Michigan’s Prop 2 Still the Law

Washington, D.C.— The Center for Individual Rights reacted strongly to a decision released today by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit which held that Michigan’s Prop. 2 violates the Equal Protection Clause of the Constitution. Better known as the Michigan Civil Rights Initiative, Prop. 2 amended the Michigan Constitution in 2006 to prohibit “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin.”

The three-judge panel ruled that because Prop. 2 makes it more difficult for racial groups to secure racial preferences through ordinary legislation and other political efforts, it therefore violates the federal Equal Protection clause.

CIR President Terence Pell said, “It is difficult to comprehend how the Equal Protection clause — which guarantees equal treatment without regard to race — requires states to be open to efforts by racial advocacy groups to secure special, race-based benefits.” He added, “every other appeals court that has ruled on the question has upheld the constitutionality of state ballot initiatives designed to end racial preferences.”

The three-judge panel relied on two Supreme Court cases, both more than twenty years old, that held that states may not enact legal barriers that make it more difficult for minority citizens to press for local ordinances and programs designed to prevent racial discrimination. Prop. 2, in contrast, makes it more difficult for citizens of any race to press for preferential treatment on the basis of race.

CIR expects that Michigan’s Attorney General will petition for a reconsideration of today’s decision by the full Court of Appeals of the Sixth Circuit and, if necessary, review by the US Supreme Court. Pell commented, “We are confident that the panel’s clearly erroneous decision will be reversed by a higher court.”

Pell also noted that federal Court of Appeals decisions are not binding on state courts and that any citizen of Michigan retains the ability to sue for enforcement of Prop. 2 in Michigan state courts. “Should any state college or university or other state institution revert to the use of racial preferences in clear defiance of the Michigan Constitution, it would face immediate suit in state court. Unless and until the U.S. Supreme Court rules, Michigan institutions are bound to follow the Michigan Constitution.”