In a 2-1 opinion, the U.S. Court of Appeals for the Sixth Circuit struck down on Friday an amendment to the Michigan Constitution (Proposal 2, the "Michigan Civil Rights Initiative") which provided that the state 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." The amendment was passed by a successful ballot initiative following the Gratz and Grutter decisions which allowed racial preferences in law school admissions.
Perversely, the majority opinion relied upon the Equal Protection Clause to conclude that Michigan's law prohibiting unequal treatment based on race was unconstitutional. According to the court, "Proposal 2 reorders the political process in Michigan to place special burdens on minority interests." Apparently, taking away an unconstitutional advantage is a special burden which trumps the Constitution.
Michigan Attorney General Bill Schuette said he will appeal for a rehearing en banc. I expect the full court will overturn this decision. If they fail to do so, this would be a ripe issue for the Supreme Court.
Kirk Kolbo, who represented the plaintiffs in the Supreme Court's racial quota and preference cases, writes an essential article for Power Line criticizing Coalition to Defend Affirmative Action v. Regents of the University of Michigan.