The US Court of Appeals for the Sixth Circuit [official website] has agreed to a rehearing en banc [order, PDF] to determine the constitutionality of an amendment to the Michigan Constitution [text, PDF] banning affirmative action. Proposal 2 [text; JURIST news archive] bans affirmative action in public employment, public education and state contracting. The decision vacates a ruling handed down by a three-judge panel of the Sixth Circuit in July finding the proposal unconstitutional [JURIST report]. The panel ruled that the proposal unduly burdened minorities by abusing a political process where minorities were likely to have no redress. Michigan Attorney General Bill Schuette [official website] made a formal request for a rehearing [JURIST report] in July stating that the decision conflicted with prior decisions of the court.
The Sixth Circuit's ruling reversed a 2008 decision by the US District Court for the Eastern District of Michigan [official website] to dismiss the challenge [JURIST report] with prejudice. District Court Judge David Lawson had found that Proposal 2 was "facially neutral" regarding racial discrimination and did not violate the US Constitution. Michigan voters approved [JURIST report] the constitutional amendment in November 2006, and it was initially expected to take effect in late December 2006. In December 2006, a federal judge ruled that the universities could delay implementing the proposal [JURIST report] until the they had completed the 2006-2007 admission cycle under current procedures, but that order was later stayed [opinion, PDF] by the Sixth Circuit. The US Supreme Court [official website] declined [JURIST report] to consider whether the University of Michigan, Michigan State University and Wayne State University could delay implementing Proposal 2 in early 2007.