UNTIED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

______________________________________________________
COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), UNITED FOR EQUALITY AND AFFIRMATIVE ACTION LEGAL DEFENSE FUND, RAINBOW PUSH COALITION, CALVIN JEVON COCHRAN, LASHELLE BENJAMIN, BEAUTIE MITCHELL, DENESHEA RICHEY, STASIA BROWN, MICHAEL GIBSON, CHRISTOPHER SUTTON, LAQUAY JOHNSON, TURQOISE WISE-KING, BRANDON FLANNIGAN, JOSIE HYMAN, ISSAMAR CAMACHO, KAHLEIF HENRY, SHANAE TATUM, MARICRUZ LOPEZ, ALEJANDRA CRUZ, ADARENE HOAG, CANDICE YOUNG, TRISTAN TAYLOR, WILLIAMS FRAZIER, JERELL ERVES, MATTHEW GRIFFITH, LACRISSA BEVERLY, D’SHAWN FEATHERSTONE, DANIELLE NELSON, JULIUS CARTER, KEVIN SMITH, KYLE SMITH, PARIS BUTLER, TOUISSANT KING, AIANA SCOTT, ALLEN VONOU, RANDIAH GREEN, BRITTANY JONES, COURTNEY DRAKE, DANTE DIXON, JOSEPH HENRY REED, AFSCME LOCAL 207, AFSCME LOCAL 214, AFSCME LOCAL 312, AFSCME LOCAL 836, AFSCME LOCAL 1642, AFSCME LOCAL 2920, and the DEFEND AFFIRMATIVE ACTION PARTY

Case No. Hon.

Plaintiffs, -vs-
JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan, and the REGENTS OF THE UNIVERSITY OF MICHIGAN, the BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, the BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, and the TRUSTEES OF any other
public college or university, community college, or school district,

Defendants. ____________________________________/ GEORGE B. WASHINGTON (P-26201) SHANTA DRIVER (P-65007) SCHEFF & WASHINGTON, P.C. Attorney for Plaintiffs 645 Griswold—Ste 1817 Detroit, MI 48226 (313) 963-1921

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Pursuant to the Federal Rules of Civil Procedure, the plaintiffs, by and through their attorneys, Scheff & Washington, P.C., state as follows:
INTRODUCTION 1. The plaintiffs BAMN, et al. assert that Proposal 2, which was placed on the ballot of the State of Michigan by racially-targeted voter fraud, and which was adopted by Michigan voters on November 7, 2006, violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and is preempted by Titles VI and VII of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972. As there is no state’s rights exception for federal anti-discrimination laws, the plaintiffs ask for declaratory and injunctive relief against the implementation of Proposal 2. (42 USC 1983) 2. In the absence of affirmative action, state actors will be prohibited from utilizing the only effective policies ever devised to desegregate universities, employment, and public contracting. No state Constitution can prohibit its state bodies from fulfuilling the federal mandate to desegregate. 3. In the absence of affirmative action, college admissions, state hiring and contracting will be conducted on a discriminatory basis. The irreparable harm to women and minorities in the absence of affirmative action has been clearly established in California.
JURISDICTION AND VENUE 4. This Court has jurisdiction over this matter pursuant to 28 USC 1331 and 28 USC 1343(3).
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5. The United States District Court for the Eastern District of Michigan is a proper venue for this action as a substantial part of the events or omissions giving rise to this action occurred in the Eastern District of Michigan.
PARTIES 6. The plaintiff BAMN is a voluntary association organized for the purpose of building a new civil rights movement and opposing attacks upon affirmative action. 7. The plaintiff United for Equality and Affirmative Action Legal Defense Fund is a non-profit legal defense and education fund established by BAMN to conduct the legal defense of our nation’s civil rights. 8. The plaintiff Rainbow PUSH Coalition is a voluntary association organized for the purpose of promoting education and participation in American democracy and civil rights. 9. The plaintiffs Calvin Jevon Cochran, Lashelle Benjamin, Beautie Mitchell, Deneshea Richey, Stasia Brown, Michael Gibson, Christopher Sutton, Laquay Johnson, Turqoise Wise-King, Brandon Flannigan, Kahleif Henry, Shanae Tatum, Kevin Smith, Kyle Smith, Paris Butler, Touissant King, Aiana Scott, Allen Vonou, Randiah Green, Brittany Jones, Courtney Drake, Matthew Griffith, Lacrissa Beverly, D’shawn Featherstone, Danielle Nelson, Julius Carter, Williams Frazier, and Dante Dixon are black high school students in Michigan who plan to attend college, and to work and live in Michigan in the future. 10. The plaintiffs Josie Hyman, Alejandra Cruz, Adarne Hoag, Candice Young, Tristan Taylor, Jerell Erves, are black, Latino/a and white college students and graduates who plan to attend graduate school, and to work and live in Michigan in the future
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11. The plaintiff Joseph Henry Reed was a petition circulator for the Michigan Civil Rights Initiative (now Proposal 2).
12. The plaintiffs AFSCME Local 207, AFSCME Local 214, AFSCME Local 312, AFSCME Local 836, AFSCME Local 1642, AFSCME Local 2920, are labor organizations with large memberships who stand to suffer discrimination in the absence of affirmative action.
13. The plaintiff Defend Affirmative Action Party is a voluntary student political organization on the University of Michigan student government.
14. The plaintiff Maricruz Lopez is a Latina student at the University of Michigan and the chair of the Defend Affirmative Action Party.
15. The plaintiff Issamar Camacho is a Latina high school student from Los Angeles California who intends to apply for college in Michigan.
16. The defendant Jennifer Granholm is the Governor of Michigan and is sued in her official capacity.
17. The defendant Regents of the University of Michigan is the duly elected governing board of the University of Michigan.
18. The defendant Board of Trustees of Michigan State University is the duly elected governing board of Michigan State University.
19. The defendant Board of Governors of Wayne State University, is the duly elected governing board of Wayne State University.
STATEMENT OF FACTS
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20. In 1866, Congress passed the Civil Rights Act of 1866, which banned all racial discrimination in the form of contract entered into by persons or institutions in the United States.
21. 1964, the Congress of the United States passed the Civil Rights Act of 1964, mandating that all employers and educational institutions in the United States eliminate all polices that had the intent or the effect of discriminating against persons on account of their race, color, national origin or gender.
22. In 1972, Congress amended the Civil Rights Act to make it applicable to all state and local governments.
23. In 1972, Congress also passed the Educational Amendments of 1972, mandating the end of any discrimination on account of gender in education.
24. Commencing in 1964 and continuing thereafter, the President of the United States, the Equal Employment Opportunity Commission, the Civil Rights Commission and numerous other public officials recognized that it was not possible to assure equality and desegregation in education, employment and many other areas without the use of race and gender conscious measures that came to be known as affirmative action.
25. In repeated decisions, the United States Supreme Court recognized that the Civil Rights Acts conferred on universities, governments and employers the right to take voluntary affirmative action measures to assure equality on account of race and gender, most recently in the United States Supreme Court June 2003 decision in Grutter v Bollinger, approving the affirmative action plan at the University of Michigan Law School.
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26. Proposal 2, which is a direct copy of California’s Proposition 209, purports to eliminate what it calls race and gender preferences and what everyone else calls “affirmative action.”
27. As established by a decade of experience in California, the elimination of affirmative action plans means a drastic decline in the enrollment of black, Latino/a and Native American students at the flagship state universities and of women in many university programs. The elimination of affirmative action plans has precipitated a decline in the employment of black, Latino/a, and Native American people at all levels of government employment and contracting.
28. As established by a decade of experience in California, the adoption of Proposal 2 will make it impossible to implement the mandates of the Civil Rights Acts set forth above.
COUNT ONE VIOLATION OF THE CIVIL RIGHTS ACTS 29. The allegations of paragraphs one through 17 are repeated as if fully set forth herein. 30. In depriving state educational and government institutions of the ability to assure equal educational and employment opportunity, Proposal 2 destroys the ability of the state institutions and governments to fulfill the purposes of the federal Civil Rights Acts set forth above. 31. Proposal 2 is preempted by the Civil Rights Act of 1866, by Titles VI and VII of the Civil Rights Act of 1964, and by Title IX of the Educational Amendments of 1972.
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WHEREFORE, the plaintiffs ask that this Court enter declaratory and injunctive relief declaring Proposal 2 preempted by the federal civil rights acts, enjoining the defendants from eliminating any affirmative action plans on account of Proposal 2, and granting such further relief as is just and equitable.
COUNT TWO VIOLATION OF THE EQUAL PROTECTION CLAUSE 32. The allegations of paragraphs one through 31 are repeated as if fully set forth herein. 33. Proposal 2 unlawfully singles out race and gender alone as areas where the duly-elected public officials may not take steps to eliminate discrimination and assure equality. 34. Furthermore, Proposal 2 unlawfully burdens women and minorities with amending the state constitution before they alone can petition duly-elected officials for redress of grievances, including a redress of grievances regarding the racial and sexual integration of public education and employment. 35. In singling out race and gender for discriminatory treatment, Proposal 2 violates the Equal Protection Clause of the Fourteenth Amendment.
COUNT THREE VIOLATION OF THE FIRST AMENDMENT
36. The allegations of paragraphs one through 35 are repeated as if fully set forth herein.Under Grutter and its predecessors, public universities have a First Amendment right to determine their academic standards and to determine the criteria for admission to the university.
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37. In enacting an amendment that prevents the universities from exercising that First Amendment rights, Proposal 2 violates the rights of the plaintiffs as guaranteed by 42 USC 1983.
WHEREFORE, the plaintiffs ask for declaratory relief that Proposal 2 violates the First Amendment and injunctive relief restraining the defendant universities from changing their admission or other policies in an attempt to comply with Proposal 2.
WHEREFORE, the plaintiffs ask that this Court enter relief declaring that Proposal 2 violates the Equal Protection Clause of the Fourteenth Amendment, enjoining the defendants from eliminating any affirmative action plans on account of Proposal 2, and granting such further relief as is just and equitable.
By Plaintiffs’ Attorneys, SCHEFF & WASHINGTON, P.C.
BY: __________________________ George B. Washington (P-26201) Shanta Driver (P-65007) 645 Griswold—Ste 1817 Detroit, Michigan 48226 (313) 963-1921 (313) 407-4865
November 8, 2006
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 Case 2:06-cv-15024-DML-RSW Document 73 Filed 01/17/2007 Page 1 of 23

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, et al.,
Plaintiffs,
v.
JENNIFER GRANHOLM, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, MICHAEL COX, ERIC RUSSELL, and the TRUSTEES OF any other public college or university, community college or school district,
Defendants.
- and -

Case No. 06-15024 Hon. David M. Lawson
CONSOLIDATED CASES This filing pertains to: Cantrell v. Granholm, Case No. 06-15637

CHASE CANTRELL, et al., Plaintiffs,
v. JENNIFER GRANHOLM, in her Official Capacity as Governor of the State of Michigan,
Defendant.

Case No. 06-15637 Hon. David M. Lawson

FIRST AMENDED COMPLAINT I. INTRODUCTORY STATEMENT
1. Until recently, the University of Michigan’s admissions policies allowed for the consideration of race among the factors it considered in making admissions decisions.

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2. In 2003, such a policy was expressly approved by the United States Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003). In upholding the University of Michigan Law School admissions policy that used race as one factor in admissions decisions, the Supreme Court recognized the important educational, social and political benefits of achieving a diverse student body. Following Grutter, the University of Michigan maintained admission policies that allowed for the consideration of race among many other factors in order to achieve diversity.
3. On Tuesday, November 7, 2006, Michigan voters passed Proposal 06-2 (“Proposal 2”), amending the Michigan Constitution to provide that public universities may not “grant preferential treatment to . . . any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation . . . of public education.” Art. I, § 26 of the Michigan Constitution. Proposal 2 took effect on December 23, 2006.
4. In response to the enactment of Proposal 2, the University of Michigan recently announced that it has changed its admissions and financial aid policies so that its “admissions and financial aid processes will not discriminate, nor grant preferential treatment to, any individual on the basis of race, sex, color, ethnicity or national origin,” apparently by altering its admissions procedures “such that race and gender will have no effect on the decision-making process” except to “recognize exceptions provided in [Proposal 2] including one for programs that receive federal funds.” Press Release, University of Michigan, Proposal 2 Next Steps (January 10, 2007) available at http://www.umich.edu/pres/speeches/070110prop2.html. On information and belief, to the extent that other public universities considered such factors in admissions prior to Proposal 2, they likely will make similar changes to their policies.
5. Plaintiffs, who are students, faculty members, and prospective students at the University of Michigan, support the admissions policies that the University of Michigan
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maintained after Grutter. Under the reading of Proposal 2 that has apparently been implemented by the University of Michigan, Plaintiffs’ only means of achieving the reimplementation of admissions policies that allow the consideration of race among many factors is now an amendment to the Michigan Constitution. Such an amendment is very difficult, time consuming, and costly to achieve. By contrast, persons seeking beneficial admissions policies based on other factors (e.g., residence, legacy status, athletic ability, etc.) need only to appeal to the University admissions directors and individual schools within the University, and need not seek a constitutional amendment to obtain their goals.
6. Because of these different burdens, Proposal 2, as implemented by the University of Michigan, violates the Equal Protection clause of the Fourteenth Amendment to the United States Constitution. Proposal 2 requires those seeking the benefit of legislation related to race to overcome political obstacles that do not apply to those seeking legislation based on other personal characteristics. The Constitution does not tolerate “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 467 (1982) (internal citations omitted). As the Supreme Court has held, “the state may no more disadvantage a particular group by making it more difficult to enact legislation on its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size,” Hunter v. Erickson, 393 U.S. 385, 392-93 (1969). Accordingly, Plaintiffs seek an injunction preventing this application of Proposal 2 to public universities such as the University of Michigan.
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II. JURISDICTION AND VENUE 7. This Court has jurisdiction over Plaintiffs’ federal civil rights claims under 28
U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States.
8. Venue is proper in this Court under 28 U.S.C. § 1391(b) because all incidents, events, and occurrences giving rise to this action occurred in the Eastern District of Michigan. III. PARTIES
A. Plaintiffs 9. Each of the Plaintiffs listed below benefited from the diversity achieved by the former admissions policies that were altered by the University of Michigan in response to Proposal 2, and each supports policies that include race as one among many factors taken into account in making admissions decisions. Plaintiffs’ ability to obtain reinstatement of those former admissions policies is unconstitutionally and unequally burdened by the difficulty of seeking an amendment to the Michigan Constitution. 10. Plaintiff Chase Cantrell is an African-American man from Detroit, Michigan who is a second-year student at the University of Michigan Law School. Mr. Cantrell was attracted to Michigan because of its diversity, and has benefited, and continues to benefit, from that diversity. At the University of Michigan Law School he is surrounded by, and learns from, students from around the globe and from many different racial backgrounds and experiences. During and after class, he has exchanged views with a diverse collection of students and has learned to understand the unique challenges they face. He attributes much of the University of Michigan’s current diversity to the former admissions policies that have been altered in response to Proposal 2.
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11. Plaintiff Melinda Nestor is a white resident of Ann Arbor, Michigan who brings this case through her mother and next friend, Karen Nestor. Melinda Nestor is currently a senior at Pioneer High School, and she has applied for admission to the University of Michigan. She has excelled academically and held positions of leadership while participating in a variety of extracurricular activities that demonstrate her commitment to social and racial justice. She regards participation in an ongoing interracial dialogue about race as an indispensable aspect of her educational experience, and she believes that the University of Michigan’s changes in its admissions policies in response to Proposal 2 threaten to eliminate, if not destroy, that dialogue.
12. Plaintiff Chidimma Uche is a resident of Ann Arbor, Michigan who is the daughter of a Nigerian father and a white mother. She is also a minor who brings this case through her mother and next friend, Paula Uche. She is currently a senior at Pioneer High School, and she plans to apply for admission to the University of Michigan. Chidimma Uche regards diversity as an essential element of her educational experience because of her mixed racial heritage and her life experiences. Given her current and ongoing efforts to gain knowledge about different cultures from throughout the world, she would consider an education in an environment that lacks a diverse student and faculty population to be detrimental to her intellectual and social growth and development. She considers the University of Michigan’s changes to its admission policies to be detrimental to diversity at the school.
13. Plaintiff Joshua Kay is a white second-year student at the University of Michigan Law School who resides in Ann Arbor, Michigan. Before attending law school, Dr. Kay was a professor in the University of Michigan’s Clinical Psychology graduate program. Dr. Kay’s students were racially diverse. He found that this diversity contributed to a more complete, nuanced and productive discussion about the consistent and long-term pattern of racial
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and cultural differences in psychological diagnoses and testing than occurred in less diverse classes. As a law student at Michigan, he has likewise participated in discussions in which the experiences and insights of students of color have made a significant difference in the ability of all students to appreciate the subtle ways in which racial discrimination has become institutionalized. Dr. Kay believes that his educational experience will be negatively impacted by the University of Michigan’s changes to its admissions policies in response to Proposal 2.
14. Plaintiff Sheldon Johnson is an African American resident of Columbus, Ohio. He is a junior at the University of Michigan majoring in political science and African American Studies. Mr. Johnson decided to attend the University of Michigan because of its reputation for diversity. He has benefited from a diverse student body at the University of Michigan both in and out of class, and he believes that such diversity it threatened by the University of Michigan’s changes to its admissions policies in response to Proposal 2.
15. Plaintiff Matthew Countryman is an Associate Professor of History and American Culture at the University of Michigan. He is an African-American resident of Ann Arbor, Michigan. For the past ten years, Professor Countryman has taught a wide range of classes at the University of Michigan about race relations in the United States and about the Civil Rights Movement. It is his experience that having a racially diverse student body is essential to the quality of the educational experience in courses that address race and ethnicity. Without the perspective of people of color in the classroom, Professor Countryman believes that his students will be unable to truly grasp the ongoing realities of racial inequality and stigma in American society. Because of the University of Michigan’s changes to its admissions policies in response to Proposal 2, Professor Countryman would seriously consider leaving the University of Michigan if offered a teaching position at a more diverse university.
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16. Plaintiff Bryon Maxey is an African-American resident of Holly, Michigan. He is currently a sophomore at the University of Michigan where he majors in History and African American Studies. He chose to attend the University of Michigan for the specific purpose of interacting with students who are of diverse ethnic and racial backgrounds so that he might gain a greater insight into the world and its various cultures. Mr. Maxey would not have chosen to attend the University of Michigan if he had believed that a diverse university community would not be part of his educational experience, and he believes that the University of Michigan’s changes to its admissions policies in response to Proposal 2 threatens diversity.
17. Plaintiff Rachel Quinn is in her first year of a Ph.D. program in American Culture at the University of Michigan where she is studying the social constructions of race. Having worked for many years as an educator with students of color, Ms. Quinn chose to attend the University of Michigan instead of other schools because of the institution’s commitment to diversity. She believes that a racially diverse faculty and student body is critical to her education, not only because it enhances cross-cultural learning but also because it is essential to creating a safe and equitable learning environment. She believes that diversity at the University of Michigan is threatened by the changes to its admissions policies in response to Proposal 2.
18. Plaintiff Kevin Gaines is a Professor of History and the Director of the Center for Afroamerican and African Studies (“CAAS”) at the University of Michigan. He is an African-American resident of Ann Arbor. He believes that students learn best about race and gender in diverse environments where there is input from individuals with the greatest possible variety of backgrounds. Professor Gaines believes that the quality of his classes and programs such as CAAS will be irreparably harmed by the University of Michigan’s changes to its admissions policies in response to Proposal 2.
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19. Plaintiff Dana Christensen is a white third-year student at the University of Michigan majoring in political science and religious studies. She grew up in Valley City, Ohio, a small farming/suburban community with very few people of color. She was attracted to the University of Michigan because of its diversity, and she believes that she has benefited tremendously from diversity at the school. She believes that all of these benefits are threatened by the University of Michigan’s changes to its admissions policies in response to Proposal 2.
20. Plaintiff Toniesha Jones is an African-American resident of Ann Arbor, Michigan. She is a minor and brings this case through her guardian and next friend, Cathy Alfaro. Ms. Jones currently is a senior at Pioneer High School and she has applied to the University of Michigan. She has seen negative racial stereotypes break down in discussions about race in high school classes comprised of racially and ethnically diverse students. She believes that diversity is threatened by the University of Michigan’s changes to its admissions policies in response to Proposal 2, and may decline to attend if these changes remain in place.
21. Plaintiff Seger Weisberg is a white high school senior who resides in Birmingham, Michigan. He is 17 years old and he brings this action through his father and next friend, Michael Weisberg. Seger Weisberg attends Seaholm High School, a well-respected public high school in Birmingham with very few students of color. He has applied to the University of Michigan and is very much attracted to its diversity. Mr. Weisberg believes that attending a racially diverse university will expose him to different perspectives and experiences that will enrich his learning experience, and that diversity is threatened by the University of Michigan’s changes to its admissions policies in response to Proposal 2.
22. Plaintiff Jay Robinson is a white high school senior who resides in Ann Arbor, Michigan. He is 17 years old and he brings this action through his father and next friend,
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Matthew Robinson. Jay Robinson has applied to the University of Michigan in part because of its commitment to diversity. He has benefited from attending high school classes with students of different races and from different backgrounds. He believes that the University of Michigan’s changes to its admissions policies in response to Proposal 2 threaten to eliminate diversity on campus.
23. Plaintiff Casey R. Kasper is a Native American resident of Dowagiac, Michigan. She is a junior at the University of Michigan’s College of Literature, Arts and Sciences. She majors in political science with a focus on gender, race and ethics in American politics. Ms. Kasper would not even have applied to the University of Michigan had the University of Michigan already made the changes described above to its admissions policies in response to Proposal 2.
24. Plaintiff Sergio Eduardo Munoz is a Latino resident of New York, New York. He is currently a second-year student at the University of Michigan Law School. He chose to go to the University of Michigan Law School over other law schools due, in large part, to the University of Michigan’s demonstrated commitment to diversity. Mr. Munoz believes that he learns best in a forum in which a variety of perspectives and experiences are presented. Further, he is reluctant to participate in class or share his life experiences with others in an environment where there is not a critical mass of people of color. He believes that diversity is threatened by the University of Michigan’s changes to its admissions policies in response to Proposal 2.
25. Plaintiff Rosario Ceballo is an Associate Professor of Psychology and Women’s Studies at the University of Michigan. She is Latina and resides in Ann Arbor, Michigan. Professor Ceballo teaches classes on women, race, poverty and racism in the United States as well as classes in clinical psychology, such as child therapy. She believes that racial diversity is
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vital to the education of her students. Professor Ceballo believes that racial diversity is so essential to the success of her classes that if there were a drastic reduction of the number of students of color at the University of Michigan, her ability to teach effectively would be impaired. As a result, she believes that the University of Michigan’s changes to its admissions policies in response to Proposal 2 threaten her ability to teach in accordance with her professional beliefs, and she would consider leaving for an appointment at a university in another state that allows for greater diversity in its student body.
26. Plaintiff Kathleen Canning is the Arthur F. Thurnau Professor of History, Women’s Studies and German at the University of Michigan. Debate in her courses is greatly enriched by the racial and religious diversity in the classroom and the personal stories of racism and discrimination that students from different backgrounds share. Professor Canning believes that the University of Michigan’s changes to its admissions policies in response to Proposal 2 will make the discussions in her classroom more abstract, and thereby damage the learning process.
27. Plaintiff Mark C. Carter II is an African-American resident of Detroit, Michigan. He is also a minor who brings this case through his mother and next friend, Carolyn Carter. Mr. Carter currently is a senior at Cass Technical High School, and he plans to apply for admission to the University of Michigan. Diversity will be a major factor that Mr. Carter considers when choosing a university. Mr. Carter believes that the quality of education is considerably enhanced by a diverse university community, and he would find unacceptable a student body that lacks a critical mass of African-American students. Mr. Carter may decline to attend the University of Michigan as a result of the University of Michigan’s changes to its admissions policies in response to Proposal 2.
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B. Defendants 28. Defendant, Governor Jennifer Granholm, in her Official Capacity as Governor of the State of Michigan, is legally and politically charged with defending and enforcing Proposal 2. 29. Defendant Intervener Michael Cox, in his Official Capacity as Attorney General of the State of Michigan, who has intervened in this case pursuant to his authority under the Michigan Constitution. IV. CLASS ACTION 30. This action is maintainable as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2). 31. Plaintiffs represent a class of all present and future students and faculty at the University of Michigan who applied to, matriculated at, or continue to be enrolled at or employed by the University of Michigan in reliance upon the University’s representation that it would continue to admit and enroll a diverse group of students at the school consistent with its former policies, which took race into account among other factors. Plaintiffs deeply value and seek to maintain the racial and ethnic diversity of the student body at the University of Michigan, and seek the re-implementation of the former admissions policies altered in response to Proposal 2. However, because of Proposal 2, Plaintiffs lack equal political footing with those who would seek adoption of admissions policies that include consideration of characteristics other than race or gender, such as legacy status, geographic origin, or athletic promise. Plaintiffs and the class members are substantially and uniquely burdened by Proposal 2’s reservation of certain issues regarding race for modification only through a state constitutional amendment. 32. This case raises questions of law and fact that are common to the entire class. Common questions, applicable to all members of the class, include whether Proposal 2
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disadvantages Plaintiffs in violation of the Equal Protection Clause by making it more difficult for them than for any other members of the university community to achieve admissions policies that are in their interest.
33. The Plaintiff class, which includes the thousands of current and future students and faculty at the University, is so numerous that joinder of all members is impracticable.
34. Each Plaintiff has claims that are typical of the claims of the class and its members. All named Plaintiffs are members of the class they seek to represent and will benefit from the relief this action seeks.
35. The named Plaintiffs will fairly and adequately protect the interests of the class. Plaintiffs are represented by experienced counsel who will adequately represent the interests of the class.
36. Defendants have acted and refused to act on grounds generally applicable to the class, thereby making appropriate final relief with respect to the class as a whole. V. FACTUAL ALLEGATIONS
A. Proposal 2 37. On Tuesday, November 7, 2006, Michigan voters passed a ballot initiative to amend the state Constitution. 38. The ballot language stated:
(1) A proposal to amend the state constitution to ban affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes.
(2) The proposed constitutional amendment would: (3) Ban public institutions from using affirmative action programs that give
preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes. Public institutions affected by the proposal include
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state government, local governments, public colleges and universities, community colleges and school districts. (4) Prohibit public institutions from discriminating against groups or individuals due to their gender, ethnicity, race, color or national origin. (A separate provision of the state constitution already prohibits discrimination on the basis of race, color or national origin.) (5) Should this proposal be adopted? Yes or no. 39. Effective December 23, 2006, as a result of Proposal 2’s adoption, the Michigan
Constitution now reads, in relevant part:
(1) Article 1, Section 26: (2) Civil Rights. (3) The University of Michigan, Michigan State University, Wayne State
University, and any other public college or university, community college, or school district shall 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. (4) The state shall 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. B. The Use of Race in Higher Education 40. Prior to the adoption of Proposal 2, the University of Michigan’s admissions
policies allowed for the consideration of race among many other factors when making
admissions decisions.
41. As the Supreme Court found in Grutter, the consideration of race among many
other factors in making admissions decisions is constitutionally permissible. The maintenance of
a diverse student body is a compelling state interest for federal constitutional purposes because it
relates to the core educational objectives of universities and contributes to the realization of those
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objectives. Such policies are narrowly tailored, provided that the university considers race or ethnicity only as “one of many factors” in admissions decisions. Grutter, 539 U.S. at 339.
42. The Supreme Court in Grutter found that narrowly-tailored admissions programs and policies considering race, such as the University of Michigan Law School’s former policies, promote “‘cross-racial understanding,’ help to break down racial stereotypes ‘and enable students to better understand persons of different races.’” Id. at 330. As a consequence, “‘classroom discussion is livelier, more spirited . . . more enlightening, and interesting’ when . . . students have ‘the greatest possible variety of backgrounds.’” Id. Further, “numerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society and better prepares them as professionals.’” Id.
43. The Court also explained, “[t]hese benefits are not theoretical but real, as major businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Id. Moreover, “high-ranking retired officers and civilian leaders of the United States military assert that, ‘based on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principal mission to provide national security.’” Id. at 331. To achieve this end, our country’s “most selective institutions must remain both [racially] diverse and selective.” Id.
44. In Grutter, the Court cited Brown v. Board of Education, 537 U.S. 483 (1954), noting that it “ha[d] long recognized that ‘education . . . is the very foundation of good citizenship” and therefore that “the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity.” 347 U.S. 483, 493. The Court further cited the affirmation by the United States that
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“[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” 539 U.S. at 331-32 (quoting Brief for the United States as Amicus Curiae Supporting Petitioner at 13, Grutter, 539 U.S. 306 (No. 02-241)) (internal quotation marks omitted).
45. Present and future students and faculty, and others at the University of Michigan, derive substantial benefits from the diversity provided by the University of Michigan’s former admissions policies in all of the ways recognized by the Supreme Court, and in many other ways.
46. Although some controversy remains as to the full scope and effect of Proposal 2, the University of Michigan has responded to its passage by changing its admissions policies “such that race and gender will have no effect on the decision-making process” (as more fully described in ¶ 4 above). Press Release, University of Michigan, Proposal 2 Next Steps (January 10, 2007) available at http://www.umich.edu/pres/speeches/070110prop2.html.
C. Political Burdens Under Proposal 2 47. Article 8, Section 5 of the Michigan Constitution vests the Regents of the University of Michigan, the Board of Trustees of Michigan State University and the Board of Governors of Wayne State University with general supervisory power over the University of Michigan, Michigan State University and Wayne State University, respectively. This power includes the authority to determine the standards for admission to each university. 48. Prior to Proposal 2, the University of Michigan’s admissions policies allowed for the consideration of a wide variety of applicant characteristics in making university admissions decisions, including, but not limited to, geographic origin, socio-economic background, alumni or legacy status, high school quality, athletic participation, artistic talent, participation in extracurricular activities, race, and gender.
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49. The Regents of the University of Michigan in turn delegate their authority to the President of the University of Michigan, who in turn delegates her authority to the individual schools and colleges to determine their own admissions policies.
50. Since the University of Michigan changed its policies in response to Proposal 2, the University has announced that it has continued to consider many characteristics in making admissions decisions, except that “race and gender will have no effect on the decision-making process.”
51. Any individual or group who believes that the University of Michigan should amend its admissions policies to benefit applicants with characteristics other than race or gender, or to weigh differently one or more characteristics other than race or gender, may seek a change in the admissions policies by appealing to the individual colleges or schools, in whom decisionmaking authority has been vested by the Board of Regents and the President of the University. This avenue is foreclosed, however, to those seeking beneficial admissions policies that include consideration of race or gender in the decision-making process.
52. Instead, those who, like Plaintiffs, benefited from the diversity that was achieved by the University’s former admissions policies face a substantially more burdensome political process than do all other political participants seeking to secure the benefits of the University’s decision-making process. Instead of being able to go directly to the individual colleges and schools, their sole means of achieving beneficial admissions policies that include consideration of race is to seek a state constitutional amendment through a voter ballot initiative.
53. The Michigan voter initiative process is lengthy, complex, difficult and expensive. Article 2, Section 9 of the Michigan Constitution requires that the sponsor of a voter initiative gather signatures from registered voters totaling “not less than eight percent . . . of the
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total vote cast for all candidates for governor at the last preceding general election” to secure access to the state ballot. The Secretary of State has determined that, in the next state election, this amounts to more than 390,000 signatures. The costs of accomplishing this task alone can be in the hundreds of thousands of dollars.
54. If the initiative sponsor is successful in gathering the required signatures, the initiative will appear on the state ballot and the sponsor must attempt to secure the support of the majority of the participating voters in the next election. The costs of securing this support may be equal to or greater than that of qualifying for the ballot.
55. Taken together, this initiative process places a significantly heavier burden on those seeking certain types of beneficial legislation that include consideration of race than on those seeking the same type of legislation that allows for the consideration of other characteristics.
56. Placing this sort of unique and substantial burden on the ability of particular minority groups to achieve legislative or administrative action that is in their interests is—and for more than three decades has been—a textbook violation of Equal Protection principles.
D. The Hunter/Seattle Doctrine 57. As the United States Supreme Court has explained, a state law violates the Equal Protection Clause when it “disadvantage(s) any particular group by making it more difficult to enact legislation in its behalf.” See Hunter v. Erickson, 393 U.S. 385, 393 (1969) (invalidating statute adopted by majority of Akron, Ohio voters amending the city charter to require popular approval of any ordinance regulating real estate transactions “on the basis of color, religion, national origin or ancestry . . . .”); see also Washington v. Seattle School District No. 1, 458 U.S. 457, 467 (1982) (Equal Protection Clause prohibits any law that “subtly distorts governmental
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processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation” (emphasis added)). In Seattle, the Court invalidated a statewide measure that, while facially neutral, had the practical effect of barring busing to redress de facto racial segregation while permitting busing for any other reason.
58. Proposal 2 effects precisely the same type of distortion of the political process that the Supreme Court condemned in Hunter and Seattle. By creating a political process that sets aside race, among other categories, for consideration “at a new and remote level of government,” Seattle, 458 U.S. at 483, Proposal 2 imposes a “substantial and unique burden on racial minorities.” Id. at 470.
CLAIM FOR RELIEF (42 U.S.C. § 1983; Equal Protection Under U.S. Const. Amend. XIV)
All Plaintiffs Against All Defendants 59. Plaintiffs re-allege and re-plead all the allegations of the preceding paragraphs of this Complaint and incorporate them herein by reference. 60. Proposal 2 is unconstitutional because it places a substantial and unique burden on racial minorities who seek legislation on their behalf. As a result, groups seeking beneficial legislation including consideration of race face a completely different and much more onerous political process than do those seeking beneficial legislation based on other characteristics. 61. Plaintiffs seek to enjoin the application of Proposal 2. VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment as stated below: 1. For injunctive relief to ensure compliance with the United States Constitution; 2. For costs of suit and attorneys’ fees; and 3. For such other and further relief as the court may deem just, proper and appropriate.
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Respectfully submitted,

s/ with consent of Melvin Butch Hollowell, Jr. MELVIN BUTCH HOLLOWELL, JR.
(P37834) General Counsel, Detroit Branch NAACP Allen Brothers PLLC 400 Monroe St., Suite 220 Detroit, MI 48226 (313) 962-7777 mbh@allenbrotherspllc.com

s/ with consent of Mark D. Rosenbaum MARK D. ROSENBAUM CATHERINE E. LHAMON ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, California 90026 (213) 977-9500 mrosenbaum@aclu-sc.org clhamon@aclu-sc.org

s/ with consent of Kary L. Moss KARY L. MOSS (P49759) MICHAEL J. STEINBERG (P43085) MARK P. FANCHER (P56223) American Civil Liberties Union Fund
of Michigan 60 W. Hancock Street Detroit, MI 48201 (313) 578-6814 kmoss@aclumich.org msteinberg@aclumich.org mfancher@aclumich.org

s/ Karin A. DeMasi KARIN A. DeMASI Cravath, Swaine & Moore LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212) 474-1000 kdemasi@cravath.com

s/ with consent of Laurence H. Tribe LAURENCE H. TRIBE
(Admission Pending) Hauser Hall 420 1575 Massachusetts Avenue Cambridge, Mass. 02138 617-495-4621 larry@tribelaw.com

s/ with consent of Theodore M. Shaw THEODORE M. SHAW VICTOR BOLDEN ANURIMA BHARGAVA NAACP Legal Defense & Educational Fund 99 Hudson Street, 16th Floor New York, NY 10013 (212) 965-2200 abhargava@naacpldf.org

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s/ with consent of Erwin Chemerinsky ERWIN CHEMERINSKY Duke University School of Law Science Drive & Towerview Rd. Durham, N.C. 27708 (919) 613-7173 Chemerinsky@law.duke.edu

s/ with consent of Jerome R. Watson JEROME R. WATSON (P27082) Michigan State Conference, NAACP Miller, Canfield, Paddock and Stone, P.L.C. 150 West Jefferson, Suite 2500 Detroit, MI 48226 (313) 963-6420 Watson@millercanfield.com

s/ with consent of Dennis Parker DENNIS PARKER (Admission Pending) ALEXIS AGATHOCLEOUS
(Admission Pending) American Civil Liberties Union Foundation
Racial Justice Program 125 Broad St., 18th Floor New York, NY 10004-2400 (212) 519-7832 dparker@aclu.org
Attorneys for Plaintiffs Chase Cantrell et al. Dated: January 17, 2007

s/ with consent of Daniel P. Tokaji DANIEL P. TOKAJI (Admission Pending) The Ohio State University Moritz College of Law 55 W. 12th Ave. Columbus, OH 43206 (614) 292-6566 tokaji.1@osu.edu

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CERTIFICATE OF SERVICE
I hereby certify that on January 17, 2007, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notifications of such filing of the following document: First Amended Complaint, to:
Sharon L. Browne slb@pacificlegal.org, bas@pacificlegal.org
Mark P. Fancher mfancher@aclumich.org
Alan W. Foutz awf@pacificlegal.org, IncomingLit@pacificlegal.org, bas@pacificlegal.org
Melvin J. Hollowell, Jr mbh@allenbrotherspllc.com
James E. Long longj@michigan.gov, ThelenN@michigan.gov, SchumakerK@michigan.gov
Heather S. Meingast meingasth@michigan.gov
Laurie J. Michelson michelso@butzel.com, vancleve@butzel.com
Kerry L. Morgan kmorganesq@aol.com
Kary L. Moss kmoss@aclumich.org
Brian O. Neill neillb@michigan.gov, pawlusc@michigan.gov
Margaret A. Nelson nelsonma@michigan.gov, toddwl@michigan.gov, richardsd@michigan.gov
Leonard M. Niehoff niehoff@butzel.com
Joseph E. Potchen potchenj@michigan.gov, vanbeelenl@michigan.gov, robisonr@michigan.gov
Michael E. Rosman 21

Case 2:06-cv-15024-DML-RSW Document 73 Filed 01/17/2007 Page 22 of 23
rosman@cir-usa.org, kokolis@cir-usa.org
Brigham C. Smith Bsmith@ci.lansing.mi.us, spodlesk@ci.lansing.mi.us
Michael J. Steinberg msteinberg@aclumich.org, bbove@aclumich.org
Reginald M. Turner, Jr rturner@clarkhill.com
George B. Washington scheff@ameritech.net
Jerome R. Watson watson@millercanfield.com, leidner@millercanfield.com
and I hereby certify that I have mailed by United States Postal Service the above listed document to the following non-ECF participants:
Erwin S. Chemerinsky Duke University Law School Science Drive at Towerview Road Durham, NC 27708
City of Lansing Lansing City Attorney 124 W Michigan Ave 5th Floor, City Hall Lansing, MI 48933
Shanta Driver Scheff & Washington (Detroit) 645 Griswold Suite 1817 Detroit, MI 48226-4113
Theodore M. Shaw NAACP Legal Defense and Educational Fund 99 Hudson Street Suite 1600 New York, NY 10013-2897
Laurence H. Tribe 1575 Massachusetts Avenue Cambridge, MA 02138
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Case 2:06-cv-15024-DML-RSW Document 73 Filed 01/17/2007 Page 23 of 23 /s Karin A. DeMasi Karin A. DeMasi Cravath, Swaine & Moore LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7475 212-474-1000 kdemasi@cravath.com 2831303 (NY State Registration Number)
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 Case 2:06-cv-15637-DML-SDP Document 40 Filed 03/28/2007 Page 1 of 32

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et. al.,

Plaintiffs, vs.

Case No. 06-15024 Hon. David Lawson

JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, MARY SUE COLEMAN, in her official capacity as President of the University of Michigan, LOU ANNA K. SIMON, in her official capacity as President of Michigan State University, IRVIN D. REID, in his official capacity as President of Wayne State University, MICHAEL COX, in his official capacity as Attorney General of the State of Michigan, and ERIC RUSSELL

Defendants.

And

CONSOLIDATED CASES

CHASE CANTRELL, et. al.
Plaintiffs Vs.
JENNIFER GRANHOLM, and MICHAEL COX,

Case No. 06-15637 Hon. David Lawson

Defendants. _________________________________________________________________________

PLAINTIFF COALITION TO DEFEND AFFIRMATIVE ACTION ET.AL.’S (BAMN’S) SECOND AMENDED CLASS-ACTION COMPLAINT
FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:06-cv-15637-DML-SDP Document 40 Filed 03/28/2007 Page 2 of 32

George B. Washington Shanta Driver Scheff & Washington, P.C. Attorneys for Plaintiffs 645 Griswold--Ste 1817 Detroit, MI 48226 313-963-1921 scheff@ameritech.net
Mark D. Rosenbaum ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 Atty for Cantrell Plaintiffs 213-977-9500 mrosenbaum@aclu-sc.org
Karin A. DeMasi Cravath, Swaine, & Moore, LLP Atty for Cantrell Plaintiffs Worldwide Plaza 825 Eighth Avenue New York, NY 10019--7475 212-474-1000 KDeMasi@cravath.com
Leonard Niehoff Philip J. Kessler Butzel Long 350 S. Main Street, Suite 300 Ann Arbor, MI 48104 Attys for Defendant Universities 734-995-1777 niehoff@butzel.com

Charles J. Cooper Cooper and Kirk Attorneys for Def. Russell 555 Eleventh Street, N.W., Suite 750 Washington, D. C. 20004 ccooper@cooperkirk.com 202-220-9600
Margaret Nelson Assistant Attorney General P.O. Box 30736 Lansing, MI 48909 Attys for Intervening Defendant Cox 517-373-2454 nelsonma@michigan.gov
James Long Assistant Attorney General Atty for Defendant Granholm P.O. Box 30758 Lansing, MI 48909 517-335-5328 longj@michigan.gov

