After the U.S. Sixth Circuit overruled the Michigan Civil Rights Initiative (MCRI) today, the case will most likely end up before the U.S. Supreme Court. The MCRI is closely modeled after California’s Proposition 209, which outlaws the use of race and gender quotas in higher education and government contracting. Jennifer Gratz, the plaintiff in the 2003 Gratz v. Bollinger Supreme Court ruling that struck down the quota system in place at the University of Michigan’s undergraduate school, anticipates that preferential policies could be uprooted once and for all. The Sixth Circuit ruling is in conflict with California’s ninth circuit ruling in favor of Prop. 209.
"This means the U.S. Supreme Court is all but certain to take up the case," Gratz said in an interview. "Michigan is once again ground zero where race and gender preferences are concerned."
There’s a complicated history here as the Gratz ruling was issued in tandem with Grutter v. Bollinger. Writing for the majority, Justice Sandra Day O’Connor ruled that it was permissible for the University of Michigan Law School to use race as one of many factors in a "narrowly tailored" fashion to achieve student diversity.
As it is, the Supreme Court is already taking up a legal challenge to admission’s policies in its current term that take race into consideration. The justices could rule in favor of the plaintiffs in Fisher v. University of Texas at Austin and still uphold Grutter.
"It is a little strange that the sixth circuit issued its ruling today before Supreme Court decided the Texas case," Gratz observed. "This is an outrageous decision. The Sixth Circuit does not have the right to overrule the will of the voters and declare that equality is unconstitutional. Judges are not supreme leaders and the voters have the absolute right to demand fair and equal treatment by their government."
The MCRI passed in Nov. 2006 by a margin of 58% to 42%. In addition to California and Michigan, similar laws are also in place in Arizona, Oklahoma, Florida, Nebraska and New Hampshire.
"The Supreme Court has to take this case, otherwise there will be so much confusion, especially if the justices split the baby in the Fisher case and rule against quotas again, but uphold Grutter," Gratz said. "It’s also possible they could use Fisher to overrule Grutter but that’s not what most court observers are expecting.
In another twist, two of the conservative judges on the Sixth Circuit recused themselves from the MCRI decision, which was decided in an 8-7 vote. If they participated the ruling probably would have gone the other way.
Michigan Attorney General Bill Schuette issued a press release today announcing his intention to petition the U.S. Supreme Court in defense of the MCRI.
"MCRI embodies the fundamental premise of what America is all about: equal opportunity under the law," said Schuette. "Entrance to our great universities must be based upon merit. We are prepared to take the fight for quality, fairness and the rule of law to the U.S. Supreme Court."
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