From the Sixth Circuit: Good News, Bad News

There’s good news out of the U.S. Court of Appeals for the Sixth Circuit: On Friday, the full court agreed to rehear a now infamous decision in which a three-judge panel had earlier struck down the state of Michigan’s Proposal 2.  Proposal 2, in turn, is a ban on government discrimination and preference on the basis of race, ethnicity, and sex, passed by Michigan voters in 2006 in large measure because the U.S. Supreme Court in 2003 had upheld the state universities’ use of racial preferences in admissions.  The Sixth Circuit panel reasoned that this ban violates the Equal Protection Clause of the U.S. Constitution.

You can’t make this stuff up, folks.  That’s right: The people of Michigan, according to this court, violated the Equal Protection Clause when they demanded that their state treat all citizens equally–without regard to race, ethnicity, or sex–in government contracting, employment, and education, including university admissions.  Unbelievable.

So it’s good news that the full circuit will review the case.  But there’s bad news, too: Two of the more conservative judges have recused themselves from the case.  As Ed Whelan discusses, that makes it far from certain that the full Sixth Circuit will come to the right conclusion.

But wait:  Here’s a bit more good news.  When the Sixth Circuit granted review, it also vacated the panel decision.  That means that, if there is a tie vote, then the trial court’s decision will stand, and it had upheld Proposal 2.

And here’s the last good news, and it’s more than a bit: If the Sixth Circuit gets it wrong en banc, it is very likely that the Supreme Court will grant review and reverse.

So, the news on this case will eventually be good.  It’s just taking a while.

 

Full disclosure:  My organization, the Center for Equal Opportunity, had joined an amicus brief filed by the Pacific Legal Foundation, urging the Sixth Circuit to grant the rehearing petition (and we will join PLF in its brief on the merits which it will file this fall).

Roger Clegg

Roger Clegg is the President and General Counsel of the Center for Equal Opportunity.

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