Affirmative Action Not Dead Yet: Appeals Court Strikes Down Michigan Ban

A federal appeals court reinstated the use of affirmative action in college admissions. Will this influence the major Supreme Court case scheduled for next year?

While the legality of affirmative action is under examination in the Fisher v. University of Texas U.S. Supreme Court case, a landmark ruling on a Michigan law by a federal appeals court this week may provide an indication of what's to come.


The 6th U.S. Circuit Court of Appeals in Cincinnati lifted Michigan's ban on affirmative action, declaring it unconstitutional. The referendum, known as Proposition 2 and passed by 58 percent of voters in 2006, was declared illegal because it "undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change," Judge R. Guy Cole Jr. wrote in the majority opinion.

Additionally, the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), the group that challenged the ban, says it expects the number of Black and Latino students at universities to at least double once affirmative action is reinstituted.

Reactions to Affirmative Action in Michigan

"We are pleased that the 6th Circuit Court of Appeals has made the common-sense ruling that diversity can be a part of the consideration in university admissions, state hiring and state contracting. The private sector takes affirmative steps regularly to ensure that they have hiring, promotion and contracting practices that are inclusive," says Thomas Costello, president and CEO of the Michigan Roundtable for Diversity and Inclusion.

He continues, "It is foolish to prevent the public sector from using the best practices of our most successful businesses and corporations. We hope that Michigan will again begin the judicious use of affirmative-action policies to ensure true equal access to opportunity in our state."

Michigan Attorney General Bill Schuette, however, has sworn to appeal the case to the U.S. Supreme Court, citing the need for merit-based admissions and a desire to uphold the fair rule of law. And Jennifer Gratz, the white plaintiff in the 2003 Supreme Court case that challenged University of Michigan undergraduate admissions policies, wrote on her Facebook wall: "The court has given me a clear mission: I must re-engage in the fight to guarantee fair and equal treatment for all. The court has no right to overturn the will of the people and decide that equality is unconstitutional."

Read more reactions to the ruling.

What's Affirmative Action's Future?

The decision comes at a critical watershed for affirmative action—the U.S. Supreme Court currently is examining whether race-based college admissions are constitutional as a whole. The Fisher v. University of Texas case, which was heard in October and should be decided next year, could result in the repeal of the historic Grutter v. Bollinger decision from 2003, which upheld race was a viable factor in determining college acceptance.

Corporations who filed a friend-of-the-court brief on behalf of affirmative action in the Fisher case—and attested to the bottom-line benefits of maintaining a diverse pipeline—include several DiversityInc Top 50 companies: Aetna (No. 24), Merck & Co. (No. 16), Northrop Grumman (No. 42) and Procter & Gamble (No. 5).

For more on affirmative action, read the following:

Ask the White Guy: Racism and Affirmative Action—Why White Victims Are the Key to the Solution

Affirmative Action Benefits Whites Too … More Than You Think

Affirmative Action: Why Is Ward Connerly Wrong?

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