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Coalition To Defend Affirmative Action, Integration and Immigrant v. Regents of the University of Michigan

November 15, 2012

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), ET AL., PLAINTIFFS-APPELLANTS (08-1387)/CROSS-APPELLEES,
v.
REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON, DEFENDANTS-APPELLEES/CROSS-APPELLANTS (08- 1534), BILL SCHUETTE, MICHIGAN ATTORNEY GENERAL, INTERVENOR-DEFENDANT-APPELLEE. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), ET AL., PLAINTIFFS, CHASE CANTRELL, ET AL., PLAINTIFFS-APPELLEES,
v.
REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON, DEFENDANTS, ERIC RUSSELL, INTERVENOR-DEFENDANT-APPELLANT, JENNIFER GRATZ, PROPOSED INTERVENOR-APPELLANT. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), ET AL., PLAINTIFFS, CHASE CANTRELL, ET AL., PLAINTIFFS-APPELLANTS,
v.
REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON, DEFENDANTS, BILL SCHUETTE, MICHIGAN ATTORNEY GENERAL, INTERVENOR-DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-15024--David M. Lawson, District Judge.

The opinion of the court was delivered by: Cole, Circuit Judge.

Nos. 08-1387/1534

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

Argued: March 7, 2012

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, DAUGHTREY, MOORE, COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN, WHITE, STRANCH, and DONALD, Circuit Judges.*fn1

COLE, J., delivered the opinion of court in which MARTIN, DAUGHTREY, MOORE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined; and BATCHELDER, C. J., and GIBBONS, ROGERS, SUTTON, COOK, and GRIFFIN, JJ., joined in Part II.B and C. BOGGS, J. (pp. 37-40), delivered a separate dissenting opinion, in which BATCHELDER, C. J., joined. GIBBONS (pp. 41-57), delivered a separate dissenting opinion, in which BATCHELDER, C. J., and ROGERS, SUTTON, and COOK, JJ., joined, and GRIFFIN, J., joined with the exception of Part III. ROGERS (pg. 58) delivered a separate dissenting opinion, in which COOK, J., joined. SUTTON (pp. 59-69), delivered a separate dissenting opinion in which BATCHELDER, C. J., and BOGGS and COOK, JJ., joined. GRIFFIN, J. (pp. 70-74), delivered a separate dissenting opinion.

OPINION

A student seeking to have her family's alumni connections considered in her application to one of Michigan's esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school's governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state's constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution--a lengthy, expensive, and arduous process--to repeal the consequences of Proposal 2. 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. We therefore REVERSE the judgment of the district court on this issue and find Proposal 2 unconstitutional. We AFFIRM the denial of the University Defendants' motion to be dismissed as parties, and we AFFIRM the grant of the Cantrell Plaintiffs' motion for summary judgment as to Russell.

I.

A. Factual Background

These appeals are before us as an epilogue to the long-running battle over the use of race-conscious admissions policies at Michigan's public colleges and universities. The saga began during the 1960s and 1970s, when racial minorities first successfully lobbied for the adoption of such policies. They remained largely in place until challenges in the late 1990s culminated in the Supreme Court's decisions in Gratz v. Bollinger, 539 U.S. 244 (2003), and Grutter v. Bollinger, 539 U.S. 306 (2003), which held that "universities cannot establish quotas for members of certain racial groups" or treat their applications uniquely. Grutter, 539 U.S. at 334. But the Court allowed universities to continue "consider[ing] race or ethnicity more flexibly as a 'plus' factor in the context of individualized consideration," along with other relevant factors, id., a holding we do not today address or upset.

Following these decisions, Ward Connerly, a former University of California Regent who had championed a similar proposition in California, and Jennifer Gratz, the lead plaintiff in Gratz, mobilized to place on Michigan's November 2006 statewide ballot a proposal to amend the Michigan Constitution "to prohibit all sex- and race-based preferences in public education, public employment, and public contracting . . . ."

