Michigan's Anti-Race-Preference Amendment Back in Operation:

Friday, the Sixth Circuit vacated the federal district court injunction that temporarily blocked the amendment's operation. It's an interesting decision, both on the substantive constitutional questions and on the procedural issues.

On the substance, the panel holds that "[plaintiffs] have little likelihood of establishing that Proposal 2 violates the federal constitution," though it doesn't definitely resolve that question. (The preliminary injunction decision is about the likelihood of future success on the merits, and contemplates a more detailed decision both at the district court and eventually on appeal after a full hearing on the merits takes place.) Michigan universities must thus adhere to Proposal 2 right away, even though it may mean changing their admission system in the middle of the admission process. Nonetheless, the panel closes with this interesting procedural discussion:

Which leads us to our last point: this is an unusual way to use the federal courts. Ordinarily, one might wonder why a court would hesitate to delay the implementation of a state law for six months when the State’s Governor, the State’s Attorney General and its Universities stand together in urging its suspension. That is particularly so when they offer reasonable administrative grounds for the delay -— uncertainty about how the law will be interpreted and uncertainty about applying it during this year’s enrollment cycle. Yet none of those administrative grounds explains why the federal courts should delay the law’s implementation on federal grounds. And none of those administrative grounds explains why a federal court should suspend the law while it declares the Universities’ “rights and responsibilities” under the new state law —- given that state courts, not federal courts, have the final say on the meaning of state laws and given that the only vehicle ever presented in this case for such a declaration of rights was the Universities’ cross-claim, which they voluntarily dismissed.

All of this, however, strongly suggests that if an interim injunction should be granted in this case, it is the state courts, not the federal courts, that should grant it. The state courts assuredly have authority to delay the law’s implementation during this enrollment cycle -- either because the meaning of the law is unclear or because it will be administratively onerous to apply it immediately. If, as the state parties have maintained throughout this litigation, a stipulated injunction accounts for the concerns of all interested parties and the people of Michigan, one can rest assured that the state courts will see it that way as well. But if the state courts do not see it that way, that proves only that there is another side to the story, one that the federal courts should be prepared to respect.

Thanks to Jerry Wachs for the heads-up.