A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today ruled that Michigan’s Proposition 2 violates the United States Constitution. In 2006, by voting 58% to 42% to pass Prop. 2, better known as the Michigan Civil Rights Initiative, the people of Michigan amended their state constitution to prohibit “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin.” But the panel ruled that because Prop. 2 makes it more difficult than before for racial groups to secure racial preferences through ordinary legislation and other political efforts, it violates the federal Equal Protection Clause.
The panel’s reasoning is hard to comprehend. According to it, the Equal Protection Clause — which guarantees equal treatment without regard to race — requires the states to be open to efforts by racial advocacy group to secure special, race-based benefits. Every other appeals court that has ruled on the question has upheld the constitutionality of state ballot initiatives designed to end racial preferences. CIR expects that the Michigan Attorney General will ask the full Sixth Circuit to set aside the panel’s decision, and, if necessary, appeal to the U.S. Supreme Court. Unless and until the U.S. Supreme Court strikes down the amendment, it remains the law in Michigan and any state institution that reverts to the use of racial preferences would face immediate suit in state court.