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.

CDU (mail):
I've been generally uncomfortable about Universities making First Amendment claims in federal court to get them out of complying with state laws (as the Universities did here, and as the University of Utah did when fighting to keep its gun ban in effect in the face to state law), but I couldn't really articulate why until I read this line from the opinion:

"One does not generally think of the First Amendment as protecting the State from the people but the other way around—of the Amendment protecting individuals from the State."
12.31.2006 3:40am
great unknown (mail):
That line - a really beautiful piece of legal prose - struck me also. If the implications are fully implemented, a lot of what passes for "freedom of education" will evaporate. Good.
12.31.2006 6:17am
Brett Bellmore:
I think this whole mess underscores again the insanity of the way the courts treat ballot initiatives: Ballot initiatives are a way for the people to force policies down the throat of an unwilling state government, and yet the courts deny the citizens' organizations which draft and promote them any standing, while assigning their defense to the very AG who opposed the initiative in the first place.

Madness, unless the point is to make the people's will easier to defeat.
12.31.2006 7:38am
Brett Bellmore:

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.

Ok, Lemme explain: The state constitution says that amendments, and this is one, duely adopted, take effect 45 days after being adopted. And nowhere so much as suggests that the state's Governor, Attourney General, and Universities have the authority to over-ride this.

One might wonder why a court would NOT hesitate to authorize a state to violate it's own constitution. Who is that constitution supposed to be binding on, if not state officers?
12.31.2006 9:11am
Any thoughts on why this case was brought in federal court? Is it just a reflex left over from 50 years ago, the belief that the federal courts will be more sympathetic to black interests?
12.31.2006 9:14am
Ted Frank (www):
The typical scenario is that an executive branch conspires with a special-interest-group to bring the case in front of a friendly judge, and they all agree to a "consent decree" to violate the state constitution on the grounds that it violates the federal constitution (even though it doesn't). Arizona and California executive branches have undone other popular referenda through the federal courts when state law wouldn't permit them to do so. Had a different panel of the Sixth Circuit heard the case, the same result might go here: another court could have plausibly ruled that the appellant did not have standing to challenge the preliminary injunction. I faced a similar issue when I was on the team defending the Gray Davis recall vote against the ACLU. Cf. Arizonans for Official English v. Arizona.
12.31.2006 9:32am

Any thoughts on why this case was brought in federal court? Is it just a reflex left over from 50 years ago, the belief that the federal courts will be more sympathetic to black interests?

The Michigan Supreme Court is very conservative. BAMN (the group that filed the suit) knows this very well. They also knew that there was a chance they could draw Judge Anna Diggs-Taylor in the Fed District court.
12.31.2006 10:04am
Justin (mail):
I think the Sixth Circuit has it right, from both a policy and procedural ground. Compare this case with the one discussed by Jonathan Adler earlier, about an African-American defendant trying to prove racist enforcement of a gun law - the sympathy with the State's administrative difficulties will tend to outweigh even serious Constitutional concerns.
12.31.2006 10:50am
The District Court here didn't buy it either. The Amendment had a provision that it wouldn't apply to court orders in effect on its effective date, December 23. A stipulated injunction was brought before the District Court shortly before then...and the District Court sat on it. So there was no injunction in effect on the amendemnt's effective date, and one of the issues the 6th Circuit (belatedly) disposed of was a request for a writ of mandamus to force the District Court to address the stipulated injunction by December 23.

The Attorney General also did some interesting lawyering -- he got the universities to dismiss their cross-claim, which contained the principle federal basis proposed for having a stipulated injunction, as a condition for agreeing to support the injunction, thus making what happened in the 6th Circuit a foregone conclusion. Obviously a claim that has already been dismissed has zero chance of prevailing on the merits.
12.31.2006 1:32pm
Jim Rhoads (mail):
Kudos to the Sixth Circuit panel for a classic opinion on short notice.