Case 2:06-cv-15637-DML-SDP Document 40 Filed 03/28/2007 Page 3 of 32
PLAINTIFF COALITION TO DEFEND AFFIRMATIVE ACTION ET.AL.’S (BAMN’S) SECOND AMENDED CLASS-ACTION COMPLAINT
FOR INJUNCTIVE AND DECLARATORY RELIEF Pursuant to the Federal Rules of Civil Procedure, the plaintiffs, by and through their attorneys, Scheff & Washington, P.C., state as follows:
INTRODUCTION 1. The plaintiffs assert that Proposal 2 was intended to and will result in the resegregation of the most selective universities in the State. 2. The plaintiffs further assert that Proposal 2 was intended to and will result in the maintenance of a segregated system of higher education into the indefinite future. 3. In particular, Proposal 2 will deny blacks, Latino/as and other minorities of the right to petition the governing boards or faculties of the defendant universities to maintain or adopt affirmative action plans that have been found lawful by the United States Supreme Court at the same time that every other group will have the right to petition the faculty or governing board for any change, modification or preference that it believes will further the interests of its members. 4. The creation of a separate and unequal political procedure is a violation of the Equal Protection of the laws in the most literal sense. 5. From the beginning, Proposal 2 has run roughshod over the rights of Michigan’s citizens, including in particular its minority citizens. 6. As Judge Arthur Tarnow found, Proposal 2 was submitted to a vote of Michigan’s electorate on the basis of signatures that its sponsors obtained by systematically defrauding voters as to the true intent of the Proposal.
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7. As Judge Tarnow also found, the relevant election officials were forced to place this Proposal on the ballot despite the fact that the Michigan Civil Rights Commission, the state agency charged with enforcing civil rights, found that the fraud that the sponsors of Proposal 2 had perpetrated was systematically targeted at black and Latino/a voters.
8. In the election campaign itself, the sponsors of Proposal 2 used deceit, prejudice, and fear to mobilize a two-to-one majority of white voters in favor of the proposal. Because minority voters constituted only 17 percent of the electorate, the white majority overrode the No votes cast by 85 percent of Michigan’s black, Latino/a and Native American communities.
9. If allowed to stand, Proposal 2 will exclude black and other minority students from the most selective schools in the state, will relegate them to a separate and distinctly more onerous political procedure, will exclude racial minorities from an equal role in the future leadership of the state, and will, as a result, deepen and perpetuate the segregation of a state that is already one of the most segregated in the Nation.
10. Under the Fourteenth Amendment and under the Civil Rights Acts of 1866 and 1964, the state may not use an initiative, including in particular one adopted as this one was adopted, to deepen and perpetuate segregation in its universities and in the political procedures that govern its universities.
11. The plaintiffs, who are students, applicants, and prospective applicants at the defendant universities, as well as citizens and organizations of citizens who have fought for the racial integration of those universities, assert that Proposal 2, both on its face and as applied, violates the following federal laws:
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A. Proposal 2 violates the Equal Protection Clause of the Fourteenth Amendment by intentionally discriminating against racial minorities and women and by explicitly attempting to outlaw the programs that have proved essential to the effort to integrate the state’s public universities by race and gender.
B. Proposal 2 further violates the Equal Protection Clause of the Fourteenth Amendment by requiring blacks, Latino/as, and Native Americans to follow a separate and distinctly unequal political procedure in order to secure the adoption of admission and other policies that will facilitate the admission and education of significant numbers of minority citizens.
C. Proposal 2 violates Title VI of the Civil Rights Act of 1964 because it imposes a standard that blocks efforts to eliminate racial discrimination in higher education and to open higher education to all races.
D. Proposal 2 violates the Equal Protection Clause of the Fourteenth Amendment by requiring women to follow a separate and distinctly unequal political procedure in order to secure the adoption of admission and other policies that will facilitate the admission and education of significant numbers of women into programs in engineering, some of the sciences, and other areas where affirmative action by gender is still needed.
E. Proposal 2 violates Title IX of the Education Amendments of 1972 because it imposes a standard that blocks efforts to eliminate gender discrimination in higher education and to open all aspects of higher education to both men and women students.
F. Proposal 2 violates the First Amendment right of the defendant universities and the First Amendment rights of the students who attend those universities by sharply
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limiting the universities’ ability to achieve diversity in the race, national origin and gender of its students.
12. The plaintiffs assert that both on its face and as applied Proposal 2 deprives them of rights, privileges and immunities arising under the laws of the United States in violation of 42 USC s. 1983.
13. The plaintiffs seek declaratory and injunctive relief, attorneys’ fees and costs, and such further relief as is just and equitable.
JURISDICTION AND VENUE 14. This Court has jurisdiction over this matter pursuant to 28 USC s. 1331 and 28 USC s. 1343(3). 15. The United States District Court for the Eastern District of Michigan is a proper venue for this action, as a substantial part of the events or omissions giving rise to this action occurred in the Eastern District of Michigan.
PARTIES 16. The plaintiff Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN) is a voluntary unincorporated association organized for the purpose of building a new civil rights movement. BAMN’s members include black, Latino/a, Native American, Asian, other minority and white students and citizens across the country. For the last 12 years, BAMN and its members have filed lawsuits, circulated petitions, sponsored teach-ins, rallies, and marches, won the passage of pro-affirmative action resolutions by student senates, faculties, universities, city councils, school boards and public officials. In 2001, BAMN successfully led the effort to have the University of California Board of Regents vote to
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repeal SP-1 and SP-2, which had been the official resolutions banning the use of affirmative action in admissions, financial aid and employment at the University of California.
17. The plaintiff United for Equality and Affirmative Action Legal Defense Fund (UEAALDF) is a non-profit corporation organized to provide legal defense and education. It was established by BAMN to conduct the legal defense of our nation’s civil rights.
18. The plaintiff Rainbow PUSH Coalition, led by the Reverend Jesse Jackson, is a voluntary unincorporated association organized for the purpose of defending civil rights. Rainbow PUSH was instrumental in creating and defending affirmative action programs across the country and has long been a leading spokesperson for the democratic rights of minorities and women.
19. The plaintiffs Beautie Mitchell and Christopher Sutton are black high school seniors in Detroit who are applying for admission to the defendant University of Michigan.
20. The plaintiff Stasia Brown is a black high school senior at Oak Park High School who is an applicant for admission to the defendant University of Michigan.
21. The plaintiff Josie Hyman is a black resident of Detroit and one of the few black graduates from the University of California at Berkeley in 2005. Ms. Hyman has applied to law school at the defendant Wayne State University.
22. The plaintiff Alejandra Cruz is a Latina resident of Detroit and one of the few Latino/a graduates from the University of California at Berkeley in 2006. Ms. Cruz has applied to law school at the defendant University of Michigan.
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23. The plaintiffs Turquoise Wise-King and Shanae Tatum are currently black students at Henry Ford Community College and Wayne Community College, respectively, and are planning to apply to the defendant universities.
24. The plaintiffs Calvin Jevon Cochran, Lashelle Benjamin, Deneshea Richey, Michael Gibson, Laquay Johnson, Brandon Flannigan, Kahleif Henry, Kevin Smith, Kyle Smith, Paris Butler, Touissant King, Aiana Scott, Allen Vonou, Randiah Green, Brittany Jones, Courtney Drake, Matthew Griffith, Lacrissa Beverly, D’shawn Featherstone, Danielle Nelson, Julius Carter, Williams Frazier, and Dante Dixon are black high school students in Michigan who plan to apply to the defendant universities and to attend college and to work and live in Michigan in the future.
25. The plaintiffs Candice Young, Tristan Taylor, and Jerell Erves have substantial college credits and plan to apply to the graduate or professional schools of the defendant universities.
26. The plaintiff Maricruz Lopez is a Latina student at the University of Michigan and the chair of the Defend Affirmative Action Party. She plans to apply for admission to the graduate or professional programs of the defendant universities.
27. The plaintiff Issamar Camacho is a Latina high school student from Los Angeles California who intends to apply for admission at the defendant universities.
28. The plaintiff Adarene Hoag is a white graduate of the University of California at Berkeley who plans to apply to the graduate and professional schools of the defendant universities.
29. The plaintiff Joseph Henry Reed was a petition circulator for Proposal 2.
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30. The plaintiffs AFSCME Local 207, AFSCME Local 214, AFSCME Local 312, AFSCME Local 836, AFSCME Local 1642, AFSCME Local 2920, are labor organizations with large minority memberships who have long fought for policies that will allow their members and the children of their members to attend the defendant universities.
31. The plaintiff Defend Affirmative Action Party (DAAP) is a voluntary unincorporated association composed of students at the University of Michigan who have run candidates for student government at the University of Michigan and engaged in other political activities in defense of affirmative action.
32. The defendant Jennifer Granholm is the Governor of Michigan and is sued in her official capacity.
33. The defendant Regents of the University of Michigan is the duly elected governing board of the University of Michigan.
34. The defendant Board of Trustees of Michigan State University is the duly elected governing board of Michigan State University.
35. The defendant Board of Governors of Wayne State University is the duly elected governing board of Wayne State University.
36. The defendant Mary Sue Coleman is the President of the University of Michigan and is sued in her official capacity.
37. The defendant Lou Anna K. Simon is the President of Michigan State University and is sued in her official capacity.
38. The defendant Irvin D. Reid is the President of Wayne State University and is sued in his official capacity.
39. The intervening defendant Michael Cox is the Attorney General of the State of
Michigan and is sued in his official capacity.
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CLASS ACTION
40. Pursuant to Rule 23(b)(2), the plaintiffs may maintain this action as a class action because the defendants are acting on the basis of Proposal 2, which is common to all members of the class.
41. The plaintiffs represent the following three classes or subclasses: (A) The class of all black, Latino/a and Native American applicants to and students at any school at the University of Michigan, Michigan State University, and Wayne State University; (B) The class of all women applicants to and students at any school at the University of Michigan, Michigan State University, and Wayne State University; (C) The class of all black, Latino/a, and Native American citizens who want to lobby for or vote for changes in the admission and other policies of the defendant universities that benefit black, Latino/a and Native American citizens. 42. Each of the classes set forth above are so numerous that joinder is impracticable. 43. There are questions of law and fact common to the claims of the class, including the validity of Proposal 2 under federal law. 44. The claims of the black, Latino/a, and Native American students and applicants are typical of the claims of the class of such students. 45. The claims of the women students are typical of the class of such students. 46. The claims of the organizations and the individual citizens are typical of the class of citizens seeking change in admission and other policies that are beneficial to minorities.
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47. The representative plaintiffs will fairly and adequately represent the interests of the class they represent.
STATEMENT OF FACTS A. The effects of racial segregation and inequality upon the applicants to the
defendant universities from primary and secondary schools. 48. Michigan is and has been for many years one of the five most racially segregated states in the Nation. 49. More than eighty-three percent of black students in Michigan’s primary and secondary schools are in schools where over 50 percent of the students are black (“segregated schools”). Sixty-four percent of black students are in schools where 90 to 100 percent of the students are black (“intensely segregated schools”). 50. Michigan’s Latino/a, and Native American students are also largely educated in segregated or intensely segregated schools. 51. In other states, as well, black, Latino/a, and Native American students overwhelmingly attend segregated or intensely segregated schools. In fact, segregated education for Latino/a students is increasing in most sections of the Nation. 52. The plaintiff Issamar Camacho, for example, attends Roosevelt High School in Los Angeles, which is one of the largest high schools in the nation and whose students are 99 percent Latino/a. 53. Segregated schools and, even more so, intensely segregated schools have more concentrated poverty than poor white schools. There are therefore more educational challenges for black, Latino/a, and other minority than there are for poor white students.
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54. However, segregated schools and, even more so, intensely segregated schools are overcrowded, under-resourced, offer less advanced placement courses, and are increasingly being deprived of music, art, athletic, and afterschool programs.
55. Almost all of the black, Latino/a and Native American plaintiffs from Michigan who apply to the defendant universities have thus attended schools that can not provide them with educational opportunities equal to those of white students, including white students from equivalent economic backgrounds.
56. Even the few black, Latino/a, and Native American students who attend integrated schools have been tracked, confronted by racially hostile environments, and otherwise deprived of the benefits of an equal elementary and secondary education.
57. As a direct and proximate result of the facts set forth in the preceding paragraphs, almost all black, Latino/a and Native American students who apply to the defendant universities have on average lower median grade point averages and less advanced placement courses than the average of the white students who apply to the same universities.
B. The effect of segregation on standardized test scores. 58. The standardized tests used by the defendant universities to measure applicants for admission—including especially the SAT and the ACT tests—both capture and magnify the educational inequality by culturally-biased questions and by discrimination in test-taking conditions, access to test preparation courses, the process for selecting questions, stereotype threat, and similar factors.
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59. As a direct and proximate result of the facts set forth in the preceding paragraph, the black, Latino/a and Native American plaintiffs score, on average, lower on standardized tests than do their white counterparts.
60. The lower test scores for black, Latino/a and Native American applicants exist across all economic classes. The average test scores of high-income black and Latina/o students are lower than those of low-income white students.
C. The compounding effects of segregation and inequality on applicants for graduate and professional schools.
61. Josie Hyman, Alejandra Cruz, Maricruz Lopez and other black, Latino/a, and Native American students have overcome those difficulties by securing admission to universities, including the defendant universities.
62. Even after being admitted, however, black, Latina/o, and Native American students face disproportionate financial and other pressures at majority-white campuses.
63. With only small numbers of minority students present on those campuses, black, Latino/a, and Native American students face racial isolation and hostility and are not able to perform as well as they could if the campuses were more integrated.
64. Even when black, Latino/a and Native American students have performed outstandingly at such universities, their grades have therefore suffered due to the special pressures and discrimination they have suffered and that they have continued to suffer at the universities.
65. Like the SAT and ACT, the LSAT, GRE, MCAT and similar tests used to decide admissions into graduate and professional schools both capture and magnify the educational inequalities that black, Latino and Native American students face.
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66. As a direct and proximate result of the facts set forth in the preceding paragraphs, the black, Latino/a and Native American students who apply to the graduate and professional schools of the defendant universities have lower grade point averages and test scores than the white students who apply.
D. De facto segregation at the defendant universities before affirmative action. 67. From the Michigan Constitution of 1850 forward, the faculties and administrations of the various schools and colleges in the defendant universities have had total control over the criteria for selecting applicants for admission. 68. The defendant universities have at all times maintained a formal policy of accepting applications from students of all races. 69. Before the late 1960s, however, the defendant universities had, with only a few exceptions, essentially no black students in their undergraduate, graduate, or professional schools. 70. Moreover, as applications increased, and as the universities increasingly relied on standardized test scores whose discriminatory impacts were well-known, the number of black and other minority students in the defendant universities remained at negligible levels. 71. During the decade of the 1960s, for example, the University of Michigan Law School graduated 3,032 white students and eight black students. 72. From the founding of the defendant universities until the adoption of affirmative action programs, the defendant universities excluded or essentially excluded women from many of their graduate, professional, and other schools.
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E. Affirmative action desegregated the defendant universities. 73. The growth of the Civil Rights Movement and the Northern urban uprisings of the 1960s, including the Detroit rebellion in 1967, created a national political crisis which sparked debate within the universities on how to make the long-deferred promise of equality real. 74. The governing boards of the defendant universities recognized the need to take action and implemented their first affirmative action policies. The stated purpose of these policies was to give black citizens a greater role in the state’s political process and more access to its institutions of learning. 75. By the late 1960s, the small number of black and Latino/a students who had been admitted to the defendant universities began organizing for greater inclusion of minority students on the campuses. 76. In 1970, a massive integrated student strike led by the Black Action Movement (BAM) resulted in a new round of debate, discussions, negotiations and finally action by the Board of Regents at the University of Michigan and by the governing boards of the other two defendant universities. 77. Because the governing boards and faculties of the defendant universities had the power to change admission policies, they were able to respond positively to some of the demands for increased minority admissions. 78. Affirmative action policies desegregated the defendant universities and, for the first time, gave minority and, in some instances, women students not only access to a university, professional or graduate education, but also to the process of shaping the educational institutions themselves.
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79. The affirmative action plans differed in details, but in general they recognized the need for a critical mass of black and other minority students as part of the fundamental mission of the university. The admission system of the universities were adjusted to become less discriminatory by placing a less rigid reliance on criteria that encapsulated discrimination like grade point averages and tests, by considering the race or national origin of the student in evaluating his or her qualifications, including test scores and grades, and by placing more reliance on essays, recommendations and similar factors that were used to evaluate the abilities of the applicants, including especially the applicants from racial and national minorities.
80. From the beginning, the opponents of these plans, including many open segregationists, claimed that affirmative action policies discriminated against white people by giving alleged “preferences” to minority or women students. In reality, affirmative action programs provided only modest compensation for the overwhelming preferences to white students incorporated in the other admission criteria.
81. As a direct and proximate result of the affirmative action plans, the number of black, Latino/a, and Native American students rose dramatically at each of the defendant universities, including in the graduate and professional schools at those universities.
F. Proposition 209 attacks the desegregation of California’s universities. 82. In a 1996 vote that was as racially polarized as that for Proposal 2, the white majority of California’s voters overrode the opposition of black, Latino/a, Native American and Asian voters and passed Proposition 209.
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83. Using the racial code word of banning “preferences,” Proposition 209 had as its primary purpose the elimination of the programs that desegregated the University of California and that had resulted in a dramatic increase in the admission of black, Latino/a, Native American and women students in the University of California system.
84. As a result of Proposition 209, the enrollment of black, Latino/a and Native American students has fallen dramatically at the flagship universities in California, including, in particular at the University of California at Berkeley and the University of California at Los Angeles, and at the graduate and professional schools of the University of California as a whole.
85. Tens years of attempts to compensate for the loss of affirmative action programs have failed to reverse the huge losses in the enrollment of black, Latino/a, and Native American students.
86. The inability of the University of California to consider race in evaluating applicants’ grade point averages, test scores and other admission criteria that are used by all selective public universities, has led to not only a decline in the number of underrepresented minority students, but has also led to the creation of a hostile environment for those underrepresented minority students who remain at the University of California.
87. The number of black, Latino/a, and Native American high-school and college graduates choosing to enroll at the campuses of the University of California has declined significantly.
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88. Black, Latino/a and Native American students have been forced out of the flagship campuses of the University of California system and have been forced into the less selective schools in the University of California and California State systems.
89. Ten years after the passage of Proposition 209, higher education in California is becoming a two-tier and resegregated system.
90. At the same time that the Latino/a population of California is growing dramatically, blacks, Latino/as and Native Americans are thus being excluded from the schools from which the future leaders of California will be selected.
91. Political action by students, faculty and the black and Latino/a communities resulted in the Regents rescinding their 1996 ban on affirmative action in 2001.
92. Nonetheless, efforts by the administrations and faculties within the University of California system have failed to reverse the drop in the enrollment of underrepresented minority students. Proposition 209 has precluded the universities from taking any meaningful steps to stop the process of the resegregation of higher education in California and has accelerated the creation of separate and unequal K-12 education in that state.
G. Proposal 2 eliminates the desegregation programs at the defendant universities and establishes second-class political rights for black, Latino/a and Native American students.
93. In Grutter v Bollinger, 539 US 306 (2003), the United States Supreme Court approved the affirmative action plan at the University of Michigan Law School.
94. The University of Michigan Law School plan considered the race of applicants as a means to assure racial diversity. It specifically did not require a rigid application of grade point averages, test scores and similar criteria in admitting students
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and it was designed to secure the admission of a critical mass of underrepresented minority students.
95. Immediately after the Grutter decision, Ward Connerly, who had sponsored Proposition 209 in California, announced a petition drive to amend the Constitution of the State of Michigan as a means to overrule the Grutter decision.
96. Again using the same racist code word of banning supposed “racial preferences,” Connerly’s proposal had as its primary objective the elimination of the affirmative action plan at the University of Michigan Law School and the elimination of all of the other plans that had desegregated the defendant universities by making possible the admission of substantial numbers of black, Latino/a or Native American students.
97. Proposal 2, as Connerly’s proposal came to be known, was a word-for-word copy of Proposition 209. It specifically intended to reduce the number of black, Latino/a, and Native American students at the defendant universities and to ban any measures that could protect black, Latino/a, and Native American students from discrimination in the admissions systems at the defendant universities.
98. Proposal 2 also intended to take from women the protections against discrimination and to eliminate all programs designed to facilitate women securing admission to schools that have traditionally excluded them.
99. Proposal 2 further intended to prevent racial minorities from fighting for-and the faculties and governing boards of the defendant universities from ever again adopting--any program to secure the admission of substantial numbers of black, Latino/a, or Native American students at the defendant universities.
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100. Proposal 2 departed from 150 years of precedent in Michigan by subjecting programs to integrate the universities to judicial review and by requiring proponents of plans to integrate the universities to secure a constitutional amendment before any effective plan could again be adopted.
101. As in California, the adoption of Proposal 2 in Michigan will result in a dramatic drop in the enrollment of black, Latino/a, and Native American students in the defendant universities, will prevent the defendant universities from adopting any meaningful program to halt that drop, and will lead to an increase in racial isolation and in the racial hostility against those few minority students who secure admission to the defendant universities despite the adoption of Proposal 2.
H. Conclusion. 102. As written and as applied, Proposal 2, like Proposition 209 in California, will result in the creation of a two-tier system of higher education Michigan in which the most selective undergraduate schools and almost all of the graduate and professional schools will be almost all white and in which black, Latino/a and Native American students will be forced to attend public institutions with less resources, less connections, and less possibility of providing an equal future for their students. 103. As written and as applied, Proposal 2 will prevent black, Latino/a, and Native American citizens from being an equal part of the leadership of this State. 104. As written and as applied, Proposal 2 will thus deepen the segregation of a state that is already among the most segregated in the Nation.
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COUNT ONE RACIAL AND GENDER DISCRIMINATION IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT 105. The allegations set forth above are repeated as if fully set forth herein. 106. Insofar as the defendant universities are concerned, Proposal 2 has as its primary purpose the elimination of the desegregation plans that have resulted in the admission of significant numbers of black, Latino/a, and Native American students and of women students into the defendant universities. 107. Proposal 2 thus has as its primary aim reducing the admission of black, Latino, and Native American students and of women students into some programs. 108. To accomplish that unlawful purpose, Proposal 2 includes explicit racial and gender criteria in the state Constitution by providing that programs that opponents say grant “preferential treatment” to applicants on account of race, national origin, or gender are subject to judicial review and may be banned if a state court subscribes to the opponents’ ideological assertion that desegregation programs discriminate against white people and grant “preferential treatment” to blacks, Latino/as, and Native Americans. 109. In sharp contrast, programs that actually grant preferential treatment on any other basis are not subject to a judicial veto--and indeed are not even subject to judicial review. 110. There is neither a compelling nor a substantial state interest that supports the racial and gender criteria in Proposal 2 or that justifies its attempt to reduce drastically the numbers of black, Latino/a, and Native American students at the defendant universities. 111. In its history, in its evident purpose, in its defiance of the state tradition of control of the universities by the governing boards, and in its adoption of explicit race and
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gender classifications, Proposal 2 violates the Equal Protection Clause of the Fourteenth Amendment by intentionally discriminating against black, Latino/a, Native American and women students.
Wherefore, the plaintiffs ask this Court to grant preliminary and permanent injunctive and declaratory relief restraining the defendants from enforcing Proposal 2 insofar as it applies to the admission, education and graduation of students at the defendant universities and by ordering such further relief as is just and equitable, including the attorneys’ fees and costs of this action.
COUNT TWO RACIAL DISCRIMINATION IN THE STRUCTURE OF GOVERNMENT 112. The allegations of the preceding paragraphs are repeated as if fully set forth herein. 113. For 150 years in the case of the University of Michigan and for over a half century in the case of Michigan State and Wayne State, every group has been able to petition the governing boards and faculties of the defendant universities for changes in the existing admission systems that would open up the university to its members. 114. For similar periods, the governing boards of the defendant universities have been able to adopt proposals that opened up the universities to a wide variety of different groups, including veterans, immigrants, working-class and poor students, the residents of particular areas of the state, and the sons and daughters of farmers. Each of these changes has changed the character of the universities. 115. As described above, underrepresented minorities and women first gained significant access to the universities by these democratic means.
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116. Under the regime established by Proposal 2, however, the door will now be closed to racial and national minorities. They will no longer be able to petition the faculty, the administration, or the governing boards of the defendant universities for admission policies that will sustain or increase the number of underrepresented minorities admitted to the university.
117. Under the regime established by Proposal 2, racial and national minorities can only defend existing desegregation programs or secure the adoption of any new programs to protect them from discrimination in the admission system by mounting an extremely costly effort to amend the state constitution.
118. Even if a minority could finance such an effort, it could only be successful in the unlikely event that the racial or national minority persuaded the majority (i.e. white people) to support its proposal.
119. Racial and national minorities may not even petition the faculties and administrations to maintain or adopt affirmative action programs in admissions that are lawful under the governing decision of the United States Supreme Court.
120. Every other group, however, retains the right to petition for any lawful action that will benefit its members.
121. By eliminating an equal political means for black, Latino/a, and Native American citizens to fight for policies that will actually secure the admission of their children to the public universities of this State, Proposal 2 has denied those citizens Equal Protection of the laws, in violation of the Fourteenth Amendment to Constitution of the United States.
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Wherefore, the plaintiffs ask this Court to grant preliminary and permanent injunctive and declaratory relief restraining the defendants from enforcing Proposal 2 insofar as it applies to the admission, education and graduation of students at the defendant universities and by ordering such further relief as is just and equitable, including the attorneys’ fees and costs of this action.
COUNT THREE VIOLATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 122. The allegations set forth above are repeated as if fully set forth herein. 123. The defendant universities receive massive amounts of federal aid to support students, faculties, facilities and virtually every aspect of the university. 124. In an effort to end racial and national origin segregation in public schools, colleges, universities and other public services, Congress prohibited discrimination on account of race or national origin in any program or activity that received federal financial assistance: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 USC 2000d. 125. To enforce that mandate, Congress provided that each federal department and agency that extended financial assistance should issue rules, that were not effective until approved by the President of the United States, to assure that the recipients of federal assistance follow policies that are consistent with the federal mandate of nondiscrimination. 42 USC 2000d-1.
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126. Acting pursuant to that Congressional authorization, the Department of Education has promulgated rules that prohibit the defendant universities from utilizing criteria that have the effect of subjecting individuals to discrimination or that have the effect of substantially impairing accomplishment of the program’s objectives as respects individuals of a particular race, color or national origin:
A recipient, in determining the types of services, financial aid, or other benefits or facilities that will be provided under any such program, or the class of individuals to whom….such services, financial aid, other benefits, or facilities will be provided under any such program, may not, directly or through contractual arrangements, utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color or national origin. 34 CFR 100.3(b)(2). 127. As demonstrated by the experience in California and by the facts set forth above, Proposal 2’s requirement that universities use grade point averages, test scores and similar criteria in a rigid manner without the consideration of race or national origin has resulted and will result in a devastating decline in the number of black, Latino/a and Native American students, in direct violation of the purpose of Title VI and of the specific prohibitions of the regulations that implement Title VI. 128. In requiring the defendant universities to use test scores, grade point averages and similar criteria in a manner that discriminates against minority students and grants unearned privileges to white students, Proposal 2 stands as an obstacle to the accomplishment of the purposes of Title VI of the Civil Rights Act of 1964. 129. Title VI preempts Proposal 2 under the Supremacy Clause of the Constitution of the United States.
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Wherefore, the plaintiffs ask this Court to grant preliminary and permanent injunctive and declaratory relief restraining the defendants from enforcing Proposal 2 insofar as it applies to the admission, education and graduation of students at the defendant universities and by ordering such further relief as is just and equitable, including the attorneys’ fees and costs of this action.
COUNT FOUR GENDER DISCRIMINATION IN THE STRUCTURE OF GOVERNMENT 130. The allegations set forth above are repeated as if fully set forth herein. 131. As a result of the rise of the women’s movement, the defendant universities adopted affirmative action programs to facilitate the admission of women into law schools, medical schools and numerous other educational programs where women had traditionally been excluded. 132. In many areas, those programs have been successful and there is no longer a need for special affirmative action programs to facilitate the admission of women. 133. In some areas, however, including engineering and some of the sciences, gender discrimination has been so strong that affirmative action was still used and is still needed in order to secure equal access to those fields for women. 134. Under the regime established by Proposal 2, however, women may not petition the faculty and administration at the defendant universities for changes in admission policies if a state court labeled those changes a “preference.” 135. Under the regime established by Proposal 2, women could only secure a meaningful change by mounting an extremely burdensome effort to amend the state constitution.
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136. In requiring women to mount such a campaign to further their interests while allowing all other groups except racial minorities to further their interests by petitioning the faculty or the governing boards, Proposal 2 has denied women of Equal Protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States.
Wherefore, the plaintiffs ask this Court to grant preliminary and permanent injunctive and declaratory relief restraining the defendants from enforcing Proposal 2 insofar as it applies to the admission, education and graduation of students at the defendant universities and by ordering such further relief as is just and equitable, including the attorneys’ fees and costs of this action.
COUNT FIVE PREEMPTION BY TITLE IX OF THE EDUCATION AMENDMENTS OF 1972 137. The allegations set forth above are repeated as if fully set forth herein. 138. With certain exceptions not here relevant, Title IX of the Education Amendments of 1972 prevented discrimination on account of sex by any recipient of federal financial assistance: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance… 20 USC 1681(a). 139. Like Title VI, Title IX authorized the federal agencies disbursing financial assistance to promulgate regulations to carry out its mandate. 20 USC 1682. 140. The regulations promulgated under Title VI prohibit recipients of federal assistance from administering any test or using any criterion for admission which has the
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effect of discriminating against persons on account of their sex, 34 CFR 106.21, and require in some circumstances and authorize in all circumstances special recruitment and other efforts to encourage participation of women in colleges, graduate and professional schools from which women have traditionally been excluded. 34 CFR 106.23.
141. In requiring the defendant universities to abandon any methods that offset the gender discrimination and bias in test scores, grade point averages or any similar criteria, Proposal 2 stands as an obstacle to ending discrimination on account of sex as is required by Title IX and its implementing regulations.
142. Title VI therefore preempts Proposal 2 under the Supremacy Clause of the Constitution of the United States.
Wherefore, the plaintiffs ask this Court to grant preliminary and permanent injunctive and declaratory relief restraining the defendants from enforcing Proposal 2 insofar as it applies to the admission, education and graduation of students at the defendant universities and by ordering such further relief as is just and equitable, including the attorneys’ fees and costs of this action.
COUNT SIX VIOLATION OF THE FIRST AMENDMENT 143. The allegations set forth above are repeated as if fully set forth herein. 144. In Grutter, the United States Supreme Court affirmed the defendant universities’ First Amendment right to select their students and teaching staff and to determine their academic standards. 145. The individual plaintiffs who are students at the defendant universities are beneficiaries of these First Amendment rights because of the academic freedom and the
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educational benefits of the integrated and diverse student body produced by the admission policies of the defendant universities.
146. The individual plaintiffs who are prospective students at the defendant universities are potential beneficiaries of the same First Amendment rights.
147. For the first time in the history of the State of Michigan Proposal 2 invades the First Amendment rights of the defendant universities to select their student bodies and their teaching staff in ways that the educational authorities have deemed most appropriate.
148. Moreover, Proposal 2 invades the First Amendment rights of the defendant universities in one area alone: their right to seek diversity through the admission of a critical mass of students of diverse races and national origins and from both genders.
149. In invading the First Amendment rights of the universities on those matters alone, Proposal 2 violates the First Amendment rights of the universities and of the students who attend those universities.
Wherefore, the plaintiffs ask this Court to grant preliminary and permanent injunctive and declaratory relief restraining the defendants from enforcing Proposal 2 insofar as it applies to the admission, education and graduation of students at the defendant universities and by ordering such further relief as is just and equitable, including the attorneys’ fees and costs of this action.
By Plaintiffs’ Attorneys, SCHEFF & WASHINGTON, P.C.

Dated: March 23, 2007

BY: /s/George B. Washington_______ George B. Washington (P-26201) Shanta Driver (P-65007) 645 Griswold—Ste 1817 Detroit, Michigan 48226 (313) 963-1921

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CERTIFICATE OF SERVICE

I hereby certify that on March 23, 2007, I electronically filed the Plaintiffs’ First

Amended Complaint which will automatically send notification of filing to:

James E. Long (P53251) Brian O. Neill (P63511) Michigan Department of the
Atty General Attys. For Jennifer Granholm P.O. Box 30758 Lansing, MI 48909

Margaret A. Nelson (P30342) Heather S. Meingast (P55439) Joseph E. Potchen (P49501) Michigan Department of the
Atty General P.O. Box 30736 Lansing, MI 48909 Attys for Michael Cox

BUTZEL LONG, P.C. Leonard M. Niehoff (P36695) Philip J. Kessler (P15921) Christopher M. Taylor (P63780) 350 S. Main Street, Suite 300 Ann Arbor, MI 48104 Attys for Defendant Universities niehoff@butzel.com

Dated: March 23, 2007

/s/George B. Washington______ George B. Washington (P-26201) SCHEFF & WASHINGTON, P.C. 645 Griswold—Ste 1817 Detroit, Michigan 48226 (313) 963-1921 scheff@ameritech.net

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CERTIFICATE OF SERVICE
I hereby certify that on March 23, 2007, I electronically filed the Plaintiff
Coalition to Defend Affirmative Action’s Second Amended Class-Action Complaint with
the Clerk of the Court using the ECF system which will automatically send notification of
filing to:
Charles J. Cooper Cooper and Kirk Attorneys for Russell 555 Eleventh Street, N.W., Suite 750 Washington, D. C. 20004 ccooper@cooperkirk.com 202-220-9600
Michael E. Rosman Center for Individual Rights 1233 20th St, NW, Suite 300 Washington, D.C. 20036 Attys for Intervening Defendant Russell rosman@cir-usa.org 202-833-8410
Kerry L. Morgan Attys for Intervening Defendant Russell kmorganesq@aol.com 734-281-7102
Leonard Niehoff Butzel Long 350 S. Main Street, Suite 300 Ann Arbor, MI 48104 Attys for Defendant Universities 734-995-1777 niehoff@butzel.com
Margaret Nelson Assistant Attorney General P.O. Box 30736 Lansing, MI 48909 Attys for Intervening Defendant Cox 517-373-2454 nelsonma@michigan.gov
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James Long Assistant Attorney General Atty for Defendant Granholm P.O. Box 30758 Lansing, MI 48909 517-335-5328 longj@michigan.gov Mark D. Rosenbaum ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 213-977-9500 mrosenbaum@aclu-sc.org Karin A. DeMasi Cravath, Swaine, & Moore, LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019--7475 212-474-1000 KDeMasi@cravath.com
/s/George B. Washington______ George B. Washington (P-26201) SCHEFF & WASHINGTON, P.C. 645 Griswold—Ste 1817 Detroit, Michigan 48226 (313) 963-1921 scheff@ameritech.net
Dated: March 23, 2007
31

 
 Case 2:06-cv-15024-DML-RSW Document 2 Filed 12/11/2006 Page 1 of 8

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION,

INTEGRATION AND IMMIGRANT RIGHTS AND

FIGHT FOR EQUALITY BY ANY MEANS NECESSARY

(BAMN), UNITED FOR EQUALITY AND AFFIRMATIVE

ACTION LEGAL DEFENSE FUND, RAINBOW PUSH

COALITION, CALVIN JEVON COCHRAN, LASHELLE

BENJAMIN, BEAUTIE MITCHELL, DENESHA RICHEY,

STASIA BROWN, MICHAEL GIBSON, CHRISTOPHER

SUTTON, LAQUAY JOHNSON, TURQOISE WISE-KING,

BRANDON FLANNIGAN, JOSIE HUMAN, ISSAMAR

Case No. 2-06-CV-15024

CAMACHO, KAHLEIF HENRY, SHANAE TATUM,

MARICRUZ LOPEZ, ALEJANDRA CRUZ, ADARENE

Hon. David M. Lawson

HOAG, CANDICE YOUNG, TRISTAN TAYLOR,

WILLIAMS FRAZIER, JERELL ERVES, MATTHEW

GRIFFITH, LACRISSA BEVERLY, D’SHAWNM

FEATHERSTONE, DANIELLE NELSON, JULIUS CARTER,

KEVIN SMITH, KYLE SMITH, PARIS BUTLER, TOUISSANT

KING, AIANA SCOTT, ALLEN VONOU, RANDIAH GREEN,

BRITTANY JONES, COURTNEY DRAKE, DANTE DIXON,

JOSEPH HENRY REED, AFSCME LOCAL 207, AFSCME

LOCAL 214, AFSCME LOCAL 312, AFSCME LOCAL 836,

AFSCME LOCAL 1642, AFSCME LOCAL 2920, and the

DEFEND AFFIRMATIVE ACTION PARTY,

Plaintiffs,

vs.

JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan, the REGENTS OF THE UNIVERSITY OF MICHIGAN, the BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, the BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, and the TRUSTEES OF any other public college or university, community college, or school district,

Defendants

and

Case 2:06-cv-15024-DML-RSW Document 2 Filed 12/11/2006 Page 2 of 8

The REGENTS OF THE UNIVERSITY OF MICHIGAN, the BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY and the BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY,

Cross-Plaintiffs

vs.

JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan

Cross-Defendant

_________________________________________________________/

SCHEFF & WASHINGTON, PC

BUTZEL LONG, PC

George B. Washington (P26201)

Leonard M. Niehoff (P36695)

Shanta Driver (P65007)

Philip J. Kessler (P15921)

645 Griswold, Suite 1817

Christopher M. Taylor (P63780)

Detroit, MI 48226

350 S. Main Street, Suite 300

(313) 963-1921

Ann Arbor, MI 48104

Attorneys for Plaintiffs

(734) 995-3110

Attorneys for Defendants/Cross-Plaintiffs the

Regents of the University of Michigan, the

Board of Trustees of Michigan State

University, and the Board of Governors of

Wayne State University

_________________________________________________________/

CROSS-CLAIM OF THE REGENTS OF THE UNIVERSITY OF MICHIGAN, THE BOARD OF TRUSTEES OF MICHIGAN
STATE UNIVERSITY AND THE BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY FOR DECLARATORY JUDGMENT
Defendants / Cross-Plaintiffs, the Regents of the University of Michigan, the Board of
Trustees of Michigan State University, and the Board of Governors of Wayne State University
(“the Universities”), hereby cross-claim against Cross-Defendant Jennifer Granholm, in her
official capacity as Governor of the State of Michigan as follows:

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NATURE OF THE ACTION 1. This is an action for declaratory judgment pursuant to 28 U.S.C. § 2201 in which the Universities seek a determination of their rights and responsibilities under Article I, § 26 of the Michigan Constitution, an amendment passed on November 7, 2006 and with an effective date of December 23, 2006 (the “Amendment”).
THE PARTIES 2. The Universities are corporate bodies created by Article VIII, § 5 of the Constitution of the State of Michigan and are charged with the “general supervision” of these institutions. 3. Cross-Defendant Jennifer Granholm is the Governor of the State of Michigan and, as such, responsible for enforcing the laws of the State of Michigan.
JURISDICTION 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this case arises under the Constitution of the United States.
COUNT I DECLARATORY JUDGMENT 5. The Amendment has nine sections, is among the longest provisions of the Michigan Constitution, and includes a number of legal terms. Serious controversies exist regarding the validity, meaning, impact, and application of the Amendment. Inconsistent statements have been made about its constitutionality and its consequences and many, including the Universities, are uncertain of its reach. The Governor has requested an interpretation of the Amendment from the Civil Rights Commission. The Universities have special reason for
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concern about these controversies and uncertainties because they are specifically named in paragraph 1 of the Amendment.
6. The Amendment implicates federal law. It incorporates whole bodies of federal law by reference, including “federal programs,” “federal law,” and the “United States Constitution.” Further, paragraph 7 of the Amendment provides that “[i]f any part or parts of this section are found to be in conflict with the United States Constitution or federal law, this section shall be implemented to the maximum extent that the United States Constitution and federal law permit.” The Supremacy Clause of the United States Constitution similarly provides that, in the event of a conflict, federal law takes precedence over state law.
7. The Universities have a specific and immediate crisis that cannot await the clarifications that will ultimately be provided by this Court, other courts, and the Civil Rights Commission.
8. The Amendment becomes effective in the midst of the Universities’ current admissions and financial aid cycle. For most colleges, schools, departments, and programs within the Universities those cycles run from the early fall through the spring.
9. Months before the current cycle began the Universities put their admissions and financial aid policies in place in reliance on the Supreme Court’s reaffirmation in Grutter v Bollinger, 539 U.S. 306 (2003) that they have an academic freedom right, based in the First Amendment to the Constitution of the United States, to select their students and that they may, in the course of doing so, give some consideration to such factors such as race.
10. Before the current cycle began the Universities devoted substantial time and energy to training their admissions and financial aid personnel about those policies and to disseminating information about those policies to the public.
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11. Individuals have applied for admission and have requested financial aid in reliance upon these announced policies. The Universities have not yet made decisions with respect to many of the applications and requests received to date. But the Universities have already made thousands of decisions applying those policies and processes during this cycle.
12. Forcing the Universities to abandon their existing admissions and financial aid policies in the midst of this cycle would require them to apply different policies to applicants within the same cycle and different policies than they have announced.
13. Moreover, because the Universities cannot by December 23 discover, evaluate, develop, implement, and train personnel around a new approach to admissions and financial aid that will yield a diverse student body, forcing the Universities to abandon their existing policies on that date would result in the loss of their First Amendment-based academic freedom right to admit a class that best meets their academic goals during this cycle.
14. The Universities therefore request a declaratory judgment determining their rights and responsibilities under the Amendment. In light of the urgency of the situation and the certainty that the Universities will suffer irreparable harm absent immediate relief, the Universities also seek limited and preliminary injunctive relief preserving the status quo until the Court has had the opportunity to give this issue full consideration.
WHEREFORE, the Universities respectfully request that this Court A. enter a judgment declaring that under federal law the Universities may continue to
use their existing admissions and financial aid policies through the end of the current cycle, and otherwise declaring their rights and responsibilities under the Amendment in light of federal law to the extent necessary and just, and B. issue a preliminary injunction that preserves the status quo and allows the Universities to continue to use their existing admissions and financial aid policies through the end of the current cycle or until this Court enters the requested declaratory judgment; if the Court cannot rule on the request for a preliminary injunction before December 22 then the Universities alternatively seek a
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temporary restraining order with notice to preserve the status quo from December 22 until the Court can rule on the request for preliminary injunction.
Respectfully submitted,
BUTZEL LONG, PC

Dated: December 11, 2006

By: ___/s/ Leonard M. Niehoff____________ Leonard M. Niehoff (P36695) Philip J. Kessler (P15921) Christopher M. Taylor (P63780)
350 S. Main Street, Suite 300 Ann Arbor, Michigan 48104 (734) 995-3110
Attorneys for Defendants/Cross-Plaintiffs the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION,

INTEGRATION AND IMMIGRANT RIGHTS AND

FIGHT FOR EQUALITY BY ANY MEANS NECESSARY

(BAMN), UNITED FOR EQUALITY AND AFFIRMATIVE

ACTION LEGAL DEFENSE FUND, RAINBOW PUSH

COALITION, CALVIN JEVON COCHRAN, LASHELLE

BENJAMIN, BEAUTIE MITCHELL, DENESHA RICHEY,

STASIA BROWN, MICHAEL GIBSON, CHRISTOPHER

SUTTON, LAQUAY JOHNSON, TURQOISE WISE-KING,

BRANDON FLANNIGAN, JOSIE HUMAN, ISSAMAR

Case No. 2-06-CV-15024

CAMACHO, KAHLEIF HENRY, SHANAE TATUM,

MARICRUZ LOPEZ, ALEJANDRA CRUZ, ADARENE

Hon. David M. Lawson

HOAG, CANDICE YOUNG, TRISTAN TAYLOR, WILLIAMS

FRAZIER, JERELL ERVES, MATTHEW GRIFFITH,

LACRISSA BEVERLY, D’SHAWNM FEATHERSTONE,

DANIELLE NELSON, JULIUS CARTER, KEVIN SMITH,

KYLE SMITH, PARIS BUTLER, TOUISSANT KING,

AIANA SCOTT, ALLEN VONOU, RANDIAH GREEN, BRITTANY

JONES, COURTNEY DRAKE, DANTE DIXON, JOSEPH

HENRY REED, AFSCME LOCAL 207, AFSCME LOCAL 214,

AFSCME LOCAL 312, AFSCME LOCAL 836, AFSCME LOCAL

1642, AFSCME LOCAL 2920, and the DEFEND AFFIRMATIVE

ACTION PARTY,

Plaintiffs,

vs.

JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan, the REGENTS OF THE UNIVERSITY OF MICHIGAN, the BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, the BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, and the TRUSTEES OF any other public college or university, community college, or school district,

Defendants

and

Case 2:06-cv-15024-DML-RSW Document 2 Filed 12/11/2006 Page 8 of 8

REGENTS OF THE UNIVERSITY OF MICHIGAN, THE BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY and the BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY,
Cross-Plaintiffs

vs.

JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan

Cross-Defendant

______________________________________________________/

SCHEFF & WASHINGTON, PC

BUTZEL LONG, PC

George B. Washington (P26201)

Leonard M. Niehoff (P36695)

Shanta Driver (P65007)

Philip J. Kessler (P15921)

645 Griswold, Suite 1817

Christopher M. Taylor (P63780)

Detroit, MI 48226

350 S. Main Street, Suite 300

(313) 963-1921

Ann Arbor, MI 48104

Attorneys for Plaintiffs

(734) 995-3110

Attorneys for Defendants/Cross-Plaintiffs

the Regents of the University of Michigan,

the Board of Trustees of Michigan State

University and the Board of Governors of

Wayne State University

______________________________________________________/

CERTIFICATE OF SERVICE

I hereby certify that on December 11, 2006, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to the following: George B. Washington and Shanta Driver, SCHEFF & WASHINGTON, PC, 645 Griswold, Suite 1817, Detroit, MI 48226 and I hereby certify that I have mailed by United States Postal Service the paper to the following non-ECF participants: Michelle M. Rick, Deputy Legal Counsel, Office of Legal Counsel, State of Michigan, Office of the Governor, PO Box 30013, Lansing, MI 48909.
___/s/__Leonard M. Niehoff______ 350 S. Main Street, Suite 300 Ann Arbor, MI 48104 (734) 213-3625 niehoff@butzel.com P36695
162965

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 Case 2:06-cv-15024-DML-RSW Document 24 Filed 12/17/2006 Page 1 of 24

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et. al.,

Plaintiffs, vs.

Case No. 2:06-cv-15024 Hon David M. Lawson Magistrate Judge R. Steven Whalen

JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, and the TRUSTEES OF any other public college or university, community college, or school district, MICHAEL COX, in his official capacity as Attorney General of the State of Michigan,

Defendants.

And

REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY,

Cross Plaintiff

vs.

JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan, and MICHAEL COX, in his official capacity as Attorney General of the State of Michigan,

Cross Defendants. _________________________________________________________________________

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 2:06-cv-15024-DML-RSW Document 24 Filed 12/17/2006 Page 2 of 24

George B. Washington (P 26201) Shanta Driver (P65007) SCHEFF & WASHINGTON, P.C. Attorneys for Plaintiffs 645 Griswold--Ste 1817 Detroit, MI 48226 313-963-1921

BUTZEL LONG, P.C. Leonard M. Niehoff (P36695) Philip J. Kessler (P15921) Christopher M. Taylor (P63780) 350 S. Main Street, Suite 300 Ann Arbor, MI 48104 734-995-3110 Attys for Regents of the University of Michigan, Board of Trustees of Michigan State University, and Board of Governors of Wayne State University

James E. Long (P53251)

Margaret A. Nelson (P30342)

Brian O. Neill (P63511)

Heather S. Meingast (P55439)

Michigan Department of the

Joseph E. Potchen (P49501)

Atty General

Michigan Department of the

Attys. For Jennifer Granholm

Atty General

P.O. Box 30758

P.O. Box 30736

Lansing, MI 48909

Lansing, MI 48909

517-373-1111

517-373-6434

Attys for Michael Cox

_________________________________________________________________________

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Pursuant to the Federal Rules of Civil Procedure, the plaintiffs, by and through

their attorneys, Scheff & Washington, P.C., state as follows:

INTRODUCTION

1. Having gotten on the ballot through what was identified by Federal District

Court Judge Arthur Tarnow as “systematic voter fraud,” Proposal 2 threatens to deny

minorities and women equal access to the political process, to resegregate the finest public

universities in the state in violation of Title VI and VII of the of the Civil Rights Act, and

to suspend the First Amendment rights of the University of Michigan so recently asserted

by the United States Supreme Court in Grutter v. Bollinger, 439 US 306 (2003).

