By Jennifer Calfas, Daily Staff Reporter
Published November 29, 2012
Michigan Attorney General Bill Schuette filed a petition of certiorari on Thursday asking the U.S. Supreme Court to review a lower court ruling that deems Michigan’s voter-approved ban on affirmative action in admissions to publicly funded institutions unconstitutional.
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In October, the U.S. 6th Circuit Court of Appeals overturned Proposal 2 — also known as the Michigan Civil Rights Initiative, which was voted into law in 2006 — and amended Michigan’s constitution to ban the use of affirmative action in admissions policies. According to the ruling, the proposal was overturned on the basis that it was a violation of the U.S. Constitution’s Equal Protection Clause.
In his appeal, released on Nov. 15, Schuette said the 6th Circuit Court’s 8-7 ruling defies equality by overturning the proposal.
“MCRI embodies the fundamental premise of what America is all about: equal opportunity under the law,” Schuette said in the statement. “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.”
The constitution was approved by 58 percent of Michigan voters in Nov. 2006, according to the statement.
In his petition, Schuette said the 6th Circuit Court of Appeals decision eradicates the choice made by the majority of Michigan voters.
“More than two million Michigan voters have now have been disenfranchised of their choice to eliminate considerations of race in education by a one-vote margin en banc decision that misapplies this Court’s equal-protection precedents in several ways,” Schuette said.
Schuette added that though the issue of affirmative action is controversial, a court has never denied a state the right to determine its role independently.
“This Court has said just the opposite, holding that all racial classification by government entities are presumptively invalid and subject to the strictest scrutiny,” Schuette said.
University Law Prof. Mark Rosenbaum, who helped argue the 6th Circuit Court’s ruling on behalf of the plaintiffs, said he believes the ruling should stay in place. He said Schuette’s petition to the U.S. Supreme Court is “a disservice to the people of the state of Michigan.”
He added that the U.S. Supreme Court should deal solely with issues that apply to the whole country.
“The Supreme Court exists to hear cases that are in the national scope, and the point is that there isn’t a single other case anywhere in the U.S. that is now going forward with the issues related to this case,” Rosenbaum said.
Rosenbaum said that if Proposal 2 were reinstated, diversity at the University would suffer.
“I would set Michigan apart from virtually every other state throughout the country in not being permitted to argue the fact that race is a part of the American mosaic,” Rosenbaum said. “There is the capacity for the political process being open to make the case that diversity should include racial identity. That would be shut down and that would be an American tragedy.”
Residential College Prof. Carl Cohen wrote in an e-mail that he supports Schuette because he believes affirmative action is a violation of the Equal Protection Clause and the Civil Rights Act of 1964.
He added that choosing applicants based on race would enhance pre-existing stereotypes and is hurtful to everyone.
“Applicants enrolled partly because of their race will, as a statistical matter, almost invariably perform less well than those admitted without preference,” Cohen wrote.