From my brief reading, I believe it is a refreshingly well reasoned lesson on some basics of Federalism that have been routinely ignored in the past twenty years.

Ted Franks has fought some of this stuff in the Ninth Circuit, and this decision is a good antidote to the crap the ACLU has fabricated that he and his colleages have had to put up with.
12.31.2006 3:36pm
Elliot123 (mail):
The elites hate being kicked around by the lumpen, and now find not even the courts can be relied upon to support them. I wonder if we will see other states tightening up on their initiative processes before they face the same thumping?
12.31.2006 11:35pm
Brett Bellmore:
A group of retired pols calling itself "Citizens for Michigan" is already promoting a series of proposed state constitutional amendments. It's a package which repeals/guts a few popular ballot initiatives, and then renders both the initiative and recall processes much harder to use, and more subject to second-guessing by the state government if they don't like our use of them.

It's not going anywhere, but yeah, they'd certainly like to do it.
1.1.2007 7:05am
U.Va. 1L:

"One does not generally think of the First Amendment as protecting the State from the people but the other way around—of the Amendment protecting individuals from the State."

I agree--excellent quote!
1.1.2007 12:15pm
Hans Bader (mail):
The Michigan state colleges' First Amendment argument against Proposal 2 is discussed in the blog post below:

Government Has No First Amendment Right to Discriminate
Hans Bader | 12/22/2006 @ 5:17 pm

In November, Michigan voters adopted Proposal 2, a state constitutional amendment that bans racial preferences in state university admissions and in government contracts and employment. State universities like the University of Michigan are now flouting the will of the voters by claiming that they have a First Amendment right to discriminate based on race, no matter what the Michigan Constitution says.

They have now challenged Proposal 2 in court, making the audacious claim they have a First Amendment "right" to use race in admissions. They cite Grutter v. Bollinger (2003), a Supreme Court decision which found a compelling interest in using race in college admissions to promote "diversity," for that claim. The Grutter decision was based partly on concepts of academic freedom that are, in turn, rooted partly in the First Amendment. But the Grutter decision, which they grossly exaggerate, does not support their argument.

The fact that Grutter may have found a First Amendment interest in using race does not mean it found a First Amendment right to use race, as the Center for Individual Rights (CIR) points out in its brief defending Proposal 2. As CIR notes, the First Amendment exists to protect citizens against the government, not the government against citizens. That is why the courts have repeatedly held that government agencies, such as state universities, don't have First Amendment rights. See, e.g., CBS v. DNC, 412 U.S. 94, 139 (1973) (concurring opinion); Warner Cable Communications, Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir. 1990); NAACP v. Hunt, 891 F.2d 1555, 1565 (11th Cir. 1990); Student Government Ass'n v. Board of Trustees, 868 F.2d 473, 481 (1st Cir. 1989); Estiverne v. Louisiana State Bar Ass'n, 863 F.2d 371, 379 (5th Cir. 1989).

This distinction between interests and rights has been made time and again by the courts, by finding compelling First Amendment interests even when there is manifestly no right protected by the First Amendment.

For example, private employers rightly aren't limited by the First Amendment, since the Supreme Court has emphasized "that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state." Hudgens v. NLRB, 424 U.S. 507, 513 (1976). But the Supreme Court has nevertheless observed that "statutory or common law may in some instances extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others."

Thus, in Novosel v. Nationwide Ins. Co., 721 F.2d 894, 899 (3d Cir. 1985), an appeals court, while recognizing that the First Amendment itself doesn't limit private employers, nevertheless allowed an employee to sue a private employer under state common law for his discharge for publicly speaking out, because "the protection of an employee's freedom of expression" involves a "compelling" "societal interest." Using similar reasoning, other judges held that a city ordinance could validly protect a private employee who testified at a public hearing. See Carl v. Children's Hospital, 702 A.2d 159, 183 (D.C. 1997) (Schwelb, J., concurring).