Operation King's Dream v. Connerly, 501 F.3d 584, 586 (6th Cir. 2007). The initiative--officially designated Proposal 06-2 but commonly known as "Proposal 2"--sought "to amend the State Constitution to ban affirmative action programs." See Notice of State Proposals for November 7, 2006 General Election,

http://www.michigan.gov/documents/sos/ED-138_State_Prop_11-06_174276_7.pdf, at 5 (last visited May 22, 2012). Though Proposal 2 "found its way on the ballot through methods that undermine[d] the integrity and fairness of our democratic processes," Operation King's Dream, 501 F.3d at 591, once there, it garnered enough support among Michigan voters to pass by a margin of 58% to 42%.

Proposal 2 amended the Michigan Constitution to include the following provisions, entitled "Affirmative action," in Article I:

(1) 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.

(2) The state 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.

(3) For the purposes of this section "state" includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.

Mich. Const. art. I, § 26. Proposal 2 took effect in December 2006 and wrought two significant changes to the admissions policies at Michigan's public colleges and universities. First, it eliminated the consideration of "race, sex, color, ethnicity, or national origin" in individualized admissions decisions, modifying policies in place for nearly a half-century. No other admissions criterion--for example, grades, athletic ability, geographic diversity, or family alumni connections--suffered the same fate. Second, Proposal 2 entrenched this prohibition at the state constitutional level, thus preventing public colleges and universities or their boards from revisiting this issue--and only this issue--without repeal or modification of article I, section 26 of the Michigan Constitution.

B. Procedural History

The litigation surrounding Proposal 2 has been lengthy and complex. On November 8, 2006, the day after Proposal 2 passed, a collection of interest groups and individuals, including the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary ("Coalition Plaintiffs"), filed suit in the United States District Court for the Eastern District of Michigan. They named as defendants then-Governor Jennifer Granholm, the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University ("University Defendants"), and alleged that the provisions of Proposal 2 affecting public colleges and universities violated the United States Constitution and federal statutory law. The Coalition Plaintiffs limited their request for relief to Proposal 2 as it applies to public education, and did not challenge its constitutionality as it applies to public employment or public contracting. About a month later, the Michigan Attorney General ("Attorney General") filed a motion to intervene as a defendant, which the district court granted. Shortly thereafter, Eric Russell, then an applicant to the University of Michigan Law School, and Toward A Fair Michigan ("TAFM"), a non-profit corporation formed to ensure implementation of Proposal 2, also filed a motion to intervene in the litigation.

On December 19, 2006, a group of faculty members and prospective and current students at the University of Michigan ("Cantrell Plaintiffs") filed a separate but similar suit in the United States District Court for the Eastern District of Michigan against Granholm. This lawsuit also limited its challenge to Proposal 2 as it applies to public education.

That same day, the district court issued what was, in effect, a preliminary injunction, postponing the application of Proposal 2 to the universities' admissions and financial-aid policies until July 1, 2007, which was the conclusion of the 2006-2007 admissions and financial-aid cycle. The district court's order stemmed from a stipulation among the University Defendants, Coalition Plaintiffs, Granholm, and the Attorney General consenting to the injunction. Coal. to Defend Affirmative Action v. Granholm (Coal. I), No. 06-15024, 2006 WL 3953321 (E.D. Mich. Dec. 19, 2006). While awaiting approval as intervenors, Russell and TAFM opposed the Attorney General's stipulation and sought a stay of the injunction from the district court. When two days passed without a ruling on their motions, Russell and TAFM filed with us an "Emergency Motion for a Stay Pending Appeal," which we granted. Coal. to Defend Affirmative Action v. Granholm (Coal. II), 473 F.3d 237, 253 (6th Cir. 2006), application to vacate stay denied, 549 U.S. 1176 (2007). Meanwhile, we approved the district court's decision to allow only Russell to intervene in the Proposal 2 litigation. Coal. to Defend Affirmative Action v. Granholm (Coal. III), 501 F.3d 775 (6th Cir. 2007).

On October 5, 2007, the Cantrell Plaintiffs filed a motion for summary judgment as to Russell, arguing that he should be dismissed from the litigation because he no longer represented an interest distinct from that of the Attorney General. On October 17, 2007, the University Defendants filed a motion to dismiss on the ground that they were not necessary parties to the litigation. On November 30, 2007, the Attorney General filed a motion to dismiss for lack of standing or, in the alternative, a motion for summary judgment on the merits as to all Plaintiffs. Russell and the Cantrell Plaintiffs likewise filed motions for summary judgment the same day.

