By William Perry Pendley, President and Chief Operating Officer of Mountain States Legal Foundation
A western nonprofit, public-interest legal foundation has urged the Supreme Court of the United States to reverse a ruling by the U.S. Court of Appeals for the Sixth Circuit, Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary v. Regents of the Univ. of Mich., 701 F.3d 466 (6th Cir. Mich. 2012) [enhanced version available to lexis.com subscribers], invalidating a voter-approved ballot initiative barring discrimination by the State of Michigan on the basis of race. Mountain States Legal Foundation (MSLF), which won a landmark civil rights decision by the Court, filed a friend of the court brief, see [enhanced version available to lexis.com subscribers], urging the Court to reverse a ruling by an en banc Sixth Circuit invalidating the Michigan Civil Rights Initiative (MCRI), approved overwhelmingly (58%), in 2006. A divided three-judge panel struck down the MCRI in 2011 after which the en banc appeals court granted review, only to rule that the MCRI violates the Constitution’s Fourteenth Amendment. Citing frequently to its victory before the Court in Adarand Constructors, Inc. v. Peña [enhanced version available to lexis.com subscribers], MSLF urged the Court to reverse the appellate court’s controversial ruling.
“The Sixth Circuit turns the Constitution and scores of Supreme Court rulings on their heads,” said William Perry Pendley, MSLF president. “The ruling also will have devastating consequences for all in public contracting, who after the Court’s ruling in Adarand have a right to expect consistency in contracting decisions and to be judged on an even playing field.”
In November 2006, voters approved the MCRI and thus amended the State’s Constitution to prohibit preferential treatment in public education, government contracting, and public employment based on race, sex, ethnicity, or national origin. The amendment was first challenged in the Michigan federal district court for the Eastern District of Michigan, which in March 2008 upheld the law. In July 2011, a three-judge panel reversed the district court’s ruling. Finally, after granting en banc review, the Sixth Circuit upheld the panel’s ruling in an 8-7 decision issued in November 2012.
The en banc court held the MCRI violates the Fourteenth Amendment’s Equal Protection Clause because it denies minorities a “fair political process.” Relying on a political restructuring theory, the majority held that, because it has a racial focus, targets a policy or program that benefits minorities, and reallocates political power or reorders decision making so as to place special burdens on minorities’ ability to achieve their goals through that process, it violates the Equal Protection Clause. The dissent demonstrates the majority errs regarding the Supreme Court decisions on which it purports to rely.
In November 2012, the State of Michigan petitioned the Supreme Court for review and in March 2013, the Court granted the petition and agreed to consider whether a state’s decision to require equal treatment in higher education admissions violates the Equal Protection Clause.
Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.
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