Decision Invalidating Michigan Civil Rights Initiative Goes En Banc

Via Ed Whelan comes news that the U.S. Court of Appeals for the Sixth Circuit has voted to rehear Coalition to Defend Affirmative Action v. Regents of the University of Michigan en banc — something I suggested would happen. In this case, a divided panel held that Michigan’s Proposal 2, aka the “Michigan Civil Rights Initiative,” was unconstitutional.  The initiative, which voters approved, provides that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, 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.”  As I explained in my prior post about this case:

Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented.

The outcome of this case will be interesting, particularly because the Sixth Circuit remains closely divided along ideological lines.  Moreover, as Whelan reports, two members of  the court, Judges McKeague and Kethledge — two Bush appointees from Michigan — have recused themselves from the case.  I’ll also venture a further prediction: If the original panel is upheld, this case will go to the Supreme Court, where Justice Kennedy will decide the Michigan Civil Rights Initiative’s fate.

UPDATE: The Detroit Free Press reports here.