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2. Proposal 2 would never have made it to the ballot without systematic voter fraud that was specifically targeted against black voters. This fraud proceeded to a vote, despite the fact that it had been thoroughly documented in a one-thousand page report of the Michigan Civil Rights Commission and in the decision of the Honorable Arthur Tarnow of this District Court.
3. On November 7, 2006, white voters in Michigan, by nearly a two-to-one majority, overrode the opposition of over 85 percent of black voters to approve Proposal 2, which, if implemented, will deepen segregation and racial polarization in Michigan for years to come.
4. Michigan’s black and Latino/a communities, a mere seventeen percent of the total electorate, know that the passage of Proposal 2 relied on deceit, prejudice, and fear. The capacity of the government to defend their basic right to equal treatment, justice and full citizenship has been called into question.
5. The circumscribing of fundamental democratic rights of black and other minority people carried out in the electoral process, cannot be extended to deny Michigan’s black, Latino/a and other minority people and women the fundamental right to equal protection in the political process, to equal opportunities to attend their public universities and to become doctors, lawyers, engineers, or astronauts, and to be afforded on an equal basis the just desserts of the community they have contributed so fully to creating.
6. The plaintiffs, who are students, applicants and prospective applicants at the defendant universities, as well as organizations who have fought against Proposal 2, assert that both on its face and as applied Proposal 2 violates the following federal laws:
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A. In violation of the Equal Protection Clause, Proposal 2 has created a political structure that discriminates on account of race, national origin and gender. Alumni, residents of the State, residents of particular areas of the State, veterans, lesbians and gay men and a host of other groups may continue to petition the faculties and administrations of the defendant universities for preferences in admissions. Racial and national minorities and women alone must, however, secure an amendment to the Constitution before they may petition for what are misleadingly called “preferences” in admissions.
B. In violation of the ban on racial discrimination contained in Title VI of the Civil Rights Act of 1964, 42 USC 2000d, Proposal 2 requires the defendant universities to apply grades, test scores and other admission criteria in rigid ways. These criteria encapsulate and magnify the inequalities caused by separate and unequal education. When applied rigidly and without considering the race or national origin of the applicant, these criteria inevitably result in a vast drop in the admissions of racial and national minorities. As such a drop prevents compliance with the terms, purposes and objectives of Title VI and of the regulations enforcing Title VI, Title VI preempts Proposal 2 under the Supremacy Clause of the Constitution of the United States.
C. In violation of the ban on sex discrimination contained in Title IX of the Education Amendments of 1972, Proposal 2 requires the defendant universities to abandon targeted recruiting and special admission and other programs designed to encourage women to enter careers in mathematics, science, engineering and other fields where women have been excluded or vastly underrepresented. As this prevents compliance with
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the terms, purposes and objectives of Title IX, Title IX preempts Proposal 2 under the Supremacy Clause of the Constitution of the United States.
D. In violation of the ban on discrimination in employment contained in Title VII of the Civil Rights Act of 1964, 42 USC 2000e-l, and the mandate for affirmative action contained in Executive Order 11246, Proposal 2 requires the defendant universities to abandon the lawful, voluntary programs of affirmative action in recruiting, hiring and promoting employees which have been so essential to overcoming discrimination in hiring, especially in teaching and other professional positions. Title VII and Executive Order 11246 therefore preempt Proposal 2 under the Supremacy Clause of the Constitution of the United States.
E. In violation of the First Amendment right of the defendant universities to select their students and their teaching staff, Proposal 2 limits the universities’ right to select their students and teachers in the crucial areas of race, national origin and gender. The Proposal therefore violates the First Amendment rights of the universities and the First Amendment rights of the students who attend those universities.
7. The plaintiffs assert that both on its face and as applied Proposal 2 deprives them of rights, privileges and immunities arising under the laws of the United States, in violation of 42 USC 1983. They accordingly seek declaratory and injunctive relief, attorneys’ fees and costs, and such further relief as is just and equitable.
JURISDICTION AND VENUE 8. This Court has jurisdiction over this matter pursuant to 28 USC 1331 and 28 USC 1343(3).
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9. The United States District Court for the Eastern District of Michigan is a proper venue for this action, as a substantial part of the events or omissions giving rise to this action occurred in the Eastern District of Michigan.
PARTIES 10. The plaintiff Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) is a voluntary unincorporated association organized for the purpose of building a new civil rights movement and opposing attacks upon affirmative action. 11. The plaintiff United for Equality and Affirmative Action Legal Defense Fund (UEAALDF) is a non-profit corporation organized to provide legal defense and education. It was established by BAMN to conduct the legal defense of our nation’s civil rights. 12. The plaintiff Rainbow PUSH Coalition is a voluntary unincorporated association organized for the purpose of promoting education and participation in American democracy and civil rights. 13. The plaintiffs Beautie Mitchell and Christopher Sutton are black high school seniors in Detroit who are applying for admission to the defendant University of Michigan. 14. The plaintiff Stasia Brown is a black high school senior at Oak Park High School who is an applicant for admission to the defendant University of Michigan. 15. The plaintiff Josie Hyman is a black resident of Detroit and one of the few black graduates from the University of California at Berkeley in 2005. Ms. Hyman is in the process of applying for law school at the defendant University of Michigan and Wayne State Universities.
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16. The plaintiff Alejandra Cruz is a Latina resident of Detroit and one of the few Latino/a graduates from the University of California at Berkeley in 2006. Ms. Cruz is in the process of applying for law school at the defendant University of Michigan and Wayne State Universities.
17. The plaintiffs Turquoise Wise-King and Shanae Tatum are currently black students at Henry Ford Community College and Wayne Community College, respectively, and are planning to apply to the defendant universities and to live and work in Michigan in the future.
18. The plaintiffs Calvin Jevon Cochran, Lashelle Benjamin, Deneshea Richey, Michael Gibson, Laquay Johnson, Brandon Flannigan, Kahleif Henry, Kevin Smith, Kyle Smith, Paris Butler, Touissant King, Aiana Scott, Allen Vonou, Randiah Green, Brittany Jones, Courtney Drake, Matthew Griffith, Lacrissa Beverly, D’shawn Featherstone, Danielle Nelson, Julius Carter, Williams Frazier, and Dante Dixon are black high school students in Michigan who plan to apply to the defendant universities and to attend college and to work and live in Michigan in the future.
19. The plaintiffs Candice Young, Tristan Taylor, and Jerell Erves are black students and graduates who plan to apply to the graduate or professional schools of the defendant universities.
20. The plaintiff Maricruz Lopez is a Latina student at the University of Michigan and the chair of the Defend Affirmative Action Party. She plans to apply for admission to the graduate or professional programs of the defendant universities.
21. The plaintiff Issamar Camacho is a Latina high school student from Los Angeles California who intends to apply for admission at the defendant universities.
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22. The plaintiff Adarene Hoag is a white graduate of the University of California at Berkeley who plans to apply to the graduate and professional schools of the defendant universities.
23. The plaintiff Joseph Henry Reed was a petition circulator for Proposal 2. 24. The plaintiffs AFSCME Local 207, AFSCME Local 214, AFSCME Local 312, AFSCME Local 836, AFSCME Local 1642, AFSCME Local 2920, are labor organizations with large minority memberships who stand to suffer discrimination in the absence of affirmative action. 25. The plaintiff Defend Affirmative Action Party is a voluntary student political organization on the University of Michigan student government. 26. The defendant Jennifer Granholm is the Governor of Michigan and is sued in her official capacity. 27. The defendant Regents of the University of Michigan is the duly elected governing board of the University of Michigan. 28. The defendant Board of Trustees of Michigan State University is the duly elected governing board of Michigan State University. 29. The defendant Board of Governors of Wayne State University is the duly elected governing board of Wayne State University. 30. The intervening defendant Michael Cox is the Attorney General of the State of Michigan and is sued in his official capacity.
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STATEMENT OF FACTS A. Facts regarding the applicants to the defendant universities. 31. Michigan is and has been for many years one of the five most racially segregated states in the Nation. 32. Segregation in education is especially intense in Michigan. More than eighty-three percent of black students are in segregated majority-minority schools. Sixtyfour percent of black students are in intensely-segregated schools (90-100% black). 33. Segregated schools are overcrowded, under-resourced, offer less advanced placement courses, and are increasingly being deprived of music, art, athletic, and afterschool programs. 34. Intensely-segregated schools have more concentrated poverty than poor white schools. 35. The plaintiffs named in paragraphs 13, 14, and 18 and almost all of the black, Latino/a, and Native American students from Michigan who apply to the defendant universities have thus attended separate and unequal elementary and secondary schools. 36. The plaintiff Issamar Camacho attends Roosevelt High School in Los Angeles, one of the largest high schools in the nation. Roosevelt High School is 99 percent Latino/a. Segregated education for Latino/a students is an increasing phenomenon in the nation, and almost all Latino/a, black, and Native American students from other states that apply to the defendant universities have attended separate and unequal elementary and secondary schools.
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37. The few black, Latino/a and Native American students who attend integrated schools are frequently tracked, confronted by racially hostile environments, and otherwise deprived of the benefits of an equal elementary and secondary education.
38. As a direct and proximate result of the facts set forth in the preceding four paragraphs, the plaintiffs named in paragraphs 13, 14, 18 and 21 and almost all black, Latino/a and Native American students who apply to the defendant universities have on average lower median grade point averages and less advanced training than the average of the white students who apply.
39. The standardized tests used by the defendant universities to measure applicants for admission—including especially the SAT and the ACT tests—have a discriminatory impact upon black, Latino/a and Native American students, both because they capture the educational inequality set forth above and because they magnify that inequality by culturally-biased questions, test-taking conditions, access to test preparation courses, the test question selection process, and stereotype threat.
40. As a direct and proximate result of the facts set forth in the preceding paragraph, the plaintiffs named in paragraphs 13 through 21 and almost all black, Latino/a and Native American students, on average, score lower on standardized tests than do their white counterparts. These tests are used by all three defendant universities in making admissions decisions.
41. Josie Hyman, Alejandra Cruz, and Maricruz Lopez, who have been admitted into the defendant universities and other universities, have attempted to overcome the inequalities described above.
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42. Black, Latina/o, and Native American students have experienced a hostile environment at majority-white campuses, greater financial pressures, and a host of other factors. Even when they have performed outstandingly at such universities, their grades have suffered from the discrimination they have endured.
43. As with the SAT and ACT tests, the LSAT, GRE and similar tests used to decide admissions into graduate and professional schools both capture and magnify the educational inequalities that black, Latino and Native American students face.
44. The lower median grade point averages and test scores for black, Latino/a and Native American applicants exist across all economic classes. The average test scores of high-income black and Latina/o students are lower than those of low-income white students.
45. Because of the intensity of racial and national inequality, the black, Latino/a and Native American applicants have lower median grade point averages and test scores than white students from equivalent economic backgrounds.
46. As a direct and proximate result of the facts set forth in the preceding paragraphs, the black, Latino/a and Native American students and almost all similar students who apply to the graduate and professional schools of the defendant universities have lower grade point averages and test scores than the white students who apply.
B. The defendant universities’ admission systems. 47. From the Michigan Constitution of 1850 forward, the faculties and administrations of the various schools and colleges in the defendant universities have established the criteria for selecting applicants for admission.
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48. Before the advent of affirmative action, the various schools and colleges of the defendant universities admitted students based upon a rigid application of grade point averages, test scores, and other criteria which denied black, Latina/o, and other minority students an equal opportunity to attend.
49. As a direct and proximate result of that system applied to the applicant pool described above, the schools and colleges of the various universities admitted almost no black, Latino or Native American students before the advent of affirmative action.
50. The University of Michigan Law School, for example, graduated approximately 2,000 white students in the 1960s and only eight black students during the same period.
51. The growth of the Civil Rights Movement, the antiwar movement, and intense student struggles led to political debate on admissions policies at the various campuses. The decision of the faculties and administrations of many of the schools and colleges in the defendant universities to adopt affirmative action programs was an outgrowth of this debate.
52. Affirmative action policies desegregated the defendant universities and, for the first time, gave minority and, in some instances, women students not only access to a university, professional and graduate education, but also to the process of shaping the educational institutions themselves.
53. The affirmative action plans differed in details, but in general they (a) placed a less rigid reliance on criteria that encapsulated discrimination like grade point averages and tests, (b) considered the race or national origin of the student in evaluating his or her qualifications, including test scores and grades, and (c) placed more reliance on
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interviews, recommendations and similar factors that were used to evaluate the abilities of the applicants, including especially the applicants from racial and national minorities.
54. As a direct and proximate result of the affirmative action plans, the number of black, Latino/a and Native American students rose dramatically at each of the defendant universities, including in essentially all of the schools at those universities.
C. Proposition 209. 55. In 1996, the electorate of the State of California passed Proposition 209, from which Michigan’s Proposal 2 is copied word-for-word. 56. As interpreted by its sponsors and by the government and courts of California, Proposition 209 banned granting any “preference” to black, Latino/a, Native American and other students in admissions to the universities of that State. 57. Under Proposition 209, the universities in California have been forced to return to a rigid use of grade point averages and test scores without any consideration of the race or national origin of a student. 58. As a result of Proposition 209, the enrollment of black, Latino/a and Native American students has fallen dramatically at the flagship universities in California, including, in particular at the University of California at Berkeley and the University of California at Los Angeles, especially when that enrollment is considered, as it must be, in relation to the fast-growing populations of young black and especially Latino/a people in the state. 59. As black, Latino/a and Native American students have been forced out of the flagship campuses of the University of California system, those able to attend college
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have been forced into the less selective schools in the University of California and California State systems.
60. After ten years of Proposition 209, higher education in California is becoming a two-tier resegregated system.
D. Proposal 2. 61. In Grutter, the United States Supreme Court approved the affirmative action plan at the University of Michigan Law School. 62. The University of Michigan Law School plan considered the race of applicants as a means to assure diversity and it specifically did not require a rigid application of grade point averages, test scores and similar criteria in admitting incoming students. 63. Immediately after the Grutter decision, Ward Connerly and the Michigan Civil Rights Initiative announced a petition drive to amend the Constitution of the State of Michigan. 64. As set forth in a decision by the Honorable Arthur Tarnow of this Court, the MCRI proposal obtained a place on the general election ballot by a massive campaign of fraud characterized by soliciting signatures on its petition by telling blacks and liberal whites that the proposed amendment supported affirmative action. 65. On November 7, 2006, sixty-five percent of white voters of Michigan voted for Proposal 2, while eighty-five percent of black and Latino/a voters voted against it. 66. By their votes, the white voters of Michigan for the first time placed restrictions on the admission policies of the defendant universities.
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67. By their votes, the white voters of Michigan purported to exclude those black, Latino/a and Native American students whom they believed had received “preference” for admission to the defendant universities.
68. As in California, the proponents of Proposal 2 assert that the elimination of “preference” requires the rigid application of the grades, test scores and other applicable criteria without any consideration of race, national origin or gender.
69. The failure to evaluate those criteria in light of the race, national origin or gender will result in a dramatic drop in the enrollment of black, Latino/a and Native American students in the various schools of the defendant universities.
70. The University of Michigan, for example, has estimated that there will be an immediate fall of 80 percent in the number of black, Latino/a and Native American students admitted to its Law School, with a further decline in later years as fewer students from underrepresented minorities are admitted to undergraduate institutions.
E. Affirmative action in employment. 71. For reasons analogous to the conditions of underrepresented minority students, prior to the advent of affirmative action, minority applicants for employment at academic institutions, particularly in the teaching and professional positions, were essentially unable to secure employment in the defendant universities. 72. With the adoption of affirmative action policies, the defendant universities have dramatically increased the number of black, Latino/a and Native American faculty members, administrators and employees.
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73. By banning affirmative action in employment, however, Proposition 209 resulted in a one-third drop in female faculty hiring in the University of California from which the University has not fully recovered.
74. By banning affirmative action in employment, Proposal 2 will have the same effect on hiring in the defendant universities.
F. Conclusion. 75. As written and as applied, Proposal 2, like Proposition 209 in California, will result in the creation of a two-tier system of higher education Michigan in which the most selective undergraduate schools and almost all of the graduate and professional schools will be almost all white and in which black, Latino/a and Native American students will be forced to attend public institutions with less resources, less connections, and less possibility of providing an equal future for their students.
COUNT ONE RACIAL AND OTHER DISCRIMINATION IN THE STRUCTURE OF GOVERNMENT IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT 76. Proposal 2 establishes classifications in the structure of government based on race, national origin and gender in violation of the Equal Protection Clause of the Fourteenth Amendment. 77. Under Proposal 2, veterans, residents of the State, residents of particular areas of the State, alumni, persons who attend particular high schools or colleges and numerous other groups may petition the faculty and administration at the defendant universities for changes in admission and hiring criteria, including “preferences” for members of any of those groups.
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78. Under the regime established by Proposal 2, however, racial minorities, students or applicants from particular national origins, and women may not petition the faculty and administration at the defendant universities for changes in admission and hiring that either are or could be labeled as “preferences.”
79. In particular, racial and national minorities and women may not petition the faculties and administrations for affirmative action programs in admissions or employment that are lawful under the decisions of the United States Supreme Court even though every other group may petition for any form of lawful action that will benefit their particular interest.
80. In order to secure lawful changes in admission or employment practices, racial minorities, persons of particular national origins, and women may now seek relief only by mounting a statewide campaign to amend the Constitution of the State of Michigan to eliminate Proposal 2.
81. By essentially eliminating the right of underrepresented minorities and women to petition for lawful affirmative action plans by the same means that others petition for a redress of their grievances, Proposal 2 has denied black, Latino/a, Native American and other citizens, as well as women of all races, of the “rights, privileges and immunities” secured by the Equal Protection Clause and by the Constitution and laws of the United States.
82. By these acts, Proposal 2 violates 42 USC 1983, and causes great damage to the plaintiffs and the other citizens of the United States.
Wherefore, the plaintiffs ask that this Court enter preliminary and permanent injunctive and declaratory relief restraining the defendants from implementing
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Proposal 2 and awarding to the plaintiffs such further relief as is just and equitable, including the attorneys’ fees and costs of this action.
COUNT TWO PREEMPTION BY TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 83. The defendant universities receive massive amounts of federal aid to support students, faculties, facilities and virtually every aspect of the university. 84. In an effort to end racial and national origin segregation in public schools, college, universities and other public services, Congress prohibited discrimination on account of race or national origin in any program or activity that received federal financial assistance: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 USC 2000d. 85. To enforce that mandate, Congress provided that each federal department and agency that extended financial assistance should issue rules, that were not effective until approved by the President of the United States, to assure that the recipients of federal assistance follow policies that are consistent with the federal mandate of nondiscrimination. 42 USC 2000d-1. 86. Acting pursuant to that Congressional authorization, the Department of Education has promulgated rules that prohibit the defendant universities from utilizing criteria that have the effect of subjecting individuals to discrimination or that have the effect of substantially impairing accomplishment of the program’s objectives as respects individuals of a particular race, color or national origin:
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A recipient, in determining the types of services, financial aid, or other benefits or facilities that will be provided under any such program, or the class of individuals to whom….such services, financial aid, other benefits, or facilities will be provided under any such program, may not, directly or through contractual arrangements, utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color or national origin. 34 CFR 100.3(b)(2). 87. As demonstrated by the experience in California and by the facts set forth above, Proposal 2’s ban on any “preference” in the use of grade point averages, test scores and similar criteria has resulted and will result in a devastating decline in the number of black, Latino/a and Native American students, in direct violation of the purpose of Title VI and of the specific prohibitions of the regulations that implement Title VI. 88. In requiring the defendant universities to abandon any “preferences” in the evaluation of test scores, grade point averages or any similar criteria, Proposal 2 makes compliance with both Title VI and Proposal 2 a physical impossibility. 89. In requiring the defendant universities to abandon any “preferences” in the evaluation of test scores, grade point averages or any similar criteria, Proposal 2 also stands as an obstacle to the accomplishment of the purposes of Title VI of the Civil Rights Act of 1964. 90. Title VI preempts Proposal 2 under the Supremacy Clause of the Constitution of the United States.
Wherefore, the plaintiffs ask that this Court enter preliminary and permanent injunctive and declaratory relief restraining the defendants from implementing Proposal 2 and awarding to the plaintiffs such further relief as is just and equitable, including the attorneys’ fees and costs of this action.
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COUNT THREE PREEMPTION BY TITLE IX OF THE EDUCATION AMENDMENTS OF 1972 91. With certain exceptions not here relevant, Title IX of the Education Amendments of 1972 prevented discrimination on account of sex by any recipient of federal financial assistance: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance… 20 USC 1681(a). 92. Like Title VI, Title IX authorized the federal agencies disbursing financial assistance to promulgate regulations to carry out its mandate. 20 USC 1682. 93. The regulations promulgated under Title VI prohibit recipients of federal assistance from administering any test or using any criterion for admission which has the effect of discriminating against persons on account of their sex, 34 CFR 106.21, and require in some circumstances and authorize in all circumstances special recruitment and other efforts to encourage participation of women in colleges, graduate and professional schools from which women have traditionally been excluded. 34 CFR 106.23. 94. In requiring the defendant universities to abandon any “preferences” in the evaluation of test scores, grade point averages or any similar criteria, Proposal 2 stands as an obstacle to the accomplishment of the eliminating admissions criteria which have the effect of discriminating on account of sex, as required by Title IX and the regulations implementing Title IX. 95. Title VI therefore preempts Proposal 2 under the Supremacy Clause of the Constitution of the United States.
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Wherefore, the plaintiffs ask that this Court enter preliminary and permanent injunctive and declaratory relief restraining the defendants from implementing Proposal 2 and awarding to the plaintiffs such further relief as is just and equitable, including the attorneys’ fees and costs of this action.
COUNT FOUR PREEMPTION BY TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 96. In Title VII of the Civil Rights Act of 1964, the Congress of the United States prohibited discrimination on account of race, color, national origin and gender in the employment within the United States. 97. By the amendments of 1972, Congress made Title VII applicable to the states and their subdivisions, including the defendant universities. 98. Title VII was intended as a spur and catalyst to cause employers to reexamine their employment practices and to eliminate, insofar as it is practical, the vestiges and current practices of discrimination. 99. In furtherance of the purposes of Title VII, the defendant universities may, and in some cases, must take race- and gender-conscious steps to eliminate discrimination on account of race, national origin or gender in their employment practices, including but not limited to their practices for choosing employees for positions on the faculty and in the administration of the defendant universities. 100. In requiring the defendant universities to abandon any “preferences” in their employment practices, Proposal 2 stands as an obstacle to the voluntary efforts required and allowed in order to accomplish the purposes of Title VII of the Civil Rights Act of 1964.
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101. Title VII preempts Proposal 2 under the Supremacy Clause of the Constitution of the United States.
Wherefore, the plaintiffs ask that this Court enter preliminary and permanent injunctive and declaratory relief restraining the defendants from implementing Proposal 2 and awarding to the plaintiffs such further relief as is just and equitable, including the attorneys’ fees and costs of this action.
COUNT FIVE VIOLATION OF THE FIRST AMENDMENT 102. The United States Supreme Court, in its landmark June 23, 2003 decision in Grutter, affirmed the defendant universities’ First Amendment right to select their students and teaching staff and to determine their academic standards. 103. As prospective students at the defendant universities, the plaintiffs stand as beneficiaries of these First Amendment rights when they seek admission to the defendant universities. 104. As students at the defendant universities, the plaintiffs stand as further beneficiaries of these First Amendment rights because of the academic freedom and the educational benefits of the integrated and diverse student body produced by the admission policies of the defendant universities. 105. For the first time in the history of the State of Michigan Proposal 2 invades the First Amendment rights of the defendant universities to select their student bodies and their teaching staff in ways that the educational authorities have deemed most appropriate. 106. Moreover, Proposal 2 invades the First Amendment rights of the defendant universities in one area and one area alone: their right to seek diversity through the admission of students of diverse races and national origins and from both genders.
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107. In invading the First Amendment rights of the universities on those matters alone, Proposal 2 violates the First Amendment rights of the universities and of the students who attend those universities.
WHEREFORE, the plaintiffs ask for declaratory relief that Proposal 2 violates the First Amendment and injunctive relief restraining the defendant universities from changing their admission or other policies in an attempt to comply with Proposal 2, for attorneys’ fees and costs, and for such further relief as is just and equitable.
By Plaintiffs’ Attorneys, SCHEFF & WASHINGTON, P.C.

Dated: December 17, 2006

BY: /s/George B. Washington_______ George B. Washington (P-26201) Shanta Driver (P-65007) 645 Griswold—Ste 1817 Detroit, Michigan 48226 (313) 963-1921 (313) 407-4865

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CERTIFICATE OF SERVICE

I hereby certify that on December 17, 2006, I electronically filed the Plaintiffs’

First Amended Complaint which will automatically send notification of filing to:

James E. Long (P53251) Brian O. Neill (P63511) Michigan Department of the
Atty General Attys. For Jennifer Granholm P.O. Box 30758 Lansing, MI 48909

Margaret A. Nelson (P30342) Heather S. Meingast (P55439) Joseph E. Potchen (P49501) Michigan Department of the
Atty General P.O. Box 30736 Lansing, MI 48909 Attys for Michael Cox

BUTZEL LONG, P.C. Leonard M. Niehoff (P36695) Philip J. Kessler (P15921) Christopher M. Taylor (P63780) 350 S. Main Street, Suite 300 Ann Arbor, MI 48104 Attys for Defendant Universities niehoff@butzel.com

Dated: December 17, 2006

/s/George B. Washington______ George B. Washington (P-26201) SCHEFF & WASHINGTON, P.C. 645 Griswold—Ste 1817 Detroit, Michigan 48226 (313) 963-1921 scheff@ameritech.net

24

 
 2:06-cv-15024-DML-RSW Doc # 107 Filed 05/15/07 Pg 1 of 29 Pg ID 1137

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, et al.,

Plaintiffs,
v.
JENNIFER GRANHOLM, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, MICHAEL COX, ERIC RUSSELL, and the TRUSTEES of any other public college or university, community college or school district,

Case No. 06-15024 Hon. David M. Lawson
CONSOLIDATED CASES

Defendants.

- and -
CHASE CANTRELL, et al., Plaintiffs,
v. JENNIFER GRANHOLM, in her Official Capacity as Governor of the State of Michigan,
Defendant.

Case No. 06-15637 Hon. David M. Lawson

MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF LEAD COUNSEL
Plaintiffs Chase Cantrell, et al. (the “Cantrell Plaintiffs”) respectfully
move for this Court to certify a plaintiff class in the above-captioned matter. The
Proposed Class is comprised of individuals who (1) are present or future students or

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faculty at the University of Michigan, who (2) applied to, matriculated at, or continue to be enrolled at or employed by the University of Michigan in reliance upon the University’s representation that it would continue to admit and enroll a diverse group of students at the school consistent with its former policies, which took race into account among other factors. (First Amended Complaint ¶ 31.) Further individuals will enter the class as they meet the class definition. The Cantrell Plaintiffs also request that Counsel for the Cantrell Plaintiffs be named lead counsel for the class upon certification. In support of this motion, the Cantrell Plaintiffs submit the accompanying Memorandum of Law and the declarations of plaintiffs Rachel Quinn (“Quinn Decl.”), Casey R. Kasper (“Kasper Decl.”), Bryon Maxey (“Maxey Decl.”), Chase Cantrell (“Cantrell Decl.”), Sergio Eduardo Munoz (“Munoz Decl.”), Joshua Kay (“Kay Decl.”), Kathleen Canning (“Canning Decl.”), Sheldon Johnson (“Johnson Decl.”), Matthew Countryman (“Countryman Decl.”), Rosario Ceballo (“Ceballo Decl.”) and counsel Mark D. Rosenbaum, Esq., (“Rosenbaum Decl.”), Karin A. DeMasi, Esq., (“DeMasi Decl.”), and Melvin Butch Hollowell, Esq., (“Hollowell Decl.”), with exhibits.
Pursuant to Eastern District of Michigan Local Rule 7.1, movants conferred or attempted to confer with counsel for the parties via email. Counsel for Defendant Attorney General Cox and Defendant-Intervenor Eric Russell do not consent to the motion. The other parties have not taken a position on the motion.
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MEMORANDUM OF LAW IN SUPPORT OF CHASE CANTRELL ET AL.’S MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF LEAD
COUNSEL Issues Presented I. Should the Court certify a plaintiff class of individuals who (1) are present or future students or faculty at the University of Michigan, who (2) applied to, matriculated at, or continue to be enrolled at or employed by the University of Michigan in reliance upon the University’s representation that it would continue to admit and enroll a diverse group of students at the school consistent with its former policies, which took race into account among other factors? II. If the Motion for Class Certification is granted, should the Court appoint counsel for the Cantrell Plaintiffs as lead counsel for the certified class? Leading Authorities Fed. R. Civ. P. 23
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Table of Contents Page
Issues Presented ................................................................................................................. iii Leading Authorities ........................................................................................................... iii Table of Authorities .............................................................................................................v Preliminary Statement..........................................................................................................1 Statement of Facts................................................................................................................3 Argument .............................................................................................................................4 I. THE PROPOSED CLASS MEETS THE REQUIREMENTS FOR CLASS
CERTIFICATION OF FEDERAL RULE 23(a). ........................................................5 A. The Class Is so Numerous that Joinder of all Members Is Impracticable................................................................................................5 B. There Are Questions of Law and Fact Common to the Class......................8 C. The Claims or Defenses of the Representative Parties Are Typical of the Claims or Defenses of the Class. .......................................................9 D. The Representative Parties Will Fairly and Adequately Represent the Interests of the Class. ...........................................................................11
II. THE PROPOSED CLASS MEETS THE REQUIREMENTS FOR CLASS CERTIFICATION OF FEDERAL RULE 23(b). ......................................................13
III. THE COURT SHOULD APPOINT COUNSEL FOR THE CANTRELL PLAINTIFFS AS LEAD COUNSEL TO THE PLAINTIFF CLASS.......................14
Conclusion .........................................................................................................................16
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Table of Authorities

Page(s)

Cases Baby Neal v. Casey, 43 F.3d 48 (3rd Cir. 1994)................................................................. 8 Beattie v. CenturyTel, Inc., 234 F.R.D. 160 (E.D. Mich. 2006) ......................................... 9 Bittinger v. Tecumseh Prod. Co., 123 F.3d 877 (6th Cir. 1997)......................................... 6 Cervantes v. Sugar Creek Packing Co., Inc., 210 F.R.D. 611 (S.D. Ohio
2002) .............................................................................................................................. 7 Coal. to Defend Affirmative Action v. Granholm, No. 06-15024 ....................................... 3 Craft v. Memphis Light, Gas and Water Div., 534 F.2d 684 (6th Cir. 1976) ................... 14 Crawford v. TRW Automotive U.S., No. 06-14276, 2007 WL 851627 (E.D.
Mich. Mar. 21, 2007) ..................................................................................................... 6 Daffin v. Ford Motor Co., 458 F.3d 549 (6th Cir. 2006).................................................... 5 Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410 (6th Cir. 1998).................................... 8 Gasperoni v. Metabolife Int'l, Inc., No. 00-71255, 2000 WL 33365948
(E.D. Mich. Sept. 27, 2000) ........................................................................................... 5 Glover v. Johnson, 85 F.R.D. 1 (E.D. Mich. 1977) .................................................... 10, 14 Gratz v. Bollinger, No. 97-CV-75231-DT (E.D. Mich. Dec. 23, 1998)........................... 14 In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996)................................................. 6, 9 In re Delphi Erisa Litig., 230 F.R.D. 496 (E.D. Mich. 2005)........................................... 15 Int'l Union v. Ford Motor Co., No. 0574730, 06-10331, 2006 WL
1984363 (E.D. Mich. July 13, 2006)............................................................................ 11 IUE-CWA v. Gen. Motors Corp., 238 F.R.D. 583 (E.D. Mich. 2006)................................ 7 McGee v. E. Ohio Gas Co., 200 F.R.D. 382 (S.D. Ohio 2001) .................................... 4, 14 Olden v. LaFarge Corp., 203 F.R.D. 254 (E.D. Mich. 2001)....................................... 9, 13 Olden v. LaFarge Corp., 383 F.3d 495 (6th Cir. 2004).................................................... 13
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Rodriguez v. Berrybrook Farms, Inc., 672 F. Supp. 1009 (W.D. Mich. 1987) .............................................................................................................................. 7
Roman v. Korson, 152 F.R.D. 101 (W.D. Mich. 1993) ...................................................... 7 Rutherford v. City of Cleveland, 137 F.3d 905 (6th Cir. 1998) ........................................ 10 Senter v. Gen. Motors Corp., 532 F.2d 511 (6th Cir. 1976) ................................... 8, 11, 13 Snow v. Atofina Chem., No. 01-72648, 2006 WL 1008002 (E.D. Mich.
March 31, 2006) ....................................................................................................... 8, 10 Sprague v. Gen. Motors Corp., 133 F.3d 388 (6th Cir. 1998).......................................... 10 UAW v. General Motors Corp., No. 05-CV-73991, 2006 WL 891151
(E.D. Mich. Mar. 31, 2006)............................................................................................ 8 Van Vels v. Premier Athletic Ctr. of Mainfield, Inc., 182 F.R.D. 500 (W.D.
Mich. 1998) .............................................................................................................. 9, 13
Statutes & Rules Eastern District of Michigan Local Rule 7.1 ...................................................................... ii Federal Rule of Civil Procedure 23 ........................................................................... passim Mich. Const. Art. I, § 26 ..................................................................................................... 3
Other Authorities 5 James Wm. Moore et al., Moore’s Federal Practice, 23.229[1][B] (2d ed.
1988) .............................................................................................................................. 5 Diversity and Inclusion at MSU After Proposal 2: Frequently Asked
Questions, updated January 23, 2007, available at http://president.msu.edu/prop2 response/faqs/index.php?faqs ...................................... 4 Herbert Newberg & Alba Conte, Newberg on Class Actions, § 3:5 (4th ed. 2002) .............................................................................................................................. 5 Press Release, Mary Sue Coleman, President & Teresa A. Sullivan, Provost, University of Michigan, Proposal 2 Next Steps (Jan. 10, 2007) available at http://www.umich.edu/pres/speeches/070110prop2.html.......................... 4 University of Michigan, Fast Facts, n.d. available at http://www.admissions.umich.edu/fastfacts.html ...................................................... 3, 6
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2:06-cv-15024-DML-RSW Doc # 107 Filed 05/15/07 Pg 7 of 29 Pg ID 1143 University of Michigan, History of U-M, last updated Nov. 16, 2006, available at http://www.umich.edu/~info/............................................................. 3, 6, 7 University of Michigan, U-M Fact Sheet, last updated Oct. 25, 2006, available at http://www.umich.edu/~info/................................................................. 3, 6 Wayne State University Law School Admissions Standards and Procedures, Effective Dec. 22, 2006, available at http://www.law.wayne.edu/docs/Admissions%20Policy--12-06-06.pdf....................... 4
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Preliminary Statement Plaintiffs Chase Cantrell et al. (“Cantrell Plaintiffs”) bring this case to address the unconstitutional burden imposed by proposed Michigan Constitutional Amendment 06-02 (“Proposal 2”), now enacted as Article I, § 26 of the Michigan Constitution of 1963. (First Amended Complaint, “Compl.” ¶ 39.) That statute imposes an unconstitutional race-based burden on tens of thousands of students, faculty members, and prospective students by creating a uniquely burdensome political process for those who support race- or gender-based affirmative action programs at public universities in Michigan. The Cantrell Plaintiffs seek to represent a class of individuals (the “Proposed Class”) who (1) are present or future students or faculty at the University of Michigan, who (2) applied to, matriculated at, or continue to be enrolled at or employed by the University of Michigan in reliance upon the University’s representation that it would continue to admit and enroll a diverse group of students at the school consistent with its former policies, which took race into account among other factors. (Compl. ¶ 31.) The representative Cantrell Plaintiffs include professors employed by the University of Michigan and current students at the University of Michigan.1 (Compl. ¶¶ 9-27.) Each named plaintiff supports policies that include race as one among many factors considered in university admissions decisions but is burdened by the unequal political standards created by Proposal 2, which requires that supporters of such policies procure a state constitutional
1 Certain of the original named plaintiffs in the Cantrell action no longer fit into the class definition because their applications for admission were denied or because they were admitted but have chosen not to attend the University of Michigan. Additional class representatives will be identified when the University of Michigan’s 2007-2008 admissions cycle begins. Should it become necessary to substitute these individuals for the original named plaintiffs, the Cantrell plaintiffs will do so at the appropriate time.

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amendment before the policy can be implemented. (See Compl. ¶¶ 9, 47-56; Quinn Decl. ¶ 3; Kasper Decl. ¶ 4; Maxey Decl. ¶ 3; Cantrell Decl. ¶¶ 4-5; Munoz Decl. ¶ 3; Kay Decl. ¶ 4; Canning Decl. ¶¶ 2-3; Johnson Decl. ¶¶ 2-3; Countryman Decl. ¶ 3; Ceballo Decl. ¶¶ 3, 4.) Additional individuals will enter the class as they meet the class definition.
The Proposed Class meets the requirements of Federal Rule 23, and is well suited for class certification. Proposal 2 affects tens of thousands of students, faculty members, and prospective students from across the country and around the globe. Last year, the University of Michigan enrolled over 40,000 students, employed over 5,500 faculty members, and received more than 25,000 applications from prospective undergraduates alone. Each of these individuals is affected in a substantively identical way by Proposal 2, and the injunctive relief sought by the Cantrell Plaintiffs protects each of them with equal force. (Compl. ¶¶ 59-61.) The Cantrell Plaintiffs are dedicated to the pursuit of this action, and have assembled an exceptional team of practitioners, public interest lawyers, and legal scholars to ensure the best possible representation of the class.
Under these circumstances, individual adjudication of the plaintiffs’ claims is impractical and unnecessary. In fact, Federal Rule 23 was designed specifically for civil rights cases of this sort, “where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.” Fed. R. Civ. P. 23 Advisory Committee Note, 1966 Amendment. The motion for class certification should be granted, and the counsel for the Cantrell Plaintiffs should be designated lead counsel for the class.
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Statement of Facts The University of Michigan was founded in 1817 as one of the first public universities in the nation. It has since become one of America’s largest universities; in the fall of 2006, the University of Michigan had over 40,000 students and employed more than 5,500 faculty members spread across three campuses. The University of Michigan receives thousands of applications for admission each year from individuals who reside in all fifty states and over 100 foreign countries. In 2006, more than 25,000 of these applications were submitted for undergraduate admission alone.2 This case involves Proposal 2, the newly-enacted amendment to the Michigan Constitution. On its face, Proposal 2 purports to ban Michigan’s public universities, which include University of Michigan, from “grant[ing] preferential treatment to . . . any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation . . . of public education.” Mich. Const. Art. I, § 26. By operation of law, Proposal 2 took effect on December 23, 2006, during the middle of the current university admissions cycle. However, the application of Proposal 2 was delayed until December 29, 2007 due to a stipulation of the parties in a related case, Coalition to Defend Affirmative Action, et al. v. Granholm, et al, No. 06-15024, including Governor Jennifer Granholm, Attorney General Michael Cox, the universities and plaintiff civil rights organizations. Defendant Eric Russell was also permitted to intervene in the case to protect his interest in having Proposal 2 applied during the current admissions cycle while his
2 University of Michigan, History of U-M, last updated Nov. 16, 2006, available at http://www.umich.edu/~info/; University of Michigan, Fast Facts, n.d., available at http://www.admissions.umich.edu/fastfacts.html; University of Michigan, U-M Fact Sheet, last updated Oct. 25, 2006, available at http://www.umich.edu/~info/.
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applications for admission to the University of Michigan Law School and Wayne State University Law School were being reviewed.
Shortly after December 29, 2007, the University of Michigan revised its admissions policies to comply with Proposal 2, and announced “that race and gender will have no effect on the decision-making process” except as permitted by limited exceptions contained in Proposal 2.3 Wayne State University Law School and Michigan State University made similar changes.4 On January 5, 2007, this Court consolidated the Coalition and Cantrell cases for all purposes. (Ord. Cons. Cases, Granting Att’y General’s Mot. to Intervene, and Setting Dates, DeMasi Decl. Ex. A at 2.) Subsequently, Mr. Russell’s application to Wayne State University Law School was accepted, and his application to the University of Michigan Law School was denied.
Argument The motion for class certification should be granted because this action meets the requirements of Federal Rule 23. To qualify for class certification, a plaintiff must first satisfy each of the four prerequisites contained in Federal Rule 23(a), which permits certification if:
3 Press Release, Mary Sue Coleman, President & Teresa A. Sullivan, Provost, University of Michigan, Proposal 2 Next Steps (Jan. 10, 2007) available at http://www.umich.edu/pres/ speeches/070110prop2.html.
4 See Wayne State University Law School Admissions Standards and Procedures, Effective Dec. 22, 2006, available at http://www.law.wayne.edu/docs/Admissions%20 Policy--12-06-06.pdf (amending its admissions policy to provide that “the Admissions Committee shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin (except to the extent necessary to establish or maintain eligibility for any federal program where ineligibility would result in a loss of federal funds).”); Diversity and Inclusion at MSU After Proposal 2: Frequently Asked Questions, updated January 23, 2007, available at http://president.msu.edu/prop2 response/faqs/index.php?faqs.
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“(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the class.” Fed. R. Civ. P. 23(a); McGee v. E. Ohio Gas Co., 200 F.R.D. 382, 387 (S.D. Ohio 2001). If these requirements are met, the class may be certified if it fits into any of the three categories described in Federal Rule 23(b). Fed. R. Civ. P. 23(b).
Within the confines of Federal Rule 23, this Court has broad discretion to certify the class, and it is well-established that “any doubts concerning the propriety of class certification should be resolved in favor of upholding the class.” Gasperoni v. Metabolife Int’l, Inc., No. 00-71255, 2000 WL 33365948 at *8 (E.D. Mich. Sept. 27, 2000). Because the requirements of Federal Rule 23 are met in this case, this motion should be granted. I. THE PROPOSED CLASS MEETS THE REQUIREMENTS FOR CLASS
CERTIFICATION OF FEDERAL RULE 23(a). The Proposed Class meets each of the four requirements of Federal Rule 23(a).
A. The Class Is so Numerous that Joinder of all Members Is Impracticable. Federal Rule 23(a)(1) requires only that the members of the class be so numerous
that “joinder of all class members is impracticable.” Although this is more than a strict numerical test, “‘substantial’ numbers usually satisfy the numerosity requirement,” Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006), and classes of forty or more typically suffice. See, e.g., Crawford v. TRW Automotive U.S., No. 06-14276, 2007 WL 851627, at *3
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(E.D. Mich. Mar. 21, 2007) (“it generally is accepted that a class of 40 or more is sufficient to satisfy the numerosity requirement”).5
This minimal standard is easily met here. Last year, the University of Michigan enrolled over 40,000 students, employed over 5,500 faculty members, and received more than 25,000 applications from prospective undergraduates alone.6 Certainly many of the University of Michigan’s students enrolled, at least in part, in reliance on the Defendant Universities’ policies promoting the admission and enrollment of a diverse group of students. Indeed, named plaintiffs’ are aware that many additional members of the Proposed Class exist. (See Quinn Decl. ¶ 4; Kasper Decl. ¶ 4; Maxey Decl. ¶ 4; Cantrell Decl. ¶ 5; Munoz Decl. ¶ 3; Kay Decl. ¶ 4; Canning Decl. ¶ 3; Johnson Decl. ¶ 4; Countryman Decl. ¶ 4; Ceballo Decl. ¶ 4.) These numbers show that joinder would impose an unnecessary burden on the Court and the parties. At this stage of the proceedings, it is not necessary for the Court to know the precise number of class members. Instead, the Court may rely upon reasonable inferences drawn from the known facts. See In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (inferring numerosity in a products liability case based on defendant’s time in business). Accordingly, these figures alone show that the Proposed Class meets the numerosity requirement. See also Bittinger v. Tecumseh
5 Accord Herbert Newberg & Alba Conte, 1 Newberg on Class Actions, § 3:5 (4th ed. 2002) (“The difficulty inherent in joining a few as 40 class members should raise a presumption that joinder is impracticable, and the plaintiff whose class is that large or larger should meet the test of Rule 23(a)(1) on that fact alone.”); James Wm. Moore et al., 5 Moore’s Federal Practice, 23.22[1][b] (3d ed. 2006) (noting that classes with more than 40 members are generally held sufficient to meet numerosity requirement).
6 University of Michigan, History of U-M, last updated Nov. 16, 2006, available at http://www.umich.edu/~info/; University of Michigan, Fast Facts), n.d., available at http://www.admissions.umich.edu/fastfacts.html; University of Michigan, U-M Fact Sheet, last updated Oct. 25, 2006, available at http://www.umich.edu/~info/.
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Prod. Co., 123 F.3d 877, 884 n.1 (6th Cir. 1997) (finding it “frivolous” to contest the numerosity of a 1,000-member class because “to reach this conclusion is to state the obvious.”).
Sheer numbers aside, joinder is impractical here because of the nature of the case. Joinder would be extremely difficult and needlessly time consuming because individual identification of all plaintiffs would require contact with virtually all of the 40,000-plus students currently enrolled at the University of Michigan, more than 5,500 faculty members, and thousands of widely-dispersed applicants. The named plaintiffs alone reside in several different states and varied parts of Michigan, (Quinn Decl. ¶ 1; Kasper Decl. ¶ 1; Maxey Decl. ¶ 1; Cantrell Decl. ¶ 1; Munoz Decl. ¶ 1; Kay Decl. ¶ 1; Canning Decl. ¶ 1; Johnson Decl. ¶ 1; Countryman Decl. ¶ 1; Ceballo Decl. ¶ 1), and the applicants to the University of Michigan come from “all 50 states and over 100 foreign countries from Afghanistan to Zimbabwe.”7 Compare Rodriguez v. Berrybrook Farms, Inc., 672 F. Supp. 1009, 1014 (W.D. Mich. 1987) (finding numerosity in part because the named plaintiffs “are permanent residents of Texas, Ohio, Iowa, Michigan, and Florida”). “[P]roblems in identifying all class members is actually a situation that makes class certification more desirable,” because of the increased difficulty of joinder. Roman v. Korson, 152 F.R.D. 101, 105 (W.D. Mich. 1993).8 The Proposed Class meets the numerosity requirement.
7 University of Michigan, History of U-M, last updated Nov. 16, 2006, available at http://www.umich.edu/~info/.
8 Also, many class members are high school, undergraduate, and graduate students who may not have the means to bring an individual suit on their own behalf. See Cervantes v. Sugar Creek Packing Co., Inc., 210 F.R.D. 611, 621 (S.D. Ohio 2002) (noting that a court properly considers “the financial resources of class members” and whether requiring joinder will cause “litigational hardship or inconvenience”).
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B. There Are Questions of Law and Fact Common to the Class. The commonality requirement of Federal Rule 23(a)(2), “simply requires a
common question of law or fact.” IUE-CWA v. Gen. Motors Corp., 238 F.R.D. 583, 591 (E.D. Mich. 2006) (citation omitted). It is not necessary that plaintiffs have in common all of the questions of law or fact raised. “The interests and claims of the various plaintiffs need not be identical. Rather, the commonality test is met when there is at least one issue whose resolution will affect all or a significant number of the putative class members.” UAW v. Gen. Motors Corp., No. 05-CV-73991, 2006 WL 891151, at *10 (E.D. Mich. Mar. 31, 2006) (citing Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 422 (6th Cir. 1998)).
As the Court noted in Snow v. Atofina Chemicals Inc., “when the legality of the defendant’s standardized conduct is at issue, the commonality element is normally met.” No. 0172648, 2006 WL 1008002, at *4 (E.D. Mich. March 31, 2006). This is the case for most actions for injunctive relief, which “by their very nature often present common questions.” Baby Neal v. Casey, 43 F.3d 48, 57 (3rd Cir. 1994) (citation omitted). See also Senter v. Gen. Motors Corp., 532 F.2d 511, 524 (6th Cir. 1976) (finding commonality because plaintiff “alleged that promotional discrimination had been practiced across the board”).
It is also the case here. Each of the class members supports admissions policies that include race as one among many factors considered in University of Michigan admissions decisions, but is burdened by Proposal 2. (See Compl. ¶¶ 47-61; Quinn Decl. ¶ 3; Kasper Decl. ¶ 4; Maxey Decl. ¶¶ 2-3; Cantrell Decl. ¶¶ 4-5; Munoz Decl. ¶ 3; Kay Decl. ¶¶ 3-4; Canning Decl. ¶ 3; Johnson Decl. ¶ 4; Countryman Decl. ¶ 4; Ceballo Decl. ¶ 3.) Each raises the fundamental legal question of whether Proposal 2 violates the Equal Protection Clause by
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relocating the authority to implement such policies to a new and remote level of government. (See Id.) Other common issues include, among others:
• whether and to what extent Proposal 2 makes it more difficult to achieve policies that include race as one among many factors considered in admissions decisions at the University of Michigan;
• whether and to what extent similar difficulties apply to those who seek “preferences” in admissions that are unrelated to race and gender;
• whether and to what extent the University of Michigan maintains control over those aspects of their admissions policies which are not affected by Proposal 2; and
• whether and to what extent the University of Michigan’s admissions policies have changed and evolved in response to various lobbying efforts and in the interest of furthering particular policies.
Each of these issues alone satisfies the commonality requirement. See also Van Vels v. Premier Athletic Ctr. of Mainfield, Inc., 182 F.R.D. 500, 507 (W.D. Mich. 1998) (“In cases involving the question of whether defendant has acted through illegal policy or procedure, commonality is readily shown because the common question becomes whether the defendant in fact acted through the illegal policy or procedure.”).
C. The Claims or Defenses of the Representative Parties Are Typical of the Claims or Defenses of the Class. Federal Rule 23(a)(3) requires that the claims or defenses of the class
representatives be typical of the claims or defenses of the class. “A claim is typical if ‘it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [the] claims are based on the same legal theory.’” Beattie v. CenturyTel, Inc., 234 F.R.D. 160, 169 (E.D. Mich. 2006) citing In re Am. Med’l Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996). Given the similarities of the two standards, the Sixth Circuit “has held that the
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commonality and typicality requirements tend to merge.” Olden v. LaFarge Corp., 203 F.R.D. 254, 269 (E.D. Mich. 2001) (“Olden I”). This is because these elements are so clearly overlapping and interrelated:
[b]oth serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir. 1998). Due in part to these similarities, “[t]he test for typicality, like commonality, is not demanding.” Atofina, 2006 WL 1008002, at *5 (citations omitted). The typicality requirement is satisfied here. The named plaintiffs represent a variety of perspectives, but each is burdened by Proposal 2. (Compl. ¶ 9-27; Quinn Decl. ¶ 3; Kasper Decl. ¶ 4; Maxey Decl. ¶ 3; Cantrell Decl. ¶ 4-5; Munoz Decl. ¶ 3; Kay Decl. ¶ 4; Canning Decl. ¶ 2-3; Johnson Decl. ¶ 2-3; Countryman Decl. ¶ 3; Ceballo Decl. ¶ 3.) Although each may have particular reasons for supporting policies banned by Proposal 2, their legal claims arise from precisely the same course of conduct on the part of the defendants and are based on their universal belief that Proposal 2 violates the Fourteenth Amendment to the United States Constitution. (Compl. ¶32, 60.) These same characteristics also mark the members of the Proposed Class, whose interests are substantively identical. See Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (summarizing the typicality requirement: “as goes the claim of the named plaintiffs, so as the claims of the class.”). That is all—indeed more—than is required by Federal Rule 23. See also Glover v. Johnson, 85 F.R.D. 1, 5 (E.D. Mich. 1977) (finding
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typicality because, despite each individual plaintiff’s “unique situation,” the complaint alleged a “general across-the-board policy of sexual discrimination.”).
D. The Representative Parties Will Fairly and Adequately Represent the Interests of the Class. To satisfy the final requirement of Federal Rule 23(a), the representative plaintiff
must be able to “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Sixth Circuit has explained that “adequate representation” requires that: 1) the class representatives have common interests with the unnamed members of the class, and 2) it appears that the representatives will vigorously prosecute the interests of the class through qualified counsel. Senter, 532 F.2d, at 525.
These requirements are met here. The named plaintiffs together represent a fair cross-section of the Proposed Class. There are no intra-class conflicts between the named and unnamed members of the Proposed Class because, as discussed more thoroughly above (in Sections I-B and I-C), the legal and practical interests of the named plaintiffs are substantively identical to those of the unnamed class members. The named plaintiffs are committed to the legal claims and interests of the Proposed Class, (Quinn Decl. ¶ 4; Kasper Decl. ¶ 4; Maxey Decl. ¶ 4; Cantrell Decl. ¶ 5; Munoz Decl. ¶ 3; Kay Decl. ¶ 4; Canning Decl. ¶ 3; Johnson Decl. ¶ 4; Countryman Decl. ¶ 4; Ceballo Decl. ¶ 4.), as you would expect in a case where all parties seek precisely the same non-exclusive relief. Accordingly, any differences of opinion that exist between the named and unnamed class members will not “go[] to the very subject matter of the claims” as required to defeat class certification. Int’l Union v. Ford Motor Co., Nos. 05-74730, 06-10331, 2006 WL 1984363, at *20 (E.D. Mich. July 13, 2006) (citation omitted).
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Likewise, the Counsel for the Cantrell Plaintiffs are dedicated to and capable of protecting the interests of the Proposed Class. The Cantrell Plaintiffs have assembled a team of uncommonly capable and experienced counsel composed of veteran public-interest lawyers, skilled practitioners, and esteemed legal scholars. Counsel associated with the American Civil Liberties Union (“ACLU”), the NAACP Legal Defense and Education Fund (“LDF”), the Detroit Branch NAACP, and the American Civil Liberties Foundation have litigated scores of complex constitutional cases, including numerous Fourteenth Amendment cases. (Rosenbaum Decl. ¶ 4; Hollowell Decl. ¶ 4, 6.) In Coalition for Economic Equity v. Wilson, Lead Counsel Mark D. Rosenbaum litigated a Hunter/Seattle challenge to California Proposition 209 through trial and appeal, making Mr. Rosenbaum one of the only lawyers in the country to have tried a case that is closely related to this one. (Rosenbaum Decl. Ex. A, at 8). Karin A. DeMasi of the law firm of Cravath, Swaine & Moore LLP (“Cravath”) has extensive experience representing clients in class-action and other types of complex litigation. (DeMasi Decl. ¶ 3.) Cravath, of which Ms. DeMasi is a Partner, has served as counsel of record in more than eighty complex class action cases since 2002, and has significant experience representing plaintiffs in the publicinterest context. (Id.) Professors Laurence H. Tribe, Erwin Chemerinsky and Daniel P. Tokaji are preeminent constitutional law scholars who have participated in many of the most significant Fourteenth Amendment cases brought in recent years. (Rosenbaum Decl. ¶ 9-16.) Counsel for the Cantrell Plaintiffs have already devoted significant resources to the preparation of this lawsuit and the development of relationships of trust and confidence with class members, and will provide adequate resources and co-representation to the class. (DeMasi Decl. ¶ 2, 7; Rosenbaum Decl. ¶ 2; Hollowell Decl. ¶ 2). The adequacy requirement is satisfied.
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II. THE PROPOSED CLASS MEETS THE REQUIREMENTS FOR CLASS CERTIFICATION OF FEDERAL RULE 23(b). Federal Rule 23(b) sets out the three types of class action suits that may be
certified if the requirements of subsection (a) have been met. Most relevant here is subsection (b)(2), which provides that a class action is appropriate where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”9 Fed. R. Civ. P. 23(b)(2).
Subsection (b)(2) was specifically designed for civil rights cases in which class members seek injunctive relief from a similar legal wrong. See Fed. R. Civ. P. 23 Advisory Committee Note, 1966 Amendment (“Illustrative [of subsection (b)(2)] are various actions in the civil rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”). The Sixth Circuit has endorsed this application of 23(b)(2), noting that “[l]awsuits alleging class-wide discrimination are particularly well suited for 23(b)(2) treatment since the common claim is susceptible to a single proof and subject to a single injunctive remedy.” Senter, 532 F.2d at 525. In fact, the Sixth
9 Although best suited for certification as a (b)(2) class, the Proposed Class also satisfies the more rigorous requirements of Federal Rule 23(b)(3). Federal Rule 23(b)(3) “is designed . . . to achieve the economies of time, effort and expense.” Olden I, 203 F.R.D. at 270 (citation and internal quotation marks omitted). Class certification will avoid multiple litigation over the same issues as to the constitutionality of Proposal 2. The superiority of addressing the controversy among the parties through a class action is manifest when compared with the alternative—the possibility of numerous courts deciding identical issues on different schedules, risking inconsistent records and decisions, delayed appeals and uncertain results. This alternative would needlessly burden the parties and the Court and encourage tactical maneuvering. See Van Vels, 182 F.R.D. at 512 (“The filing of separate suits by class members would be a monumental waste of resources and would likely jeopardize the rights of class members and would waste the resources of defendants in defending separate suits.”).
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Circuit has made clear that “i[f] the Rule 23(a) prerequisites have been met, and injunctive or
declaratory relief has been requested, the action usually should be allowed to proceed” under
Federal Rule 23(a)(2). Olden v. LaFarge Corp., 383 F.3d 495, 510 (6th Cir. 2004) (“Olden II”).
This is a prototypical class action under subsection (b)(2). As discussed more
thoroughly above, all members of the Proposed Class seek relief from the same conduct—
namely, the application of Proposal 2—which affects each of them in a substantively identical way.10 This is a classic case for certification under Federal Rule 23(b)(2) and Sixth Circuit case
law. See, e.g., McGee, 200 F.R.D. at 391 (certifying a 23(b)(2) class where plaintiffs charged the
defendants of discriminating against credit applicants based on their marital status). The motion
for class certification should be granted.
III. THE COURT SHOULD APPOINT COUNSEL FOR THE CANTRELL PLAINTIFFS AS LEAD COUNSEL TO THE PLAINTIFF CLASS Federal Rule 23(g) requires the Court to appoint class counsel if the Court
certifies a class, and outlines the requirements for class counsel, requiring, above all, that the
10 Although all members of the Proposed Class would benefit from the injunctive relief sought in this action, this is not a case in which “no useful purpose would be served by permitting this case to proceed as a class action because the determination of the constitutional question can be made . . . regardless of whether this action is treated as an individual action or as a class action.” See Craft v. Memphis Light, Gas, and Water Div., 534 F.2d 684, 686 (6th Cir. 1976) (internal quotation marks omitted). Unlike Craft, the claims in this case are susceptible to mootness due to the inevitable turnover of class members. This not only makes Craft inapplicable, but in fact also makes class certification significantly more desirable. See Glover, 85 F.R.D. at 4 (“The fact that membership of the class may change over time . . . . makes class certification advantageous in this case, since joinder of all class members becomes correspondingly more impractical and mootness of individual claims more likely.”). Craft has been distinguished on precisely this basis in strikingly similar cases. See, e.g., Gratz v. Bollinger, No. 97-CV-75231-DT slip. op. at 13 (E.D. Mich. Dec. 23, 1998), DeMasi Decl. Ex. B at 13 (“In contrast to Craft, the Court believes that a class action serves a useful purpose in the instant case because plaintiff Hamacher’s claims are particularly susceptible to mootness.”).
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chosen counsel “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). Federal Rule 23(g)(1)(C) lists a variety of other factors to be considered, including:
1) the work that counsel has performed in identifying or investigating potential claims in the action; 2) counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action; 3) counsel’s knowledge of the applicable law; and 4) the resources that counsel will commit to representing the class. Pursuant to Rule 23(g)(1)(ii), the Court may also consider other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class. In re Delphi Erisa Litigation, 230 F.R.D. 496, 498 (E.D. Mich. 2005).
Applying the requirements of Federal Rule 23(g), this Court should appoint the counsel for the Cantrell Plaintiffs as lead counsel for the class. As more fully discussed in Section I-D and in the attached declarations of Mark D. Rosenbaum (who has been appointed lead counsel), Karin A. DeMasi, and Melvin Butch Hollowell, Counsel for the Cantrell Plaintiffs are highly experienced in litigation of this type. They have already committed substantial resources to this litigation, and are dedicated to pursuing the class members’ claims in a vigorous and expeditious manner. (See Rosenbaum Decl. ¶¶ 2, 4; DeMasi Decl. ¶¶ 2, 7; Hollowell Decl. ¶¶ 2, 6.) Because they are best able to represent and protect the interests of the class, counsel for the Cantrell Plaintiffs should be named lead counsel for the certified class.
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Conclusion For the foregoing reasons, the Cantrell Plaintiffs respectfully request that the Court grant the motion for class certification and appoint counsel for the Cantrell Plaintiffs as lead counsel for the class.
Dated: May 15, 2007. Respectfully submitted,