On March 18, 2008, the district court issued two orders addressing these motions. First, the court denied the University Defendants' request to be dismissed as parties and the Cantrell Plaintiffs' motion for summary judgment. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. IV), 539 F. Supp. 2d 924, 941, 950-58 (E.D. Mich. 2008). The court also granted the Attorney General's motion for summary judgment, rejecting the Plaintiffs' arguments that Proposal 2 violated the Equal

Protection Clause of the Fourteenth Amendment. Id. at 960. Second, the court granted the Cantrell Plaintiffs' motion for summary judgment, dismissing Russell as an intervenor. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. V), 539 F. Supp. 2d 960 (E.D. Mich. 2008). The Cantrell Plaintiffs subsequently moved the court to reconsider the first order, but the court denied the motion. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VI), 592 F. Supp. 2d 948 (E.D. Mich. 2008).

The Plaintiffs, the University Defendants, and Russell appealed these orders to this Court. A panel of this Court reversed the district court's grant of summary judgment in favor of the Attorney General, concluding that the portions of Proposal 2 that affect Michigan's public institutions of higher education impermissibly alter the political process in violation of the Equal Protection Clause. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VII), 652 F.3d 607, 631-32 (6th Cir. 2011). This Court also affirmed the district court's dismissal of Russell and the denial of the University Defendants' motion to be dismissed. The Attorney General then sought en banc review, which we granted, vacating the panel opinion.

II.

A. Constitutionality of Proposal 2

The Equal Protection Clause provides that "[n]o state shall . . . deny to any person . . . the equal protection of the laws." U.S. Const. amend. XIV. The Plaintiffs argue that Proposal 2 violates this provision in two distinct ways. Both Plaintiff groups argue that Proposal 2 violates the Equal Protection Clause by impermissibly restructuring the political process along racial lines (the "political process" argument), and the Coalition Plaintiffs additionally argue that Proposal 2 violates the Equal Protection Clause by impermissibly classifying individuals on the basis of race (the "traditional" argument).

In addressing the Plaintiffs' arguments, we are neither required nor inclined to weigh in on the constitutional status or relative merits of race-conscious admissions policies as such. This case does not present us with a second bite at Gratz and Grutter--despite the best efforts of the dissenters to take one anyway. This case instead presents us with a challenge to the constitutionality of a state amendment that alters the process by which supporters of permissible race-conscious admissions policies may seek to enact those policies. In other words, the sole issue before us is whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions--something they are specifically allowed to do under Grutter.

We review de novo a district court's grant of summary judgment and denial of a motion for reconsideration of that decision. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1047 (6th Cir. 2001). Whether a state's constitution violates the federal constitution is a question of law, which we also review de novo. Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir. 2008). .

1. Equal Protection Within the Political Process

The Equal Protection Clause "guarantees racial minorities the right to full participation in the political life of the community. It is beyond dispute . . . that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner." Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 467 (1982). But the Equal Protection Clause reaches even further, prohibiting "a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation." Id. (internal quotation marks and citation omitted). "[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size." Hunter v. Erickson, 393 U.S. 385, 393 (1969).

The Supreme Court's statements in Hunter and Seattle emphasize that equal protection of the laws is more than a guarantee of equal treatment under existing law. It is also a guarantee that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them. In effect, the political- process doctrine hews to the unremarkable notion that when two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner's course. Ensuring the fairness of the political process is particularly important because an electoral minority is disadvantaged by definition in its attempts to pass legislation; this is especially true of "discrete and insular minorities," who face unique additional hurdles. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

Ensuring a fair political process is nowhere more important than in education. Education is the bedrock of equal opportunity and "the very foundation of good citizenship." Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). Safeguarding the guarantee "that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective." Grutter, 539 U.S. at 331-32 (internal quotation marks omitted). Moreover, universities "represent the training ground for a large number of our Nation's leaders. . . . [T]o cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." Id. at 332 (citation omitted). Therefore, in the high-stakes context of education, we must apply the political-process doctrine with the utmost rigor.

