Ban on affirmative action back in court

By Lisa Cornwell
Associated Press

CINCINNATI (AP) — Attorneys on Wednesday last week urged a federal appeals court in Cincinnati to overturn a Michigan law that bans the consideration of race in college admissions and government hiring.

The attorneys arguing against the ban told 15 judges of the 6th U.S. Circuit Court of Appeals that the law violates the equal protection clause of the 14th Amendment to U.S. Constitution.
It says that no state shall deny any person the equal protection of the laws.

By allowing the law to stand, “we are creating a new form of separate and unequal,” said attorney George Washington, who represents the Coalition to Defend Affirmative Action.
The group wants the appeals court to strike down the law.

The full appeals court reopened the case after throwing out a decision by one of its three-judge panels last July that found the law unconstitutional, saying it treats minorities unfairly.
Michigan Solicitor General John Bursch argued on behalf of the state for upholding the law.

He told the judges Wednesday that it is anti-discriminatory and says that race cannot be used for any purpose. He argued that it doesn’t make sense that “prohibiting discrimination based on race should be considered discrimination.”

If the ban is overturned, “no anti-discrimination law can ever be valid,” he said.

Bursch also argued that if those urging the court to overturn the law are successful, it would mean that a policy at the lower levels of government can’t be changed.

Michigan voters in 2006 passed the law that forced the University of Michigan and other public schools to change admissions policies.

Civil rights groups along with University of Michigan students, faculty and applicants sued in 2006, arguing that the law discriminates against minorities by allowing many other non-academic factors besides race to be considered for admission.

A statewide voter initiative to change the constitution would be required to allow race to be considered again as a factor in admissions, but other admissions policy changes can be pursued through university governing boards or officials.

A U.S. District judge dismissed the lawsuit in 2008, saying that the law’s only purpose is not to discriminate against minorities, the decision that was appealed to the three-judge panel.

Bursch said those urging the court to strike down the law are advocating for preferences to increase minority enrollment, something he says the U.S. Supreme Court has ruled is permissible but not required.

Michigan citizens “have every right to demand equal treatment,” Bursch said, and the law they approved is race-neutral.

Washington disagreed, telling the court that the numbers of black and Latino students admitted to the University of Michigan has dropped by one-third since the ban went into effect.
He said the law takes away the right of minorities to education, which “seems to us the definition of discrimination.”

The law denied minorities the right to advocate for fair treatment, and “in so far as affirmative action is lawful, we should have the right to fight for it,” he said.

Attorney Mark Rosenbaum, arguing on behalf of the American Civil Liberties Union, said the ban “is toxic to the DNA of the 14th Amendment.”

The law leaves all admissions decisions but those based on race in the hands of the universities’ governing boards, and “restricts the process so that a fair fight can’t take place,” Rosenbaum said.

Bursch argued that Supreme Court has interpreted the 14th Amendment as forbidding the consideration of race in making public decisions.

When prompted by judges’ questioning, Rosenbaum acknowledged that the people of Michigan have ultimate authority but said “they can’t exercise it in a way that violates the 14th Amendment.”

About 60 demonstrators in favor of striking down the ban were outside of the courthouse prior to the hearing, and many attended the hearing, which drew nearly 100 people.