Michigan Civil Rights Initiative Litigation: BAMN v. Russell et al.; Russell v. Brandon; Schuette v. BAMN

Voters Decide to Take Control

In Gratz and Grutter v. Bollinger, CIR sued the University of Michigan over its unconstitutional use of racial preferences in admissions. The Supreme Court declared the system at the University of Michigan’s undergraduate campus unconstitutional, but it upheld the law school use of racial preferences under certain criteria. After Gratz and Grutter, Michigan voters took it upon themselves to do what the courts would not. Jennifer Gratz, the plaintiff in Gratz v. Bollinger, aided by Ward Connerly, spearheaded an initiative to amend the Michigan constitution and end the state government’s use of racial preferences.

The amendment instructed that the state, including public universities, “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.”

On November 7, 2006, the initiative was approved by 58% of voters in the 2006 election. According to Michigan law, it was to be implemented the following month. However, on November 8, the day after the initiative succeeded at the polls, a group called the Coalition to Defend Affirmative Action By Any Means Necessary (BAMN) filed a suit in federal court alleging that the new amendment violated the Fourteenth Amendment of the U.S. Constitution. BAMN took their phrase “by any means necessary” from Malcolm X, and was founded by the Revolutionary Workers League, a Trotskyite political organization.

The Michigan Attorney General defending the amendment initially agreed with BAMN’s demand to delay the amendment’s implementation. This would have meant that another academic year would pass where universities in Michigan would have been free to use racial preferences. Eric Russell, a law student at Wayne State University, was at this time attempting to apply as a transfer student to the University of Michigan. Because the amendment’s delay would have affected his chances of admission, he sought to intervene in the lawsuit and CIR agreed to represent him and defend the Michigan amendment on his behalf.

Unlike Gratz and Grutter, this case was not about the constitutionality of racial preferences. It was rather about the ability of Michigan voters to govern themselves within constitutional parameters. The Supreme Court has held that racial preferences are permitted under the constitution, but it has never held that they are required. CIR maintained that what the constitution does not prohibit is left to the discretion of the voters.

CIR was the only party who challenged BAMN’s demand that the amendment be delayed. After the District Court ordered the amendment’s delay, CIR filed an emergency appeal to the Sixth Circuit.  The Sixth Circuit recognized that the District Court had no authority to delay the amendment and pointed out that it was unlikely to be invalidated under the constitution. 

CIR asks state court to order schools to follow Prop. 2

Even after the Sixth Circuit ordered Michigan to implement the amendment immediately, the University of Michigan remained recalcitrant. While BAMN continued to fight the amendment in federal court, University of Michigan had other means to resist the outcome of the vote; it could simply refuse to put the amendment into force. 

The University argued that the amendment was unclear in what it prohibited and permitted.  Indeed, it maintained that racial preferences in admissions might be compatible with the explicit prohibition on racial discrimination. Only future interpretations by the court could decide just what the amendment meant. As a result, it was uncertain what if any changes in policy the amendment actually required of the school.

The school’s unwillingness to implement the amendment would effectively nullify the results of the statewide vote.  Students applying to University of Michigan would continue to face a discriminatory admissions process that evaluated applicants based on their race.

CIR filed a class action lawsuit in the Circuit Court for Washtenaw County, MI, on behalf of Eric Russell, a Michigan resident who had applied to the University of Michigan law school, and all other similarly situated individuals who had applied to Michigan state schools for fall 2007 term. Russell sought to have his application considered without regard to his race.  

We asked the courts to order Michigan schools to follow the plain meaning of the law, which would require the University of Michigan putting an immediate end to the use of racial preferences in admissions decisions. Before long, University of Michigan accepted that their arguments were untenable and agreed to change its policies to conform to the amendment.

CIR Defends Efforts of Michigan Voters

Following our early victories at the Sixth Circuit and state court, the case returned to the District Court where Judge Lawson denied BAMN’s motion for Summary Judgment. The court held that the Amendment did not violate the constitution and that Michigan voters had spoken.

BAMN appealed this ruling to the Sixth Circuit. A new panel of the Sixth Circuit reversed the District Court and held that the amendment did violate the Constitution because it altered the political process in a manner that placed minorities at a disadvantage. The court justified this holding under what is known as the “political process doctrine.” This doctrine holds that an otherwise constitutional action by voters or their elected officials can be declared unconstitutional if the result places minorities at a disadvantage in the political process.

The problem with this doctrine as expressed by the Sixth Circuit is that it assumes all members of a minority think the same way and have the same political goals. Because of this, it gives anyone who is a minority – even if they are a minority of the minority, like the Trotskyite BAMN – standing to challenge any political action. Tax, housing, and education policies could all be placed beyond the reach of the voters.

After the Sixth Circuit panel issued its ruling, the case was appealed to the en banc Sixth Circuit, which affirmed the political process doctrine. Michigan appealed the case to the Supreme Court.

On appeal to the Supreme Court, CIR filed a brief as a respondent supporting Michigan, which argued that courts may not dis-empower voters from deciding how to govern their state. All parties agreed that a university is not required to use racial preferences under the constitution, but BAMN took issue with how racial preferences were ended in Michigan. Even though the amendment was enacted in accordance with Michigan law by an overwhelming majority of voters.

Justice Kennedy, writing for the plurality of the Supreme Court, upheld the amendment. As he explained, “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

Justice Scalia, concurring in the judgment, pointed out the absurdity of the question by rephrasing it: “Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” Justice Scalia explained that the Fourteenth Amendment absolutely proscribes discrimination on the basis of race. How then, can Michigan violate the Fourteenth Amendment by forbidding racial discrimination?

CIR’s victory in Schuette is just one chapter in our continual efforts to both defend federalism and end racial preferences in higher education.