Of course, the Constitution does not protect minorities from political defeat: Politics necessarily produces winners and losers. We must therefore have some way to differentiate between the constitutional and the impermissible. And Hunter and Seattle provide just that. They set the benchmark for when the majority has not only won, but has rigged the game to reproduce its success indefinitely.

a. Hunter v. Erickson

In Hunter, the citizens of Akron, Ohio, overturned a fair housing ordinance enacted by the City Council. 393 U.S. at 386. But the citizens did more than merely repeal the ordinance; they amended the city charter through a referendum to require the approval of an electoral majority before any ordinance regulating real estate "on the basis of race, color, religion, national origin or ancestry"--past or future--could take effect. Id. at 387, 390 n.6. In other words, only ordinances based on those factors required a city-wide majority; ordinances based on any other factor required just a vote by the City Council:

[T]he amendment changed the requirements for the adoption of one type of local legislation: to enact an ordinance barring housing discrimination on the basis of race or religion, proponents had to obtain the approval of the City Council and of a majority of the voters citywide. To enact an ordinance preventing housing discrimination on other grounds, or to enact any other type of housing ordinance, proponents needed the support of only the City Council. Seattle, 458 U.S. at 468 (describing Hunter). The referendum halted operation of the existing fair housing ordinance, and more importantly for our purposes, erected a barrier to any similar ordinance in the future. Hunter, 393 U.S. at 389-90.

The Supreme Court found that the disparity between the process for enacting a future fair housing ordinance and the process for enacting any other housing ordinance "place[d] special burden[s] on racial minorities within the governmental process" by making it "substantially more difficult to secure enactment" of legislation that would be to their benefit. Id. at 390-91. While the enactment "treat[ed] Negro and white, Jew and gentile in an identical manner," the Court found that "the reality is that the law's impact falls on the minority." Id. at 391. That the law had been enacted via a popular referendum did not save it from working "a real, substantial, and invidious denial of the equal protection of the laws." Id. at 393.

b. Washington v. Seattle School District No. 1

In Seattle, a case that mirrors the one before us, the Supreme Court applied Hunter to strike down a state statute, also enacted via a referendum, that prohibited racially integrative busing. Seattle, 458 U.S. at 463. Prior to the referendum, Seattle School District No. 1 ("District") had implemented a school desegregation plan that made extensive use of mandatory reassignments. Id. at 460-61. The District was under no obligation to adopt this plan: following Brown, school boards had been "charged with the affirmative duty to take whatever steps might be necessary" to integrate schools that were unconstitutionally segregated because of racial discrimination, Green v. Cnty. Sch. Bd., 391 U.S. 430, 437 (1968), but there had been no finding that the de facto segregation in Seattle's schools was the product of discrimination. Nonetheless, the school board implemented the plan to accelerate its existing program of voluntary busing, which some constituencies saw as insufficiently alleviating racial imbalances.*fn2 Seattle, 458 U.S. at 460.

In response, Seattle residents drafted a statewide measure--known as Initiative 350--providing in relevant part that "no school board . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student's place of residence . . . ." Id. at 462 (alteration in original) (quoting Wash. Rev. Code § 28A.26.010 (1981)). Though the initiative was framed as a general ban on mandatory busing, its myriad exceptions made its real effect the elimination of school reassignments for racial purposes only, except where a court ordered such reassignments to remedy unconstitutional segregation. Id. at 462-63. Initiative 350 made it on the Washington ballot and passed by a substantial margin. Id. at 463.

The Court found that Initiative 350, like the Akron city charter amendment, violated the Equal Protection Clause. Id. at 487. The Court stated that its prior cases yielded a "simple but central principle": while "laws structuring political institutions or allocating political power according to neutral principles" do not violate the Fourteenth Amendment, "a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process." Seattle, 458 U.S. at 469-70. Echoing Hunter, the Court explained that this distinct analysis is necessary because non-neutral allocations of power "place[] special burdens on racial minorities within the governmental process, thereby making it more difficult for certain racial and religious minorities than for other members of the community to achieve legislation that is in their interest." Id. at 470 (internal quotation marks, citations, and brackets omitted). The Court dismissed the argument that Initiative 350 was not intended to prevent busing for racially-integrative purposes, and explained why Initiative 350 violated this "simple but central" principle.