s/ with consent of Mark D. Rosenbaum MARK D. ROSENBAUM CATHERINE E. LHAMON ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, California 90026 (213) 977-9500 mrosenbaum@aclu-sc.org clhamon@aclu-sc.org

s/ with consent of Kary L. Moss KARY L. MOSS (P49759) MICHAEL J. STEINBERG (P43085) MARK P. FANCHER (P56223) American Civil Liberties Union Fund of Michigan 60 W. Hancock Street Detroit, MI 48201 (313) 578-6814 kmoss@aclumich.org msteinberg@aclumich.org mfancher@aclumich.org

/s Karin A. DeMasi KARIN A. DeMASI Cravath, Swaine & Moore LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212) 474-1000 kdemasi@cravath.com

s/ with consent of Melvin Butch Hollowell, Jr. MELVIN BUTCH HOLLOWELL, JR. (P37834) General Counsel, Detroit Branch NAACP Allen Brothers PLLC 400 Monroe St., Suite 220 Detroit, MI 48226 (313) 962-7777 mbh@allenbrotherspllc.com
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2:06-cv-15024-DML-RSW Doc # 107 Filed 05/15/07 Pg 24 of 29 Pg ID 1160

s/ with consent of Laurence H. Tribe LAURENCE H. TRIBE (Admission Pending) Hauser Hall 420 1575 Massachusetts Avenue Cambridge, Mass. 02138 617-495-4621 larry@tribelaw.com

s/ with consent of Theodore M. Shaw THEODORE M. SHAW VICTOR BOLDEN ANURIMA BHARGAVA NAACP Legal Defense & Educational Fund 99 Hudson Street, 16th Floor New York, NY 10013 (212) 965-2200 abhargava@naacpldf.org

s/ with consent of Erwin Chemerinsky ERWIN CHEMERINSKY Duke University School of Law Science Drive & Towerview Rd. Durham, N.C. 27708 (919) 613-7173 Chemerinsky@law.duke.edu

s/ with consent of Jerome R. Watson JEROME R. WATSON (P27082) Michigan State Conference, NAACP Miller, Canfield, Paddock and Stone, P.L.C. 150 West Jefferson, Suite 2500 Detroit, MI 48226 (313) 963-6420 Watson@millercanfield.com

s/ with consent of Dennis Parker DENNIS PARKER (Admission Pending) ALEXIS AGATHOCLEOUS (Admission Pending) American Civil Liberties Union Foundation Racial Justice Program 125 Broad St., 18th Floor New York, NY 10004-2400 (212) 519-7832 dparker@aclu.org

s/ with consent of Daniel P. Tokaji DANIEL P. TOKAJI (Admission Pending) The Ohio State University Moritz College of Law 55 W. 12th Ave. Columbus, OH 43206 (614) 292-6566 tokaji.1@osu.edu

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

COALITION TO DEFEND AFFIRMATIVE ACTION, et al.,

Plaintiffs,

Case 06-15024

vs.

Hon. David M. Lawson

JENNIFER GRANHOLM, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, MICHAEL COX, ERIC RUSSELL and the TRUSTEES OF any other public college or university, community college, or school district,

CONSOLIDATED CASES CERTIFICATE OF SERVICE

DefendantS.

and

CHASE CANTRELL, et al., Plaintiffs,
vs.

Case 06-15637 Hon. David M. Lawson

JENNIFER GRANHOLM and MICHAEL COX,

Defendants.

KARIN A. DeMASI hereby certifies the following under the penalty of perjury:
On the 15th Day of May, 2007, I filed the foregoing document electronically and it is available for viewing and downloading from the ECF system. Service was accomplished by means of Notice of Electronic Filing upon

2:06-cv-15024-DML-RSW Doc # 107 Filed 05/15/07 Pg 26 of 29 Pg ID 1162
Sharon L. Browne slb@pacificlegal.org,bas@pacificlegal.org
Charles J. Cooper ccooper@cooperkirk.com
Karin A. DeMasi kdemasi@cravath.com,jrichman@cravath.com,kmach@crava th.com
Mark P. Fancher mfancher@aclumich.org
Alan W. Foutz awf@pacificlegal.org,IncomingLit@pacificlegal.org,ba s@pacificlegal.org
Melvin J. Hollowell , Jr mbh@allenbrotherspllc.com
Sheldon H. Klein klein@butzel.com
James E. Long longj@michigan.gov,ThelenN@michigan.gov
Heather S. Meingast meingasth@michigan.gov
Laurie J. Michelson michelso@butzel.com,vancleve@butzel.com
Kerry L. Morgan kmorganesq@aol.com
Kary L. Moss kmoss@aclumich.org
Brian O. Neill neillb@michigan.gov,pawlusc@michigan.gov
Margaret A. Nelson nelsonma@michigan.gov,toddwl@michigan.gov,richardsd@ michigan.gov

2:06-cv-15024-DML-RSW Doc # 107 Filed 05/15/07 Pg 27 of 29 Pg ID 1163
Leonard M. Niehoff niehoff@butzel.com
Joseph E. Potchen potchenj@michigan.gov,vanbeelenl@michigan.gov,robiso nr@michigan.gov
Michael E. Rosman rosman@cir-usa.org,kokolis@cir-usa.org
Dean J. Sauer jsaur@cooperkirk.com
Brigham C. Smith Bsmith@ci.lansing.mi.us,spodlesk@ci.lansing.mi.us
Michael J. Steinberg msteinberg@aclumich.org,bbove@aclumich.org
Reginald M. Turner , Jr rturner@clarkhill.com
George B. Washington scheff@ameritech.net
Jerome R. Watson watson@millercanfield.com,leidner@millercanfield.com
and upon
Erwin S. Chemerinsky Duke University Law School Science Drive at Towerview Road Durham, NC 27708
Theodore M. Shaw MAACP Legal Defense and Educational Fund 99 Hudson Street Suite 1600 New York, NY 10013

2:06-cv-15024-DML-RSW Doc # 107 Filed 05/15/07 Pg 28 of 29 Pg ID 1164
Laurence H. Tribe 1575 Massachusetts Avenue Cambridge, MA 02138
American Civil Rights Foundation Pacific Legal Foundation 3900 Lennane Drive Suite 200 Sacremento, CA 95834
City of Lansing Lansing City Attorney 124 W. Michigan Avenue 5th Floor, City Hall Lansing, MI 48933
Michael Cox 525 W. Ottawa Lansing, MI 48933
Shanta Driver Scheff & Washington (Detroit) 645 Griswold Suite 1817 Detroit, MI 48226-4113
Michigan Civil Rights Initiative Committee Pacific Legal Foundation 3900 Lennane Drive Suite 200 Sacremento, CA 95834
by delivering a true copy of the aforementioned documents to a courier of United Parcel Service, an

2:06-cv-15024-DML-RSW Doc # 107 Filed 05/15/07 Pg 29 of 29 Pg ID 1165
overnight delivery service, for delivery the next business day to wit: Wednesday, May 16, 2007.
Dated at New York, New York, this 15th day of May, 2007.
s/ Karin A. DeMasi Karin A. DeMasi

 
 2:06-cv-15637-DML-SDP Doc # 60 Filed 05/16/07 Pg 1 of 35 Pg ID 732

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et. al.,

Plaintiffs, vs.

Case No. 06-15024 Hon. David Lawson

JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, MARY SUE COLEMAN, in her official capacity as President of the University of Michigan, LOU ANNA K. SIMON, in her official capacity as President of Michigan State University, IRVIN D. REID, in his official capacity as President of Wayne State University, MICHAEL COX, in his official capacity as Attorney General of the State of Michigan, and ERIC RUSSELL

Defendants.

And

CONSOLIDATED CASES

CHASE CANTRELL, et. al.
Plaintiffs Vs.
JENNIFER GRANHOLM, and MICHAEL COX,

Case No. 06-15637 Hon. David Lawson

Defendants. _________________________________________________________________________

PLAINTIFF COALITION TO DEFEND AFFIRMATIVE ACTION (BAMN’S) ET.AL.’S MOTION TO CERTIFY CLASSES AND TO BE APPOINTED LEAD
COUNSEL

2:06-cv-15637-DML-SDP Doc # 60 Filed 05/16/07 Pg 2 of 35 Pg ID 733

Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the plaintiffs

move the Court to certify the following:

1. The plaintiffs Josie Hyman, Alejandra Cruz, Christopher Sutton, Cordelia

Martin, Arielle Bullard, Randiah Green, Maricruz Lopez, Dmitri Garcia, Courtney Drake,

and the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and to

Fight for Equality by Any Means Necessary (BAMN) as the representatives of

The class of all black, Latino/a and Native American applicants to and students at

any school of the University of Michigan, Michigan State University, and Wayne

State University.

2. The plaintiffs

Josie Hyman, Alejandra Cruz, Cordelia

Martin, Arielle Bullard, Randiah Green, Maricruz Lopez and the Coalition to Defend

Affirmative Action, Integration, and Immigrant Rights and to Fight for Equality by Any

Means Necessary (BAMN) as the representatives of

The class of all women applicants to and students at any school of the University of

Michigan, Michigan State University, and Wayne State University.

The plaintiffs further move that the firm of Scheff & Washington, P.C. be appointed

as lead counsel for both classes of plaintiffs.

By Plaintiffs’ Attorneys, SCHEFF & WASHINGTON, P.C.

BY: s/George B. Washington George B. Washington (P-26201) Shanta Driver (P-65007) Miranda Massie (P-56564) 645 Griswold—Ste 1817 Detroit, Michigan 48226 (313) 963-1921

Dated: May 15, 2007

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et. al.,

Plaintiffs, vs.

Case No. 06-15024 Hon. David Lawson

JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, MARY SUE COLEMAN, in her official capacity as President of the University of Michigan, LOU ANNA K. SIMON, in her official capacity as President of Michigan State University, IRVIN D. REID, in his official capacity as President of Wayne State University, MICHAEL COX, in his official capacity as Attorney General of the State of Michigan, and ERIC RUSSELL

Defendants.

And

CONSOLIDATED CASES

CHASE CANTRELL, et. al.
Plaintiffs Vs.
JENNIFER GRANHOLM, and MICHAEL COX,

Case No. 06-15637 Hon. David Lawson

Defendants. _________________________________________________________________________

PLAINTIFF COALITION TO DEFEND AFFIRMATIVE ACTION ET.AL.’S (BAMN’S) BRIEF IN SUPPORT OF THEIR MOTION TO CERTIFY
CLASSES AND TO BE APPOINTED LEAD COUNSEL

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TABLE OF CONTENTS

STATEMENT OF ISSUES PRESENTED

iii

CONTROLLING OR MOST APPROPRIATE AUTHORITIES

iv

INTRODUCTION

1

STATEMENT OF FACTS

3

A. The discrimination in the admissions systems at the defendant

universities.

3

1. The basic admissions systems.

3

2. Segregation and grade point averages.

4

3. Standardized tests and racial discrimination.

6

B. Affirmative actions as a means to counter discrimination in the

admissions criteria.

9

C. Proposal 2 outlaws affirmative action.

10

D. Proposal 2 will lead to the resegregation of Michigan’s public

universities.

12

ARGUMENT

13

I. THE COALITION PLAINTIFFS CAN DEMONSTRATE THAT

PROPOSAL 2 VIOLATES THE FIRST AND FOURTEENTH

AMENDMENTS AND THE FEDERAL CIVIL RIGHTS ACTS.

13

A. Proposal 2 violates the Equal Protection Clause by imposing a

far more onerous burden on minorities and women who seek to

change admissions policies.

13

B. Proposal 2 is intentional race and gender discrimination in violation of the

Fourteenth Amendment.

16

C. Proposal 2 obstructs the enforcement of the federal civil rights

acts.

17

D. Proposal 2 violates the First Amendment.

17

II. THERE ARE MORE THAN SUFFICIENT GROUNDS TO MAINTAIN THIS

ACTION AS A CLASS ACTION.

18

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A. The classes are too numerous to join.

18

B. There are questions of law and fact common to the classes

18

C. The claims of the representative parties are typical

19

D. The representative parties will fairly and adequately protect

the interests of the classes

21

III. THE COURT SHOULD APPOINT COUNSEL FOR THE

COALITION PLAINTIFFS AS COUNSEL FOR THE CLASSES

OF MINORITY STUDENTS AND PROSPECTIVE STUDENTS

AND OF WOMEN STUDENTS AND PROSPECTIVE

STUDENTS.

22

CONCLUSION

25

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STATEMENT OF THE ISSUES PRESENTED I
SHOULD THE COALITION PLAINTIFFS BE CERTIFIED AS REPRESENTATIVES OF THE CLASS OF BLACK, LATINO/A, AND NATIVE AMERICAN STUDENTS, APPLICANTS AND PROSPECTIVE APPLICANTS TO THE UNIVERSITY OF MICHIGAN, MICHIGAN STATE UNIVERSITY, AND WAYNE STATE UNIVERSITY, WHO WILL SUFFER DIMINISHED CHANCES OF ADMISSION AND OF AN INTEGRATED EDUCATION DUE TO PASSAGE OF PROPOSAL 2?
II SHOULD THE COALTION PLAINTIFFS BE CERTIFIED AS THE REPRESENTATIVES OF THE CLASS OF WOMEN STUDENTS, APPLICANTS, AND PROSPECTIVE APPLICANTS TO THE UNIVERSITY OF MICHIGAN, MICHIGAN STATE UNIVERSITY, AND WAYNE STATE UNIVERSITY WHO WILL SUFFER DIMINISHED CHANCES OF ADMISSION AND OF AN INTEGRATED EDUCATION DUE TO THE PASSAGE OF PROPOSAL 2?
III SHOULD THE ATTORNEYS FOR THE COALITION PLAINTIFFS BE CERTIFIED AS LEAD COUNSEL FOR THE PLAINTIFF CLASS OR CLASSES UNDER RULE 23(g)?
iii

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INDEX OF AUTHORITIES

CASES

Brown v Board of Education, 347 US 483 (1954)

1,5,24

Cal. Fed. Sav. & Loan Ass’n. v Guerra, 479 US 272 (1987)

17

Coal. for Economic Equity v Wilson, 946 F Supp 1480 (ND Cal 1996), rev’d on other grounds 122 F. 3d 692 (CA 9, 1997), cert den 522 US 963 (1997).

10,14

Coalition to Defend Affirmative Action and Integration v Board of State

Canvassers, 262 Mich App 395 (2004), lv den 471 Mich 939

(2004)

24

Coalition to Defend Affirmative Action v Granholm, 473 F 3d 237 (CA 6 2006)

14

Garrett v City of Hamtramck, 503 F 2d 1236 (CA 6 1974)

21

Gratz v Bollinger, 539 US 244 (2003)

8,9

Grutter v Bollinger, 539 US 306 (2003)

passim.

Hunter v Erickson, 393 US 385 (1969)

13,14,15

Michigan Civil Rights Initiative v Board of State Canvassers, 268 Mich App 268

(2005), lv den 474 Mich 1099 (2006)

24

National Organization for Women, Inc. v Scheidler, 172 FRD 351 (DC Ill 1997)

21

Norwalk CORE v Norwalk Redev. Agency, 395 F 2d 920 (CA 2 1968)

21

Operation King’s Dream, et al. v. Connerly, E.D. Mich No. 06-12773,

2006 WL 254115 (E.D. Mich. Aug. 29, 2006), app pending Nos.

06-2144, 06-2258.

12

Romer v Evans, 517 US 620 (1996)

13

Village of Arlington Heights v Metropolitan Housing Development Corporation,

429 US 252 (1977).

16

Washington v Seattle School District No. 1, 458 US 457 (1982)

13,15

STATUTES AND REGULATIONS

20 USC s. 1681

17

iv

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42 USC s. 2000d-1

17

34 CFR s. 100.3

17

34 CFR s. 106.21(b)(2).

17

Const 1963, art 8, sec 5.

18

OTHER AUTHORITIES

“America Votes 2006,” CNN.com/ELECTION/2006/pages

/results/states/MI/01/epolls.0.html.

12

John Aubrey Douglas, The Conditions for Admission--Access, Equity and

the Social Contract of Public Universities (Stanford Univ Press,

2007), at 82-92

8

Jerome Karabel, The Chosen: The Hidden History of Admission and

Exclusion at Harvard, Yale and Princeton (Boston: Houghton

Mifflin Co, 2005),

8

William C. Kidder, Does the LSAT Mirror or Magnify Racial and Ethnic

Differences in Educational Attainment, 89 Cal L Rev 1005, 1068-

1075 (2001)

7,19

William C. Kidder, The Struggle for Access from Sweatt to Grutter: A

History of African American, Latino and American Indian Law

School Admissions, 1950-2000, 19 Harvard Black Letter Law

Journal, at 17 n. 85 (2003).

7

Ward Connerly, Creating Equal: My Fight Against Race Preferences (San Francisco:

Encounter Books, 2000)

10,11

v

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INTRODUCTION The outcome of this case will shape the character our nation. If Proposal 2 stands, the lie that separate can be equal will again be the law of this land. The right of individual states to adopt laws that will resegregate their universities and to cast black, Latino and other minority communities into a second-class status will be restored. The optimism, the hope of Brown will be replaced with pessimism and despair. The nation as a whole will lose the gains towards equality achieved by the Civil Rights Movement. If the last year has shown nothing else, it is that the Latino/a and black people of this Nation will not accept or tolerate a new Jim Crow America. What Ward Connerly and the opponents of affirmative action are trying to pull off in Michigan is cynical and profound. Connerly came to Michigan three days after the U.S. Supreme Court had upheld the use of affirmative action admissions policies in the Grutter decision and announced his intention to nullify that decision. The experience in California had already shown that a state constitutional ban on affirmative action would lead to the resegregation of higher education and deeper and more profound segregation in K-12 education. To get Proposal 2 on the ballot, Connerly utilized well-documented raciallytargeted voter fraud. The vote on Proposal 2 gave Michigan’s eighty-five percent white electorate the power to deny Michigan’s black, Latino, and other minority communities equal political rights and educational opportunities. The University of Michigan, which successfully defended their affirmative action policies at the US Supreme Court, has already been forced to adopt new admissions systems which Mary Sue Coleman, the President of the University has repeatedly

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declared would result in a huge drop in black, Latino, and other minority students, and in particular programs, a significant drop in women.
Josie Hyman, Alejandra Cruz, Arielle Bullard, Christopher Sutton, and Cordelia Martin, and countless other black, Latino, Native American, and women students who the Coalition plaintiffs seek to represent in this case have already been denied the opportunity to attend the University of Michigan or its Law School because of the loss of affirmative action. Black and Latino communities are now the only class of people in this state who cannot utilize the political process to gain access for their sons and daughters at their state universities. Ward Connerly has already announced his intent to bring anti-affirmative action ballot initiatives in Colorado, Oklahoma, Missouri, South Dakota and Arizona. An attack of this sweeping historic and social consequence deserves thorough and serious consideration by this Court.
The Coalition to Defend Affirmative Action, Integration, & Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) and other Coalition plaintiffs are the most experienced, the best qualified and the most able representatives of the black, Latino, other minority and women students and youth who are both the people most immediately affected by Proposal 2 and those whose futures and lives will be completely determined by the outcome of this case.
For the last twelve years, we have stood at the forefront of the fight to defend affirmative action. We have built and led the new, powerful and integrated youth-led civil rights movement. Our lawyers are the most experienced and qualified leaders in the court room and our plaintiffs are the most experienced and qualified leaders of black, Latino, other minority students and youth. It is for all these reasons that we ask this
2

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Court to grant our motion for class status and give us the right to be lead counsel in this historic fight.
STATEMENT OF FACTS A. The discrimination in the admissions systems at the defendant universities. 1. The basic admissions systems. Like every selective public university in the country, Michigan’s three leading public universities have adopted the basic admission system that was first put in place in the Ivy League colleges in the 1930s. With slight modifications, the same basic system is used in the three universities’ law and other graduate professional schools. The University of Michigan, Michigan State and Wayne State rely primarily upon grade point averages (GPAs) and standardized test scores, with the GPAs adjusted to represent the purported difficulty of the individual’s curriculum or the claimed quality of the applicant’s school. The universities also consider trends in GPAs, extenuating personal circumstances, extracurricular activities, and similar factors that they believe may indicate that the applicant is more (or less) deserving than the GPA-test score index would otherwise indicate. At various times, the universities have authorized varying degrees of deviation from these standards in order to admit athletes, veterans, poorer students, Michigan residents, residents of particular areas of the state, and others. In addition, the universities have authorized deviations for applicants whose parents were perceived as providing some special support for the institution, including alumni, faculty, large donors, important political figures, and the like.
3

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For many white citizens, the basic system has existed so long that they believe that it is a neutral determination of merit. As BAMN has argued for twelve years, however--and as the student interveners proved at the Grutter trial--the basic components of this system are not neutral measures of “merit.” Grutter v Bollinger, 539 US 306 (2003).
2. Segregation and Grade Point Averages. As is well-known, Michigan has for many years been one of the most segregated school systems in the country. According to the latest figures, 64 percent of black students in Michigan attend schools that are over 90 percent black. Similar, though slightly less intense, segregation of black students exists throughout the United States. Moreover, it is now paralleled by an increasing segregation of Latino/a students, who are separated not only by race but by language as well. 1 Black, Latino/a, and Native American students are disproportionately from poor backgrounds. But segregation imposes special and more intense burdens on poor minority students. Unlike poor white students--who tend to be distributed in schools with students from other economic backgrounds--poor minority students overwhelming attend schools with concentrated poverty. That segregation has crucial educational consequences. Separate schools are inherently inferior schools. They have poorer facilities, less credentialed teachers, larger class sizes, smaller libraries, and fewer parents with an educational background that will allow them to provide home support to make up for the educational deficiencies in the
1The description in the next three paragraphs of segregation and its effects is taken from the testimony of Dr. Gary Orfield in Grutter and is available on line. http://ueaa.net/transcript/06-012301-dowdell-orfield.txt
4

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schools. But beyond these and other tangible inequalities, segregated education “generates a feeling of inferiority as to [black students’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v Board of Education, 347 US 483, 494 (1954).
Due in large part to the conditions in the schools, a far lower percentage of black, Latino/a, and Native American students apply to college and in particular to any selective college. As the declarations of the plaintiffs Calvin Jevon Cochran, Arielle Bullard, Issamar Camacho, Maricruz Lopez and others demonstrate, even for those who do apply to college, social and educational inequality and instability mean that they may not be able to achieve a raw grade point average that is as high as they would be capable of achieving under other circumstances (Ex’s 1, 2, 3, 4 ; Dec of Cochran, para 8, 9, 10, 11, 14 ; Dec of Bullard, para, 10, 11; Dec of Camacho, para 4, 8; Dec of Lopez, para 3, 8, 9).
In any event, however, the universities recalculate the GPAs based on quality of the applicant’s high school as assessed by the number of students going to college and the average test scores and the difficulty of the curriculum completed by the particular applicant. As the Coalition plaintiffs demonstrated in Grutter, the most brilliant student in a Detroit high school with few advanced classes, low average test scores, and few students going to college, can not compete on an equal basis even on GPAs with a far less brilliant student graduating from the more privileged suburban schools.
At the professional schools, including especially the Law School, minority applicants suffer from analogous disadvantages. The pool of minority applicants to Law School is disproportionately low because of the low number of minority students in the undergraduate institutions and especially in the selective undergraduate institutions from
5

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which the Law Schools select the bulk of their students. Moreover, as was demonstrated in Grutter, the small number of minority students in the undergraduate institutions facilitates a climate of racial isolation and hostility that drives down the average grade points of black, Latino/a, and Native American students.
3. Standardized tests and racial discrimination. Standardized tests are now very familiar to many Americans. Most Americans assume that because the use of standardized tests is so entrenched and so pervasive that they must be a fair, unbiased and objective measure of talent, ability, and the likelihood of success. But science says otherwise. As was shown by the testing experts who testified in the Grutter trial, the word puzzles and mathematical problems on the test are learned and even coachable skills, which are at best peripherally related to the skills that it takes to succeed in college, in graduate school, or in life. Under a sustained critique inspired by the Civil Rights Movement, the test manufacturers have drastically scaled back their claims as to the significance of test scores. The Educational Testing Service (ETS), which manufactures the SAT, has long since dropped the claim that the SAT reveals “intelligence” or “aptitude.’’ For the range of scores of students applying to college, ETS claims that the test results predict approximately 22 percent of the variation in first-year grades with independent observers placing that number far lower. 2 Neither ETS nor any other reputable source make any claims that the tests predict the probability of graduation or of “success” in life.
2 See www.fairtest.org/facts/satvalidity.html for a collection of studies on the SAT’s ability to predict success of those who take it.
6

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If there is any gain in prediction from the SAT or the LSAT, minority students pay a terrible price for that gain. As is well-known--and as is revealed on the attached exhibit--test takers whose families earned more than $100,000 per year scored 340 points higher than test takers who families earned less than $10,000 per year. Even more significantly, in 2005, white test takers scored almost 300 points higher on average than black test takers and over 200 points higher on average than Mexican or Mexican American test takers.3 As a more detailed breakdown of the test results would show, white test takers from the same income group significantly outscore black, Latino/a, and Native American test takers.
At the level of law schools, the test score gap on the LSAT even exists between students with identical levels of performance at the same undergraduate institutions. Thus, in a systematic study of applicants to Berkeley’s Boalt Hall Law School, William Kidder found that black applicants with the same grade point average in the same college in the same major scored 9.2 points less on the LSAT, while Latino/as scored 6.8 points less and Native Americans scored 4.0 points less.4 If the admissions office does not consider race in admissions, that gap is more than enough to guarantee the rejection of almost every minority applicant to law school.
While some of this data is new, the racially disparate impact of standardized “aptitude” tests has been known since the 1920s. With few exceptions, 5 however,
3 See attached Ex , 2006 College Bound Seniors Average SAT Scores, Calculations by Fair Test, Cambridge, MA. 4 William C. Kidder, Does the LSAT Mirror or Magnify Racial and Ethnic Differences in Educational Attainment, 89 Cal L Rev 1005, 1068-1075 (2001). 5 The exceptions also illustrate the danger of the tests. Seven days after the Fifth Circuit ordered the University of Mississippi to admit James Meredith, for example, all white colleges and universities adopted the ACT test as a requirement for admission. William C. Kidder, The Struggle for Access from Sweatt to Grutter: A History of African American, Latino and American Indian Law School Admissions, 1950-2000, 19 Harvard Black Letter Law Journal, at 17 n. 85 (2003).
7

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officials at public universities adopted standardized tests not because of their racially disparate impact, but in spite of that impact. With the influx of Baby Boomers into college, the officials saw the tests as an administratively necessary and politicallyacceptable way to regulate admissions. They also believed that the test would help them identify “diamonds in the rough,” including those among white lower-middle-class applicants whom the universities might not otherwise have admitted.6
Once public universities adopted the tests--often on an experimental basis7--they assumed a life of their own. Especially among white citizens and the political leaders who represented them, the tests came to be seen as neutral measures of “merit” and entitlement. US News and World Report ranks universities based in part on average test scores--and alumni perception of the worth of their own degree as well as tens of millions of dollars in donations, grants and contracts depend upon the perception of the university’s relative rank. The ABA even requires law schools to use the LSAT as part of their assessment of merit. Even though almost everyone now agrees that the SAT and the LSAT have limited predictive value, it has, to date, proved impossible to secure the elimination of the test in major public universities.
With the rise of the Civil Rights Movement, however, the racial blinders came down on the indiscriminate use of the tests. Major public universities recognized that if the standardized test scores were applied rigidly, without considering the race of the applicant, they would exclude the overwhelming majority of black, Latino/a, and Native
6 Most notably, those were the views of President James Conant of Harvard and Clark Kerr of the University of California--the two most prominent leaders in American education after World War II. Jerome Karabel, The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale and Princeton (Boston: Houghton Mifflin Co, 2005), at 158-160; Lehman, at 59-66; 127-136. 7 See, e.g., the experience at the University of California as described in John Aubrey Douglas, The Conditions for Admission: Access, Equity, and the Social Contract of Public Universities (Stanford: Stanford Univ Press, 2007), at 82-92.
8

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American applicants. Often without directly saying so, universities adopted affirmative action programs as the antidote to discrimination in the rest of the admissions system.
B. Affirmative action as a means to counter discrimination in the admissions criteria.
A single exhibit from the Grutter trial reveals the de facto segregation at Michigan’s public universities caused by the rigid use of GPAs and standardized tests. During the entire decade of the 1960s, the University of Michigan Law School had no Latino/a graduates, 9 black graduates, and 3032 white graduates (Ex 6).
Just after Selma, President Johnson at Howard University proclaimed the need for “affirmative action” to assure real equality for black Americans. In the 1960s, the Civil Rights Movement joined by a growing student and antiwar movement carried forward that fight by demanding the end to de facto segregation in Michigan’s universities.
That fight culminated in the campaign of protests and student strikes led by the Black Action Movement (BAM I) in 1970. As described in the expert report submitted in Gratz by Professor James Anderson (who has agreed to serve as an expert witness for the Coalition plaintiffs in this case), the Board of Regents exercised its constitutional authority by agreeing to admit 900 more black students and 50 more Chicano students and to revise admissions and other policies in order to reach a goal of ten percent black enrollment by 1973. The settlement, which was endorsed by then Governor William Milliken, resulted in changes in every State university (Ex 7, Anderson Report, at 16-24).
As shown in both the Gratz and Grutter decisions, the University accomplished this goal by recognizing the reality of race, by setting goals for admission, and by admitting black, Latino/a and Native American students who had, on average, lower GPAs and test scores than the average of their white counterparts. The same exhibit that
9

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revealed the de facto segregation reveals as well the success of this policy. The number of black attorneys graduated by the University skyrocketed from 9 in the 1960s to 262 in the 1970s, 230 in the 1980s, and 288 in the 1990s, with a similar increase in Latino/a, Native American and Asian attorneys as well (Ex 6).
Even though the gains at both the undergraduate and professional levels were modest, they were vital. Because of the peculiarly important role that attorneys play in America, the increase in black, Latino/a, and Native American attorneys meant that there would be more minority legislators, mayors, Congresspeople, and judges. It meant, in short, some measure of representation and political power.
C. Proposal 2 outlaws affirmative action. From his office as a Regent of the University of California, Ward Connerly began the national fight against affirmative action. Playing upon the misconception that GPAs and test scores were neutral measures of merit, Connerly and then Governor Pete Wilson agreed to claim that “affirmative action is race preference.” 8 On Connerly’s motion, the UC Regents passed a resolution in 1995 banning the consideration of race, national origin or gender in admissions.9 Because Connerly and Wilson believed that the vote in favor of that ban was “fragile,” they supported the campaign to put the ban on affirmative action in the state constitution. Using the racist battle-cry of “banning race preferences,” Connerly and Wilson rallied a solid white majority whose votes overrode the determined opposition of two thirds or more of black, Latino/a, and Asian voters.10
8 Ward Connerly, Creating Equal: My Fight Against Race Preferences (San Francisco: Encounter Books, 2000), at 133. 9 Connerly, at 166. 10 Coal. for Economic Equity v Wilson, 946 F Supp 1480, 1495 n 12 (ND Cal 1996), rev’d on other grounds 122 F. 3d 692 (CA 9, 1997), cert den 522 US 963 (1997).
10

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The effect in California was and is devastating. In the year after the ban, there was exactly one black student at Boalt Hall. Even as the minority population of California grew dramatically, the number of Latino/a, black and Native American students at the most selective universities dropped. As the Declarations of Josie Hyman, Alejandra Cruz, and Dimitri Garcia relate, the drop in minority admissions meant a dramatic increase in racial isolation and hostility on the campus (Ex’s 8. 9, 10).
In May 2001, BAMN and some of the Coalition plaintiffs secured a Regents’ vote reversing the ban on affirmative action at UC. But because the ban was in the California Constitution, the reversal was symbolic. As Proposition 209 intended, black and Latino/a citizens did not have the rights that all other citizens had to secure a change from the UC Regents.
In Grutter, Connerly and other opponents of affirmative action unsuccessfully attempted to make the ban on affirmative action permanent and national by hijacking the Fourteenth Amendment as a device to protect the discrimination inherent in the admissions systems without affirmative action. After they lost, Connerly, Jennifer Gratz and others launched the petition drive that eventually led to the vote on Proposal 2. Like its essentially identical California namesake, Proposal 2’s sole intent was to ban affirmative action--which it called “preferences”--on race, national origin, or gender.11
As in the State of Washington, Connerly hired black and Hispanic circulators (whom he called “the horses”)12 to obtain the signatures needed to place Proposal 2 on Michigan’s ballot. As BAMN documented and Judge Tarnow and the Michigan Civil
11 Proposal 2 also banned “discrimination” because of race and national origin. But that was purely a public relations ploy because the Michigan Constitution had long since banned those forms of discrimination. Const 1963, art 1, sec 2. 12 Connerly, at 223.
11

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Rights Commission found, the MCRI’s circulators defrauded many Michigan voters, obtaining their signatures by claiming that the petition actually supported affirmative action.13 Proposal 2 passed, with black voters rejecting it by a margin of 85 percent and white voters, who comprised 85 percent of the electorate, approving it by two-to-one.14
D. Proposal 2 will lead to the resegregation of Michigan’s public universities. After a decade of experience in California, the leaders of the campaign for Proposal 2 knew what its passage meant. As Mary Sue Coleman, the President of the University of Michigan, said before the election, despite numerous efforts by the leaders of the UC system, and despite the dramatic increase in the Latino/a population, Proposition 209 had led to a dramatic decline in the enrollment of black, Latino/a, and Native American students in the UC system as a whole and, in particular, at its most selective campuses (UCLA and Berkeley). At those two campuses, in entering classes that totaled over 8,000, there were 83 black men, half of whom were recruited as scholarship athletes (Ex, at 4, paras 5, 7). Michigan’s universities have now been forced to adopt the same admissions systems that have failed in California. As the Supreme Court held in Grutter, there are no race neutral means to achieve the level of racial integration that Michigan’s Law School had achieved. Grutter, supra, 539 US at 339-341. In fact, particularly at the level of law schools, where tests are mandated by the ABA and the effects of Proposal 2 are vastly compounded by the effect of reduced admissions of minority students in the colleges, there are clearly no solutions to the drastic drop in minority admissions. Boalt Hall, UCLA and the University of Texas Law
13 Operation King’s Dream, et al. v. Connerly, E.D. Mich No. 06-12773, 2006 WL 254115 (E.D. Mich. Aug. 29, 2006), app pending Nos. 06-2144, 06-2258. 14 “America Votes 2006,” CNN.com/ELECTION/2006/pages/results/states/MI/01/epolls.0.html.
12

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Schools suffered when affirmative action was ended in those states. No one has suggested that a ten percent plan can succeed at a law school--and the particularly devastating decline in minority admissions at California’s law schools shows that none of the alternatives that have been announced have provided more than token relief.
As the experience of California so dramatically illustrates, if Proposal 2 is not struck down, almost every gain in political and social equality secured by the Civil Rights Movement will be lost. From the chambers of the US Senate to the emergency rooms at Detroit Receiving, the modest steps towards equality will be extinguished.
ARGUMENT I. THE COALITION PLAINTIFFS CAN DEMONSTRATE THAT PROPOSAL 2
VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS AND THE FEDERAL CIVIL RIGHTS ACTS. A. Proposal 2 violates the Equal Protection Clause by imposing a far more
onerous burden on minorities and women who seek to change admissions policies. On three occasions, the Supreme Court has held that a state violates the Equal Protection Clause by requiring black citizens or lesbian and gay citizens to follow more onerous procedures in order to secure government action in their favor than are required for any other group. Hunter v Erickson, 393 US 385 (1969); Washington v Seattle School District No. 1, 458 US 457 (1982); Romer v Evans, 517 US 620 (1996). The Coalition and the Cantrell plaintiffs assert that Proposal 2 violates this fundamental guarantee. Veterans, athletes, poorer students, residents of Grosse Pointe, Seventh Day Adventists, or practically any other group can secure an adjustment of the existing admission criteria (a “preference”) simply by asking the governing boards of the defendant universities.
13

