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En Banc Sixth Circuit Strikes Down Portions of Michigan’s Constitutional Amendment on Affirmative Action


Yesterday (Nov. 15, 2012), the United States Court of Appeals for the Sixth Circuit, sitting en banc, voted 8 to 7 to strike down portions of the amendment to Michigan’s constitution that barred the use of affirmative action in the admissions to public colleges and universities. The copy of the decision can be found here.

In 2006, Michigan voters passed a referendum known as Proposal 2, which amended the Michigan Constitution to bar discrimination, as well as preferential treatment, toward “any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting.”  The majority of the Sixth Circuit found that the ban on affirmative action violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. However, the majority specifically limited its decision to the question of public education—it did not decide whether the ban on affirmative action in public employment and public contracting violated the Equal Protection Clause.

Michigan’s Attorney General has indicated that he plans to seek Supreme Court review of this decision.

While this decision does not immediately affect Michigan employers, the Court’s reasoning will likely be used in challenges to the bar on affirmative action in public employment and public contracting.  Further, if the Supreme Court reviews this case, its decision could impact affirmative action plans across the country, both inside and outside public education. 

Mark Scudder

Mark D. Scudder is an of counsel member of Barnes & Thornburg LLP's Labor and Employment Law Department in the Fort Wayne, Indiana, office. Mr. Scudder’s practice covers virtually all areas of labor and employment law, including litigation concerning discriminatory practices, worker’s compensation benefits, collective bargaining agreement administration, and grievance and arbitration proceedings. He has represented clients in state and federal courts at all stages of litigation, from pre-litigation counseling, alternative dispute resolution, trial and appeal.

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