As a threshold matter, the Court concluded that the busing program, like the fair housing ordinance in Hunter, "at bottom inures primarily to the benefit of the minority, and is designed for that purpose." Id. at 472. The Court reasoned that while "white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom," desegregation primarily benefits minority children because these children "can achieve their full measure of success only if they learn to function in--and are fully accepted by--the larger community. Attending an ethnically diverse school may help accomplish this goal by preparing minority children for citizenship in our pluralistic society." Id. at 472-73 (internal quotation marks omitted). Because racial minorities had reason to "consider busing for integration to be 'legislation that is in their interest,'" the "racial focus of Initiative 350 . . . suffice[d] to trigger application of the Hunter doctrine." Id. at 474 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).

Having concluded that Initiative 350 targeted a busing program that "inures primarily to the benefit of the minority," the Court held that "the practical effect of Initiative 350 is to work a reallocation of power of the kind condemned in Hunter." Id. As the Court explained, Initiative 350 did more than merely repeal the busing program:

The initiative removes the authority to address a racial problem--and only a racial problem--from the existing decisionmaking body, in such a way as to burden minority interests. Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board. . . . As in Hunter, then, the community's political mechanisms are modified to place effective decisionmaking authority over a racial issue at a different level of government.

Id. By removing authority over busing for racial purposes from the school board and placing it at a more remote level of government, Initiative 350 required "those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action," and disadvantaged "those who would benefit from laws barring de facto desegregation as against those who . . . would otherwise regulate student assignment decisions." Id. at 474-75 (alteration in original) (internal quotation marks omitted). Accordingly, the Court held that Initiative 350 violated the Equal Protection Clause. Id. at 470.

In sum, Hunter and Seattle require us to examine an enactment that changes the governmental decisionmaking process for legislation with a racial focus to determine if it improperly manipulates the channels for change.*fn3 Seattle, 458 U.S. at 470, 485; Hunter, 393 U.S. at 391; cf. Carolene Prods., 304 U.S. at 152 n.4 (noting that more exacting judicial scrutiny is required when the majority curtails "the operation of those political processes ordinarily to be relied upon to protect minorities"). To the extent that it does, we must strike down the enactment absent a compelling state interest.

2. Application of the Hunter/Seattle Test to Proposal 2

Hunter and Seattle thus expounded the rule that an enactment deprives minority groups of the equal protection of the laws when it: (1) has a racial focus, targeting a policy or program that "inures primarily to the benefit of the minority"; and (2) reallocates political power or reorders the decisionmaking process in a way that places special burdens on a minority group's ability to achieve its goals through that process. See Seattle, 458 U.S. at 467, 472; Hunter, 393 U.S. at 391. Applying this rule here, we conclude that Proposal 2 targets a program that "inures primarily to the benefit of the minority" and reorders the political process in Michigan in a way that places special burdens on racial minorities.

a. Racial Focus

The first prong of the Hunter/Seattle test requires us to determine whether Proposal 2 has a "racial focus." Seattle, 458 U.S. at 474. This inquiry turns on whether the targeted policy or program, here holistic race-conscious admissions policies at public colleges and universities, "at bottom inures primarily to the benefit of the minority, and is designed for that purpose." Id. at 472. The targeted policy need not be for the sole benefit of minorities, for "it is enough that minorities may consider [the now burdened policy] to be 'legislation that is in their interest.'" Id. at 474 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).*fn4

Seattle conclusively answers whether a law targeting policies that seek to facilitate classroom diversity, as Proposal 2 does, has a racial focus. In Seattle, the Court observed that programs intended to promote school diversity and further the education of minority children enable these students to "achieve their full measure of success." Id. at 472-73. Such programs do so through "preparing minority children for citizenship in our pluralistic society, while . . . teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage." Id. at 473 (internal quotation marks and citation omitted). Accordingly, the Court noted that "desegregation of the public schools . . . at bottom inures primarily to the benefit of the minority . . . ."

Id. at 472. Because minorities could "consider busing for integration to be 'legislation that is in their interest,'" the Court concluded that Initiative 350's effective repeal of such programs had a racial focus sufficient to "trigger application of the Hunter doctrine." Id. at 474.