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Even though both the Coalition and the Cantrell plaintiffs have asserted a Hunter claim, the Coalition plaintiffs assert that it is absolutely essential to introduce evidence as to the reality of the admission system in order to prevail on the Hunter claim. The panel in the Ninth Circuit and the Sixth Circuit panel that reversed this Court’s stay accepted the argument that Hunter did not apply because Proposition 209 and Proposal 2 did not prevent minorities from fighting against discrimination but rather “only” from fighting for “preferences.” Coal. for Economic Equity v Wilson, 122 F. 3d 692, CITE (CA 9, 1997), cert den 522 US 963 (1997); Coalition to Defend Affirmative Action v Granholm, 473 F 3d 237, 250-251 (CA 6 2006).
As set forth above, however, BAMN and the other Coalition plaintiffs have proved that affirmative action is not a “preference” but is instead precisely a measure to combat the discrimination inherent in the other admissions criteria. Not to present that argument and evidence is to leave the class of minority students defenseless in the face of their opponents’ main legal argument. And it does nothing to eliminate the stigma cast on all minority students by continuing to call affirmative action a “preference.”
Similarly, the Coalition plaintiffs assert that it is absolutely vital to present the historical evidence outlined above as to the crucial role that the Regents’ governing authority over admissions played in the adoption of affirmative action in Michigan. Without that evidence, it will be impossible for this Court or the appellate court to recognize that equality and access could never have come about if Proposal 2 had been in effect in 1970 when the Regents of the University of Michigan took the first steps towards desegregating the University.
14

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Finally, the Coalition plaintiffs assert that it is necessary to present the evidence they will offer in order to prove the decisive substantive significance of the democratic right that Proposal 2 has abrogated. As set forth above, without an adjustment in the use of the existing criteria--which is all that Connerly means by a “preference”--there are only two alternatives left for minority students. Either they can launch an expensive statewide referendum whose fate will be determined by an electorate that remains 85 percent white. Or, they can attempt to persuade the universities to eliminate the use of standardized tests and adopt an entirely new admissions system. As the ABA and an enormous constituency support the use of the standardized tests now in existence, the second alternative has as much chance of success as the first--which is to say zero.
The Coalition plaintiffs assert that it is essential to produce the evidence and argument outlined above in order to prove that the denial of rights under Hunter means that minority citizens will have no effective democratic procedure in which they can fight for policies that will allow their children to attend the public universities of their state. What is at stake is far more than the reallocation of government power--which four dissenting Justices in Seattle said was lawful. Seattle Schools, supra, 458 US at 489-490 (Powell, J, dissenting).
Finally, unlike the Cantrell plaintiffs, the Coalition plaintiffs have also asserted that Hunter also protects the rights of women. In the sciences and engineering, where women remain disproportionately excluded, affirmative action by gender remains vital. Unlike the Cantrell plaintiffs, the Coalition plaintiffs assert that women should not be forced to face an onerous and, in practice, impossible burden in order to secure the
15

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adoption of admission policies that will provide them with equal opportunities in every field.
B. Proposal 2 is intentional race and gender discrimination in violation of the Fourteenth Amendment.
As the Court has held, if one of the reasons that a state enacts a law is to discriminate against persons because of their race (or gender), the statute violates the Fourteenth Amendment. Village of Arlington Heights v Metropolitan Housing Development Corporation, 429 US 252 (1977). In considering whether a law violates that proscription, the Court must consider the law’s effect, its historical background, its departures from existing procedures, and the statements of its chief sponsors. Id.
Proposal 2 is the first time since 1850 that the electorate or the Legislature has attempted to restrict the power of any university over admissions criteria. As the statements of the MCRI’s leaders and the history of this Amendment make clear, the sole purpose of this amendment is to restrict the governing boards in order to prevent them from adopting policies that will secure the admission of any meaningful number of underrepresented minorities. As Connerly knew when he was a Regent--and as the whole Nation knows after a decade of experience with Proposition 209--the sole intent and effect of Proposal 2 is to drive the overwhelming majority of black, Latino/a, and Native American students out of the most selective schools in the State, into less selective schools, where the supporters of Proposal 2 have said they will be “happier.”
Connerly claims to be furthering the interest of a meritocracy. But he has made no attempt to assure a meritocracy when it comes to the admission of athletes, the children of alumni or large donors, residents, poorer students, veterans, or any group. The sole social policy that the governing boards may not follow in adjusting their
16

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admission policies is the attempt to assure a racially integrated student body. That is intentional discrimination in its classic form.15
C. Proposal 2 obstructs the enforcement of the federal civil rights acts. Title VI and its implementing regulations prevent any state from utilizing criteria that have the effect of excluding persons because of their race or national origin. 42 USC s. 2000d-1; 34 CFR s. 100.3(b)(2). Similarly, Title IX of the Education Amendments of 1972 and its implementing regulations prohibit the use of criteria that have the effect of excluding persons on account of their gender. 20 USC s. 1681; 34 CFR s. 106.21(b)(2). The Civil Rights Act preempts any state law that stands as an obstacle to accomplishing the purposes of Title VI. Cal. Fed. Sav. & Loan Ass’n. v Guerra, 479 US 272, 281 (1987)(plurality opinion). As Proposal 2 does precisely that, the Coalition plaintiffs alone have challenged it on that basis.16 D. Proposal 2 violates the First Amendment. Grutter held that the First Amendment right of the University to select its own students in order to achieve intellectual diversity provided a compelling state interest sufficient to justify the use of explicitly racial criteria in the admissions system. Proposal 2 has now taken a chain saw to the independence of the universities by enshrining in the Constitution an extremely vague requirement that the University may not grant a “preference” to any student on account of race or national origin.
15 The fact that Connerly is himself black is of course no defense to the claim of intentional discrimination. Booker T. Washington supported segregation. More generally, the well-springs of human motivation are far too complex to assert that a black man can not discriminate against other black people. 16 Similar, although not identical, claims were rejected by the Ninth Circuit in Coalition for Economic Equity. But there has now been a decade of experience that that court did not have available to it.
17

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As a practical matter, the University can now achieve any form of diversity except that form of diversity which is most difficult and most important to achieve in America-diversity by race. For that reason, the Coalition plaintiffs have challenged it on that basis.
II. THERE ARE MORE THAN SUFFICIENT GROUNDS TO MAINTAIN THIS ACTION AS A CLASS ACTION. A. The classes are too numerous to join. The University of Michigan received 25,733 applications for its undergraduate
class of 2006, offered admission to 12,196 students, and enrolled 5,399 students.17 MSU, WSU and the graduate schools at all three institutions accept far more applications than that. Assuming that seven to ten percent of those students are underrepresented minorities, the class of black, Latino/a, and Native American applicants and students is obviously far too numerous to join. Similarly, assuming that half or more of the applications are submitted by women, the class of women applicants or students is too numerous to join.
B. There are questions of law and fact common to the classes. The minority applicants to the three universities attend the same separate and unequal high schools and take the same discriminatory tests. Similarly, the minority students who apply to the graduate and professional schools must pass through not only the discriminatory admissions system of the graduate or professional schools, but in most cases through a discriminatory and hostile undergraduate system. The legal questions at issue are also common to the entire class. The constitutional powers of Michigan, Michigan State and Wayne State are the same. Const
17 www.admissions,umich.edu/fastfacts.html
18

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1963, art 8, sec 5. Proposal 2 applies to all three.18 As set forth in the first Argument, every legal challenge to racial and national origin discrimination applies equally to all underrepresented minorities. Similarly, every legal challenge to gender discrimination applies equally to every woman student or applicant.
C. The claims of the representative parties are typical. The Coalition plaintiffs brought their actions against the three defendant universities because they have suffered and will suffer the loss of any chance for the best education and, in some cases, the chance for any higher education because of the changes in admissions policies forced on those universities by the passage of Proposal 2. The Coalition plaintiffs include three black high school students who applied for and were rejected by the University of Michigan after Proposal 2 went into effect. Arielle Bullard applied--and was virtually assured that she would be accepted as an undergraduate before Proposal 2 went into effect. She, however, was then rejected despite the 4.0 GPA she had earned in her last semester. Cordelia Martin and Chris Sutton also applied--and were also rejected after Proposal 2 went into effect (Ex’s 2, 12, 13; Dec of Bullard, para 2; Dec of Martin, paras 7, 8, 9; Dec of Sutton, paras 2, 17). 19 Similarly, Josie Hyman, a black graduate of UC Berkeley, and Alejandra Cruz, a Latina graduate of UC Berkeley, applied for and were rejected by the Michigan Law School despite excellent undergraduate records.20 Under the admission grids that were in effect when affirmative action was in place at Michigan, they almost certainly would
18 Even Michigan State, which claims not to have considered race in admissions, is subject to challenge under Proposal 2 because it, too, admits black and other minority students with average GPAs and test scores lower than those of white students--and thus has an “affirmative action program” as that term has been defined by the proponents of Proposal 2. 19 Bullard is joined as a member of BAMN. Similarly, Martin’s mother is a member of the plaintiff AFSCME Local 207. If the Court orders, either may be added as an individual plaintiff. 20 Hyman was accepted at Wayne State Law School and has chosen to defer her admission for one year due to family reasons (Ex , Dec of Hyman, para ).
19

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have been admitted but for the passage of Proposal 2. Indeed, Hyman and Cruz are examples of the now tragic consequences of the racial gap that Kidder’s research revealed about the black-white and Latina-white test score gap among applicants to law school from elite educational institutions. Despite excellent records at UC Berkeley, Hyman and Cruz almost certainly lost the chance to go to the University of Michigan Law School because of the scores that they received on an LSAT that was demonstrably stacked against them (Ex 8, 9; Dec of Hyman, para 6; Dec of Cruz, para 9).
Maricruz Lopez, a Latina graduate of Cass Tech, is now an undergraduate at Michigan--but she almost certainly would not have been admitted if Proposal 2 had been in effect. She will be forced to endure the increased isolation and hostility that will result from the increased segregation that Proposal 2 will cause and will almost certainly not have the chance to attend the Law School at Michigan (Ex 4; Dec of Lopez, paras 17).
Dimitri Garcia, a Latino student at UC Berkeley, has stated that he intends to apply to Michigan’s Law School (Ex 10, Dec of Garcia, para 15). Issamar Camacho, an excellent student at Roosevelt High School in East Los Angeles, has declared that she will apply to the University of Michigan next year (Ex 3; Dec of Camacho, para 12).
Three black high school juniors from Detroit have also declared that they intend to apply to Michigan, with MSU and WSU as second choices. Calvin Jevon Cochran, Courtney Drake, and Randiah Green, all from Cass Tech, would have had an excellent chance of going to Michigan before Proposal 2--but may have little chance now (Ex’s 1, 14, 15; Dec of Cochran, paras 2, 19, 20; Dec of Drake, paras 2, 12; Dec of Green, para 5).
The plaintiff BAMN is an organization that is overwhelmingly composed of black and Latino/a high-school and college students. From its founding in 1995, BAMN’s first
20

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purpose has been to fight for and defend affirmative action in secondary schools, in

colleges and in the graduate and professional schools--and it has done so on a consistent

basis across the country (Ex.16). As the Court may certify an organization as a

representative of the class, BAMN requests that it be certified as a class representative in

its own name. Norwalk CORE v Norwalk Redev. Agency, 395 F 2d 920, 937 (CA 2

1968); National Organization for Women, Inc. v Scheidler, 172 FRD 351 (DC Ill 1997);

Garrett v City of Hamtramck, 503 F 2d 1236, 1245 (CA 6 1974).

Finally,

who has a B.S. from Tuskegee, is the only woman

and the only black engineer at an auto manufacturer in Detroit. She intends to apply to a

Master’s program in Electrical Engineering at Michigan. She represents both women and minorities (Ex. 21, Dec of Buckingham, para 7).21

D. The representative parties will fairly and adequately protect the interests of the classes.

For two reasons, the Coalition plaintiffs are not only adequate, but the best

representatives of the actual class that has been harmed by Proposal 2.

First, the Coalition plaintiffs are overwhelmingly high school and college students

who have been directly harmed in that they have been or will be rejected by the

universities solely because of Proposal 2. Their interest is not an abstract interest in

diversity--as important as that may be. It is a direct interest in whether they will receive a

fair chance at an education. Composed overwhelmingly of black students from Detroit

and Latino/a students from Southwest Detroit and California, the Coalition plaintiffs are

the most representative plaintiffs in this action.

21 She is a member of BAMN. If BAMN is not certified as a class representative for women, she could be added as a representative for the class of women affected by Proposal 2.
21

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Second, the overwhelming majority of the Coalition plaintiffs have already been recognized by their peers as representatives of the class of minority students and prospective students. Many hold elected office in their school or college; almost all are well-respected and recognized leaders of the new Civil Rights Movement, experienced as spokespersons and leaders of the millions of black and Latino/a people who have returned to the streets to end second-class treatment for black and brown people.
III. THE COURT SHOULD APPOINT COUNSEL FOR THE COALITION PLAINTIFFS AS COUNSEL FOR THE CLASSES OF MINORITY STUDENTS AND PROSPECTIVE STUDENTS AND OF WOMEN STUDENTS AND PROSPECTIVE STUDENTS. If a class is certified, Rule 23(g) requires the Court to appoint class counsel and
spells out the criteria that the Court must consider in making that determination. The qualifications and resources of the Coalition plaintiffs’ counsel are set forth
in the attached Declarations of George B. Washington, Shanta Driver, Miranda Massie, and Donna Stern. Washington, Driver and Massie are uniquely qualified to handle this matter because of their general experience in civil rights, but even more so because they have spent the last ten years defending affirmative action on a national basis.
Ten years ago, few believed that affirmative action could be defended. Fewer still believed that it could be defended by asserting that its end would mean the resegregation of American education and a deepening of the segregation of American society. Similarly, very few believed that it could be defended--indeed, that it had to be defended-by asserting that affirmative action was not a “preference” to achieve “diversity,” but rather a desegregation plan designed to combat the preferences for white applicants contained in other aspects of the admissions process in use at every major public
22

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university in the United States. But today, those arguments--which were first introduced into the courtroom by BAMN and its attorneys--are commonplaces that are recognized in the concurring opinions in Grutter and that form the unspoken assumptions of the majority opinion in Grutter.
The Coalition attorneys have eminent qualifications as attorneys. Attorney Washington has over 30 years of experience in the areas of labor and civil rights. He has tried hundreds of cases and handled fifty cases where there are decisions of record in the state or federal appellate courts, including many on precedent-setting decisions involving civil rights and civil liberties (Ex 17, Dec of Washington, paras 8, 9, 11, 17, 21, 25). Attorneys Driver and Massie have, respectively, 5 years and 10 years of experience trying civil rights cases, including many cases of enormous importance in this state, in California, and in the nation as a whole (Ex’s 18, 19, Dec of Driver, paras 13, 14; Dec of Massie, paras 2, 3, 4, 5, 6).
What most distinguishes the Coalition plaintiffs’ counsel, however, is not simply their general qualifications but their specific qualifications to represent the plaintiffs in this case. For ten years, Washington, Driver and Massie have devoted much of their time to representing minority students in the fight to defend affirmative action. They are intimately familiar with the admissions systems at Michigan because they were counsel for the intervening student defendants in Grutter. They worked closely with University counsel to defend the Law School plan and to win the victory in Grutter.
Even more than that, the Coalition’s attorneys gave support and, in the case of Driver, spearheaded the birth of a new, integrated civil rights movement, born at the march of 50,000 at the Supreme Court on the day of the argument in Grutter and
23

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continuing today in the irrepressible fight for immigrant rights and for equal, integrated and quality education.
Since the decision in Grutter, the Coalition plaintiffs’ attorneys have taken the lead in every legal challenge to Proposal 2--and in exposing the deception and fraud that were the most effective arguments against Proposal 2. 22
As set forth in the Declarations of Driver and Massie, they are nationally recognized experts in the fight to defend affirmative action. Driver has spoken on those topics before organizations ranging from the Congressional Black Caucus to the Rainbow PUSH Coalition to the NAACP and the Society of American Law Teachers. Universities from Columbia to Harvard to Howard and Yale have invited her to speak on that subject, and she has received voluminous awards for her legal and political work in defense of affirmative action (Ex 18, Dec of Driver, paras 11, 12, 13, 14, 15)
Similarly, Massie has spoken on the topic of affirmative action at organizations ranging from the American Constitution Society at Harvard and Yale Law Schools to the National Bar Association, the National Legal Aid and Defender Association, and the UCLA Chicano-Latino Law Review Committee. She, too, has received numerous awards and a fellowship to write a book on the current status of Brown v Board of Education (Ex 19, Dec of Massie, paras 7, 10, 11).
Because of the work of plaintiffs’ counsel--including in particular on the Grutter case--the most prominent experts in the country have agreed to work pro bono or at greatly reduced rates in support of the Coalition plaintiffs challenge to Proposal 2. In
22 See Coalition to Defend Affirmative Action and Integration v Board of State Canvassers, 262 Mich App 395 (2004), lv den 471 Mich 939 (2004); Operation King’s Dream, et al. v. Connerly, E.D. Mich No. 0612773, 2006 WL 254115 (E.D. Mich. Aug. 29, 2006), app pending Nos. 06-2144, 06-2258; Michigan Civil Rights Initiative v Board of State Canvassers, 268 Mich App 268 (2005), lv den 474 Mich 1099 (2006)
24

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addition, three major labor organizations have already donated or pledged substantial

funds--with more contributions expected in the future (Ex 20, Dec of Stern, para 6).

Most important of all, the Coalition plaintiffs’ attorneys are known to and

recognized by many in the actual class of minority students and prospective students as

the attorneys who have fought for them for ten years.

The Coalition plaintiffs are the best representatives of the actual class of students

who have been and will be harmed by Proposal 2. The arguments that the Coalition

plaintiffs have made are absolutely essential if Proposal 2 is to be defeated--and the

Coalition’s attorneys are the ones who have developed and led the legal fight for

affirmative action for the last ten years. The Coalition plaintiffs assert that their attorneys

should be appointed as the lead attorneys for the class of black, Latino/a, and Native

American students who have been and will be excluded from the public universities of

this state because of the passage of Proposal 2.

CONCLUSION

For the reasons stated, the Coalition plaintiffs request that their motion for class

certification be granted and that their attorneys be appointed as lead counsel for both

classes that have been requested.

By Plaintiffs’ Attorneys, SCHEFF & WASHINGTON, P.C.

Dated: May 15, 2007

BY: s/George B. Washington George B. Washington (P-26201) Shanta Driver (P-65007) Miranda Massie (P-56564) 645 Griswold—Ste 1817 Detroit, Michigan 48226 (313) 963-1921

25

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CERTIFICATE OF SERVICE
I hereby certify that on May 16, 2007, I electronically filed the Plaintiff Coalition
to Defend Affirmative Action’s Motion to Certify a Class and the Coalition’s Attorneys
as Lead Counsel, Brief and Accompanying Exhibits with the Clerk of the Court using the
ECF system which will automatically send notification of filing to:
Charles J. Cooper Cooper and Kirk Attorneys for Russell 555 Eleventh Street, N.W., Suite 750 Washington, D. C. 20004 ccooper@cooperkirk.com 202-220-9600
Michael E. Rosman Center for Individual Rights 1233 20th St, NW, Suite 300 Washington, D.C. 20036 Attys for Intervening Defendant Russell rosman@cir-usa.org 202-833-8410
Kerry L. Morgan Attys for Intervening Defendant Russell kmorganesq@aol.com 734-281-7102
Leonard Niehoff Butzel Long 350 S. Main Street, Suite 300 Ann Arbor, MI 48104 Attys for Defendant Universities 734-995-1777 niehoff@butzel.com
Margaret Nelson Assistant Attorney General P.O. Box 30736 Lansing, MI 48909 Attys for Intervening Defendant Cox 517-373-2454 nelsonma@michigan.gov

2:06-cv-15637-DML-SDP Doc # 60 Filed 05/16/07 Pg 35 of 35 Pg ID 766
James Long Assistant Attorney General Atty for Defendant Granholm P.O. Box 30758 Lansing, MI 48909 517-335-5328 longj@michigan.gov Mark D. Rosenbaum ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 213-977-9500 mrosenbaum@aclu-sc.org Karin A. DeMasi Cravath, Swaine, & Moore, LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019--7475 212-474-1000 KDeMasi@cravath.com
/s/George B. Washington______ George B. Washington (P-26201) SCHEFF & WASHINGTON, P.C. 645 Griswold—Ste 1817 Detroit, Michigan 48226 (313) 963-1921 scheff@ameritech.net
Dated: May 16, 2007
2

 
 2:06-cv-15024-DML-RSW Doc # 179 Filed 10/17/07 Pg 1 of 16 Pg ID 2961

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, et al.,

Plaintiffs,
vs.
JENNIFER GRANHOLM, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, MICHAEL COX, ERIC RUSSELL and the TRUSTEES OF any other public college or university, community college, or school district,

Case No. 06-15024 Hon. David M. Lawson

Defendants.

and CHASE CANTRELL, et al.,
Plaintiffs, vs.

CONSOLIDATED CASES Case No. 06-15637
Hon. David M. Lawson

JENNIFER GRANHOLM and MICHAEL COX,

Defendants.

_________________________________________________________/ THE UNIVERSITY DEFENDANTS’ MOTION TO DISMISS

2:06-cv-15024-DML-RSW Doc # 179 Filed 10/17/07 Pg 2 of 16 Pg ID 2962
1. The Amended Complaint filed by Plaintiff the Coalition to Defendant Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (“BAMN”) names the Regents of The University of Michigan, Board of Trustees of Michigan State University, Board of Governors of Wayne State University, Mary Sue Coleman, in her official Capacity as President of The University of Michigan, Lou Anna K. Simon, in her official Capacity as President of Michigan State University, and Irvin D. Reid, in his official Capacity as President of Wayne State University (collectively, the “University Defendants”) as parties.1 The University Defendants respectfully request that the Court dismiss them from this case.
2. Fed. R. Civ. P. 21 allows for the dropping of unnecessary parties and provides the primary basis for dismissing the University Defendants from this action.
3. BAMN seeks a declaration that Proposal 2 is unconstitutional and an injunction against its enforcement.
4. The University Defendants did not write Proposal 2; they did not pass Proposal 2; they cannot change Proposal 2; they are not executive branch entities charged with the responsibility of enforcing Proposal 2. The only role of the Universities is that they—like every other public body affected by this constitutional amendment—must follow Proposal 2.
5. If this claim by BAMN has merit, then BAMN can obtain all the relief it seeks from the Defendant Attorney General. The University Defendants, however, are powerless to afford BAMN the relief they demand. The University Defendants are therefore unnecessary parties to this action and should be dismissed pursuant to Rule 21.
1 The Cantrell plaintiffs did not name the University Defendants as parties, but this Court has consolidated the Cantrell and BAMN cases. The Cantrell plaintiffs have indicated that they do not oppose the dismissal of the University Defendants from these consolidated cases.
2

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6. An additional and independent reason exists to dismiss Count V of the BAMN

complaint.

7. That Count alleges that Proposal 2 violates the University Defendants’ right to

academic freedom. BAMN plainly lacks standing to bring such a claim against the Universities.

The University Defendants therefore respectfully request that this Court dismiss this claim

against them pursuant to Fed. R. Civ. P. 12(b)(6).

8. On several occasions during October 2007, counsel for the University Defendants

explained the nature of their Motion and its basis to counsel for BAMN and requested but did not

obtain concurrence in the relief sought.

Respectfully submitted,

BUTZEL LONG, PC

Dated: October 17, 2007

By: /s/ Leonard M. Niehoff Leonard M. Niehoff (P36695) Philip J. Kessler (P15921) Sheldon H. Klein (P41062)
350 S. Main Street, Suite 300 Ann Arbor, Michigan 48104 (734) 995-3110 Attorneys for Defendants the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University

3

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, et al.,

Plaintiffs,
vs.
JENNIFER GRANHOLM, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, MICHAEL COX, ERIC RUSSELL and the TRUSTEES OF any other public college or university, community college, or school district,

Case No. 06-15024 Hon. David M. Lawson

Defendants.

and CHASE CANTRELL, et al.,
Plaintiffs, vs.

CONSOLIDATED CASES Case No. 06-15637
Hon. David M. Lawson

JENNIFER GRANHOLM and MICHAEL COX,

Defendants.

_________________________________________________________/
MEMORANDUM OF LAW IN SUPPORT OF THE UNIVERSITY DEFENDANTS’ MOTION TO DISMISS

2:06-cv-15024-DML-RSW Doc # 179 Filed 10/17/07 Pg 5 of 16 Pg ID 2965 TABLE OF CONTENTS
I. INTRODUCTION...........................................................................................................1 III. ARGUMENT ..................................................................................................................3
A. BAMN’s Complaint Should Be Dismissed Under Rule 21 as to the University Defendants Because They Are Not Necessary Parties. .....................................................3
1. Applicable Standard ....................................................................................................3 2. Dismissal Is Proper Here Under Rule 21......................................................................4 B. Count V of BAMN’s Complaint (Violation of the First Amendment) Should Be
Dismissed with Prejudice Because BAMN Lacks Standing as to That Count...................6 1. Applicable Standard ....................................................................................................6 2. BAMN Lacks Standing to Assert the University Defendants’ First Amendment
Rights. ......................................................................................................................... 7 IV. CONCLUSION...............................................................................................................8
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INDEX OF AUTHORITIES
Cases Allen v. Wright, 468 U.S. 737 (1984) ..........................................................................................8 American Fid. Fire Ins. Co. v. Construcciones Werl, Inc., 407 F. Supp. 164 (D.C. V.I. 1975) .....4 Broadrick v. Oklahoma, 413 U.S. 601 (1973)..............................................................................8 Brooks v. Glynn County, 1989 U.S. Dist. LEXIS 4776, *11 (S.D. Ga. 1989)...............................4 Davis v. Int’l Union, UAW, 274 F. Supp. 2d 922 (E.D. Mich. 2004)............................................6 Hispanic Coalition on Reapportionment v. Legislative Reapportionment Commission, 536 F.
Supp. 578 (E.D. Pa. 1982).......................................................................................................6 Johnson-Kurek v. Abu-Absi, 423 F.3d 590 (6th Cir. 2005)............................................................8 Kowalski v. Tesmer, 543 U.S. 125 (2004)....................................................................................8 Letherer v. Alger Group, L.L.C., 328 F.3d 262 (6th Cir. 2003) .....................................................4 Lillard v. Shelby County Bd. of Educ., 76 F.3d 716 (6th Cir. 1996) .............................................7 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................................................7 Michaels Bldg. Co. v. Ameritrust Co., 848 F.2d 674 (6th Cir. 1988).............................................4 Renne v. Geary, 501 U.S. 312 (1991) ..........................................................................................7 Sistrunk v. City of Strongsville, 99 F.3d 194 (6th Cir. 1996) ........................................................7 Statutes Fed. R. Civ. P. 12....................................................................................................................2, 6 Fed. R. Civ. P. 21................................................................................................................ 1, 3, 6 MICH. CONST. Art. I, § 26 (2007).............................................................................................2
ii

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I. INTRODUCTION The Amended Complaint filed by Plaintiff the Coalition to Defendant Affirmative
Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (“BAMN”) names the Regents of The University of Michigan, Board of Trustees of Michigan State University, Board of Governors of Wayne State University, Mary Sue Coleman, in her official Capacity as President of The University of Michigan, Lou Anna K. Simon, in her official Capacity as President of Michigan State University, and Irvin D. Reid, in his official Capacity as President of Wayne State University (collectively, the “University Defendants”) as parties.2 The University Defendants respectfully request that the Court dismiss them from this case.
Fed. R. Civ. P. 21 allows for the dropping of unnecessary parties and provides the primary basis for dismissing the University Defendants from this action. The limited role of the Universities here is obvious but merits emphasis: the University Defendants did not write Proposal 2;3 they did not pass Proposal 2; they cannot change Proposal 2; they are not executive branch entities charged with the responsibility of enforcing Proposal 2. The only role of the Universities is that they—like every other public body affected by this constitutional amendment—must follow Proposal 2.
BAMN seeks a declaration that Proposal 2 is unconstitutional and an injunction against its enforcement. If this claim has merit, then BAMN can obtain all the relief it seeks from the Defendant Attorney General. The University Defendants, however, are powerless to afford
2 The Cantrell plaintiffs did not name the University Defendants as parties, but this Court has consolidated the Cantrell and BAMN cases. The Cantrell plaintiffs have indicated that they do not oppose the dismissal of the University Defendants from these consolidated cases. 3 On November 7, 2006, the voters of the State of Michigan enacted Proposal 2, which added a new Section 26 to Article I of the Michigan State Constitution. MICH. CONST. Art. I, § 26 (2007) (“Proposal 2”).
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BAMN the relief they demand. The University Defendants are therefore unnecessary parties to this action and should be dismissed pursuant to Rule 21.
An additional and independent reason exists to dismiss Count V of the BAMN complaint. That Count alleges that Proposal 2 violates the University Defendants’ right to academic freedom. BAMN plainly lacks standing to bring such a claim against the Universities. The University Defendants therefore respectfully request that this Court dismiss this claim against them pursuant to Fed. R. Civ. P. 12(b)(6). II. STATEMENT OF RELEVANT FACTS
On November 7, 2006, the voters of the State of Michigan enacted Proposal 2, which added a new Section 26 to Article I of the Michigan State Constitution. In pertinent part, Proposal 2 amended the Constitution as follows:
(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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. (2) The state shall 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… MICH. CONST. Art. I, § 26 (2007) (“Proposal 2”)4 (emphasis added) Shortly after the enactment of Proposal 2, BAMN filed a Complaint challenging its validity and seeking to prevent its enforcement. BAMN subsequently filed the Amended Complaint that is the subject of this motion. BAMN’s Amended Complaint alleges that Proposal 2 violates federal law, including the United States Constitution. See Amended Complaint, Docket No. 24. In Count I, BAMN claims
4 Emphasis supplied throughout and citations omitted unless otherwise noted.
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that Proposal 2 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Id., ¶¶ 76-82. BAMN therefore requests declaratory and injunctive relief “restraining the defendants from implementing Proposal 2.” Id. In Counts II, III and IV, BAMN alleges that Proposal 2 is preempted by Titles VI and VII of the Civil Rights Act of 1964, and by Title IX of the Educational Amendments of 1972. Id., ¶¶ 83–101. Here again, BAMN requests declaratory and injunctive relief “restraining the defendants from implementing Proposal 2…” Id.
In Count V, BAMN alleges that Proposal 2 violates a First Amendment right to academic freedom. But the Amended Complaint clearly—and correctly—alleges that this right belongs to the University Defendants rather than to BAMN: “Proposal 2 invades the First Amendment rights of the defendant universities to select their student bodies and their teaching staff in ways that the educational authorities have deemed most appropriate.” Id., ¶ 105. For this alleged violation of the University Defendants’ rights, BAMN seeks “injunctive relief restraining the defendant universities from changing their admission or other policies in an attempt to comply with Proposal 2.” Id. III. ARGUMENT
A. BAMN’s Complaint Should Be Dismissed Under Rule 21 as to the University Defendants Because They Are Not Necessary Parties. 1. Applicable Standard
All five counts of BAMN’s’ Complaint should be dismissed as to the University Defendants pursuant to Fed. R. Civ. P. 21, which provides, in pertinent part, as follows:
Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Fed. R. Civ. P. 21.
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Rule 21 thus provides “a mechanism for correcting either the misjoinder or non-joinder of parties or claims.” American Fid. Fire Ins. Co. v. Construcciones Werl, Inc., 407 F. Supp. 164, 190 (D.C. V.I. 1975). The Court has broad discretion to drop a party under Rule 21. Michaels Bldg. Co. v. Ameritrust Co., 848 F.2d 674, 682 (6th Cir. 1988) (“The manner in which a trial court handles misjoinder lies with that court’s sound discretion.”). “Dropping” a misjoined party is achieved by dismissing the claims against that party without prejudice. Letherer v. Alger Group, L.L.C., 328 F.3d 262, 267 (6th Cir. 2003).
2. Dismissal Is Proper Here Under Rule 21 Rule 21 does not itself define “misjoinder.” The cases interpreting the rule, however, clarify its meaning and application. That case law makes plain that where a defendant’s presence is not necessary to afford a plaintiff complete relief, such as where the defendant lacks the authority to provide the requested relief, the defendant should be dropped as a party and dismissed without prejudice. See, e.g., Brooks v. Glynn County, 1989 U.S. Dist. LEXIS 4776, *11 (S.D. Ga. 1989) (“Where a particular defendant lacks authority to provide the requested relief, dismissal is proper.”).5 Brooks is instructive here. In that case, plaintiffs—African American voters in the various judicial circuits in Georgia—brought a class action challenging state laws that allowed for the use of “at large” elections. Plaintiffs claimed that such elections prevented African Americans from being the majority voting bloc in many districts. Id. at 2-4. Plaintiffs argued that this election system unfairly discriminated against African American voters and violated the Federal Voting Rights Act and the 13th, 14th, and 15th amendments. Id. at 2. Plaintiffs sued the State Election Board, the Secretary of the State of Georgia, and the Chairman of the State
5 A copy of Brooks is attached hereto as Exhibit A.
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Election Board. Id. Plaintiffs also sued the “Superintendent of Elections” of several counties
(“local defendants”).
The local defendants moved to be dropped from the case pursuant to Rule 21 on the basis
that the election practices at issue were statewide and that, therefore, the state defendants—not
the local defendants—were responsible for the challenged practices. Id. at 4–5. The local
defendants argued that they had no power to grant plaintiffs any of the relief requested, and that
dismissing them would not prejudice the plaintiffs or the state defendants. Id. Plaintiffs claimed
that the local defendants were proper parties because they supervised the elections and would
implement any changes to the law. Id. at p. 6.
The Court granted the local defendants’ Rule 21 Motion and held that they were not
necessary parties:
The Court finds that the local defendants’ presence is not necessary to afford plaintiffs complete relief. State officials are charged with the responsibility of complying with preclearance requirements. In addition, the other challenged election procedures were promulgated by the state legislature and not by the local defendants….
….. [Georgia law] specifies that a superintendent’s rulemaking authority is circumscribed by laws and by regulations of the State Elections Board. Plaintiffs have not alleged that the local defendants failed to follow the dictates of the State Election Board or that the local defendants applied state law discriminatorily. Consequently, the Court can afford plaintiffs the relief requested without the presence of the local defendants; the Court can address the alleged grievances, if necessary, by directing the state defendants to amend state laws, by declaring certain statutes unenforceable until precleared, and by enjoining certain state-wide procedures.
The gravamen of plaintiffs’ complaint is that the local defendants and other superintendents have acted in accordance with a superior court judge election system that discriminates against blacks. The local defendants do not have the authority to amend these laws. They function in a ministerial capacity and they cannot act in a manner inconsistent with the statute governing election of superior court judges.
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Where a particular defendant lacks authority to provide the requested relief, dismissal is proper… [t]he power to alter the contested procedures rests with the state defendants. Joinder of the local defendants is superfluous and they will be dismissed. Id. at 8–11. See also Hispanic Coalition on Reapportionment v. Legislative Reapportionment Commission, 536 F. Supp. 578, 584 (E.D. Pa. 1982) (“where certain defendants are clearly without authority or power to effect any of the relief sought by plaintiffs, a motion to drop those defendants may be properly granted.”). As noted above, the University Defendants are not necessary parties to this action. They are not charged with the responsibility of enforcing Proposal 2 against anyone or of defending Proposal 2 in court. They did not draft or enact Proposal 2 and they cannot repeal it, amend it, or ignore it. At present, all they can do is follow it. In contrast, should this Court grant BAMN the relief it seeks, that relief can be obtained from the Defendant Attorney General. Because the University Defendants are not necessary parties to this action they should be dismissed pursuant to Fed. R. Civ. P. 21. B. Count V of BAMN’s Complaint (Violation of the First Amendment) Should Be Dismissed with Prejudice Because BAMN Lacks Standing as to That Count 1. Applicable Standard Pursuant to Fed. R. Civ. P. 12(b)(6), the University Defendants also seek dismissal of Count V of BAMN’s Complaint (“Violation of the First Amendment”) on the separate and independent basis that BAMN lacks standing to assert it. A 12(b)(6) motion requires the Court to determine whether a legally cognizable claim has been pleaded in the Complaint. See Davis v. Int’l Union, UAW, 274 F. Supp. 2d 922, 924 (E.D. Mich. 2004). The Court must view the complaint in a light most favorable to the plaintiff, accept the plaintiff’s factual allegations as true, and must determine whether the plaintiff undoubtedly can prove no set of facts in support of
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its claims that would entitle it to relief. See Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). While the requirements of “notice pleading” may be minimal, a plaintiff still must plead either direct or inferential allegations concerning all material or essential elements necessary for recovery as to each claim asserted. See, e.g., Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726-27 (6th Cir. 1996). Here, BAMN alleges that “defendant universities”—not BAMN—have a First Amendment right to exercise academic freedom and to determine academic standards. Under controlling principles of law, BAMN has no such right, and therefore lacks standing to proceed with this claim. As a result, Count V should be dismissed with prejudice.
2. BAMN Lacks Standing to Assert the University Defendants’ First Amendment Rights.
BAMN bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Courts should “presume that [they] lack jurisdiction unless the contrary appears affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991). Plaintiffs have the “responsibility…to allege facts demonstrating that [they are] proper part[ies] to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.” Id.
To meet its burden, BAMN must demonstrate that it has a legally protected interest at stake. See Lujan, 504 U.S. at 560. However, BAMN’s Amended Complaint itself acknowledges that any right of “academic freedom” implicated here belongs to the University Defendants – and not BAMN – when it alleges that “Proposal 2 invades the First Amendment rights of the defendant universities to select their student bodies and their teaching staff in ways that the educational authorities have deemed most appropriate.” See Amended Complaint, Docket No. 24, ¶ 105.
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Significantly, there is a “general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff’s complaint fall within the zone of interests.” Allen v. Wright, 468 U.S. 737, 751 (1984). As a result, a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). As the Supreme Court noted in Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973):
Constitutional rights are personal and may not be asserted vicariously. These principles rest on more than the fussiness of judges. They reflect our conviction that under out constitutional system courts are not roving commissions assigned to pass judgment on the Nation’s laws. Further, the case law indicates that any right of “academic freedom” implicated here belongs to the University Defendants. Just last year, the Sixth Circuit declared that “[t]o the extent the Constitution recognizes any right of ‘academic freedom’ above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the University.” Johnson-Kurek v. Abu-Absi, 423 F.3d 590, 593-595 (6th Cir. 2005). BAMN has failed to meet its burden of establishing its standing to assert this claim and Count V should therefore be dismissed with prejudice. IV. CONCLUSION For the foregoing reasons, the University Defendants respectfully request that the Court enter an Order granting this Motion and dismissing BAMN’s Complaint against the University Defendants as outline above. In addition, the University Defendants respectfully request that the Court award any other relief it determines is equitable and just.
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Dated: October 17, 2007
182304

Respectfully submitted,
BUTZEL LONG, PC
By: /s/ Leonard M. Niehoff Leonard M. Niehoff (P36695) Philip J. Kessler (P15921) Sheldon H. Klein (P41062)
350 S. Main Street, Suite 300 Ann Arbor, Michigan 48104 (734) 995-3110 Attorneys for Defendants the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University

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CERTIFICATE OF SERVICE
I hereby certify that on October 17, 2007, I electronically filed the foregoing Motion to Dismiss of the University Defendants and Brief in Support of Motion and it is available for viewing and downloading from the ECF system. Service was accomplished by means of Notice of Electronic Filing upon the attorneys of record.
___/s/__Leonard M. Niehoff______ 350 S. Main Street, Suite 300 Ann Arbor, MI 48104 (734) 213-3625 niehoff@butzel.com P36695 Attorney for the University Defendants
182302

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, et al.,

Plaintiffs,
v.
JENNIFER GRANHOLM, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, MICHAEL COX, ERIC RUSSELL, and the TRUSTEES OF any other public college or university, community college or school district,

Case No. 06-15024 Hon. David M. Lawson
CONSOLIDATED CASES

Defendants.

- and -
CHASE CANTRELL, et al., Plaintiffs,
v. JENNIFER GRANHOLM, in her Official Capacity as Governor of the State of Michigan,
Defendant.

Case No. 06-15637 Hon. David M. Lawson

THE CANTRELL PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7.1, and for the reasons set forth in the attached Memorandum, Plaintiffs Chase Cantrell, et al. (the “Cantrell Plaintiffs”) respectfully move this Court for the entry of summary judgment that Michigan

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Constitution Article I, § 26 (“Proposal 2”) is unconstitutional. In support of this motion, the Cantrell Plaintiffs submit the accompanying Memorandum of Law and Exhibits A through R in support thereof.
Pursuant to Eastern District of Michigan Local Rule 7.1, movants have conferred with counsel for all parties via email. The University Defendants take no position respecting the relief sought in this motion. The Attorney General and Intervenor-Defendant Eric Russell oppose this motion. The Coalition Plaintiffs could not be reached by the date of filing.

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MEMORANDUM OF LAW IN SUPPORT OF THE CANTRELL PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Issue Presented
Whether the Court should enter summary judgment that Michigan Constitution Article I, § 26 (“Proposal 2”) is unconstitutional.
Controlling Authority Fed. R. Civ. P. 56.

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TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ......................................................................................................... iii PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF UNDISPUTED FACTS ....................................................................................4
A. The Advent of Proposal 2. .......................................................................................4 B. The Implementation Of Proposal 2..........................................................................5 C. The Present Litigation..............................................................................................7 ARGUMENT ...................................................................................................................................9 I. THERE IS NO DISPUTE THAT PROPOSAL 2 PROHIBITS UNIVERSITIES SEEKING TO ACHIEVE DIVERSITY FROM CONSIDERING AN APPLICANT’S RACE WHILE ALLOWING ALL OTHER PERTINENT ELEMENTS OF DIVERSITY TO BE WEIGHED IN THE ADMISSIONS PROCESS, THEREBY CREATING AN IMPERMISSIBLE DISTINCTION BASED ON RACE IN VIOLATION OF THE FOURTEENTH AMENDMENT.............9 A. It Is Undisputed That The Universities Have Long Sought To Achieve A
Diverse – Including A Racially Diverse – Student Body. .......................................9 B. It Is Undisputed That Proposal 2 Prevents The Consideration of Race In
An Admissions Process That Weighs Myriad Other Non-Academic Factors And Pertinent Elements Of Diversity. ......................................................12 C. Proposal 2 Creates An Impermissible Distinction Based On Race In Violation Of The Fourteenth Amendment.............................................................18 II. THERE IS NO DISPUTE THAT PROPOSAL 2 MAKES IT MORE DIFFICULT TO ACHIEVE RACE-CONSCIOUS ADMISSIONS POLICIES THAN TO ACHIEVE OTHER TYPES OF BENEFICIAL LEGISLATION, THUS IMPOSING AN UNEQUAL BURDEN ON PEOPLE OF COLOR IN VIOLATION OF THE FOURTEENTH AMENDMENT. ...............................................21 A. A Law That Selectively Burdens The Political Process To The Detriment Of Racial Minorities Violates The Equal Protection Clause Of The Fourteenth Amendment. ........................................................................................22
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B. It Is Undisputed That Proposal 2 Restructures The Political Process By Lodging Decisionmaking Authority Over The Question Of RaceConscious Admissions At A New And Remote Level Of Government................23 1. There Is No Dispute That Proposal 2 Has A Racial Focus........................23 2. There Is No Dispute That The Process Of Amending The Michigan Constitution – Now The Only Means Of Restoring RaceConscious Admissions Policies – Is Far More Onerous Than The Process Of Seeking A Policy Change By Lobbying The Universities Directly. .................................................................................26
Conclusion .....................................................................................................................................33
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TABLE OF AUTHORITIES

Page

Cases Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006) ........................... 5 Coal. for Econ. Equity v. Wilson, 110 F.3d 1431 (9th Cir. 1997) ................................................ 23 Grutter v. Bollinger, 539 U.S. 306 (2003)............................................................................. passim Hunter v. Erickson, 393 U.S. 385 (1969) .............................................................................. passim Lee v. Nyquist, 318 F. Supp. 710 (D.C.N.Y. 1970), aff'd, 402 U.S. 935 (1971) .......................... 24 Parents Involved in Comty. Sch. v. Seattle Sch. Dist. No 1, 127 S.Ct. 2738 (2007)......... 19, 20, 21 Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978) ............................................... 10 Romer v. Evans, 517 U.S. 620 (1996).......................................................................... 18, 19-20, 21 United States v. Munsingwear, 340 U.S. 36 (1950)........................................................................ 5 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)................................................ passim

Statutes & Rules 1976 Mich. Pub. Acts 453, as amended, Mich. Comp. Laws § 37.2201 et seq............................ 26 Fed. R. Civ. P. 56............................................................................................................................ 1 E. Dist. Mich. L. R. 7.1................................................................................................................... 1 Mich. Const. art. I, § 26 .............................................................................................................. 1, 5

Other Approved Ballot Language,
http://www.michigan.gov/documents/Bal_Lang_MCRI_152610_7.pdf .................................. 25
Ballot Question Committee for Proposal 2, http://www.michigancivilrights.org/aboutus.html ................................................................... 26
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Decl. of Bryon Maxey in Supp. of Cantrell Pls’ Mot. for Class Cert., Dkt. No. 117 ............. 14, 24 Decl. of Sheldon Johnson in Supp. of Cantrell Pls’ Mot. for Class Cert., Dkt. No.
114............................................................................................................................................ 24 Introduction: The Michigan Civil Rights Initiative
http://www.adversity.net/michigan/mcri_start.htm................................................................. 4-5 The University Defs. Responses To Pls. Chase Cantrell, Et Al.’s First Requests
For Admissions, Ex. I to Dkt. No. 172 ............................................................................. passim University of Michigan, Diversity Blueprints: Final Report (2007),
Ex. 3 to Dkt. No. 182 ...................................................................................................... 9, 17-18
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Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7.1, Plaintiffs Chase Cantrell, et al. (the “Cantrell Plaintiffs”) respectfully move this Court for the entry of summary judgment that Michigan Constitution Article I, § 26 (hereinafter “Proposal 2”) is unconstitutional.1
PRELIMINARY STATEMENT “‘[T]he core of the Fourteenth Amendment is the prevention of meaningful and unjustified official distinctions based on race.’” Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 486 (1982) (quoting Hunter v. Erickson, 393 U.S. 385, 391 (1969)). Proposal 2 contravenes this core principle by creating indefensible distinctions based on race in the university admissions process that redound to the detriment of people of color. Proposal 2 distinguishes between race and all other pertinent elements of diversity that a university may permissibly consider in the admissions process. As a result, applicants may support their applications with any aspect of their identity that matters to them – and that may enhance student body diversity – except their race. Similarly, Proposal 2 selectively burdens people of color in the political process by making it virtually impossible to secure race-conscious admissions policies. This surgically targeted excision of race pronounces race meaningless and denies people of color an equal opportunity to have race considered in a process that values diversity.
1 In relevant part, Proposal 2 prohibits Michigan’s public universities, among others, from “discriminat[ing] against, or grant[ing] 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.” Mich. Const. art. I, § 26. For purposes of this motion, the term “race” is used to encompass “race,” “color,” “ethnicity,” and “national origin,” as those terms are used in Proposal 2. Proposal 2’s effect on “sex” is not relevant in the context of university admissions in this case because gender diversity occurs naturally in most circumstances at Michigan’s universities; “sex”, therefore, is not a widely used admissions criterion.