Similarly, Corry v. Stanford University (1995) upheld a state law that provided students at private colleges with the same rights that they would enjoy at state universities, even though students at private colleges have no free speech rights, because the state had a strong interest in protecting free expression on private college campuses.

Another area of law that illustrates that interests do not equate to rights is the Supreme Court's decision to carve out an unwritten exception to the antitrust laws for political activity, somewhat similar to its decision in Grutter to carve out an unwritten exception to the civil rights laws for certain voluntary racial preferences.

This is called Noerr-Pennington immunity, which immunizes political activity from the reach of the antitrust laws, based on First Amendment values. See, e.g., Eastern Railroad Conf. v. Noerr-Motors, 365 U.S. 127, 136-38 (1961).

Although Noerr-Pennington immunity is based on First Amendment interests in protecting political activity from lawsuits, the immunity is broader than, and not "coextensive" with, the First Amendment," protecting some political activity "even though it is not conduct protected by the First Amendment." Cow Palace, Inc. v. Assoc. Milk Producers, 390 F.Supp. 696, 701 (D. Colo. 1975).

Thus, even when political activity turns out to be unprotected by the First Amendment, it may still be immune from antitrust liability under Noerr-Pennington to avoid chilling political activity; "even independently illegal acts" are sometimes immune from antitrust liability under Noerr-Pennington, even where "separate civil or criminal actions might lie against the perpetrator." Schenley Industries, Inc. v. N.J. Wine &Spirit Wholesale Ass'n, 272 F.Supp. 872 (D. N.J. 1969).

Note that the Grutter decision that the state universities rely on to challenge Proposal 2 involved Title VI of the Civil Rights Act, which regulates both private and public colleges alike, not just the Fourteenth Amendment, which regulates public colleges only.

Private colleges, unlike public colleges, do have academic freedom "rights" (as opposed to just "interests") and thus it made sense for the Supreme Court to limit the reach of Title VI so as not to intrude upon colleges' academic freedom. But while academic freedom may be a "right" for private colleges, it is merely an "interest" for state universities, which, as state actors, do not have First Amendment rights (as opposed to interests).

The distinction between First Amendment interests and rights, and the fact that civil rights laws may be limited to protect mere interests, is also reflected in the administrative practices of the U.S. Department of Education, Office for Civil Rights, where I once worked as an attorney administering civil rights statutes such as Title VI.

For example, although private colleges are not limited by the First Amendment, and private students do not have First Amendment protections against private colleges, the Department of Education's harassment regulations place the same limits on liability for both public and private colleges. Thus, the scope of liability under Title IX and Title VI is limited by First Amendment principles, regardless of whether those principles are directly enforceable rights. See Office for Civil Rights, Revised Sexual Harassment Guidance, 65 Fed. Reg. 66092, 66106 n. 109 (Nov. 2, 2000) ("The First Amendment applies to entities and individuals that are State actors. The receipt of Federal funds by private schools does not directly subject those schools to the U.S. Constitution…However, all actions taken by OCR must comport with First Amendment principles, even in cases involving private schools that are not directly subject to the First Amendment").

Since state universities have, at most, a First Amendment interest in using race to promote diversity, rather than an enforceable right to do so, the voters of Michigan can adopt a state constitutional provision, such as Proposal 2, that bans using race, without violating any rights held by the Universities. The Grutter decision conferred on state universities no "rights" to use race, as it made clear by pointing out that university racial preferences must contain sunset provisions that will terminate the use of race within 25 years. First Amendment "rights" don't have expiration dates. Grutter also pointed out that some states, such as California, already ban state colleges from using race in admissions, without expressing any disapproval of that fact. That is hard to reconcile with the Michigan colleges' claims that they have a vested right to use race.