The logic of the Court's decision in Seattle applies with equal force here. Proposal 2 targets race-conscious admissions policies that "promote[] 'cross-racial understanding,' help[] to break down racial stereotypes, and 'enable[] students to better understand persons of different races.'" Grutter, 539 U.S. at 330 (alteration omitted) (internal quotation marks and citation omitted). Just as an integrative busing program is designed to improve racial minorities' representation at certain public schools, see Seattle, 458 U.S. at 461, race-conscious admissions policies are designed to increase racial minorities' representation at institutions of higher education, see, e.g., Grutter, 539 U.S. at 316, 328-33; Gratz, 539 U.S. at 253-56. There is no material difference between the enactment in Seattle and Proposal 2, as both targeted policies that benefit minorities by enhancing their educational opportunities and promoting classroom diversity. Further, given that racial minorities lobbied for the implementation of the very policies that Proposal 2 permanently eliminates, it is beyond question that Proposal 2 targets policies that "minorities may consider . . . [to be] in their interest." Seattle, 458 U.S. at 474. Therefore, Proposal 2 has a racial focus because race-conscious admissions policies at Michigan's public colleges and universities "inure[] primarily to the benefit of the minority, and [are] designed for that purpose." Id. at 472.

Seattle not only mandates our conclusion that Proposal 2 is racially focused, but it also dispels any notion that the benefit race-conscious admissions policies may confer on the majority undercuts its "racial focus." Although it is true that increased representation of racial minorities in higher education benefits all students, see Grutter, 539 U.S. at 327-33; Seattle, 458 U.S. at 472-73, the Supreme Court has made clear that these policies still have a racial focus. In Seattle, the Court recognized that it is "clear that white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom." Seattle, 458 U.S. at 472 (internal quotation marks omitted). But the Seattle Court found that the wider benefits of the busing plan did not serve to distinguish Hunter, "for we may fairly assume that members of the racial majority both favored and benefited from Akron's fair housing ordinance." Id. By the same token, the wider benefits of race-conscious admissions policies do not undermine the conclusion that such admissions policies "inure[] primarily to the benefit of the minority . . . ." Id.

Nor do policy arguments attacking the wisdom of race-conscious admissions programs preclude our finding that these programs "inure[] primarily to the benefit of the minority." Id. Critics of affirmative action maintain that race-conscious admissions policies actually harm minorities by stigmatizing minority students admitted into high- caliber institutions through a perception that they lack sufficient qualifications; by impeding the academic success of minority students admitted to institutions they are not qualified to attend; and by impairing the admissions prospects of traditionally higher- performing minority groups, such as Asian-Americans. But the controversy surrounding the policies that Proposal 2 targets is irrelevant as to whether Proposal 2 itself has a racial focus; rather, this controversy is a "matter[] to be resolved through the political process." Id. at 474 ("It is undeniable that busing for integration . . . engenders considerably more controversy than does the sort of fair housing ordinance debated in Hunter. But in the absence of a constitutional violation, the desirability and efficacy of school desegregation are matters to be resolved through the political process."). As in Seattle, "it is enough that minorities may consider [the repealed policy] to be 'legislation that is in their interest.'" Id. (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).

We find that the holistic race-conscious admissions policies now barred by Proposal 2 inure primarily to the benefit of racial minorities, and that such groups consider these policies to be in their interest. Indeed, we need not look further than the approved ballot language--characterizing Proposal 2 as an amendment "to ban affirmative action programs"--to confirm that this legislation targets race-conscious admissions policies and, insofar as it prohibits consideration of applicants' race in admissions decisions, that it has a racial focus.*fn5

b. A Reordering of the Political Process That Burdens Racial Minorities The second prong of the Hunter/Seattle test asks us to determine whether Proposal 2 reallocates political power or reorders the political process in a way that places special burdens on racial minorities. See Seattle, 458 U.S. at 467; Hunter, 393 U.S. at 391. We must first resolve (1) whether the affected admissions procedures lie within the "political process," and then (2) whether Proposal 2 works a "reordering" of this political process in a way that imposes "special burdens" on racial minorities.

i. Proposal 2's Effect on a "Political Process"

The breadth of Proposal 2's influence on a "political process" turns on the role the popularly elected governing boards of the universities play in setting admissions procedures. The key question is whether the boards had the power to alter the universities' admissions policies prior to the enactment of Proposal 2. If the boards had that power and could influence the use (or non-use) of race-conscious admissions policies, then Proposal 2's stripping of that power works a reordering of the political process because minorities can no longer seek to enact a type of legislation that is in their interest at the board level. But if board members lacked such power, because policy decisions are actually under the control of politically unaccountable faculty members or admissions committees, then Proposal 2's effect on the political process is negligible.