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As the Supreme Court has recognized, race and diversity are inextricably linked: “Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.” Grutter v. Bollinger, 539 U.S. 306, 333 (2003). Indeed, diversity without race is not genuine diversity.
Summary judgment is the appropriate way to adjudicate Proposal 2’s constitutionality because, even after extensive discovery, the facts about Proposal 2 are not in dispute. The Universities have produced thousands of pages of documents, the directors of admissions at the University of Michigan undergraduate, law and medical schools as well as the dean of Wayne State University Law School all have testified as persons most knowledgeable about their respective admissions policies, and discovery has been sought from Proposal 2’s sponsors and proponents. That discovery – along with the defendants’ own admissions – dispositively shows that Proposal 2 impermissibly burdens interests of minorities in two distinct ways.
First, it is undisputed that Proposal 2 prohibits the consideration of race in an admissions process that otherwise permissibly seeks diversity through all other personal attributes, such as socioeconomic status, geography, military service, etc. The targeted extraction of race from the pursuit of student body diversity indisputably redounds to the detriment of people of color whose racial identity – informed by a unique set of life experiences – may be a defining aspect of their character. While public universities may not be constitutionally required to consider race, neither can they be legislatively proscribed from according any weight to an applicant’s race while considering any other pertinent personal
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attribute in pursuit of broad student body diversity. Singling out race in this manner – by subtracting it from an equation that values all other diversity-enhancing characteristics in an attempt to divorce race from diversity – “imposes direct and undeniable burdens on minority interests” in violation of the Fourteenth Amendment. Seattle, 458 U.S. at 484. To hold otherwise permits the state to mandate that one’s race does not matter in a community that values diversity.
Second, it is also beyond dispute that Proposal 2 imposes a substantial and unique political burden on individuals seeking to restore race-conscious admissions policies. Proposal 2 makes it far more difficult – indeed, practically impossible – to achieve race-conscious admissions policies that inure primarily to the benefit of racial minorities than to achieve other types of beneficial legislation. In Hunter and Seattle, the Supreme Court struck down laws that drew distinctions based on race by restructuring the political process so as to selectively burden attempts to secure programs that “inure[ ] primarily to the benefit of the minority.” Seattle, 458 U.S. at 472; see also Hunter, 393 U.S. at 390-91. Precisely like the laws in those cases, Proposal 2 impermissibly “uses the racial nature of an issue to define the governmental decisionmaking structure, and thus imposes substantial and unique burdens on racial minorities.” Seattle, 458 U.S. at 470. And while the Supreme Court has repeatedly underscored that racial diversity benefits the entire academic community, Grutter, 539 U.S. at 329-330; Seattle, 458 U.S. at 472, it is incontrovertible that Proposal 2 most directly burdens students of color by significantly diminishing their ability to access Michigan’s institutions of higher education and depressing their admission and enrollment numbers.
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STATEMENT OF UNDISPUTED FACTS A. The Advent of Proposal 2.
Michigan’s public universities have long enjoyed autonomy over their admissions policies and procedures. (See The University Defs. Responses To Pls. Chase Cantrell, Et Al.’s First Requests For Admissions, Ex. I to Dkt. No. 172, at Nos. 4, 5, 6 (“Univ. RFA Resp., Ex. I to Dkt. No. 172 at No. __”).) The governing boards of the University of Michigan, Michigan State University and Wayne State University (the “Universities”) have generally “delegated the responsibility to establish admission standards, policies and procedures to units within the institutions, including central admissions offices, schools and colleges” (hereinafter “University Admitting Units”). (Id. at No. 4.) Over the last three decades – and partly in response to lobbying efforts by underrepresented minority students – the Universities sought to achieve a diverse student body by considering a wide variety of non-academic factors, including race, as part of a holistic review of each individual applicant. (Id. at No. 8; see also infra Part I.A.) Student body diversity, including racial diversity, was an affirmative goal of the Universities’ admissions process, and one that the Supreme Court deemed a “compelling state interest that can justify the use of race in university admissions.” Grutter, 539 U.S. at 325. Thus, prior to Proposal 2, applicants were reviewed under a process that highly valued and inquired into all pertinent aspects of their identity – including their race.
Just a few weeks after Grutter, the Michigan Civil Rights Initiative Committee (“MCRIC”) announced a new plan for eradicating the use of race in admissions by means of a voter ballot initiative to amend the Michigan Constitution. See “Introduction: The Michigan
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Civil Rights Initiative,” available at http://www.adversity.net/michigan/mcri_start.htm (last
visited November 30, 2007). That plan eventually took shape as Ballot Proposal 06-02.
B. The Implementation Of Proposal 2. On November 7, 2006, Michigan voters passed Proposal 2 by a margin of 58 to
42 percent. As a result, the Michigan Constitution was amended to prohibit the Universities
from “discriminat[ing] against or grant[ing] 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.” MICH. CONST. art. I, § 26. Proposal 2 took effect on December 23, 2006, and, after a brief stay,2 applied to the Universities’ 2006-2007 admissions
cycles. (See Univ. RFA Resp., Ex. I to Dkt. No. 172 at No. 47; Def.-Intervenor Att. Gen.
Michael Cox’s Resp. To Cantrell Pls.’ Requests For Admission, attached hereto as Ex. A, at No.
14 (“Cox RFA Resp., Ex. A No. __”).) In response to Proposal 2, the Universities eliminated
race from their admissions criteria but retained discretion to consider numerous other personal
2 Full implementation of Proposal 2 at Michigan’s public universities was delayed briefly due to the entry of a stipulated injunction intended to avoid the unfairness of having admissions criteria change mid-cycle. On December 29, 2006, a panel of the Sixth Circuit issued a preliminary decision staying the injunction pending a full appeal. See Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 253 (6th Cir. 2006). In doing so, the panel made “clear” that it was not making a decision “on the merits.” Id. at 243 (“Let us be clear that the merits of the appeal of the order granting the preliminary injunction . . . are not before this panel.”). Shortly after Proposal 2 went into full effect, the appeal from the stay was withdrawn as moot, never having been heard on the merits. The Sixth Circuit presently has pending before it a motion to vacate the December 29 order because in circumstances such as these, where an order becomes moot pending appeal by no fault of any party, it is “the duty of the appellate court” to “clear[] the path for future relitigation of the issues between the parties” by dismissing the appeal and vacating the underlying order. See United States v. Munsingwear, 340 U.S. 36, 40 (1950). The Supreme Court has held that such vacatur is “commonly utilized . . . to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences” and to ensure that the rights of the parties are not “prejudiced by a decision which . . . was only preliminary.” Id. at 40-41.
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identities, however defined by student applicants, along with multiple other non-academic factors – for example, geographic location, alumni connections, socioeconomic status and identification as a possible scholarship athlete – in selecting among candidates for admission. (See Univ. RFA Resp., Ex. I to Dkt. No. 172 at Nos. 48, 50, 51, 52, 53, 54, 55.) The Directors of admission at the University of Michigan undergraduate, law and medical schools and the Dean of Wayne State University Law School all testified that Proposal 2 prohibits them from implementing changes to their admissions policies that would permit any consideration of race, even as constitutionally upheld in Grutter. (See infra Part II.B.2.) With Proposal 2 in effect, “any individual or group who believes that . . . the Universities should restore . . . their use of race or gender may now seek [such] a change . . . only by seeking a state constitutional amendment.” (Resp. To Pls. Chase Cantrell, Et Al.’s Modified First Request For Admissions To Gov. Jennifer Granholm, attached hereto as Ex. B, at No. 21 (“Granholm RFA Resp., Ex. B No. __”)); see also infra Part II.B.2.)
The process of amending the Michigan Constitution by voter ballot initiative is indisputably “lengthy, complex, difficult and expensive.” (Declaration of Kristina Wilfore, attached hereto as Ex. C, at heading II (“Wilfore Decl., Ex. C ¶ __”).)3 Successful ballot initiative campaigns “require connections with a network of supporters, political capital with the major players in the relevant state, and access to significant financial resources as well as a substantial base of willing volunteer supporters.” (Id. at ¶ 12.) In Michigan – “a politically
3 As discussed below (infra at 8), Ms. Wilfore is Executive Director of the Ballot Initiative Strategy Center, Inc., a non-profit organization with expertise in ballot initiative campaigns across the country, including in Michigan.
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competitive state, with expensive media markets and a particularly large number of initiatives vying for voters’ attention on any given ballot” – the ballot initiative process is “particularly onerous, expensive and burdensome when compared to other states.” (See id. at ¶¶ 27, 29.) More than 380,000 signatures are required to put a proposal on the Michigan ballot. (Cox RFA Resp., Ex. A No. 17.) The cost of gathering these signatures and launching a state-wide media campaign is, at minimum, $5 million, and can be as high as $10 million to $15 million. (Wilfore Decl., Ex. C ¶ 30.) For those reasons, and because “[p]roponents of initiatives seeking to benefit minorities on the basis of race, such as initiatives dealing with affirmative action, are even more disadvantaged” in this process, “a voter initiative campaign targeted at overturning Proposal 2 in the area of [considering] race in universities [sic] admissions faces overwhelming odds.” (Id. at ¶ 39.)
C. The Present Litigation. The Cantrell Plaintiffs filed their First Amended Complaint on January 17, 2007.
Through months of discovery, the Universities have produced thousands of pages of documents, and those individuals in the best position to understand the practical effects of Proposal 2 have been deposed: Ted Spencer, Director of Undergraduate Admissions for the University of Michigan; Sarah Zearfoss, Assistant Dean for Admissions at the University of Michigan Law School; Robert Ruiz, Director of Admissions for the Medical School of the University of Michigan; and Frank Wu, Dean of Wayne State University School of Law. Defendants Attorney General Cox and the Universities, as well as Governor Jennifer Granholm,4 have made numerous
4 Governor Granholm was dismissed from this litigation on September 5, 2007, by stipulation among the parties.
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admissions that are central to the Cantrell Plaintiffs’ claims. And non-party MCRIC has
provided document and deposition discovery in response to a subpoena issued by the Coalition Plaintiffs relating directly to the intended purpose of Proposal 2.5
In addition, two students of color at the University of Michigan (both of whom
are named plaintiffs here) and a prospective applicant of color to the University of Michigan and
Michigan State University (who is a member of the putative Cantrell class) have submitted
declarations in support of this motion confirming that race is a fundamentally important part of
their identity. The Cantrell Plaintiffs also submit the declarations of three expert witnesses:
• William Bowen, a former president of Princeton University and the author of two books on the subject of race-conscious admissions policies. Mr. Bowen has submitted a declaration in support of this motion on the role of race-conscious admissions in American higher education;
• Jeannie Oakes, Presidential Professor in Educational Equity at the Graduate School of Education and Information Studies, University of California, Los Angeles; an expert in the area of access to college and inequities in United States schooling; and author of more than 100 published research reports, chapters and articles as well as many books on these subjects. Ms. Oakes has submitted a report in support of this motion concluding that there are no race-neutral approaches to achieving diversity at the University of Michigan;
• Kristina Wilfore, Executive Director of Ballot Initiative Strategy, Inc., a non-profit specializing in planning, studying, researching and participating in voter ballot initiative processes across the country, including in Michigan. Ms. Wilfore, who has worked on approximately 150 ballot initiative campaigns in 30 different states (including seven in Michigan), has submitted a declaration in support of this motion addressing the difficulties and expense of using a ballot initiative to amend a state constitution, Michigan’s in particular.
5 On August 23, 2007, the Cantrell Plaintiffs moved to compel MCRIC’s compliance with a document subpoena issued on June 26, 2007. That motion is pending before the Court.
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The facts revealed in discovery, the declarations of students of color, and the research of experts in this area dispositively show that Proposal 2 (1) prohibits universities seeking to achieve diversity from considering an applicant’s racial identity while allowing the consideration of all other individual identities and pertinent non-academic factors, and (2) makes it substantially more difficult to achieve race-conscious admissions policies than to achieve other types of beneficial legislation.
ARGUMENT I. THERE IS NO DISPUTE THAT PROPOSAL 2 PROHIBITS UNIVERSITIES
SEEKING TO ACHIEVE DIVERSITY FROM CONSIDERING AN APPLICANT’S RACE WHILE ALLOWING ALL OTHER PERTINENT ELEMENTS OF DIVERSITY TO BE WEIGHED IN THE ADMISSIONS PROCESS, THEREBY CREATING AN IMPERMISSIBLE DISTINCTION BASED ON RACE IN VIOLATION OF THE FOURTEENTH AMENDMENT. A. It Is Undisputed That The Universities Have Long Sought To Achieve A
Diverse – Including A Racially Diverse – Student Body. Recognizing that “substantial educational benefits . . . flow from having a diverse student body,” the Universities have long sought to achieve diversity on their campuses. (See Univ. RFA Resp., Ex. I to Dkt. No. 172 at No. 9.) For example, diversity at the University of Michigan is “far more than a demographic goal: [it] is the experience of meaningful exploration and exchange through a set of dynamic and reciprocal interactions.” (University of Michigan, Diversity Blueprints: Final Report (2007), Ex. 3 to Dkt. No. 182, at 6 (“Diversity Blueprints Report, Ex. 3 to Dkt. No. 182 at __”).) Race, along with many other non-academic factors and personal attributes, has long been essential to the Universities’ “definition of diversity.” (See, e.g., Deposition of Theodore Spencer, attached hereto as Ex. D, at 40:6-9 (“Spencer Dep., Ex. D at __”).) Beginning in the 1960s, the Universities “adopted policies that permitted the
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consideration of the race of an applicant as one of many factors used in making admissions decisions.” (See Univ. RFA Resp., Ex. I to Dkt. No. 172 at Nos. 9, 11 (admitting that the Universities employed race-conscious admissions policies in an effort “to increase minority presence” on their campuses).) At the University of Michigan Law School, for example, Dean Zearfoss testified that it is “important in the [admissions] policy to get a critical mass of underrepresented minorities” because “having a critical mass of various ethnic groups in the classroom enhance[s] the classroom dialogue, and, thus, enhance[s] the educational experience for all our students.” (Deposition of Sarah Zearfoss, attached hereto as Ex. E, at 49:13-23 (“Zearfoss Dep., Ex. E at __”).) Dean Wu similarly testified that Wayne State University Law School’s “commitment to achieving racial and ethnic diversity in the law school student body [was] explicitly noted” in the policy that was in place prior to Proposal 2. (Deposition of Frank Wu, attached hereto as Ex. F, at 32:5-8 (“Wu Dep., Ex. F at __”).)
Prior to Proposal 2, the Universities permissibly considered myriad non-academic factors, including race, as part of their admissions process in order to achieve student body diversity. See Grutter, 539 U.S. at 334 (upholding admissions programs that are “‘flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant’”) (quoting Regents of the Univ. of California v. Bakke, 438 U.S. 265, 317 (1978)) (emphasis added). The University of Michigan undergraduate admissions committee, for example, “look[ed] at many, many different factors in reviewing [each] student’s application” and based its admissions decisions not just on “any one particular factor, race or anything else, but rather on the composite review of all the information that the student provide[d].” (Spencer Dep., Ex. D at 38:5-19.) The admissions application inquired into what students could contribute
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to the university community in terms of diversity, and applicants were free to characterize their identity however they understood it. In addition, Director Spencer testified that the admissions committee considered “over 50 to 80 different categories [of factors] in evaluating each student,” the “largest portion of [which] . . . would fall into the category of perhaps the non-academic and cognitive kinds of things.” (Id. at 35:18-22.) Such factors included, for example, personal interest and achievements, geography, alumni connections, family income, family educational background, race and ethnicity, as well as “overcoming obstacles, work experience, [and] any extraordinary awards, both inside the classroom and outside the classroom.” (Id. at 34:1335:18.) Dean Zearfoss also testified that, prior to Proposal 2, the University of Michigan Law School considered “many factors in [its] admissions decision[s],” including, for example, underrepresented minority status, ethnic background, socioeconomic background, alumni connections and military service. (See Zearfoss Dep., Ex. E at 43:17-46:3; 57:3-58:2.) And Dean Wu similarly testified that Wayne State University Law School’s pre-Proposal 2 admissions policy allowed the admissions committee to consider a wide variety of non-academic factors that “contribute to a diverse and engaged law student body,” such as “attending for several years a de jure segregated school or a public high school in a low-income geographic area . . . anything that reduces the reliability of GPA as an index of academic achievement and promise ” and “factors that would be commonly understood as . . . some type of [race-conscious admissions] program.” (See Wu Dep., Ex. F at 31:24-32:21.)
The Universities have admitted that “as a result of their [race-conscious] admissions policies and other efforts, prior to the adoption of Proposal 2, the Universities had racially diverse student bodies.” (Univ. RFA Resp., Ex. I to Dkt. 172 at No. 12.)
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B. It Is Undisputed That Proposal 2 Prevents The Consideration of Race In An Admissions Process That Weighs Myriad Other Non-Academic Factors And Pertinent Elements Of Diversity. Proposal 2 leaves the Universities’ admissions processes unaltered, with the
critical and intentional exception that the Universities no longer are free to maintain or adopt policies that include the consideration of an applicant’s race. Thus, when Proposal 2 took effect, the Universities deleted race from their admissions criteria but left in place numerous other nonacademic factors and personal characteristics that contribute to student body diversity. (See Univ. RFA Resp., Ex. I to Dkt. No. 172 at Nos. 48, 51, 52, 53, 54.) At the University of Michigan Law School, for example, “the meat of the [pre-Proposal 2] policy is the same [as the revised policy] . . . with the exception of race.” (Zearfoss Dep., Ex. E at 192:16-24.) Dean Zearfoss testified:
“Q. So under both the interim policy and under the official policy that was voted on in March, you still considered socioeconomic status? A. Yes. Q. And you still considered whether a candidate worked many hours? A. Yes. Q. And you would still consider geography? A. Yes. Q. And other work experience, for example? A. Yes.” (Id. at 192:25-193:10.) As a result, Proposal 2 prevents universities from meaningfully considering the fundamental ways in which race is a critical part of how students choose to define themselves. There is no question that this extraction of race from the Universities’
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otherwise “flexible, holistic and individualized” review of applicants (Spencer Dep., Ex. D at
38:5-19; 39:4-10) redounds to the particular detriment of people of color for at least two reasons.
First, the unique set of life experiences that students of color have confronted as a
consequence of their racial identity, the “invidious prejudice that affects their life opportunities”
(see Wu Dep., Ex. F at 15:3-13) and the historical backdrop that informs their American
experience are a critical part of how many people of color choose to define and portray
themselves. As the Supreme Court has recognized, “one’s own, unique experience of being a
racial minority in a society, like our own, in which race unfortunately still matters” is
undoubtedly “likely to affect an individual’s views.” Grutter, 539 U.S. at 333. Sheldon
Johnson, for example, an African-American student at the University of Michigan and one of the
Cantrell Plaintiffs, submitted a declaration in support of this motion articulating the fundamental
ways in which “[b]eing a black American” affects the way he views himself:
“Throughout my childhood my parents instilled in me a deep understanding and belief in the importance of my black identity. Being a black American is one of the most important ways in which I view myself, along with being my parent’s son (and the particular values that they have passed on to me) and being a Christian. I consider that being black is the most important of the three ways in which I view myself, in part because being black is an immediately observable aspect of my identity, in a way that the other two characteristics are not. It is significant that the other two characteristics have positive inferences whereas being black in the United States today contains negative inferences. The sense of unfairness that comes from those negative inferences makes being a black American intensely more important to me. I hope that in the future, when black people like myself are no longer viewed negatively simply on the basis of the color of their skin, I may be able to feel strongly about being a black American without the sense of urgency to dispel stereotypes and negative perceptions. ” (Decl. of Sheldon Johnson, attached hereto as Ex. G, at ¶ 6 (“Sheldon Decl., Ex. G ¶ __”).)
With Proposal 2 in effect, Mr. Johnson “would not choose to apply to the University [of
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Michigan] again because [he is] no longer able to have [his] race considered as part of [his] application.” (Id. at ¶ 7.) And “[w]ithout the ability to discuss [his] race . . . [he is] deprived of the ability to discuss the most important feature of [his] own self identity,” which would mean that he “could only present a diminished picture of the totality of who [he is].” (Id.)
Bryon Maxey, also an African-American student at the University of Michigan and a Cantrell Plaintiff, likewise considers “race to be the most prominent and essential aspect of [his] identity.” (Declaration of Bryon Maxey, attached hereto as Ex. H, at ¶ 8 (“Maxey Decl., Ex. H ¶ __”).) In his attached declaration, Mr. Maxey states:
“Being black is one of the most visible aspects of my identity and one that I confront every day. I am extremely proud of my racial identity and it makes me appreciate my being black even more knowing that my ancestors have gone through so much struggle and knowing that there still remains so much road to travel in order for black Americans to reach their mountaintop of finally being treated as equal.” (Id.) Unsurprisingly, Mr. Maxey’s “racial identity played a very important part in [his] application to the University of Michigan”: “In my application, I discussed the way in which my father brought our race to the forefront of my identity, in part by educating me in our black history. My main goal in coming to the University was to further my studies in black history.” (Id. at ¶ 5.) Mr. Maxey believes “that not being able to have race considered in an application” – as Proposal 2 requires – “has an intensely negative effect on minority applicants like [him]self, for whom race is such an important and central part of [their] identity.” (Id. at ¶ 6.) Ariel Roberts, a member of the putative Cantrell class and an African- American student at Pioneer High School in Ann Arbor, Michigan who plans to apply to the University of Michigan and Michigan State University, believes that “[t]aking race out of consideration from
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the admissions process is hurtful to [her] because race is a such an important part of who [she is].” (Declaration of Ariel Roberts, attached hereto as Ex. I, at ¶¶ 1, 4.) Ms. Roberts has stated:
“Being an African American is a very important part of the way I see myself. I am currently taking a course at school that deals with slavery and the end of slavery. Just learning about my historical past makes me proud to be black. The recent death of Rosa Parks and the fact that I was alive during her era makes me realize that racism and the effects of slavery are very recent. I want to know more about my black ancestry and show the pride that I have in being black.” (Id. at ¶ 3.) Accordingly, Ms. Roberts “want[s] the universities to be able to consider [her] race and ancestors and where [she] came from.” (Id. at ¶ 4.) That cannot happen under Proposal 2. Second, Director Spencer, Dean Zearfoss and Dean Wu all testified that without the consideration of race in admissions, robust enrollment of students of color in Michigan’s public universities will be virtually impossible to maintain. For example, Director Spencer – one of the leading experts in the country as to methods and methodologies of recruiting underrepresented minorities to universities (see Spencer Dep., Ex. D at 21:23-22:11) – testified that socioeconomic status cannot serve as a “proxy” for race as a means of achieving racial diversity: “Q. Is it also true . . . that another problem is that you don’t have a sufficient number of minority students from middle-class families, in terms of whether or not socioeconomic status could otherwise serve as a proxy? A. That is correct. Q. Incidentally, sir, a proxy means it’s not the real thing; isn’t that right? A. Yes. That’s my understanding, yes. Q. And race is the real thing; is that true? A. That is true, yes.”
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(Id. at 74:7-17.) Director Spencer also confirmed that university administrators from California, Washington, Texas and Georgia – states with laws nearly identical to Proposal 2 – “cannot achieve the same sort of racial and ethnic diversity that they had prior to such measures, through the result of any measure that does not include affirmative action, using race . . . as one of many factors.” (See id. at 100:14-101:12.)
Similarly, Dean Zearfoss testified that there was not “any way to get a critical mass of underrepresented minorities or any group of underrepresented minorities [at the University of Michigan Law School], prior to Proposal 2, without considering race.” (Zearfoss Dep., Ex. E at 56:23-57:2.) Since the University of Michigan Law School “stopped considering race in admissions, [Dean Zearfoss has not] identified or applied any policy that . . . gets [the University] as close to the critical mass [of racial minorities] as the affirmative action policies did.” (See id. at 206:25-207:13.) Dean Wu also testified that at Wayne State University Law School, none of the proposed alternatives to race-conscious affirmative action “or any combination of [them] was reasonably likely to result in the admission of a class that had the same or similar or higher numbers of African Americans, Latinos and Native Americans as the prior policy.” (Wu Dep., Ex. F at 78:12-79:4.)
These facts are not disputed. Every witness who testified on this topic – including proponents of Proposal 2 – confirmed that enrollment of students of color from historically underrepresented groups in Michigan’s public universities will decline substantially in the absence of race-conscious admissions policies.6 Moreover, this undisputed testimony is
6 Even Jennifer Gratz, Executive Director of MCRIC, and Ward Connerly, a prominent supporter of Proposal 2, agree that Proposal 2’s ban on race-conscious admissions policies will
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corroborated by the research of Professor William Bowen, who has extensively studied and written on the subject of race-conscious admissions. Professor Bowen’s research shows that “race-neutral alternatives are unlikely to be as effective as race-conscious admissions in enrolling a diverse student body,” and that “moving from a race-conscious admissions policy to a classbased one would substantially reduce the minority enrollments at selective institutions.” (Declaration of William Bowen, attached hereto as Ex. L, at ¶¶ 11, 13 (“Bowen Decl., Ex L ¶ __”).) Professor Bowen’s research further reveals that the consideration of race in university admissions “has been an important contributor to the socioeconomic mobility” of people of color in the United States. (Id. at ¶ 6.)
The fact that race-neutral alternatives are inadequate to achieve racial diversity on university campuses is also supported by the experience of public universities in California, Washington and Texas, which have experienced a significant drop in the enrollment of students of color in their public universities since the enactment of laws nearly identical to Proposal 2. (See, e.g., “The Viability of Race-Neutral Approaches for Achieving Diversity at the University of Michigan”, attached hereto as Ex. M (“Oakes Study, Ex. M at __”);7 see also Diversity Blueprints Report, Ex. 3 to Dkt. No. 182 at 6 (summarizing reports of “significant setbacks in
result in decreased enrollment of students of color at Michigan’s public universities. (See Deposition of Jennifer Gratz, attached hereto as Ex. J, at 107:23-108:10 (“Q. So your opinion was that [the number of students of color at the University of Michigan] was going to drop [if Proposal 2 were adopted], true? A. True.”); Deposition of Ward Connerly, attached hereto as Ex. K., at 120:15-23 (“Q. Mr. Connerly, there was no question in your mind when you [supported] Proposal 2 that the University of Michigan would be virtually resegregated as the University of California Berkeley and UCLA have; is that not true? . . . A. That’s correct.”).)
7 The Cantrell Plaintiffs have moved to file the Oakes Study under seal because it contains information that the Universities have designated as confidential.
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demographic representation”).) A study submitted in support of this motion authored by Professor Jeannie Oakes, an expert in the area of access to college and inequities in United States schooling, confirms that “[r]ace-neutral admissions strategies . . . have not been effective as replacements for race-conscious strategies in maintaining or increasing diversity in the public universities in Texas and California, two states with restrictions on race-conscious practices in university admissions similar to those required under Michigan’s Proposal 2.” (Oakes Study, Ex. M at 3.) Professor Oakes’ study concludes that “Michigan differs from California and Texas in ways that make it even more unlikely that race-neutral approaches would result in the diversity required at the University of Michigan.” (Id. (emphasis added).) And “[i]n fact, such strategies would likely exclude from admission in-state African American and Latino high school graduates with academic preparation sufficient to succeed at the university.” (Id.)
C. Proposal 2 Creates An Impermissible Distinction Based On Race In Violation Of The Fourteenth Amendment. It is axiomatic that the Equal Protection Clause of the Fourteenth Amendment
rests on the core principle that “no person shall be denied the equal protection of the laws.” Romer v. Evans, 517 U.S. 620, 631 (1996). As the Supreme Court recognized in Hunter and Seattle, “‘the core of the Fourteenth Amendment is the prevention of meaningful and unjustified official distinctions based on race.’” Seattle, 458 U.S. at 486 (citing Hunter, 393 U.S. at 39192).8 In Hunter and Seattle, therefore, the Supreme Court struck down laws that drew distinctions based on race “infect[ing] the reallocation of decisionmaking authority,” reasoning
8 Laws that “treat people differently because of their race” will be upheld “only for the most compelling reasons.” See Grutter, 539 U.S. at 326.
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that “minorities are no less powerless with the vote than without it when a racial criterion is used to assign governmental power in such a way as to exclude particular racial groups ‘from effective participation in the political proces[s].’” Seattle, 458 U.S. at 487; see also id. at 472 (holding that the Equal Protection Clause prohibits states from selectively burdening attempts to secure programs that “inure[ ] primarily to the benefit of the minority”). Similarly, in Romer the Supreme Court invalidated a law that prohibited “specific legal protections” for homosexuals, reasoning that such a law does more “than deprive homosexuals of special rights” – “[t]o the contrary, [it] imposes a special disability on those persons alone.” 517 U.S. at 631.
Precisely like the laws that were struck down in Hunter, Seattle and Romer, Proposal 2 impermissibly singles out underrepresented minority groups for separate and unequal treatment by “impos[ing] a special disability on those persons alone.” See id. Having permitted the Universities to “take into account ‘all pertinent elements of diversity,’” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No 1, 127 S.Ct. 2738, 2794 (2007) (Kennedy, J., concurring) (quoting Grutter, 539 U.S. at 341), the state may not then prohibit consideration of race within that holistic process. (See Johnson Decl., Ex. G ¶ 7 (stating that Proposal 2 “deprive[s him] of the ability to discuss the most important feature of [his] own self identity” – his race); see also Maxey Decl., Ex. H ¶ 7.) That is, the state may not – on the basis of race – selectively deny applicants the opportunity to have central aspects of their identity considered while allowing myriad other non-academic factors to be weighed and positively evaluated by the Universities. Exempting race in this manner is impermissible because it “imposes direct and undeniable burdens on minority interests.” Seattle, 458 U.S. at 484; see also Romer, 517 U.S. at 632 (striking down an amendment because it had “the peculiar property of imposing a broad and
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undifferentiated disability on a single named group, an exceptional and . . . invalid form of legislation”). The burden that Proposal 2 imposes upon students of color is especially acute in light of the Universities’ undisputed testimony, confirmed by experts, that there is no way to achieve a critical mass of underrepresented students of color without considering race. See supra Part I.B.
In fact, diversity cannot be understood – and cannot meaningfully exist – apart from race. Recognizing this, the Supreme Court framed the central question in Grutter – “[w]hether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities” – around the principle that race and diversity are inextricably linked. 539 U.S. at 322. Indeed, the Court plainly acknowledged in Grutter that race is an indispensable component of diversity in the higher education context:
“Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America. The Law School has determined, based on its experience and expertise, that a ‘critical mass’ of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.” Id. at 332-33. The Court reaffirmed this principle just last term in Parents Involved, describing the admission of a “‘meaningful number’” of students of color as “necessary to achieve a genuinely diverse student body.” 127 S.Ct. at 2757 (Roberts, C.J.); see also id. at 2792 (Kennedy, J., concurring) (“In the administration of public schools. . . . it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.”).
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Where the Constitution permits universities to pursue the compelling state interest of achieving student body diversity by considering many non-academic factors and personal attributes – and where a university chooses to seek such diversity – the state may not legislatively nullify an applicant’s race while permitting all other aspects of identity to be positively evaluated.9 Indeed, Justice Kennedy has acknowledged that race matters. See Parents Involved, 127 S.Ct. at 2791 (Kennedy, J., concurring) (“The enduring hope is that race should not matter; the reality is that it too often does.”). To be forced to live under a state mandate that one’s race does not matter – in a context where it plainly does – flies in the face of the Fourteenth Amendment’s core principle that the state may not create “meaningful and unjustified official distinctions based on race.” See Parents Involved, 127 S.Ct. at 2792 (Kennedy, J., concurring). As such, Proposal 2 must be struck down. II. THERE IS NO DISPUTE THAT PROPOSAL 2 MAKES IT MORE DIFFICULT
TO ACHIEVE RACE-CONSCIOUS ADMISSIONS POLICIES THAN TO ACHIEVE OTHER TYPES OF BENEFICIAL LEGISLATION, THUS IMPOSING AN UNEQUAL BURDEN ON PEOPLE OF COLOR IN VIOLATION OF THE FOURTEENTH AMENDMENT.
Proposal 2 not only imposes a “special disability on [racial minorities] alone” by legislatively proscribing any consideration of racial identity in an application process that evaluates all other pertinent elements of diversity, see Romer, 517 U.S. at 631; it also creates an impermissible racial distinction by singling out individuals seeking race-conscious admissions policies for a unique political burden. As the Supreme Court held in Hunter and Seattle, the
9 Importantly, this does not mean that Universities are required to take race into account in making admissions decisions; rather, where universities have elected to seek diversity, the state cannot require that race not be taken into account.
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Equal Protection Clause prohibits precisely this sort of inequality in the political process. See Hunter, 393 U.S. at 391-93; Seattle, 458 U.S. at 470.
A. A Law That Selectively Burdens The Political Process To The Detriment Of Racial Minorities Violates The Equal Protection Clause Of The Fourteenth Amendment. Nearly four decades ago, the Supreme Court held that a state law violates the
Equal Protection Clause if it “mak[es] it more difficult for certain racial . . . minorities [than for other members of the community] to achieve legislation that is in their interest.” Hunter, 393 U.S. at 395. In Seattle, the Court reaffirmed its decision in Hunter, holding once again that the Equal Protection Clause prohibits states from selectively burdening attempts to secure programs that “inure[ ] primarily to the benefit of the minority.” Seattle, 458 U.S. at 470; see Hunter, 393 U.S. at 391-93. Hunter and Seattle both struck down laws that made it politically futile for advocates of policies benefiting members of a class subject to strict scrutiny to seek such measures from their local decision-making bodies.
In Hunter, the law in question amended a city charter to require popular approval of any ordinance regulating real estate transactions “on the basis of color, religion, national origin or ancestry.” Id. at 387. Seattle involved a challenge to Initiative 350, a measure that prohibited any school board from “directly or indirectly requir[ing] any student to attend a school other than [one in his or her neighborhood].” Seattle, 458 U.S. at 462. The Supreme Court struck down both the charter amendment in Hunter and the initiative in Seattle, in each case finding that the challenged provision uniquely disadvantaged those principally benefiting from the measures barred by the provision – i.e., citizens of color – by forcing them to run a legislative “gantlet” of popular approval that other laws were spared. See Hunter, 393 U.S. at 390-91;
22

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Seattle, 458 U.S. at 474 (“The initiative removes the authority to address a racial problem – and only a racial problem – from the existing decisionmaking body, in such a way as to burden minority interests.”). In both cases, the Court looked to (1) whether the law in question had a “racial focus,” and (2) whether it required those championing legislation “inur[ing] primarily to the benefit of the minority” to surmount a “considerably higher hurdle than [those] seeking comparable legislative action.” See Seattle, 458 U.S. at 470, 472, 474; see also Hunter, 393 U.S. at 390-91. Proposal 2 violates the fundamental principle established in Hunter and Seattle because there is no dispute that it satisfies both of these conditions.10
B. It Is Undisputed That Proposal 2 Restructures The Political Process By Lodging Decisionmaking Authority Over The Question Of Race-Conscious Admissions At A New And Remote Level Of Government. 1. There Is No Dispute That Proposal 2 Has A Racial Focus. For a challenged enactment to have a “racial focus” under Hunter and Seattle,
“[i]t is enough that minorities may consider [the type of law- or policy-making subject to an increased burden] to be ‘legislation that is in their interest’” and that “inure[s] primarily to [their] benefit.” Seattle, 458 U.S. at 472-74; Hunter, 393 U.S. at 395 (Harlan, J., concurring). Laws that are “effectively drawn for racial purposes” will also be deemed to have a “racial focus.” See Seattle, 458 U.S. at 471, 474 (striking down initiative that was “carefully tailored to interfere only with desegregative busing”); Hunter, 393 U.S. at 395 (invalidating law that had “the clear purpose of making it more difficult for certain racial and religious minorities” to enact an
10 The decision in Coal. for Econ. Equity v. Wilson, 110 F.3d 1431 (9th Cir. 1997) (“CEE”) is not binding on this Court and, in any event, is inapposite. To begin, that decision was reached prior to Grutter, which blessed race-conscious admissions as a narrowly-tailored means of achieving the compelling state interest of diversity.
23

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ordinance banning discrimination in real estate transactions on the basis of race) (emphasis added); Lee v. Nyquist, 318 F. Supp. 710, 719 (D.C.N.Y. 1970), aff’d 402 U.S. 935 (1971) (finding unconstitutional a law that was “destined to bring to an end New York’s strong prointegration policy”). Here, there is no question that Proposal 2 was designed to eliminate raceconscious admissions policies, which plainly inure to the primary benefit of applicants of color.
First, communities of color have long considered race-conscious admissions policies to be “in their interest.” Seattle, 458 U.S. at 472-74. Beginning in the 1960s, “African Americans and other underrepresented minorities [among others] lobbied for the adoption of admissions policies, often called ‘Affirmative Action’ policies, that allowed for the consideration of race” and “sought to increase minority presence at the Universities.” (Univ. RFA Resp., Ex. I to Dkt. No. 172 at Nos. 8, 9.) Since that time, race-conscious admissions policies have maintained their critical importance to underrepresented communities – precisely because they “inure[] primarily to [their] benefit.” See Seattle, 458 U.S. at 474; see also supra Part I.B. Sheldon Johnson, for example, “would not have applied to the University of Michigan” had Proposal 2 been in effect when he was a senior in high school “because [he] had no desire to go to a school that lacked a critical mass of students of color.” (Decl. of Sheldon Johnson in Supp. of Cantrell Pls’ Mot. for Class Cert., Dkt. No. 114 at ¶ 2.) Bryon Maxey “attribute[s] much of the diversity at the University of Michigan to policies that include race as one among many factors considered in university admissions decisions.” (Decl. of Bryon Maxey in Supp. of Cantrell Pls’ Mot. for Class Cert., Dkt. No. 117 at ¶ 3.)
Plaintiffs in this case are not anomalous: exit polling data gathered during the Michigan 2006 election demonstrates that the vast majority of underrepresented communities of
24

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color in Michigan appreciate the benefits of race-conscious admissions policies. Polling and analysis conducted on behalf of the nation’s leading media outlets revealed that 70 percent of non-white men and 82 percent of non-white women voted against Proposal 2. Black voters opposed the measure by a margin of 86 to 14 percent.11 (Edison/Minofsky, “Michigan General Exit Poll,” Nov. 8, 2006, attached hereto as Ex. O.) These numbers alone demonstrate that communities of color strongly perceive race-conscious admissions policies to be “legislation that is in their interest.” See Hunter, 393 U.S. at 395.
Second, it cannot be disputed that Proposal 2 was “effectively drawn for racial purposes.” See Seattle, 458 U.S. at 471. Numerous facts demonstrate that the clear purpose of Proposal 2 was to eliminate race-conscious admissions policies:
• A summary of the ballot proposal approved by the Michigan Secretary of State and distributed to voters explained that Proposal 2 would “[b]an public institutions from using affirmative action programs” (see Approved Ballot Language, available at http://www.michigan.gov/documents/Bal_Lang_MCRI_152610_7. pdf (last visited November 30, 2007));
• the ballot argument drafted by the proponents of Proposal 2, published in the League of Women Voters’ non-partisan voting guide, flatly stated that race-conscious affirmative action “practices are WRONG and it is time that we got rid of them” (League of Women Voters of Michigan, “Non-partisan Michigan Voter Guide” at 30 (2006), attached hereto as Ex. P);
11 Due to sample size limitations, results could not be broken out for minority groups other than African-Americans. (Deposition of Joseph Lenski, attached hereto as Ex. N, at 34:21-35:1; 58:12-18.)
25

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• the registered Ballot Question Committee for Proposal 2, MCRIC, candidly states on its website that the initiative was intended to end the application of “different standards to individuals or groups based on the intrinsic characteristics of race, sex, color, ethnicity or national origin.” (see http://www.michigancivilrights.org/aboutus.html (last visited November 30, 2007)).
Moreover, because Proposal 2’s “anti-discrimination” provisions are redundant of existing statutes,12 its only real effect is to end (and prevent the future implementation of) raceconscious admissions policies. (See Cox RFA Resp., Ex. A No. 24 (admitting that “Proposal 2’s ban on race preferences has eliminated state and local race-conscious affirmative action efforts in education that existed prior to Proposal 2”).) Thus, it is difficult to imagine that Proposal 2 had any genuine purpose other than to eliminate admissions policies based on race.
2. There Is No Dispute That The Process Of Amending The Michigan Constitution – Now The Only Means Of Restoring Race-Conscious Admissions Policies – Is Far More Onerous Than The Process Of Seeking A Policy Change By Lobbying The Universities Directly.
Prior to Proposal 2, each University Admitting Unit had autonomy over its own admissions processes, including the power to implement policies permitting the consideration of “underrepresented minority status.” (Univ. RFA Resp., Ex. I to Dkt. No. 172 at No. 25.) The Universities admitted that their autonomy prior to Proposal 2 included the power to consider any
12 The portions of Proposal 2 that purport to “ban” discrimination on the basis of race are merely duplicative of existing law. Indeed, Michigan has had a strong anti-discrimination law since long before Proposal 2 was enacted. See 1976 Mich. Pub. Acts 453, as amended, Mich. Comp. Laws § 37.2201 et seq. (the “Elliott-Larsen Act”).
26

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change suggested by students, faculty or citizens, including changes concerning race: “[P]rior to the enactment of Proposal 2, any individual or group who believed that any Admitting Unit . . . should amend its admissions policies to benefit applicants based on any factor (including, for example, educational background, geographic background, family alumni connections, socioeconomic status, underrepresented minority status and athletics, or any other factor that could be weighed in the admissions process) . . . could petition that Admitting Unit for such a change.”
(University RFA Resp. Nos. 36, 44, Ex. I to Dkt. No. 172 (emphasis added).)13 At the University of Michigan Law School, for example, Dean Zearfoss testified that the faculty had the “power . . . to set the policy for admissions,” and that the “[p]re-Proposal 2 . . . admissions policy . . . was passed by a vote of the faculty.” (Zearfoss Dep., Ex. E at 64:15-25; see also id. at 213:22-24; 214:19 (stating that “there[] [was] no higher body” than the faculty for purposes of adopting admissions policies).) Dean Wu testified that at Wayne State University Law School, “the ultimate decision whether to change admissions standards rest[ed] with the faculty alone . . . .” (Wu Dep., Ex. F at 190:10-191:3.) Proposal 2 leaves the autonomy of each University Admitting Unit unaltered, with a critical exception that they are no longer free to maintain or adopt policies that consider race. Thus, when Proposal 2 took effect, the Universities eliminated race from their admissions criteria but left myriad non-academic criteria in place. (See Univ. RFA Resp., Ex. I to Dkt. No. 172 at Nos. 48, 51, 53, 54; see also supra at Part I.A.)
13 Indeed, race-conscious affirmative action policies were first implemented in the 1970s at the University of Michigan directly in response to the demands of a minority activist group, the Black Action Movement, that the University “set as [its] minimal black population in Ann Arbor by 1973-74 ten per cent of the total population,” which number “shall increase yearly until[] the overall population of blacks shall approach if not exceed the proportion of blacks in the state.” (Ltr. of Feb. 9, 1970 from H. W. Hildebrandt (enclosing list of student demands), attached hereto as Ex. Q.)
27

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Not only did Proposal 2 require the Universities to end their race-conscious admissions policies, but it also prospectively prohibits the Universities from restoring those policies in the future. Now, “any individual or group who believes that any of the Universities should restore its prior admissions policies and their use of race or gender” may seek such a change “only by seeking a state constitutional amendment.” (See Granholm RFA Resp., Ex. B No. 21.) At Wayne State University Law School, for example, Dean Wu testified that Proposal 2 renders “futile” any attempt to seek a change in that school’s admissions policy based on race or gender:
“A. . . . I would imagine that if someone had come before Prop 2, we would have allowed them to speak. If someone were to come after Prop 2, we would allow them to speak. Before Prop 2, they could have offered a variety of viewpoints. After Prop 2, they could still offer a variety of viewpoints, but it would be futile for them to agitate for the inclusion of race or gender as a factor.” (Wu Dep., Ex. F at 193:16-25.) And at the University of Michigan Law School, Dean Zearfoss similarly testified that “somebody could come to the faculty and propose that it do essentially anything on admissions,” except that Proposal 2 prevents the faculty from “tak[ing] race into account as an admissions consideration.” (Zearfoss Dep., Ex. E at 274:4-23.) The Universities’ Admitting Units still have wide latitude to consider all changes to their admissions policies – other than changes seeking the consideration of race or gender – through a largely informal process. At the University of Michigan Medical School, for example, “feedback” may be “directed through multiple or any of [the admissions officials],” including the “Director of Admission, the Assistant Dean of Admission or the Admissions Committee membership.” (Deposition of Robert Ruiz, attached hereto as Ex. R, at 91:8-17.) The admissions officials “convene at the close of each admission cycle where they . . . take up
28

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proposals, suggestions, [and] recommendations for changes to subsequent processes.” (Id. at 92:7-10.) At the University of Michigan Law School, faculty members and students offer suggested changes directly to the admissions committee. (See Zearfoss Dep., Ex. E at 209:20210:14.) Dean Zearfoss testified that in her experience, “[s]tudents have indicated,” usually in meetings, “that they want [the admissions committee] to do certain things with regard to the [admissions] policy.” (Id. at 210:11-14.) This process is similar at Wayne State University Law School, where individuals seeking changes to the admissions policy may do so by meeting informally with faculty members, the admissions committee or Dean Wu himself:
“Q. If a student or prospective student was upset with the law school faculty’s decisions to change the law school’s admissions policy, is there some sort if internal appeal process within Wayne State to appeal that decision? . . . A. They could certainly ask the student representatives on the admissions committee to agitate for change, they could ask for a meeting with me, they could meet informally with members of the faculty, but if you’re asking is there a formal appeals mechanism that would allow a student to come and present complaints about the admissions policy, no, there is not.” (Wu Dep., Ex. F at 192:24-193:15.) In marked contrast to the informal process of lobbying the Universities for changes to their admissions policies, the process of amending a state constitution by voter ballot initiative is “lengthy, complex, difficult and expensive.” (Wilfore Decl., Ex. at heading II.) Successful ballot initiative campaigns “require connections with a network of supporters, political capital with the major players in the relevant state, and access to significant financial resources as well as a substantial base of willing volunteer supporters.” (Id. at ¶ 12.) A ballot
29

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initiative campaign may run as long as two to three years and can cost as much as $153 million. (Id. at ¶¶ 11, 25.)
Even before the official campaign begins, proponents of a ballot initiative must undertake a series of expensive and time-consuming steps, including, for example, conducting policy research to evaluate the validity of the proposal, mounting a pre-polling fundraising campaign and polling the populace to determine the proposal’s popularity. (See id. at ¶ 14.) “Depending on the complexity and controversy of the issue being undertaken, the initial stage of a ballot initiative campaign can take anywhere from six months to two years of advance work.” (Id. at ¶ 15.) The official campaign demands considerably more volunteers, staff and funding. (Id. at ¶ 21.) In addition to television advertising – which requires the greatest expenditure of funds and is “essential to any campaign” – initiative campaigns use a variety of publicity methods, including direct mail, phone calls and canvassing. (Id. at ¶ 22.) “In some cases, proponents of a measure may be forced to spend additional funds to defend the measure from legal challenges after it has already been approved by the electorate.” (Id. at ¶ 23.)
In Michigan – “a politically competitive state, with expensive media markets and a particularly large number of initiatives vying for voters’ attention on any given ballot” – the ballot initiative process is “particularly onerous, expensive and burdensome when compared to other states.” (Id. at ¶¶ 27, 29.) Defendant Attorney General Cox admitted that “a petition seeking to place an initiative to amend Michigan’s Constitution on the next statewide election ballot will require more than 380,000 signatures” (Cox RFA Resp., Ex. A No. 17), and the Michigan Department of State advises that “the number of signatures gathered on an initiative or referendum petition should be significantly greater than the minimum number required as invalid
30

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signatures are eliminated through a verification process which involves a random sample of the submitted signatures” (Granholm RFA Resp., Ex. B No. 24). Gathering these signatures can cost between $750,000 and $1 million, and a state-wide media campaign to pitch the proposal to voters alone can require as much as $4 million. (Wilfore Decl., Ex. C ¶¶ 30, 31.) In total, signature-gathering and media campaigning in Michigan can cost a minimum of $5 million and as much as $10 million to $15 million. (Id. at ¶ 30.)
Proponents of initiatives seeking to benefit communities of color – such as an initiative to reinstate race-conscious admissions policies – are even more disadvantaged in this process because of “the peculiar and unique problems associated with pro-affirmative action ballot initiatives and minority protection measures generally.” (Id. at ¶ 34.) In particular, “ballot initiative campaigns benefit proponents who have simple messages rather than those who have messages, such as pro-affirmative action campaigns, which are, by their nature, more complex.” (Id. at ¶ 36.) Moreover, “[o]verturning any recently passed measure requires more efforts, both physical and financial, than seeking to approve a new measure”; as a result, “it is extremely unlikely that groups supporting affirmative action would commit any significant resources to a new measure in Michigan.” (Id. at ¶ 38.) Thus, “[a] voter initiative campaign targeted at overturning Proposal 2 in the area of [considering] race in universities [sic] admissions faces overwhelming odds.” (Id. at ¶ 39.)
The undisputed facts set forth above demonstrate that the process of seeking a constitutional amendment – now the only means of restoring race-conscious admissions policies at the Universities – is far more onerous than the process of seeking a policy change by lobbying the University Admitting Units directly. Thus, Proposal 2 violates the Equal Protection Clause
31

2:06-cv-15024-DML-RSW Doc # 203 Filed 11/30/07 Pg 39 of 44 Pg ID 3420 by requiring those “championing [race-conscious affirmative action] to surmount a considerably higher hurdle than persons seeking comparable legislative action.” See Seattle, 458 U.S. at 474. As the Supreme Court held in Hunter, “the state may no more disadvantage any particular group by making it more difficult to enact legislation [on] its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” Hunter, 393 U.S. at 392-93.
32

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CONCLUSION For the foregoing reasons, the Cantrell Plaintiffs respectfully request that the Court grant their motion for summary judgment.

