Pro-Affirmative Action Suit Rejected

Scott Jaschik Inside Higher Ed, April 3, 2012

WASHINGTON — A federal appeals court on Monday rejected a suit that sought to lift California’s ban on the consideration of race or ethnicity in the admissions decisions of public colleges and universities.

Of late, supporters and critics of affirmative action have been focused on a case before the U.S. Supreme Court dealing with the consideration of race and ethnicity by the University of Texas at Austin. The Texas case will determine whether a public university that has achieved some level of diversity through race-neutral means can consider race and ethnicity to achieve a greater level of diversity.

But Monday’s decision by the U.S. Court of Appeals for the Ninth Circuit and a similar legal dispute currently before the U.S. Court of Appeals for the Sixth Circuit raise another set of issues. Monday’s ruling centers on whether a state can — as California voters did — bar the consideration of race.

The U.S. Court of Appeals for the Sixth Circuit last year ruled that Michigan couldn’t do so, and that its state ban deprived minority citizens of their rights. That ruling revived hope of some supporters of affirmative action that they could yet fight the results of state referendums in states like Michigan, California and elsewhere — and the arguments used in California mirrored those in Michigan (and were made by the same lawyer). But the full Sixth Circuit in September vacated that decision, and announced that it would rehear the case as a full court. (Arguments took place last month, but there has yet to be a ruling.)

The challenges to the constitutionality of the referendums in California and Michigan came from a group called the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, an organization known as BAMN (the acronym for the end of its name). BAMN made two legal arguments: that the referendums denied to minority citizens constitutional rights that other groups have to lobby for changes in admissions policy, and that the Supreme Court’s 2003 decision upholding the right of colleges to consider race in admissions invalidated the referendums. While leaders of public universities in both California and Michigan have criticized the bans on consideration of race, they have not embraced the BAMN legal strategy, and in fact are typically sued in most BAMN litigation.

In Michigan, the argument about political rights of minority citizens swayed the original panel that heard the case. But the appeals panel that heard the California challenge rejected the idea. The appeals court said that, shortly after California voters in 1996 approved the ban on consideration of race, the same appeals court heard such a challenge and rejected it. There was no reason to revisit that ruling, the appeals court said.

BAMN argued that the Supreme Court’s 2003 decision in Grutter v. Bollinger, upholding the use of race by the University of Michigan Law School, did change the legal issues, because the Supreme Court had affirmed the constitutionality of such considerations. Again, the appeals court disagreed. “Grutter upheld as permissible certain race-based affirmative action programs,” the appeals court ruled. “It did not hold that such programs are constitutionally required.” For this reason, the decision added, it would be “impossible” to reverse earlier rulings upholding the legality of the California ban.

George B. Washington, the lawyer for BAMN, said that the appeals court incorrectly interpreted Grutter. Washington said that he agreed that Grutter did not require public colleges to consider race in admissions. But he said that the strength of the Grutter decisions should prevent states from barring public colleges from considering race in admissions.

Washington said BAMN would appeal to the full circuit — and to the Supreme Court if necessary — to focus as well on the political rights he said are denied to supporters of affirmative action. The effect of the bans, he said, is to make it possible for people in California and Michigan to lobby university governing boards to change admissions policies in just about every way except about the issue of whether to consider race and ethnicity, and such bans effectively limit minority rights.

“The citizens of Beverly Hills can go to the University of California regents and say, ‘We need a special program for students from Beverly Hills,’ but here we have the groups most disadvantaged are the only groups that cannot go,” said Washington. “That is discrimination pure and simple. We don’t think a white majority has the right to tell black citizens they have no political right to go to the regents and say, ‘We need such a plan so our folks can get in.’ ”