This issue--whether the admissions policies affected by Proposal 2 are part of a "political process"--was the subject of stark disagreement between the majority and the dissent when this case was originally before a three-judge panel, and it continues to be here. In supplemental briefing, the University Defendants clarified their admissions practices, undercutting the factual and legal basis of the panel dissent's core contention that Proposal 2 falls outside the political process. We examine the administrative structure of Michigan's public universities and their admissions processes in light of this new information, even though the dissenters choose to look the other way.

The Michigan Constitution establishes three public universities--the University of Michigan, Michigan State University, and Wayne State University--and grants control of each to a governing board.*fn6 Mich. Const. art. VIII, § 5; see also id. § 6 (allowing the establishment of other institutions of higher learning, such as Michigan's other public colleges and universities, and affording their governing boards similar control). These boards have the same role: to run, with plenary authority, their respective institutions. Id. art. VIII, §§ 5-6; Glass v. Dudley Paper Co., 112 N.W.2d 489, 490 (Mich. 1961). Michigan law has consistently confirmed this absolute authority. See, e.g., Glass, 112 N.W.2d at 490; Att'y Gen. ex rel. Cook v. Burhans, 7 N.W.2d 370, 371 (Mich. 1942); Bd. of Regents of Univ. of Mich. v. Auditor Gen., 132 N.W. 1037, 1040 (Mich. 1911); 1979-80 Mich. Op. Att'y Gen. 578, 1980 WL 114008, at *1-2 (Mich. A.G. Jan. 31, 1980). Indeed, the boards are described as "the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its functions, is co-ordinate with and equal to that of the legislature." Federated Publ'ns, Inc. v. Bd. of Trs. of Mich. State Univ., 594 N.W.2d 491, 496 n.8 (Mich. 1999) (quoting Bd. of Regents of the Univ. of Mich. v. Auditor Gen., 132 N.W. 1037, 1040 (Mich. 1911)).

Eight popularly elected individuals sit on these boards, and they hold office for eight years. Mich. Const. art. VIII, § 5; see also id. § 6. The boards have the "power to enact ordinances, by-laws and regulations for the government of the university." Mich. Comp. Laws § 390.5; see also id. §§ 390.3-.6.*fn7 Exercising this power, the boards have enacted bylaws--which they have complete authority to revise or revoke--detailing admissions procedures. See Univ. of Mich., Bylaws of the Bd. of Regents § 8.01, available at http://www.regents.umich.edu/bylaws (last visited May 22, 2012) [hereinafter Univ. of Mich. Bylaws]; Mich. State Univ., Bd. of Trs. Bylaws, art. 4, available at http://www.trustees.msu.edu/bylaws (last visited May 22, 2012); Wayne State Univ. Statutes §§ 2.34.09, 2.34.12, available at http://www.bog.wayne.edu/code (last visited May 22, 2012).

The University of Michigan's bylaws delegate the day-to-day management of undergraduate admissions to the associate vice provost and executive director of undergraduate admissions. See Univ. of Mich. Bylaws § 8.01. Although the board delegates this responsibility, it continues to exercise ultimate decisionmaking authority because it directly appoints the associate vice provost and executive director of undergraduate admissions, id., and because it retains the power to revoke or alter the admissions framework, id. §§ 14.03, 14.04. Nothing prevents the board from adopting an entirely new framework for admissions decisions if it is so inclined. See Mich. Const. art. VIII, § 5; Mich. Comp. Laws §§ 390.3-.6; Univ. of Mich. Bylaws § 8.01. Indeed, that the board can revise its bylaws is not a mere theoretical possibility, but a reality ...


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