Supreme Court.”

    –Bill Schuette, AG of Michigan

    The ACUL is prepared to fight the AG all the way to SCOTUS to make sure unqualified blacks and browns are admitted and flunk out of the U of M.

    “It restores the argument that race is not to be disadvantaged when universities seek to enroll a diverse student body. Somewhere Lincoln and Dr. King are smiling.”

    –Mark Rosenbaum, ACLU attorney


  • The logic of liberals never ceases to amaze. Scary that this type of logic is in our courtrooms.

  • paul_begala

    …..these judges are no different than the OJ jury.

  • What is wrong with poverty based policies if we must have these types of policies?

  • negrolocaust

    here yet again as always every other race works hard creates innovates produces contributes and the black takes and destroys. its time to stop putting up with them and turn the tables. i have had enough.

  • Jackryanvb

    People need to get completely out of these Libertarian, “private institution” fantasies.

    The Southern Baptist church is private, tax exempt, so is the Catholic Church, Smith college and Amherst college. therse private instructions were once White, reasonably on our side, they are no longer White, on our side.

    It’s racial war, not some division between public vs private, North vs South, Catholics vs Protestants. 97 percent of Blacks of all church demonization s, rich and poor voted Obama, Blacks see racial reality and take the Black side, Whites need to do the same, just take the White side.