Indeed, it is absurd that Michigan state colleges -- which are treated by the Constitution's Eleventh Amendment as arms of the state of Michigan, not separate entities -- would even think of suing the State of Michigan to strike down a constitutional provision of their very own state. (Of course, even before Proposal 2, a college's ability to use race was not unlimited. The Supreme Court struck down more race-conscious admissions policies than it upheld, invalidating the University of Michigan's undergraduate admissions policy in the 2003 Gratz case, and a University of California law school's admissions policy in the 1978 Bakke case).

This is certainly the understanding of Justice O'Connor, the author of the Grutter decision, who publicly stated after Proposal 2 passed that it was "entirely within the right and privilege of voters" to enact it, as John Fund noted in his November 20 column, "Preferences Forever?", for The Wall Street Journal's online OpinionJournal.

The courts should reject state colleges' claim that they have a "right" to racially discriminate against their students.
1.1.2007 12:35pm
Hans Bader (mail):
In my above comment, I inadvertently referred to the 1978 Bakke case as involving a University of California law school.

Actually, it involved a University of California MEDICAL school.
1.1.2007 12:38pm
Cornellian (mail):
I find the idea that the First Amendment gives a state entity (such as a public university) a "right" to discriminate on the basis of race completely laughable. I mean really, is trying to convert Grutter's equal protection defense into a First Amendment right really all they've got to go on? I wonder if a FOIA request could find out how much money they're throwing away on legal fees for this.
1.1.2007 4:27pm
Lawhawk (mail):
I still take strong issue with O'Connor's incoherent arguments in Grutter. As one of your commenters has pointed out, "interests" of a less-than-constitutional import may be used by courts as a measure of the law's constitutionality. However, in the case of racial discrimination, that interest must be "compelling," not merely arguable. Set aside for a moment that a Supreme Court Justice essentially stated that she was not quite sure what the Constitution had to say about the issue. She nevertheless decided to kick the final decision twenty-five years into the future on a vague hope that the possibly unconsitutional act would no longer be necessary. And the interest (not the constitutional right) that she found to be key was "diversity."

Diversity is a vague, nearly-meaningless term, of use to politicians and ethicists, but not to lawyers and judges. The avoidance of racial conflict is clearly a compelling interest. Artificially produced diversity has caused the racial conflict. Diversity is a desirable goal for almost all persons of good will, but it has become a mantra which has no place in a court of law, nor in academia. And as much of a good as diversity may be philosophically, it is not a compelling state interest. Thus, the MCRI must stand, and the University of Michigan must proceed with all deliberate speed to implement its provisions.
1.1.2007 7:51pm
jgshapiro (mail):
How could a state court enjoin the application of the MCRI -- a state constitutional amendment? On what ground would they enjoin it?

If it conflicted with a state statute, it would trump the statute because it is a constitutional provision. If it conflicted with another part of the state constitution -- say the universities argued that it was too vague and violated their state due proces rights -- presumably, it would still trump the conflicting state constitutional provision on the ground that it was passed after the earlier provision and was more specific than the provision with which it conflicted.

Even if it was adminstratively onerous to apply the MCRI now, why would that matter? Is that a claim that it violated federal due process rights? Why can't the people pass a constitutional amendment that is adminstratively onerous for bureaucrats to apply? Do the bureaucrats have constitutional rights against the voters who created the university at which the bureaucrats are employed?

The only way to stop the MCRI from taking effect on 12/23/06 would be to argue that it either did not pass properly -- that there was something wrong with the initiative under which it was adopted and it therefore never became a part of the state constitution, or that it conflicted with a superseding federal law or federal constitutional provision. The state canvassing board and he sixth circuit rejected the first ground before the election, and the latter apparently is not too impressed with the second ground.
1.1.2007 10:39pm
Brett Bellmore:
The truth is, to the extent that it IS onerous, it's only because the relevant parties had no intention of complying with it if it did pass, and so made no contingency plans for doing so. Is bad faith like that really a basis for a delay?
1.2.2007 12:01pm
Jim Rhoads (mail):
Bingo, Brett.
1.2.2007 3:21pm