November 30, 2007

Respectfully submitted,

s/ with consent of Mark D. Rosenbaum MARK D. ROSENBAUM CATHERINE E. LHAMON ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, California 90026 (213) 977-9500 mrosenbaum@aclu-sc.org clhamon@aclu-sc.org

s/ with consent of Melvin Butch Hollowell, Jr. MELVIN BUTCH HOLLOWELL, JR. (P37834) General Counsel, Detroit Branch NAACP Allen Brothers PLLC 400 Monroe St., Suite 220 Detroit, MI 48226 (313) 962-7777 mbh@allenbrotherspllc.com

/s Karin A. DeMasi KARIN A. DEMASI Cravath, Swaine & Moore LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212) 474-1000 kdemasi@cravath.com

s/ with consent of Kary L. Moss KARY L. MOSS (P49759) MICHAEL J. STEINBERG (P43085) MARK P. FANCHER (P56223) American Civil Liberties Union Fund of Michigan 60 W. Hancock Street Detroit, MI 48201 (313) 578-6814 kmoss@aclumich.org msteinberg@aclumich.org mfancher@aclumich.org

33

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s/ with consent of Laurence H. Tribe LAURENCE H. TRIBE (Admission Pending) Hauser Hall 420 1575 Massachusetts Avenue Cambridge, Mass. 02138 617-495-4621 larry@tribelaw.com
s/ with consent of Erwin Chemerinsky ERWIN CHEMERINSKY Duke University School of Law Science Drive & Towerview Rd. Durham, N.C. 27708 (919) 613-7173 Chemerinsky@law.duke.edu

s/ with consent of Theodore M. Shaw THEODORE M. SHAW VICTOR BOLDEN ANURIMA BHARGAVA NAACP Legal Defense & Educational Fund 99 Hudson Street, 16th Floor New York, NY 10013 (212) 965-2200 abhargava@naacpldf.org
s/ with consent of Daniel P. Tokaji DANIEL P. TOKAJI (Admission Pending) The Ohio State University Moritz College of Law 55 W. 12th Ave. Columbus, OH 43206 (614) 292-6566 tokaji.1@osu.edu

s/ with consent of Dennis Parker DENNIS PARKER (Admission Pending) ALEXIS AGATHOCLEOUS (Admission Pending) American Civil Liberties Union Foundation Racial Justice Program 125 Broad St., 18th Floor New York, NY 10004-2400 (212) 519-7832 dparker@aclu.org
34

s/ with consent of Jerome R. Watson JEROME R. WATSON (P27082) Michigan State Conference, NAACP Miller, Canfield, Paddock and Stone, P.L.C. 150 West Jefferson, Suite 2500 Detroit, MI 48226 (313) 963-6420 Watson@millercanfield.com

2:06-cv-15024-DML-RSW Doc # 203 Filed 11/30/07 Pg 42 of 44 Pg ID 3423
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
Case 06-15024 Hon. David M. Lawson

COALITION TO DEFEND AFFIRMATIVE ACTION, et al.,
Plaintiffs, vs. JENNIFER GRANHOLM, et al.,
Defendants.

CONSOLIDATED CASES CERTIFICATE OF SERVICE

Case 06-15637 Hon. David M. Lawson

KARIN A. DEMASI hereby certifies the following under the penalty of perjury:
On the 30th day of November, 2007, I filed the foregoing document electronically and it is available for viewing and downloading from the ECF system. Service was accomplished by means of Notice of Electronic Filing upon:

2:06-cv-15024-DML-RSW Doc # 203 Filed 11/30/07 Pg 43 of 44 Pg ID 3424
Sharon L. Browne slb@pacificlegal.org,bas@pacificlegal.org
Erwin S. Chemerinsky chemerinsky@law.duke.edu
Charles J. Cooper ccooper@cooperkirk.com
Karin A. DeMasi kdemasi@cravath.com,jrichman@cravath.com,kmach@cravath.co m
Mark P. Fancher mfancher@aclumich.org
Alan W. Foutz awf@pacificlegal.org,IncomingLit@pacificlegal.org,bas@pac ificlegal.org
Melvin J. Hollowell , Jr mbh@allenbrotherspllc.com
Sheldon H. Klein klein@butzel.com
James E. Long longj@michigan.gov,ThelenN@michigan.gov
Heather S. Meingast meingasth@michigan.gov
Laurie J. Michelson michelso@butzel.com,vancleve@butzel.com
Kerry L. Morgan kmorganesq@aol.com
Kary L. Moss kmoss@aclumich.org
Brian O. Neill neillb@michigan.gov,pawlusc@michigan.gov
Margaret A. Nelson nelsonma@michigan.gov,toddwl@michigan.gov,richardsd@michi gan.gov

2:06-cv-15024-DML-RSW Doc # 203 Filed 11/30/07 Pg 44 of 44 Pg ID 3425
Leonard M. Niehoff niehoff@butzel.com
Joseph E. Potchen potchenj@michigan.gov,vanbeelenl@michigan.gov,robisonr@mi chigan.gov
Michael E. Rosman rosman@cir-usa.org,kokolis@cir-usa.org
Dean J. Sauer rosman@cir-usa.org, kokolis@cir-usa.org
Brent E. Simmons simmonbr@cooley.edu
Brigham C. Smith Bsmith@ci.lansing.mi.us,spodlesk@ci.lansing.mi.us
Michael J. Steinberg msteinberg@aclumich.org,bbove@aclumich.org
Reginald M. Turner , Jr rturner@clarkhill.com
George B. Washington scheff@ameritech.net
Jerome R. Watson watson@millercanfield.com,leidner@millercanfield.com
Dated at New York, New York, this 30th day of November, 2007. s/ Karin A. DeMasi Karin A. DeMasi

 
 2:06-cv-15024-DML-RSW Doc # 201 Filed 11/30/07 Pg 1 of 44 Pg ID 3255

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, et al,
Plaintiffs, vs.

Case No. 2:06-CV-15024 Hon. David M. Lawson

JENNIFER GRANHOLM, in her official capacity as Governor of the State of Michigan, the REGENTS OF THE UNIVERSITY OF MICHIGAN, the BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, the BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, and the TRUSTEES OF any other public college or university, community college, or school district,

Defendants, and

CONSOLIDATED CASES

CHASE CANTRELL, et al,

Case No. 06-15637

Plaintiffs, vs.

Hon. David M. Lawson

JENNIFER GRANHOLM and MICHAEL A. COX, ,

Defendants. _____________________________________/

INTERVENING DEFENDANT ATTORNEY GENERAL MICHAEL A. COX'S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT

Intervening Defendant Attorney General Michael A. Cox moves the Court to dismiss the

Coalition Plaintiffs' Second Amended Complaint and the Cantrell Plaintiffs' First Amended

Complaint pursuant to FR Civ P 12(b) (1) and (6), or alternatively for summary judgment

pursuant to FR Civ P 56(c) for the reason Plaintiffs lack standing to bring the asserted claims and

have failed to state claims upon which relief may be granted as a matter of law and/or fact.

Defendant is, thus, entitled to judgment for the reasons fully set forth in the accompanying brief

in support of this motion.

2:06-cv-15024-DML-RSW Doc # 201 Filed 11/30/07 Pg 2 of 44 Pg ID 3256 Counsel for Attorney General Cox contacted all other counsel in this matter by email on
November 16, 2007, to ascertain if any parties concurred in this motion as required by LR 7.1(a). No response to that inquiry has been received as of the date this motion was filed.
Intervening Defendant Attorney General Cox, therefore, prays the Court grant this motion, dismiss Plaintiffs' respective Complaints and enter a judgment for Defendant of no cause of action and finding that art 1, § 26 of the Michigan Constitution is constitutional.
ii

2:06-cv-15024-DML-RSW Doc # 201 Filed 11/30/07 Pg 3 of 44 Pg ID 3257

BRIEF IN SUPPORT OF INTERVENING DEFENDANT ATTORNEY GENERAL MICHAEL A. COX'S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT

CONCISE STATEMENT OF ISSUES PRESENTED

I.

This Court lacks jurisdiction to entertain Plaintiffs' Complaints for declaratory and

injunctive relief because all of the Plaintiffs lack standing to bring their claims.

II.

Both the Coalition Plaintiffs and the Cantrell Plaintiffs fail to state a claim upon

which relief may be granted with respect to the substantive claims asserted in their

respective Complaints, and thus each suit must be dismissed.

iii

2:06-cv-15024-DML-RSW Doc # 201 Filed 11/30/07 Pg 4 of 44 Pg ID 3258
CONTROLLING OR MOST APPROPRIATE AUTHORITY
C & C Construction Inc v Sacramento Municipal Utility District, 122 Cal App 4th 284; 18 Cal Rptr 3d 715 (2004) California Federal S & L Assoc v Guerra, 479 US 272, 281; 107 S Ct 683; 93 L Ed 2d 613 (1987) Citizens for Equal Protection, et al v Bruning, 455 F3d 859, 868 (CA 8, 2006) Cleveland Branch, NAACP v City of Parma, 263 F3d 513, 524 (CA 6, 2001) Coalition for Economic Equity, et al v Wilson, et al, 122 F3d 692 (CA 9, 1997), cert den 522 US 963; 118 S Ct 397; 139 L Ed 2d 310 (1997) Coalition to Defend Affirmative Action, et al v Granholm, et al, 473 F3d 237 (CA 6, 2006) Crawford, et al v Board of Education of the City of Los Angeles, 458 US 527; 102 S Ct 3211; 73 L Ed 2d 948 (1982) Fidelity Federal Savings and Loan Ass'n v de la Cuesta, 458 US 141, 153; 102 S Ct 3014; 73 L Ed 2d 664 (1982) Gratz v Bollinger, 539 US 244; 156 L Ed 2d 257; 123 S Ct 2411 (2003) Grutter v Bollinger, 539 US 306; 123 S Ct 2325; 156 L Ed 2d 304 (2003) Hi-Voltage Wire Works, Inc v City of San Jose, 24 Cal 4th 537, 569; 101 Cal Rptr 2d 653 (2000) Hunter v Erickson, 393 US 385; 89 S Ct 557; 21 L Ed 2d 616 (1969) Kowalski v Tesmer, 543 US 125, 130; 125 S Ct 564; 160 L Ed 2d 519 (2004) Parents Involved in Community Schools v Seattle School District No 1, 555 US ___; 127 S Ct 2738; 168 L Ed 2d 508 (2007) Regents of the University of California v Bakke, 438 US 265; 98 S Ct 2733; 57 L Ed 2d 750 (1978)
iv

2:06-cv-15024-DML-RSW Doc # 201 Filed 11/30/07 Pg 5 of 44 Pg ID 3259 Romer v Evans, 517 US 620; 116 S Ct 1620; 134 L Ed 2d 855 (1996) Warth v Seldin, 422 US 490, 499; 395 S Ct 2197; 145 L Ed 2d 34 (1973) Washington v Seattle School District, 458 US Const. 1963, Art 1, §26
v

2:06-cv-15024-DML-RSW Doc # 201 Filed 11/30/07 Pg 6 of 44 Pg ID 3260
STATEMENT OF THE FACTS
On November 7, 2006, Michigan voters overwhelmingly approved passage of Proposal
2,1 which amended the Michigan Constitution to prohibit the discrimination against or the
granting of 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.2 Proposal 2, now art 1, § 26 of the 1963 Constitution, provides in part:
(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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.
(2) The state shall 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.
(3) For the purposes of this section "state" includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in subsection 1.
This section took effect on December 23, 2007.3
On November 8, 2006, the Coalition Plaintiffs, who include the Coalition to Defend
Affirmative Action, Integration and Immigrant Rights and Fight for Equality by any means
1 The Amendment passed overwhelmingly on November 7, 2006, with 2,141,010 citizens voting in favor of the proposal, and 1,555,691 citizens voting against the proposal, or by 57.9 % to 42.1%. See http://miboecfr.nictusa.com/election/results/06GEN/90000002.html. 2 The proposal engendered lengthy legal challenges prior to its passage. See Coalition to Defend Affirmative Action, et al v Board of State Canvassers, 262 Mich App 395; 686 NW2d 287 (2004); Michigan Civil Rights Initiative v Board of State Canvassers, 268 Mich App 605; 708 NW2d 139 (2005); Operation King's Dream v Connerly, United States District Court for the Eastern District of Michigan, Case No 06-12773; 2006 US Dist LEXIS 61323; Operation King's Dream, et al v Connerly, et al, 501 F3d 584 (CA 6, 2007). 3 See Const 1963, art 12, § 2.
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necessary (BAMN), two other organizations, several labor unions, and numerous individual plaintiffs, filed a Complaint for injunctive and declaratory relief raising a facial challenge to § 26 of the Michigan Constitution. The Complaint alleges equal protection and First Amendment challenges under the federal constitution. The Complaint also asserts that § 26 is preempted by Titles VI and VII of the Civil Rights Act of 1964, and Title XI of the education Amendments of 1972. Plaintiffs request this Court declare § 26 unconstitutional under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, permanently enjoin Defendants from eliminating any affirmative action plans in admissions to the State's three largest universities, and grant any other relief determined appropriate. The Complaint named as defendants Governor Jennifer Granholm, in her official capacity, the Regents of the University of Michigan, the Michigan State University Board of Trustees, and the Wayne State University Board of Governors. Michigan Attorney General Michael A. Cox then sought and was granted permission to intervene as a defendant in this action. First and Second Amended Complaints were subsequently filed by the Coalition Plaintiffs, but the allegations, claims, and relief sought are essentially the same as the original Complaint and the University President's were added as Defendants. Governor Granholm has since been voluntarily dismissed as a defendant in this case.
On December 19, 2006, a second lawsuit was filed by the Cantrell Plaintiffs challenging the constitutionality of § 26 by several applicants to the University of Michigan (U of M) and current U of M students and faculty. They seek a declaratory ruling that § 26 violates the Equal Protection Clause because it imposes additional burdens on racial and gender minorities when seeking to achieve legislation in their interest. This suit named only the Governor as a defendant. Defendant Attorney General Cox moved and was permitted to intervene in this suit as well. The Governor was subsequently dismissed from this suit as well. The two lawsuits
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were later consolidated by agreement of the parties and by Order of the Court. (Order
consolidating cases, 1/5/07). Discovery in these cases was bifurcated into fact and expert
discovery. The cases have now proceeded through fact discovery to this point, the filing of legal
and fact based dispositive motions.
Argument
I. This Court lacks jurisdiction to entertain Plaintiffs' Complaints for declaratory and injunctive relief because all of the Plaintiffs lack standing to bring their claims. A. The elements of standing. Jurisdiction, including standing, is "'assessed under the facts existing when the complaint
is filed.'"4 "[A] plaintiff must demonstrate standing for each claim he seeks to press."5 "[T]he
standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted."6 In
order to meet the standing requirements derived from Article III, a plaintiff must show: "(1) it
has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and, (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."7 The litigant must clearly and specifically set forth facts sufficient to satisfy all of these standing requirements.8
4 Cleveland Branch, NAACP v City of Parma, 263 F3d 513, 524 (CA 6, 2001)(quoting Lujan v Defenders of Wildlife, 504 US 555, 570 n4; 112 S Ct 2130; 119 L Ed 2d 351 (1992)). 5 DaimlerChrysler Corp v Cuno, 547 US ___; 126 S Ct 1854, 1867; 164 L Ed 2d 589 (2006); accord Lac Vieux Desert Band of Lake Superior Chippewa Indians v Mich Gaming Control Bd, 172 F3d 397, 407 (CA 6, 1999) (requiring proof of standing for each individual claim). 6 Allen v Wright, 468 US 737, 752; 104 S Ct 3315; 82 L Ed 2d 556 (1984) (emphasis added); ACLU v NSA, 493 F3d 644, 652 (CA 6, 2007). 7 Cleveland Branch, 263 F3d at 523-24 (quoting Friends of the Earth, Inc v Laidlaw Envtl Servs, 528 US 167, 180-81; 120 S Ct 693; 145 L Ed 2d 610 (2000)). 8 Whitmore v Arkansas, 495 US 149, 155; 110 S Ct 1717; 109 L Ed 2d 135 (1990).
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Article III judicial power "exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered 'some threatened or actual injury resulting from the putatively illegal action.'"9 The Supreme Court has adhered to the rule that a party "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties."10
Here, Plaintiffs are a collection of various organizations, unions, individuals, students, and faculty opposed to the implementation of art 1, § 26. None of these Plaintiffs, however, have standing to sue and their Complaints should be dismissed.
B. The Coalition Plaintiffs do not have standing to assert their Equal Protection, First Amendment, and Preemption claims.
In the Coalition case, the Plaintiffs can essentially be divided into two groups – organizational plaintiffs and individual plaintiffs, neither of which have standing to assert their stated claims.
1. The organizational Plaintiffs lack standing. To bring suit on behalf of its members, an organization must show "'its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'"11
9 Warth v Seldin, 422 US 490, 499; 395 S Ct 2197; 145 L Ed 2d 34 (1973) (quoting Linda R S v Richard D, 410 US 614, 617; 93 S Ct 1146; 35 L Ed 2d 536 (1973)). 10 Warth, 422 US at 499. 11 Cleveland Branch, 263 F3d at 524 (quoting Friends of the Earth, Inc, 528 US at 181).
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In this action, there are ten organizational Plaintiffs, all apparently attempting to sue on behalf of their membership.12 (Coalition Second Amended Complaint, ¶¶ 16-18, 30-31.) The first three organizational Plaintiffs are groups committed to fighting for civil rights and affirmative action. (Coalition Second Amended Complaint, ¶¶ 16-18.) The union organizational Plaintiffs, according to the Second Amended Complaint, are labor organizations "with large minority memberships who have long fought for policies that will allow their members and the children of their members to attend the defendant universities." (Coalition Second Amended Complaint, ¶ 30.)
None of the organizational Plaintiffs, however, allege any concrete and particularized injury-in-fact. The members of the Plaintiff organizations or their children do not have a legally protected right to attend college, or to receive preferential treatment in the college or university admissions process on the basis of their race or gender, or to be admitted on the basis of their race or gender. In other words, there is no right to discrimination in the admissions process.13 Nor do these members or their children possess a protected right to be taught in a racially or sexually diverse university community once admitted to college. To the extent the courts have recognized some interest in these principles under the rubric of a First Amendment academic freedom right, this "right" belongs to colleges and universities, not the Plaintiff organizations, their members, or their members' children.14
12 Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary; United for Equality and Affirmative Action Legal Defense Fund; Rainbow Push Coalition; AFSCME Local 207; AFSCME Local 214; AFSCME Local 312; AFSCME Local 836; AFSCME Local 1642; AFSCME Local 2920; and the Defend Affirmative Action Party. (Coalition Second Amended Complaint, ¶¶ 16-18, 30-31.) 13 See e.g. See Argument II (A), infra, discussing Plaintiffs' claims under Equal Protection Clause, which arguments Defendant incorporates into Argument I. 14 See e.g., Coalition to Defend Affirmative Action, et al v Granholm, et al, 473 F3d 237 (CA 6, 2006); Johnson-Kurck v Abu-Abs, 423 F3d 590, 593-595 (CA 6, 2005). See also Argument II
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Thus, the allegations in the Second Amended Complaint are devoid of any identifiable injury and there is nothing concrete and particularized about the speculative injury to the organizations or their members. Nor is there anything concrete and particularized about the speculative injury to the hypothetical class of persons Plaintiffs’ claim to represent.
While the Supreme Court recognizes “that there may be circumstances where it is necessary to grant a third-party standing to assert the rights of another,"15 there are express limits to this exception to general standing principles. In Kowalski v Tesmer, the Court observed that it has "limited this exception by requiring that a party seeking third-party standing make two additional showings. First, we have asked whether the party asserting the right has a "close" relationship with the person who possesses the right. Second, we have considered whether there is a 'hindrance' to the possessor's ability to protect his own interests."16
Again, in this case, the organizational Plaintiffs fail to allege facts showing they meet the requirements to establish third party standing. They have not alleged facts establishing a "close" relationship with a person who possesses any right to challenge the application of the amendment. Nor have they shown that there is a "hindrance" to the possessor's ability to protect his own interests. In fact, the University Defendants have already made the argument that the amendment violates the First Amendment and maintain that "they have an academic freedom right, based in the First Amendment Constitution of the United States, to select their students and that they may, in the course of doing so, give some consideration to such facts . . . as race."17 Accordingly, the organizational Plaintiffs lack standing to sue, and should be dismissed.
(C), infra, discussing the Coalition Plaintiffs' claim under the First Amendment, which argument Defendant incorporates into Argument I. 15 Kowalski v Tesmer, 543 US 125, 130; 125 S Ct 564; 160 L Ed 2d 519 (2004). 16 Tesmer, 543 US at 130 (internal citations omitted). 17 Granholm, 473 F3d at 247.
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2. The individual Coalition Plaintiffs lack standing.
In addition to showing the invasion of a legally protected interest, the second half of the
"injury in fact" test requires that the party seeking future relief from the provisions of an
allegedly unconstitutional law show "actual or imminent" as opposed to "conjectural or hypothetical" harm from its application.18 Where a petitioner seeks declaratory or injunctive
relief, it is insufficient that he has been injured in the past; "he must instead show a very significant possibility of future harm in order to have standing.”19
The individual Plaintiffs can be subdivided into several categories: (a) those allegedly in some stage of the application process to a defendant University;20 (b) those who allegedly “plan” to apply for admission to one of the defendant Universities "in the future";21 (c) those who allegedly "plan" to apply to one of the defendant Universities graduate schools "in the future";22
18 Lujan, 504 US at 560. 19 Bras v California Public Utilities Com, 59 F3d 869, 873 (CA 9, 1995). 20 Plaintiffs Beautie Mitchell, Christopher Sutton, Stasia Brown, Josie Hyman, and Alejandra Cruz, are Plaintiffs who are allegedly in the process of applying to a Defendant University or have applied to one of Defendant Universities. (Coalition Second Amended Complaint, ¶¶ 1922.) 21 Plaintiffs Turquoise Wise-King, Shanae Tatum, Calvin Jevon Cochran, Lashelle Benjamin, Deneshea Richey, Michael Gibson, Laquay Johnson, Brandon Flannigan, Kahleif Henry, Kevin Smith, Kyle Smith, Paris Butler, Touissant King, Aiana Scott, Allen Vonou, Randiah Green, Brittany Jones, Courtney Drake, Matthew Griffith, Lacrissa Beverly, D'Shawn Featherstone, Danielle Nelson, Julius Carter, Williams Frazier, Dante Dixon, Candice Young, Tristan Taylor, and Jerell Erves allegedly all plan to apply to a Defendant University in the future. (Coalition Second Amended Complaint, ¶¶ 23-25). 22 Maricruz Lopez is a Latina student at Defendant University of Michigan, and plans to apply to graduate school at one of the Defendant Universities. (Coalition Second Amended Complaint, ¶ 26). Issamar Camacho, a Latino, and Adarene Hoag, a Caucasian, are individuals who allegedly intend to apply to one of the Defendant Universities' undergraduate or graduate schools. (Coalition Second Amended Complaint, ¶¶ 27-28.)
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and (d) a petition circulator.23 While the individual Plaintiffs may have some personal stake in the outcome of this
litigation, they fail to establish that they have or will suffer the invasion of a legally protected interest, which injury is concrete and particularized, and actual or imminent, as opposed to merely conjectural or hypothetical. As noted above, Plaintiffs do not have a legally protected right to attend college, or to receive preferential treatment in the college or university admissions process on the basis of their race or gender, or to be admitted on the basis of their race or gender. Nor do they have any right to be educated amongst a certain community of students or teachers. Moreover, neither the group of applicants nor those intending to apply in the future have established or can establish with any certainty that they would be admitted even with the application of preferences. Nor is there any indication that their race will be any deciding factor in the decision to admit them to a Defendant University. They may be admitted without any consideration of race whatsoever. Additionally, simply being a petition circulator does not establish standing to seek the relief set forth in this lawsuit. Also, even if the Court were to find that the individual Plaintiffs pled an adequate "injury" for standing purposes, they have not shown that their allege injury is "likely" as opposed to merely "speculative."
Moreover, these individual Plaintiffs fail to establish third-party standing.24 Even if the individual Plaintiffs can show the required "close" relationship, they fail to meet the second requirement because they do not allege any facts showing that universities are somehow impeded or hindered in asserting any claim of academic freedom. As stated previously, the Defendant Universities have already raised these arguments before the Sixth Circuit.
23 Plaintiff Joseph Henry Reed was a petition circulator for Proposal 2. The complaint does not state what Plaintiff Reed's interests are in this lawsuit. (Coalition Second Amended Complaint, ¶ 29.) 24 Kowalski, 543 at 130.
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Accordingly, the individual Plaintiffs do not have individual or third-party standing to
pursue the claims set forth in their Second Amended Complaint and this action should be
dismissed.
C. The Cantrell Plaintiffs do not have standing to assert their Equal Protection claim.
Like the Coalition Plaintiffs, the Plaintiffs in Cantrell may be divided into categories – in
this case students and faculty.
1. The Plaintiff students do not have standing.
The student category may be further subdivided into three categories: (a) current students at a University of Michigan school25; (b) high school students who have applied to the University of Michigan26; and (c) high school students who intend to apply to the University of Michigan.27 The First Amended Complaint asserts (Cantrell Amended Complaint, ¶ 9):
Each of the Plaintiffs . . . benefited from the diversity achieved by the former admissions policies that were altered by the University of Michigan in response to Proposal 2, and each supports policies that include race as one among many factors taken into account in making admissions decisions. Plaintiffs' ability to obtain reinstatement of those former admissions policies is unconstitutionally and unequally burdened by the difficulty of seeking an amendment to the Michigan Constitution.
These nonspecific allegations hardly set forth the invasion of a legally protected interest
that is actual or imminent and concrete and particularized, as opposed to speculative or
hypothetical. Plaintiffs, like the Coalition Plaintiffs, appear to ground their injury in fact on a
First Amendment academic freedom right to be educated in a culturally diverse academic setting
25 Plaintiffs Chase Cantrell, Joshua Kay, Sheldon Johnson, Bryon Maxey, Rachel Quinn, Dana Christensen, Casey Kasper, and Sergio Munoz fall into this category. (First Amended Complaint, ¶¶ 9-27). 26 Plaintiffs Melinda Nestor, Toniesha Jones, Seger Weisberg, and Jay Robinson fall into this category. (Cantrell First Amended Complaint, ¶¶ 9-27). 27 Plaintiffs Chidimma Uche, and Mark Carter, II, fall into this category. (First Amended Complaint, ¶¶ 9-27).
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by culturally diverse faculty as determined by colleges or universities through their admissions policies and hiring practices. As previously argued, however, this "right" belongs to colleges and universities, not students or potential students.28 Additionally, Plaintiffs cannot establish the additional elements to support a claim of third-party standing in order to assert this alleged right. Similarly, Plaintiffs' claim that their ability to petition the State for reinstatement of racial and gender preferences is unequally burdened by art 1, § 26, fails to establish the requisite injury. Plaintiffs are not and cannot be injured when the constitution specifically prohibits discriminatory treatment on the basis of race and in some cases gender. Thus, there is no harm or injury based on an alleged recognized or protected right to lobby or petition the State for the imposition of discriminatory practices. Moreover, this "injury" is no different from that of any other organization or group who seeks to amend the Michigan Constitution via the initiative process.
Accordingly, the individual Plaintiffs do not have individual or third-party standing to pursue the Equal Protection claim set forth in their Second Amended Complaint and these Plaintiffs should be dismissed.
2. The faculty Plaintiffs do not have standing. The Cantrell Plaintiffs include four professors employed by the University of Michigan.29 These Plaintiffs claim that having a racially diverse student body is essential to the quality of the courses they teach and that U of M's changes to its admissions policies in response to art 1, § 26 will impair their ability to teach effectively. (Cantrell First Amended Complaint, ¶¶ 15, 18, 25-26). Essentially, these professor Plaintiffs claim they are third-party beneficiaries of
28 See fn 14. 29 Plaintiffs Matthew Countryman, Kevin Gaines, Rosario Ceballo, and Kathleen Canning are faculty at the University of Michigan. (Cantrell First Amended Complaint, ¶¶ 15, 18, 25-26).
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U of M's First Amendment academic-freedom right and that § 26 somehow infringes on their alleged opportunity to enjoy this right. These Plaintiffs, like the other Plaintiffs, have failed to allege proper third-party standing for the reasons stated above. Moreover, U of M's academic freedom does not provide the professor Plaintiffs with standing to assert an equal protection claim. Simply having an interest in teaching a diverse student body does not equate to the denial of a fundamental constitutional right. Accordingly, these Plaintiffs lack individual or third-party standing to sue, and this Court should dismiss their complaint. II. Both the Coalition Plaintiffs and the Cantrell Plaintiffs fail to state claims upon
which relief may be granted with respect to the substantive claims asserted in their respective Complaints, and thus each suit must be dismissed. The Coalition Plaintiffs' Second Amended Complaint asserts six causes of action: a violation of the Fourteenth Amendment's Equal Protection Clause premised on a theory of racial and gender discrimination (Count I); a violation of the Fourteenth Amendment's Equal Protection Clause premised on a theory of "political structure" equal protection (Count II); a claim that Title VI of the Civil Rights Act of 1964 preempts the Amendment (Count III); a claim of "gender discrimination in the structure of government" premised on the Equal Protection Clause of the Fourteenth Amendment (Count IV); a claim that Title IX of the Education Amendments of 1972 preempts the Amendment (Count V); and a claim § 26 violates the First Amendment (Count VI). The Cantrell Plaintiffs' First Amended Complaint asserts only one cause of action: A violation of the Fourteenth Amendment's Equal Protection Clause premised on a theory of "political structure" equal protection. These claims all fail as a matter of law.
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A. Equal Protection Claims 1. Equal Protection – Race and Gender Discrimination (Coalition Second Amended Complaint Count I).
The Coalition Plaintiffs assert that § 26 violates the Equal Protection Clause because it discriminates on the basis of race and sex by eliminating those categories but not others as a basis upon which the State, including colleges and universities, could chose to grant preferential treatment. Plaintiffs' argument fails for the following reasons.
Contrary to Plaintiffs' assertions, the purpose or "primary aim" of § 26 is not "reducing the admission of black, Latino, and Native American students and of women students in some programs" at the Defendant Universities. (Coalition Second Amended Complaint, ¶ 107). Art 1, § 26 states that30:
The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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. By using the terms "discriminate against" and "grant preferential treatment to," art 1, § 26 prohibits both the prejudicial treatment of a person and its counterpart – the favorable treatment of a person or group – on account of race, sex, color, ethnicity, and national origin. Thus, by adopting § 26 the people of Michigan chose to prohibit both discrimination disfavoring and preferential treatment favoring persons or groups based on race and sex. In other words, except
30 Const 1963, art 1, § 26(1). The amendment also prohibits the "state" from engaging in the same conduct, and defines "state" as including, but not limited "to the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in subsection 1." Const 1963, art 1, § 26(3).
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under limited circumstances,31 the State must treat all individuals equally in the areas of public
contracting, education, and employment. In the context of this case then, for example, § 26 prohibits the Defendant Universities
from denying admission to an applicant because he is white or a male (thereby discriminating against that person on the basis of his race or sex), and granting admission to another applicant because he or she is black or female (thereby according that person an advantage or "preferential treatment" on the basis of his or her race or sex).32 Nothing about this prohibition violates the
Equal Protection Clause of the United States Constitution. "In contending that the Equal Protection Clause compels what it presumptively prohibits
[P]laintiffs face an uphill climb."33 The Equal Protection Clause provides that "no State shall . . . deny to any person within its jurisdiction the equal protection of the laws."34 The central purpose of the clause "is the prevention of official conduct discriminating on the basis of race,"35
31 Art 1, § 26 does provide certain exceptions to its application:
(4) This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.
(5) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting. Section 26 also specifies that federal law or the federal Constitution prevails over any part of art 1, § 26 in conflict with those laws. Const 1963, art 1, § 26(7). 32 Defendant Attorney General understands that the admissions process is more sophisticated than the simple example provided, but would note that the end result is the same – one applicant may not be chosen over another because of that applicant's race or sex. 33 Granholm, 473 F3d at 248. 34 US Const amend VIX, § 1. 35 Washington v Davis, 426 US 229; 96 S Ct 2040; 48 L Ed 2d 597 (1976).
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and on the basis of sex,36 not State conduct that bans discrimination against or preferential treatment to individuals on the basis of race or sex as § 26 does.37 Indeed, the ultimate goal of
the Equal Protection Clause is "to do away with all governmentally imposed discrimination based on race" and gender.38 The Ninth Circuit came to this very conclusion in Coalition for
Economic Equity, et al v Wilson, et al, where the Court addressed the constitutionality of
Proposition 209 now Cal Const, art 1, § 31, after which Michigan's Proposal 2 was modeled and contains identical language.39
In addressing the equal protection claim asserted there, the Ninth Circuit opined that "[a]s
a matter of 'conventional' equal protection analysis there is simply no doubt that Proposition 209 is constitutional."40 "Plaintiffs charge that this ban on unequal treatment denies members of
certain races and one gender equal protection of the laws. If merely stating this alleged equal
protection violation does not suffice to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence."41 The Court observed that the Equal Protection Clause
guarantees that the government "will not classify individuals on the basis of impermissible
36 United States v Virginia, 518 US 515; 116 S Ct 2264; 135 L Ed 2d 735 (1996). 37 Granholm, 473 F3d at 248. 38 Palmore v Sidoti, 466 US 429, 432; 104 S Ct 1879; 80 L Ed 2d 421 (1984); Virginia, 518 US 515. 39 Coalition for Economic Equity, et al v Wilson, et al, 122 F3d 692 (CA 9, 1997), cert den 522 US 963; 118 S Ct 397; 139 L Ed 2d 310 (1997). Section 31 of the California Constitution provides in part, "The state shall 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." See also Citizens Research Council of Michigan, Report 343, Statewide Issues on the November General Election Ballot, Proposal 2006-02: Michigan Civil Rights Initiative, September 2006, p 13, available at http://crcmich.org/PUBLICAT/2000s/2006/rpt343.pdf. 40 Coalition, 122 F3d at 701. 41 Coalition, 122 F3d at 702.
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criteria."42 The Court noted that while most laws classify individuals in some fashion, and thus
condition the receipt or denial of state benefits on those classifications, i.e. income level,
disability, age, occupation, etc, such legislative classifications "as a general rule are presumptively valid under the Equal Protection Clause."43 "The general rule does not apply,
however, when a law classifies individuals by race or gender." In those cases, any governmental
action that classifies persons by race is presumptively unconstitutional and in order to be
constitutional, the classification must be narrowly tailored to serve a compelling governmental interest.44 "When the government classifies by gender, it must demonstrate that the
classification is substantially related to an important governmental interest, requiring an 'exceedingly persuasive' justification."45
The Ninth Circuit thus observed that the "first step in determining whether a law violates
the Equal Protection Clause is to identify the classification that it draws," and then concluded that because Proposition 209 drew no classifications, it did not violate equal protection46:
Proposition 209 provides that the State of California shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race or gender. Rather than classifying individuals by race or gender, Proposition 209 prohibits the State from classifying individuals by race or gender. A law that prohibits the State from classifying individuals by race or gender a fortiori does not classify individuals by race or gender. Proposition 209's ban on race and gender preferences, as a matter of law and logic, does not violate the Equal Protection Clause in any conventional sense.
42 Coalition for Economic Equity, 122 F3d at 702. 43 Coalition for Economic Equity, 122 F3d at 702. 44 Coalition for Economic Equity, 122 F3d at 702, citing Wygant v Jackson Bd of Ed, 476 US 267, 277-78; 90 L Ed 2d 260; 106 S Ct 1842 (1986) (plurality opinion). 45 Coalition for Economic Equity, 122 F3d at 702, quoting City of Cleburne v Cleburne Living Ctr, 473 US 432, 440; 105 S Ct 3249; 87 L Ed 2d 313 (1985). 46 Coalition for Economic Equity, 122 F3d at 702.
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This same analysis can and should be applied to § 26. Like the California law, § 26 does not classify any individuals by race or sex, but rather prohibits the State and Defendant Universities from doing the very same. A law that forbids these entities from discriminating either favorably or unfavorably on the basis of race or sex, simply cannot and does not violate the Equal Protection Clause under any interpretation accorded that clause by the courts, including the Supreme Court's 2003 decision in Grutter v Bollinger.47
In Grutter, the Supreme Court held that colleges and universities may still use racial classifications as a factor, among others, in school admissions when the school can establish a compelling state interest for doing so, and further establish that the classification is narrowly tailored to serve that interest.48 The Court concluded that the University of Michigan law school had a compelling state interest for equal protection purposes in "attaining a diverse student body" and that the admissions practice was narrowly tailored to withstand constitutional challenge.49 "But Grutter never said, or even hinted, that state universities must do what they barely may do."50 Nowhere in Grutter did the Court state or imply that universities and colleges must or should employ racial classifications, or that the failure to do so violates the Equal Protection Clause. Indeed, the Grutter Court specifically directed colleges and universities to look to "California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law," to "draw upon the most promising aspects of these race-neutral alternatives as they
47 Grutter v Bollinger, 539 US 306; 123 S Ct 2325; 156 L Ed 2d 304 (2003). Notably, the Supreme Court's decision in the recent school desegregation case does not alter or affect any of the analysis in this case. See Parents Involved in Community Schools v Seattle School District No 1, 555 US ___; 127 S Ct 2738; 168 L Ed 2d 508 (2007). 48 Grutter, 539 US at 326-328. 49 Grutter, 539 US at 328. 50 Granholm, 473 F3d at 249 (emphasis in original).
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develop," and warned that in 25 years, the Court expected that the use of racial preferences "will no longer be necessary."51
Arguments that the denial of the opportunity to obtain preferential treatment based on race or sex is unconstitutional, simply confuses what the Equal Protection Clause has been interpreted by the courts to permit with what it actually requires under its plain terms.52 As the Ninth Circuit observed in the Coalition for Economic Equity case, "[t]hat the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether."53 Here, as in California, the people chose to ban preferential treatment based on race and sex altogether.
Plaintiffs appear to argue that § 26 creates classifications based on race and sex because the amendment targets only those groups as no longer being entitled to seek preferential treatment in public employment, education and contracting, while other potential classes are not prohibited from seeking preferential treatment in those areas. Plaintiffs assert that the targeting of only race and sex is evidence of a discriminatory purpose behind § 26. Similar arguments were raised before and rejected by the Supreme Court in the analogous case of Crawford, et al v Board of Education of the City of Los Angeles.54
Crawford involved desegregation litigation in the Los Angeles Unified School district. The state trial court found de jure segregation in violation of both the State and Federal
51 Grutter, 539 US at 342-343. 52 See Shaw v Reno, 509 US 630, 654; 113 S Ct 2816; 125 L Ed 2d 511 (1993) ("in the context of a Fourteenth Amendment challenge, courts must bear in mind the difference between what the law permits and what it requires"). 53 Coalition for Economic Equity, 122 F3d at 708. (Emphasis deleted). 54 Crawford, et al v Board of Education of the City of Los Angeles, 458 US 527; 102 S Ct 3211; 73 L Ed 2d 948 (1982).
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Constitutions and ordered the school district to prepare a desegregation plan.55 While the state
trial court was considering alternative new plans in 1979, California voters ratified an
amendment – known as Proposition I – to the State Constitution that provided that state courts
could not order mandatory pupil assignment or busing unless a federal court "would be permitted
under federal decisional law" to do so to remedy a violation of the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution.56 The trial court denied the school district's
request to halt all mandatory reassignment and busing, holding that Proposition I was not
applicable in light of the court's 1970 finding of de jure segregation in violation of the Fourteenth Amendment.57 The California Court of Appeals reversed the trial court, and further
held that Proposition I was constitutional under the Fourteenth Amendment and barred that part of the plan requiring mandatory student reassignment and busing.58 The California Supreme
Court denied review, and the Supreme Court granted certiorari to determine the constitutionality of Proposition I.59
The Supreme Court opened its analysis of Proposition I by stating that it agreed with the
California Court of Appeals "in rejecting the contention that once a State chooses to do 'more'
55 Crawford, 458 US at 530. 56 Crawford, 458 US at 531-532. Proposition I stated in part:
"[No] court of this state may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution, and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection Clause . . . ." [Crawford, 458 US at 532, quoting Cal Const art 1, § 7.] 57 Crawford, 458 US at 533. 58 Crawford, 458 US at 533-534. 59 Crawford, 458 US at 534.
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than the Fourteenth Amendment requires, it may never recede."60 "We reject an interpretation of the Fourteenth Amendment so destructive of a State's democratic processes and of its ability to experiment. This interpretation has no support in the decisions of this Court."61 According to the Court, the amendment did not inhibit enforcement of any federal law or constitutional requirement, but rather sought to embrace "the requirements of the Federal Constitution." The Court commented that "[i]t would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it."62 Moreover, even after the amendment, the Court observed that the California Constitution and state law still obligated school desegregation and accorded greater protection on that front than federal law. Petitioners nonetheless argued that the amendment was unconstitutional on its face.
Petitioners "argue[d] that Proposition I employ[ed] an 'explicit racial classification' and impose[d] a 'race-specific' burden on minorities seeking to vindicate state-created rights," by creating a "'dual court system' that discriminates on the basis of race."63 The Court observed that it would agree that if "Proposition I employed a racial classification it would be unconstitutional unless necessary to further a compelling state interest."64 The Court did not agree, however, because "Proposition I [did] not embody a racial classification. It neither sa[id] nor implie[d] that persons are to be treated differently on account of their race."65 The benefit the amendment sought to confer – neighborhood schooling – was available regardless of race. "In addition, this
60 Crawford, 458 US at 535. 61 Crawford, 458 US at 535. 62 Crawford, 458 US at 535. 63 Crawford, 458 US at 536. 64 Crawford, 458 US at 536. 65 Crawford, 458 US at 537.
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Court previously has held that even when a neutral law has a disproportionately adverse effect on a racial minority, the Fourteenth Amendment is violated only if a discriminatory purpose can be shown."66 The Court continued, stating that67:
[A] distinction may exist between state action that discriminates on the basis of race and state action that addresses, in neutral fashion, race-related matters. This distinction is implicit in the Court's repeated statement that the Equal Protection Clause is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place. . . . In sum, the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification. The Court again noted that "a law neutral on its face still may be unconstitutional if motivated by a discriminatory purpose," and that "[i]n determining whether such a purpose was the motivating factor, the racially disproportionate effect of official action provides "an 'important starting point.'"68 The Court observed that Proposition I did not limit the power of the California courts to remedy the effects of intentional segregation; that the benefits of neighborhood schooling were race neutral; that the amendment only removed one means of achieving school desegregation.69 The Court determined that even if it could assume that Proposition I had a disproportionately adverse effect on racial minorities, the Court could see no reason to challenge the Court of Appeals' conclusion that the California voters were not motivated by a discriminatory purpose. "In this case the Proposition was approved by an overwhelming majority of the electorate. It received support from members of all races. The purposes of the Proposition are stated in its text and are legitimate, nondiscriminatory
66 Crawford, 458 US at 537-538. 67 Crawford, 458 US at 538-539. 68 Crawford, 458 US at 544 (citations omitted). 69 Crawford, 458 US at 544.
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objectives."70 Under these circumstances, the Court concluded there was no reason to dispute the judgment of the Court of Appeals or "impugn the motives of the State's electorate."71 Thus, the Court rejected the petitioners' arguments and affirmed the constitutionality of Proposition I.
Here, the people of Michigan chose to "repeal" the State's ability to grant preferential treatment to classes of citizens based on their race and sex. Before the passage of § 26, the State was able to do "more" than the Fourteenth Amendment requires by granting such treatment under certain conditions. The people, through the democratic process, have mandated that the State "recede" from this practice, and now do what the Fourteenth Amendment requires, which is to treat citizens of all races and either sex equally under the law. Under these circumstances, it would be "paradoxical" to conclude that the voters of the State of Michigan have thus violated the Equal Protection Clause. In any event, like Proposition I in Crawford, § 26 does not "embody a racial [or sexual] classification" since it neither says nor implies that "persons are to be treated differently on account of their race [or sex.]"72 The benefit the amendment sought to confer – equal access to public education, public employment, and public contracting – is available to all persons regardless of their race or sex.
To the extent Plaintiffs argue that § 26 is unconstitutional because it will have a disproportionately adverse effect on the admissions of racial minorities and women to universities and colleges, they must demonstrate that the amendment was adopted with a discriminatory purpose.73 Defendant Cox observes that arguments that § 26 will have a disproportionate effect on the ability of racial minorities and women to achieve admission into state universities and colleges, is entirely speculative at this point since § 26 only became 70 Crawford, 458 US at 545. 71 Crawford, 458 US at 545. 72 Crawford, 458 US at 537. 73 Crawford, 458 US at 537-538.
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effective in December 2006. Thus, the universities have not even completed one full admissions cycle under § 26, and there is no credible or reliable way to determine whether § 26 will have a disproportionate effect at this time. Plaintiffs' reliance on statistics and studies from California or other States and the purported effect of Proposition 209 certainly cannot be considered determinative of what effect § 26 will have in the State of Michigan.
Moreover, even if it is assumed that § 26 will have an unintended disproportionate impact, this assumption in and of itself fails to demonstrate a discriminatory purpose or intent.74
Indeed, there is no support for Plaintiffs' argument that the amendment was adopted for a discriminatory purpose. In order to establish a present intent to discriminate, the burden rests with the Plaintiffs to demonstrate that the State acted with discriminatory purpose. The Supreme Court has explained that "'discriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group."75
Section 26 prohibits discrimination based on race and sex, and certainly does not preclude the State and its related entities from taking actions to protect against or remedy discrimination based on those impermissible classifications. Like Proposition I in Crawford, §
74 See, e.g., Washington v Davis, 426 US 229, 242; 96 S Ct 2040; 48 L Ed 2d 597 (1976) (("An invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.")); Hernandez v New York, 500 US 352, 359-60; 111 S Ct 1859; 114 L Ed 2d 395 (1991) ("A court addressing [an equal protection claim] must keep in mind the fundamental principle that 'official action will not be held unconstitutional solely because it results in a racially disproportionate impact. . . . Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.'" (omission in original) (internal citation omitted)); State action Bd of Trs of the Univ of Ala v Garrett, 531 US 356, 373; 121 S Ct 955; 148 L Ed 2d 866 (2001). 75 Hernandez, 500 US at 360 (quoting Pers Adm'r v Feeney, 442 US 256, 279; 99 S Ct 2282; 60 L Ed 2d 870 (1979)) (omissions in original).
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26 "was approved by an overwhelming majority of the electorate," and the "purposes of the Proposition [were] stated in its text and [were] legitimate, nondiscriminatory objectives."76 The public debate over this amendment began early in 2004 and continued until the very eve of the election in November 2006. The print and broadcast media carried numerous stories and editorials during those years setting out both sides of the debate. There is no evidence that the 2.1 million "decisionmakers," or even a majority of that number, who voted in favor of the amendment did so "because of" the allegedly disproportionate impact it would have on the admissions of racial minorities and women to State universities and colleges.77 Absent such evidence, there is no reason to "impugn the motives" of the citizens who voted in favor of the amendment.78 Indeed, the Equal Protection Clause "is not a license for courts to judge the wisdom, fairness, or logic of [the voters'] choices."79
Plaintiffs have thus failed to state a "conventional" claim under the Equal Protection Clause of the Fourteenth Amendment because; (1) § 26 does not create impermissible classifications based on race or sex, and does not discriminate on either basis; and (2) Plaintiffs cannot show that § 26 was adopted with a discriminatory purpose, thus making its allegedly disproportionate impact on racial minorities and women unconstitutional. Count I of the Coalition Plaintiffs' Second Amended Complaint therefore should be dismissed as a matter of law.
76 Crawford, 458 US at 545. 77 Hernandez, 500 US at 360. 78 Crawford, 458 US at 545. 79 FCC v Beech Communications, 508 US 307, 313; 113 S Ct 2096; 124 L Ed 2d 211 (1993).
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2. Equal Protection – "Political Structure" Claim (Coalition Second Amended Complaint Counts II and IV; Cantrell Amended Complaint)
Both the Coalition and Cantrell Plaintiffs assert a constitutional violation grounded in "political structure" equal protection analysis. (Cantrell Amended Complaint, ¶¶ 78-79; Coalition Second Amended Complaint, ¶¶ 112-121, 130-136). Apparently premised on the Supreme Court's decisions in Hunter v Erickson,80 Washington v Seattle School District,81 and Romer v Evans,82 Plaintiffs contend that § 26 unconstitutionally restructures the political process because racial minorities, students or applicants from particular national origins, and women may not petition the faculty and administration at the Defendant Universities for sustaining or making changes in admissions and hiring practices that benefit these groups. Rather, they allege, racial minorities and women may only secure adoption of preferences based on racial and gender status by mounting an extremely costly effort to amend the state constitution, the same process the proponents of § 26 were required to use to secure its passage. (Cantrell First Amended Complaint, ¶78; Coalition Second Amended Complaint, ¶¶ 116, 117, 120, 121, 134-136.)
These allegations fail to state an equal protection claim within the contexts of the Hunter, Seattle and Romer decisions. In Hunter, the Akron city charter had been amended by the voters to provide that no ordinance regulating real estate on the basis of race, color, religion, or national origin could take effect until approved by a referendum. As a result of the charter amendment, a fair housing ordinance, adopted by the City Council at an earlier date, was no longer effective. In holding the charter amendment invalid under the Fourteenth Amendment, the Court held that the charter amendment was not a simple repeal of the fair housing ordinance. The amendment "not only suspended the operation of the existing ordinance forbidding housing discrimination, but
80 Hunter v Erickson, 393 US 385; 89 S Ct 557; 21 L Ed 2d 616 (1969). 81 Washington v Seattle School District, 458 US 457; 102 S Ct 3187; 73 L Ed 2d 896 (1982). 82 Romer v Evans, 517 US 620; 116 S Ct 1620; 134 L Ed 2d 855 (1996).
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also required the approval of the electors before any future [antidiscrimination] ordinance could take effect."83 Thus, whereas most ordinances regulating real property would take effect once enacted by the City Council, ordinances prohibiting racial discrimination in housing would be forced to clear an additional hurdle. As such, the charter amendment placed an impermissible, "special [burden] on racial minorities within the governmental process."84
Similarly, in Seattle, the Court invoked Hunter to strike down a Washington State initiative preventing local school boards from utilizing racially integrative busing practices. There the Court reasoned that the initiative "remove[d] authority to address a racial problem— and only a racial problem—from the existing decision making body, in such a way as to burden minority interests."85
Finally, in Romer, the Supreme Court considered an amendment to the Colorado Constitution barring all state and local governments from allowing "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" to be the basis for a claim of "minority status, quota preferences, protected status or claim of discrimination."86 The amendment invalidated certain local ordinances prohibiting discrimination on the basis of sexual orientation. The Colorado Supreme Court found the amendment unconstitutional. The Supreme Court affirmed, although based on a different rationale. The Court noted that the Colorado constitutional amendment "withdr[ew] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbid[ ] reinstatement of these laws and
83 Hunter, 393 US at 389-390. 84 Hunter, 393 US at 391. 85 Seattle, 458 US at 474. 86 Romer, 517 US at 624.
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policies."87 The Court than concluded that the amendment lacked a rational relationship to a
legitimate governmental purpose since there was no factual context from which the Court could discern a relationship to legitimate state interests, but rather it was a classification of persons undertaken for its own sake, in violation of the Equal Protection Clause.88
The decisions in Hunter, Seattle, and Romer are simply inapplicable to § 26. First, § 26 does not create an unequal political burden on minorities or women. "No matter how one chooses to characterize the individuals and classes benefited or burdened by this law, the classes burdened . . . according to plaintiffs-women and minorities – make up a majority of the Michigan population."89 The Hunter Court specifically observed that the "majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that."90
Second, § 26 does not discriminate. The laws struck down in Hunter, Seattle, and Romer, prohibited or made it more difficult for minorities to seek protection from discrimination through the political process, thus, in effect using the political process to promote discrimination contrary to the Equal Protection Clause. Here, unlike the statute, policy, and amendment at issue in the Hunter line of cases, § 26 prohibits the State's universities and colleges from discriminating against, or in favor of, persons or groups based on their race or sex. This prohibition is not only compelled by § 26 but also by the Fourteenth Amendment's Equal Protection Clause.91
87 Romer, 517 US at 627. 88 Romer, 517 US at 635. 89 Granholm, 473 F3d at 251. 90 Hunter, 393 US at 391. 91 See Romer, 517 US at 637-640 (Scalia, J., dissenting)("The only denial of equal treatment [the majority] contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection o the laws. If merely stating this alleged 'equal protection' violation does not suffice to refute it, our
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Third, under a "political structure" analysis, reallocation of political decision-making violates equal protection only when there is evidence of purposeful racial discrimination, similar to "conventional" equal protection analysis.92 Here, Plaintiffs do not make any showing of purposeful discrimination in support of their claim. Further, no such showing is possible as § 26 does not obstruct minorities or women from seeking protection against unequal treatment unlike the ordinance reviewed in Hunter or the student assignment and desegregation policy at issue in Seattle, or the amendment in Romer. The language and purpose of § 26 is to eliminate preferential treatment in public contracting, public employment, and public education. This amendment does not reallocate the authority to address only a racial or gender problem "from the existing decision making body, in such a way as to burden minority interests."93
This is the very reasoning applied by the Sixth Circuit which drew these same distinctions and conclusions with respect to § 26 in its earlier decision in this case.94 Addressing the viability of this claim, the Sixth Circuit concluded that, "Proposal 2 is more akin to the 'repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place,' an action that does not violate the Equal Protection Clause."95 The same conclusion is required here.
Fourth, § 26 does not prohibit racial minorities and women from suggesting or urging colleges and universities to create practices promoting diversity. These individuals are free to support nondiscrimination policies. In fact, such nondiscrimination policies are entirely
constitutional jurisprudence has achieved terminal silliness.") See also Equality Foundation of Greater Cincinnati, Inc v Buchanan, 128 F3d 289 (CA 6, 1997)(Affirming constitutionality of local ordinance that prohibited municipality from enacting legislation or policies that would accord gays and lesbians special status, privileges, or preferential treatment). 92 Seattle, 458 US at 484-485; Valieria v Davis, et al, 307 F3d 1036, 1040 (CA 9, 2002). 93 Valeria, 307 F3d at 1041. 94 Granholm, 473 F3d at 250-251. 95 Granholm, 473 F3d at 251, quoting Crawford, 458 US at 538.
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consistent with § 26. Section 26 prohibits the State from discriminating, unlike the laws and policy in the Hunter line of cases, which eliminated the government's protection against discrimination.
Finally, the university admissions process is not a political process as contemplated in the Hunter line of cases. For example, at the Wayne State University Law School, a faculty committee develops the "Discretionary Admissions Criteria" and the ultimate decision to adopt or change admissions criteria rests with the faculty. Students who are not on the Student Board, prospective students and the public are not eligible to vote on admissions criteria. The public may attend meetings at which admissions criteria are discussed and may comment if they provide advance notice by submitting a card requesting that opportunity. (Ex 1, Wu dep, pp 8, 30-32, 188-191) The admissions goal of the law school is to continue its commitment to achieving a substantial representation of qualified minority persons and qualified persons from a disadvantaged background. (Ex 1, Wu dep, p 31).
Similarly, U of M's one goal of the undergraduate admissions policy for the LS&A and Engineering Colleges is diversity. (Ex 2, Spencer dep, p 225). The faculty are the primary architects of all the admissions criteria and protocols. (Ex 2, p 235). These colleges have adopted a holistic review process that involves multiple reviews looking at many different factors. (Ex 2, pp 17, 38) There is no process by which members of the public, prospective students or others who are not faculty or part of the college, can comment or submit suggestions for admissions criteria. (Ex 2, pp 234-235). The same practices are also followed at U of M's Law School and U of M's Medical School. That is, the faculty develop and adopt the admissions criteria and there is no formal process by which the public "petitions" or submits suggestions for consideration. (Ex 3, Zeafross dep, pp 13-14; 208-213; Ex 4, Ruiz dep, pp 13-17, 85-86, 89-94). Thus, the selection criteria and methodology for reviewing and adopting changes to the
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admissions process, and criteria that defendant universities use in selecting its students, is not itself a political process.
The Ninth Circuit concluded as much in the Coalition for Economic Equity case. There the Court rejected the identical "political structure" equal protection attack on California's Proposition 209. In Coalition for Economic Equity, the Ninth Circuit asked the telling question, "Can a statewide ballot initiative deny equal protection to members of a group that constitute a majority of the electorate that enacted it?" 96 The Ninth Circuit answered, "No," stating97:
When, in contrast, a state prohibits all its instruments from discriminating against or granting preferential treatment to anyone on the basis of race or gender, it has promulgated a law that addresses in neutral-fashion race-related and genderrelated matters. It does not isolate race or gender antidiscrimination laws from any specific area over which the state has delegated authority to a local entity. Nor does it treat race and gender antidiscrimination laws in one area differently from race and gender antidiscrimination laws in another. Rather it prohibits all race and gender preferences by state entities. The same conclusion is required regarding § 26. Like the California case, Plaintiffs here challenge § 26 not as an impediment to protection against unequal treatment but as an impediment to receiving preferential treatment. Impediments to preferential treatment do not deny equal protection.98 Thus, Plaintiffs have no equal protection rights against a political obstruction to preferential treatment. As the Ninth Circuit noted, "While the Constitution protects against obstructions to equal treatment, it erects obstructions to preferential treatment by its own terms."99 Plaintiffs' equal protection claim is premised on just such preferential
96 Coalition for Economic Equity, 122 F3d at 704. 97 Coalition for Economic Equity, 122 F3d at 707. 98 Coalition for Economic Equity, 122 F3d at 708. 99 Coalition for Economic Equity, 122 F3d at 708.
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treatment and, therefore, fails as a matter law. Plaintiffs have "no fundamental right to be free of the political barrier a validly enacted constitutional amendment erects."100
For these reasons, both the Coalition Plaintiffs' and the Cantrell Plaintiffs' "political structure" equal protection claims clearly fail as a matter of law and should therefore be dismissed.
B. Coalition Complaint, Counts III and V – Preemption under the Civil Rights Act. In Count III of their Second Amended Complaint, the Coalition Plaintiffs assert that Title VI of the Civil Rights Act of 1964 preempts Art 1 § 26. (Coalition Second Amended Complaint, ¶ 129). They argue that that since Title VI prohibits discrimination on account of race, color, or national origin in any program or activity that receives federal financial assistance, § 26's elimination of racial preferences somehow "stands as an obstacle to the accomplishment of the purposes of Title VI." (Coalition Second Amended Complaint, ¶ 128). The Coalition Plaintiffs' argument, however, fails because: (1) § 26 is consistent with the purpose of Title VI; and (2) § 26 contains express language to make certain no conflicts between state and federal laws occur. First, it should be noted that § 1104 of the Civil Rights Act expressly limits the Act's application101: Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State Law unless such provision is inconsistent with any of the purposed of this Act, or any provision thereof. Through this provision, "Congress has indicated that state laws will be preempted only if they actually conflict with federal laws."102 Conflict preemption, which is the basis of the Coalition
100 Citizens for Equal Protection, et al v Bruning, 455 F3d 859, 868 (CA 8, 2006). 101 42 USC § 2000h-4.
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Plaintiffs' claim, occurs either where it is impossible to comply with both federal and state law,
or where state law "stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress" as reflected in the language, structure, or underlying goals of the federal statute at issue.103 Here, § 26's elimination of discrimination and preferential
treatment on the basis of race, sex, color, ethnicity, or national origin, does not make compliance
with the federal law a "physical impossibility." Nor does § 26 create an "obstacle" in
accomplishing the purpose of the federal law. Rather, § 26 prohibits state universities from
discriminating, or granting preferential treatment, on the basis of race, color and national origin.
This prohibition is entirely consistent with Title VI's purpose, which is to prohibit intentional discrimination based on the same protected group status.104
Second, subsection (4) of § 26 states: “This section does not prohibit action that must be
taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state."105 Subsection (4) ensures that there is no conflict between the
amendment and the Civil Rights Act. Thus, § 26 by its terms eliminates any conflict between it and federal-funding statutes like Title VI.106
In an apparent attempt to avoid the express language of both Title VI and § 26, the
Coalition Plaintiffs' claim that United States Department of Education regulation 100.3(b)(2)
102 California Federal S & L Assoc v Guerra, 479 US 272, 281; 107 S Ct 683; 93 L Ed 2d 613 (1987). 103 Fidelity Federal Savings and Loan Ass'n v de la Cuesta, 458 US 141, 153; 102 S Ct 3014; 73 L Ed 2d 664 (1982). 104 See Alexander v Sandoval, 532 US 275, 280; 121 S Ct 1511; 149 L Ed 2d 517 (2001) (Title VI proscribes only those racial classifications that would violate the Equal Protection Clause of the Fifth Amendment). 105 Const 1963, art 1, § 26(4). 106 Granholm, 473 F3d at 251. See also, C & C Construction Inc v Sacramento Municipal Utility District, 122 Cal App 4th 284; 18 Cal Rptr 3d 715 (2004), reviewing art 1, § 31(e) of the California constitution.
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prohibits the utilization of criteria or methods of administration that has "the effect of subjecting individuals to discrimination because of their race, color or national origin, or has the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color or national origin." (Coalition Second Amended Complaint, ¶ 126)107 The Coalition Plaintiffs, relying on "the experience in California", assert that compliance with § 26 will have the "effect" of reducing the number of black, Latino/a and Native American students attending universities. (Coalition Second Amended Complaint, ¶ 127). To state a claim under this regulation promulgated pursuant to Title VI, however, the Supreme Court has made clear that a plaintiff must allege facts showing intentional discrimination, not disparate impact.108 Simply claiming that § 26 may result in a lower number of protected groups at a particular school is insufficient to establish intentional discrimination. Notably, § 26 does not require the universities to adopt any particular criterion or method of administration to intentionally discriminate against any members of a protected class. The mere fact that affirmative action is permissible under a regulation implemented pursuant to Title VI does not require preemption of a state law that prohibits affirmative action.109 Therefore, since § 26 does not require acts that are contrary to Title VI or any related regulations, and in fact furthers the objectives of this federal statute, preemption does not apply.110
In Count V, the Coalition Plaintiffs further contend that Title IX of the Education Amendments of 1972 preempts § 26. Title IX provides, in pertinent part: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits 107 See 34 CFR 100.3(b)(2). 108 Sandoval, 532 US at 280-81. 109 Hi-Voltage Wire Works, Inc v City of San Jose, 24 Cal 4th 537, 569; 101 Cal Rptr 2d 653 (2000), citing Coalition for Economic Equity, 946 F Supp 1480, 1517 n 49 (1996), vacated in part and remanded by Coalition for Economic Equity, 122 F3d 692. 110 Granholm, 473 F3d at 251.
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of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . ."111 This claim also lacks merit. As shown above, § 26 expressly avoids
conflicts with federal-funding statutes like this one. Moreover, by preventing discrimination on the basis of sex, § 26 directly serves Title IX's objectives.112
In addressing a similar preemption challenge to California's Proposition 209, a constitutional amendment similar to § 26, the California Supreme Court noted that113:
Rather than classifying individuals by race or gender, Proposition 209 prohibits the State from classifying individuals by race or gender. The ballot arguments-from which we draw our historical perspective--make clear that in approving Proposition 209, the voters intended section 31, like the Civil Rights Act as originally construed, "to achieve equality of [public employment, education, and contracting] opportunities" and to remove "barriers [that] operate invidiously to discriminate on the basis of racial or other impermissible classification." In short, the electorate desired to restore the force of constitutional law to the principle articulated by President Carter on Law Day 1979: " 'Basing present discrimination on past discrimination is obviously not right.'"
Put another way, and as Chief Justice Roberts recently observed, "[t]he way to stop discrimination on the basis of race is to stop discrimination on the basis of race."114 Counts III
and V of the Coalition Plaintiff's Second Amended Complaint therefore should be dismissed as a
matter of law.
C. Coalition Complaint, Count VI – Violation of the First Amendment.
In this claim, the Coalition Plaintiffs assert that § 26 violates the University Defendants' First Amendment right of "academic freedom" as discussed in Grutter v Bollinger.115 Plaintiffs
assert that § 26 "invades the First Amendment rights of the defendant universities to select their
111 20 USC § 1681(a). 112 Granholm, 473 F3d at 252 (citing 20 USC 1681) 113 Hi-Voltage Wire Works, 24 Cal 4th at 670-71. 114 Parents Involved in Community Schools, 555 US at ___. 115 Grutter, 539 US 306.
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student bodies and their teaching staff in ways that the educational authorities have deemed most appropriate," which includes "their right to seek diversity through the admission of a critical mass of students of diverse races and national origins and from both genders." (Coalition Second Amended Complaint, ¶¶ 147-148). Plaintiffs, as students or prospective students at the graduate or undergraduate Defendant Universities, attempt to assert this claim as "beneficiaries" of the asserted right. (Coalition Second Amended Complaint, ¶¶ 145-146). As discussed in Argument I above, Plaintiffs lack standing to assert this constitutional right vicariously. Additionally, this right of academic freedom, to the extent it exists, does not conflict with § 26 nor otherwise render it unconstitutional.
In Grutter, the Supreme Court observed in its discussion of the Equal Protection Clause that “[w]e are a ‘free people whose institutions are founded upon the doctrine of equality.’”116 The People of Michigan have exercised their freedom, and consistent with the Equal Protection Clause and the Supreme Court’s unequivocal statement that “race-conscious admissions policies must be limited in time,” voted to prohibit such policies as of November 7, 2006. Despite the clear import of the decision in Grutter, Plaintiffs assert that a right exists under the First Amendment pursuant to which the Universities may use race as a factor in their admissions process regardless of § 26. Such a “right” has never been recognized in either First Amendment or Equal Protection jurisprudence, and certainly was not recognized in Grutter or its companion case Gratz v Bollinger, or in the seminal affirmative action case Regents of the University of California v Bakke.117 Even a cursory review of cases referring to the First Amendment in the
116 Grutter, 539 US at 331 (quoting Loving v Virginia, 388 US 1, 11; 87 S Ct 1817; 18 L Ed 2d 1010 (1967) (internal quotation marks and citation omitted)). 117 Gratz v Bollinger, 539 US 244; 156 L Ed 2d 257; 123 S Ct 2411 (2003); Regents of the University of California v Bakke, 438 US 265; 98 S Ct 2733; 57 L Ed 2d 750 (1978).
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university context reveals that Plaintiffs' attempt to reclassify this issue as one of “academic freedom” rather than one of equal protection is without merit.
Plaintiffs assert that under Grutter and its predecessors, public universities have a First Amendment right to determine their academic standards and the criteria for admission, specifically, the admission of students of diverse races and national origins and from both genders. Plaintiffs contend §26 invades this right and violates the First Amendment rights of the universities and of the students who attend those universities. This allegation fails. First, § 26 does not bar diversity and does not bar the universities from admitting a diverse student body. Rather, § 26 prohibits preferential treatment based on class status, itself a form of discrimination, in achieving that diversity. Second, the asserted First Amendment "right" is not a "right" and certainly is not as expansive as alleged and must be applied in the context of other constitutional guarantees, here, specifically, that of equal protection.
For example, the Supreme Court has consistently subjected racial classifications to an equal protection analysis, and has only upheld these classifications if they survive strict scrutiny.118 Case precedent thus requires that § 26’s impact on public universities be analyzed under the line of Supreme Court cases, including Grutter, that subject race-conscious classifications to strict scrutiny under the Equal Protection Clause—not cases interpreting the scope of the First Amendment.
In Grutter, the Court adopted Justice Powell’s opinion in Bakke and concluded that the University of Michigan law school had a compelling state interest for Equal Protection Clause
118 See, e.g., Grutter, 539 US at 326-328, 343. 35

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purposes in “attaining a diverse student body.”119 The exact language of the Grutter Court bears
repeating here120:
The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. . . . Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits.
We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: "The freedom of a university to make its own judgments as to education includes the selection of its student body." From this premise, Justice Powell reasoned that by claiming "the right to select those students who will contribute the most to the 'robust exchange of ideas,'" a university "seeks to achieve a goal that is of paramount importance in the fulfillment of its mission." Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission.
Nowhere in this passage does the Grutter Court clarify or establish that universities have a First
Amendment "right" of equal weight or which surpasses the Equal Protection Clause – nor does
Bakke stand for that proposition. In other words, a university may not exercise this First
Amendment "right" in a manner that violates the Equal Protection Clause.
In Bakke, Justice Powell cited Sweezy v New Hampshire for the principle that the
freedom to choose “who may be admitted to study” is one of the “essential freedoms” that
constitute “academic freedom.”121 Guided by that principle, Justice Powell concluded that a
university’s judgment that a diverse student body yields educational benefits renders the
119 Grutter, 539 US at 328. 120 Grutter, 539 US at 328-330 (internal citations omitted) (emphasis added). 121 Bakke, 438 US at 312, citing Sweezy v New Hampshire, 354 US 234, 263 (1957).
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attainment of a diverse student body constitutionally permissible.122 Even so, Justice Powell recognized and warned universities that “constitutional limitations protecting individual rights may not be disregarded.”123 Thus, the compelling interest in achieving diversity is a separate and distinct concept from the use of racial classifications in order to achieve such diversity. Justice Powell employed the concept of academic freedom only to demonstrate why pursuing diversity could be considered a compelling state interest for purposes of the Equal Protection Clause.124
The Grutter Court similarly separated the concept of First Amendment “academic freedom” from the use of racial classifications to achieve diversity by specifically holding that “the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”125 The Court observed that its holding was “in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.”126 Grutter was thus not defining a First Amendment right enjoyed by the law school or other universities that outweighs equal protection principles or the Fourteenth Amendment. Rather, the Court discussed First Amendment principles in determining whether the law school’s interest in obtaining educational benefits from a diverse student body constituted a compelling state interest for the purpose of satisfying the Equal Protection
122 Bakke, 438 US at 312-313. 123 Bakke, 438 US at 314 (emphasis added). 124 Bakke, 438 US at 306, 312-315. 125Grutter, 539 US at 326-329, 343. 126 Grutter, 539 US at 328 (internal citation omitted) (emphasis added).
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Clause.127 Indeed, it defies logic to suggest that the Court, which acknowledged the "'serious
problems of justice connected with the idea of preference itself,'" and refused to "enshrin[e] a
permanent justification for racial preferences" within the context of the Equal Protection Clause, somehow enshrined a similar justification within the context of the First Amendment.128
In this case, Plaintiffs "mistake interests grounded in the First Amendment – including [the Universities'] interests in selecting student bodies – with First Amendment rights."129
Neither Bakke nor Grutter support the Plaintiffs' claim of a First Amendment “right” to use
racial, gender or national origin classifications in order to obtain a diverse student body that
somehow trumps or supplants the Fourteenth Amendment. Thus, Plaintiffs' claim that § 26 is
unconstitutional under a First Amendment analysis fails as a matter of law. Count VI of the
Coalition Plaintiffs Second Amended Complaint therefore should be dismissed as a matter of
law.
Conclusion and Relief Sought For the reasons set forth above, Intervening Defendant Attorney General Michael A.
Cox's motion to dismiss or alternatively for summary judgment should be granted.
Respectfully submitted,
Michael A. Cox Attorney General
s/Margaret A. Nelson (P30342) Margaret A. Nelson (P30342) Heather S. Meingast (P55439) Joseph E. Potchen (P49501)
127 Grutter, 539 US at 328-333. Moreover, the Supreme Court’s companion decision in Gratz further deflates Plaintiffs’ claim that § 26 violates a university's First Amendment “rights,” since that Court found unconstitutional automatic preferences based on the race of the applicant despite the fact that student body diversity can be a compelling state interest under Grutter. 128 Grutter, 539 US at 341-342 (internal citation omitted). 129 Coalition, 473 F3d at 247.
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Dated: November 30, 2007

Assistant Attorneys General Co-Counsel of Record Attorneys for Intervening Defendant Attorney General Mike Cox PO Box 30736 Lansing, Michigan 48909 517.373.6434

CERTIFICATE OF SERVICE
I hereby certify that on November 30, 2007, I electronically filed the foregoing paper with the clerk of the court using the ECF system which will send notification of such filing of the following: INTERVENING DEFENDANT ATTORNEY GENERAL MICHAEL A. COX'S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT WITH BRIEF IN SUPPORT.
s/Margaret A. Nelson Margaret A. Nelson (P30342 ) Assistant Attorney General Dept of Attorney General Public Employment, Elections & Tort Div. P.O. Box 30736 Lansing, MI 48909-8236 (517) 373-6434 Email: nelsonma@michigan.gov

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 2:06-cv-15024-DML-RSW Doc # 247 Filed 03/18/08 Pg 1 of 22 Pg ID 5390

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRATION RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), UNITED FOR EQUALITY AND AFFIRMATIVE ACTION LEGAL DEFENSE FUND, RAINBOW PUSH COALITION, CALVIN JEVON COCHRAN, LASHELLE BENJAMIN, BEAUTIE MITCHELL, DENESHA RICHEY, STASIA BROWN, MICHAEL GIBSON, CHRISTOPHER SUTTON, LAQUAY JOHNSON, TURQOISE WISEKING, BRANDON FLANNIGAN, JOSIE HYMAN, ISSAMAR CAMACHO, KAHLEIF HENRY, SHANAE TATUM, MARICRUZ LOPEZ, ALEJANDRA CRUZ, ADARENE HOAG, CANDICE YOUNG, TRISTAN TAYLOR, WILLIAMS FRAZIER, JERELL ERVES, MATTHEW GRIFFITH, LACRISSA BEVERLY, D’SHAWNM FEATHERSTONE, DANIELLE NELSON, JULIUS CARTER, KEVIN SMITH, KYLE SMITH, PARIS BUTLER, TOUISSANT KING, AIANA SCOTT, ALLEN VONOU, RANDIAH GREEN, BRITTANY JONES, COURTNEY DRAKE, DANTE DIXON, JOSEPH HENRY REED, AFSCME LOCAL 207, AFSCME LOCAL 214, AFSCME LOCAL 312, AFSCME LOCAL 836, AFSCME LOCAL 1642, AFSCME LOCAL 2920, and the DEFEND AFFIRMATIVE ACTION PARTY,
Plaintiffs,
v.
THE REGENTS OF THE UNIVERSITY OF MICHIGAN, the BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, the BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, the TRUSTEES of any other public college or university, community college, or school district, ATTORNEY GENERAL MICHAEL COX, and ERIC RUSSELL,
Defendants,

Case No. 06-15024 Hon. David M. Lawson
OPINION AND ORDER ADJUDICATING CERTAIN MOTIONS

2:06-cv-15024-DML-RSW Doc # 247 Filed 03/18/08 Pg 2 of 22 Pg ID 5391

-and-

CHASE CANTRELL, M.N., a minor child by Karen Nestor,

CONSOLIDATED CASES

Mother and Next Friend, KAREN NESTOR, Mother and

Next Friend of M.N., a minor child, C.U., a minor child, by

Paula Uche, Mother and Next Friend, PAULA UCHE,

Case No. 06-15637

Mother and Next Friend to C.U., a minor child, JOSHUA

Hon. David M. Lawson

KAY, SHELDON JOHNSON, MATTHEW COUNTRYMAN,

M.R., a minor child, by Brenda Foster, Mother and Next Friend,

BRENDA FOSTER, Mother and Next Friend of M.R., a minor

child, BRYON MAXEY, RACHEL QUINN, KEVIN GAINES,

DANA CHRISTENSEN, T.J., a minor child, by Cathy Alfaro,

Guardian and Next Friend, CATHY ALFARO, Guardian and

Next Friend of T. J., a minor child, S. W., a minor child, by

Michael Weisberg, Father and Next Friend, MICHAEL

WEISBERG, Father and Next Friend of S. W., a minor child,

CASEY KASPER, SERGIO EDUARDO MUNOZ, ROSARIO

CEBALLO, KATHLEEN CANNING, EDWARD KIM, M.C.C. II,

a minor child, by Carolyn Carter, Mother and Next Friend,

CAROLYN CARTER, Mother and Next Friend of M.C.C., II,

a minor child, J.R., a minor child, by Matthew Robinson, Father and

Next Friend, MATTHEW ROBINSON, Father and Next Friend

of J.R., a minor child,

Plaintiffs,

v.

ATTORNEY GENERAL MICHAEL COX and ERIC RUSSELL,

Defendants,

_____________________________________________________/

OPINION AND ORDER GRANTING CANTRELL PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AS TO INTERVENING DEFENDANT
ERIC RUSSELL, DENYING MOTION TO INTERVENE BY JENNIFER GRATZ, AND DENYING AS MOOT PLAINTIFFS’ RESPECTIVE MOTIONS TO CERTIFY THE MATTERS AS CLASS ACTIONS, INTERVENING
DEFENDANT ERIC RUSSELL’S MOTION FOR SUMMARY JUDGMENT, CANTRELL PLAINTIFFS’ MOTION TO COMPEL DISCOVERY, AND
INTERVENING DEFENDANT ERIC RUSSELL’S MOTION TO COMPEL DISCOVERY FROM THE UNIVERSITY DEFENDANTS

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Today the Court filed an opinion and order granting the Michigan Attorney General’s motion for summary judgment and a judgment dismissing the challenge by the plaintiffs in these consolidated cases to the constitutionality of an amendment to Michigan’s constitution, which is generally referred to as Proposal 2. There are several motions before the Court that remain pending, and the Court will address them in this order. The plaintiffs in the Cantrell case move for summary judgment against intervening defendant Eric Russell on the ground that the basis for his interest in the litigation has evaporated following the rejection of his application to the University of Michigan’s law school, which was considered under post-Proposal 2 criteria. The Court finds that Mr. Russell no longer has an interest in the subject matter of this case that cannot be protected adequately by the parties before the Court. Therefore, the Court will grant the motion for summary judgment and dismiss Mr. Russell as a party defendant. One Jennifer Gratz has filed a belated motion to intervene. The Court finds that Ms. Gratz fails to satisfy the requirements to permit her to intervene by right or permissably, and the Court will deny her motion. The Court also finds that its opinion and judgment on the State’s summary judgment motion moots the pending discovery and class certification motions, and consequently those motions will be denied.
I. As explained in the Court’s opinion and order filed today adjudicating the parties’ other motions for summary judgment, this litigation was commenced on November 8, 2006 by a group of organizations and individuals (the Coalition plainitffs), immediately after the adoption by the Michigan electorate of a state constitutional amendment that effectively banned affirmative action programs by the State and its political subdivisions “in the operation of public employment, public education, or public contracting.” Mich. Const. art. I, § 26(1). Another group of individuals with
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ties to the University of Michigan (the Cantrell plaintiffs) brought suit on December 19, 2006, contending that Proposal 2 is unconstitutional as it is applied to public colleges and universities.
On December 18, 2006, Eric Russell, who had applied for admission at the University of Michigan’s law school, filed a motion to intervene as a party defendant. Russell was accepted by Wayne State University Law School beforehand, but his application to Michigan’s law school was still pending. Russell argued in his motion to intervene that he had a substantial interest in this case because, as a white male applicant to Michigan, he stood to gain or lose depending on whether Proposal 2 remained in full force and effect, and he was concerned about “both his interest in being treated equally in the admissions process and in maximizing his chances of being admitted.” Russell Mot. to Int. [dkt # 27] at 7. Russell argued that these interests would possibly be impaired if the Court denied intervention because he sought to have Proposal 2 become effective “as soon as possible,” while the plaintiffs and the university defendants sought its invalidation. See id. at 9.
In addition, Russell contended that his interests would not be represented adequately by the then-present parties to the case because the university defendants and Governor Granholm had expressed strong disapproval of Proposal 2. Presciently, Russell also made this argument with respect to Attorney General Cox on the grounds that he might have the inclination to resolve this litigation by permitting the university defendants to temporarily ignore Proposal 2 during the 20062007 admissions cycle. Id. at 10. Such a resolution, sounding in eventual compliance, “would not do Eric Russell much good at all.” Ibid. Unlike some members of the public, Russell represented that his interest was “to have a non-discriminatory and non-preferential system instituted right now, while his application is still under consideration.” Ibid.
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At around the same time Mr. Russell filed his motion for intervention, several other entities filed motions seeking the same relief. Before ruling on these matters, however, the Court entertained a stipulation requesting entry of a preliminary injunction that would have exempted the university defendants from complying with Proposal 2 through the 2006-2007 admissions cycle. The stipulation was signed by Michigan Attorney General Michael Cox, who had been ordered to intervene in the case. The Court entered an order pursuant to the stipulation, but that order was stayed pending appeal by the Sixth Circuit on December 29, 2006. Coalition to Defend Affirm. Action v. Granholm, 473 F.3d 237 (6th Cir. 2006).
On December 27, 2006, the Court issued an opinion and order addressing all of the motions to intervene, denying them all except Russell’s. Coalition to Defend Affirmative Action v. Granholm, 240 F.R.D. 368 (E.D. Mich. 2006), aff’d, 501 F.3d 775 (6th Cir. 2007). The Court determined that Russell qualified for intervention of right under Federal Rule of Civil Procedure 24(a) because he satisfied the four elements recognized in the controlling jurisprudence where the other putative intervenors did not. The Court stressed the uniqueness of Russell’s situation: as a white male with an application under consideration by the University of Michigan, Russell represented a tangible interest that no other party (or would-be intervenor) could claim. For instance, with respect to the element of timeliness, the Court explained that Russell satisfied this element because it was sensible for him to seek intervention only upon learning that the university defendants sought to forestall Proposal 2’s effective date. Id. at 374. Similarly, the Court found that Russell had a substantial legal interest in intervention because, “if the present plaintiffs are successful in obtaining a ruling that the constitutional amendment is invalid, Russell’s chances of gaining admission to the University of Michigan law school may be diminished.” Id. at 375.
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Subsequently, the Court held a scheduling conference with both the Coalition and Cantrell plaintiffs to establish dates and an approach for handling the litigation. The actions were consolidated, and the Court ordered that all of the defendants in one action would be deemed defendants in the other action. The Court then requested the parties to submit joint stipulations of fact with the hope that the issues might be pared down to only those that were genuinely disputed. That attempt failed, however, as the parties found no meaningful common ground.
In mid-May 2007, the Coalition and Cantrell plaintiffs each submitted a motion for class certification. Attorney General Cox and Governor Granholm each opposed the motions for class certification, while Eric Russell concurred in the relief sought. The Court held a hearing on the motions on August 15, 2007 and took them under advisement.
In the meantime, on January 27, 2007 Eric Russell was denied admission to the University of Michigan Law School. It is undisputed that this decision was made in compliance with Proposal 2. Sarah Zearfoss, Assistant Dean and Director of Admissions at the University of Michigan, testified that she initially reviewed Mr. Russell’s application on December 22, 2007 and then placed it on “hold” along with other applications that had been filed before Proposal 2’s effective date. She then “looked at it without taking race into account as a factor.” Mot. for Summ. J as to Russell, Ex. L, Zerfoss dep. at 199. She explained:
Q. And do you recall the reasons, the primary reasons that you decided to deny Eric Russell’s application? A. Again, it’s really impossible to identify the particular thing that made a decision. I do recall what I thought were weaknesses in the application. Q. And what were those? A. Well, there were a lot of them.
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. . . Q. And given all those qualities that you’ve just talked about, would you characterize Mr. Russell’s application for admission as a close case for admission. A. No, it was not. Q. Would you say that’s the case whether you were applying the pre-Proposal 2 policy or the post-Proposal 2 policy? A. That’s correct. Id. at 200, 205. It is also undisputed that Michigan did consider race in the initial application process prior to Proposal 2. Assistant Dean Zearfoss also discussed how Russell would be treated should he submit a transfer application upon completion of his first year at Wayne State University Law School, as well as financial aid considerations if he were accepted. Zearfoss testified that race was not a factor, and in fact never had been when transfer applications were considered. As for financial aid, Zearfoss’s testimony was less illuminating, but she did indicate that Proposal 2 has not impacted the process. Turning to Wayne State University, law school Dean Frank H. Wu testified that race does not and will not affect Eric Russell’s participation in law school activities and, more importantly, his eligibility for financial aid and scholarships. With respect to student activities, including participation in law review, Dean Wu stated that Proposal 2 had changed nothing. Dean Wu’s testimony concerning financial aid was equally unequivocal, stating that he had “no reason to believe that if Proposal 2 were struck down at any point by a court, that any financial aid decision made as to Eric Russell or any other student would turn out differently because of race.” Mot. for Summ. J. as to Russell, Ex. M, Wu dep. at 185-86. Dean Wu also testified that Wayne State was in the process of amending scholarships to ensure conformity with Proposal 2. He stated that
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thirteen or fourteen scholarships funded in part by private donors contained impermissible criteria, and the school was therefore “systematically approaching donors . . . to indicate to them that following passage of Prop 2, references to race, gender or ethnicity and so on are impermissible.” Id. at 238. Wu further stated that he had reached resolutions with some of the donors, thereby continuing funding for the scholarships. Wu confirmed that, as a Wayne State student, Eric Russell would be eligible to receive those scholarships provided that he met the criteria not referring to race, ethnicity, or gender. Finally, Dean Wu said that if a court declared Proposal 2 unconstitutional, he had “no way of predicting what the behavior of individual donors would be, but . . . [w]e would not expect even if Prop 2 were struck down tomorrow by a court, that we would go back and renegotiate the agreements.” Id. at 239-40.
The Cantrell plaintiffs filed the present motion for summary judgment on October 5, 2007. The university defendants and the Coalition plaintiffs concur in the request, and Attorney General Cox takes no position on the matter.
During the litigation, the parties filed various motions to compel discovery. Those motions are rendered moot by this Court’s disposition of the attorney general’s motion for summary judgment, and they will be denied.
Finally, on February 1, 2008, Jennifer Gratz belatedly filed a motion to intervene as a defendant in the consolidated matters through the same attorney that represents intervening defendant Eric Russell. Gratz argues that she has an interest in this litigation because she once lived in Michigan and she might apply to the University of Michigan law school for admission in 2009 or 2010. She explains that she did not move to intervene until after the dispositive motion deadline
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passed in this case because it only recently occurred to her that she might want to apply to a law school in Michigan.
II. A motion for summary judgment under Fed. R. Civ. P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted). A fact is “material” if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). “Materiality” is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is “genuine” if a “reasonable jury could return a verdict for the nonmoving party.” Henson v. Nat’l Aeronautics and Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the “record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,” there is no genuine issue of material fact. Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 534 (6th Cir. 2002).
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The Cantrell plaintiffs argue that intervening defendant Russell should be dismissed from the case because the sole basis justifying his intervention – his pending application for admission to the University of Michigan Law School – no longer exists. Russell was denied admission to Michigan based on post-Proposal 2 criteria and he presently is a student at Wayne State University Law School. Russell concedes that he no longer has a pending application to Michigan’s law school, but he says that he might want to transfer there, and he may also apply to either Wayne or Michigan for financial aid. He contends that absent Proposal 2, those institutions might consider race as a factor in deciding those applications. Russell also believes that the Michigan attorney general remains unable to protect his interests adequately.
When a party that has been granted intervention as of right no longer meets the requirements for such intervention, a court properly dismisses that party from the case. See Morgan v. McDonough, 726 F.2d 11, 14 (1st Cir. 1984) (affirming dismissal of intervenor where intervenor’s interest had become adequately represented by party to the suit); see also Advisory Committee Notes to Fed. R. Civ. P. 24 (“An intervention of right . . . may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.”). This rule applies to permissive intervention as well. See Morgan, 726 F.2d at 15.
Intervention, both as of right and by permission, is governed by Rule 24 of the Federal Rules of Civil Procedure. With respect to both types of intervention, the Sixth Circuit has stated that “Rule 24 should be ‘broadly construed in favor of potential intervenors,’” but has also warned that “this does not mean Rule 24 poses no barrier to intervention at all.” Stupak-Thrall v. Glickman, 226 F.3d 467, 472 (6th Cir. 2000) (quoting Purnell v. Akron, 925 F.2d 941, 950 (6th Cir. 1991)).
Rule 24(a) deals with intervention as a matter of right and states:
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On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. Fed. R. Civ. P. 24(a). “[T]o intervene as of right under Rule 24(a)(2), a proposed intervenor must establish the following four elements: (1) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed intervenor’s ability to protect that interest may be impaired in the absence of intervention; and (4) the parties already before the court may not adequately represent the proposed intervenor’s interest.” United States v. Michigan, 424 F.3d 438, 443 (6th Cir. 2005). The first criterion is irrelevant since Russell already is a party to the case. The question is whether he should be permitted to remain in light of his changed circumstances. With the benefit of the parties’ briefing on the summary judgment motions, the Court has little trouble concluding that there is no longer a good reason for Russell to remain in the litigation. The main reason undergirding Russell’s presence in this case has evaporated, he has no interest at risk in the matter, and even if he did, it appears that the attorney general now has settled on a position that accords adequate representation to individuals in Russell’s position. The Sixth Circuit has adopted a liberal view of the nature of an interest that supports intervention of right, but it has consistently noted that “[t]he inquiry into the substantiality of the claimed interest is necessarily fact-specific.” Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997). In Coalition to Defend Affirmative Action v. Granholm, 501 F.3d 775 (6th Cir. 2007), the Sixth Circuit reiterated this rule while affirming this Court’s December 2006 decision
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denying intervention to the Michigan Civil Rights Initiative Committee, the American Civil Rights Foundation, and Toward a Fair Michigan. See id. at 780-84; cf. id. at 780 (“Although we have noted that this Circuit ‘has opted for a rather expansive notion of the interest sufficient to invoke intervention of right,’ Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (1997), this does not mean that any articulated interest will do.”). The court held that these organizations’ interest in the case was inadequate because, once Proposal 2 had been passed, “[t]heir interest in seeing Proposal 2 enforced . . . ‘[wa]s greatly diminished due to the state’s responsibility in enforcing and defending [Proposal 2] as written.’” Coalition, 501 F.3d at 781 (quoting Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 346 (6th Cir. 2007)). In line with this conclusion, the Sixth Circuit has consistently held that a generalized political or ideological interest is not sufficient to support intervention by right. See Northland, 487 F.3d at 345 (observing that an organization had a weak case for intervention where it had “only an ideological interest in the litigation”); Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309, 316-17 (6th Cir. 2005) (holding that petitioncirculating committee was not entitled to intervention in an action challenging the constitutionality of an ordinance because its stake in the case was “‘so generalized it will not support a claim for intervention of right’”) (quoting Athens Lumber Co., Inc. v. Fed. Elec. Comm’n, 690 F.2d 1364, 1366 (11th Cir. 1982)).
Intervening defendant Russell argues that the nature of the injury in an equal protection claim of the present variety consists not in denial of the ultimate benefit, but in unequal treatment. Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993), and Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978), support his position. Russell contends that he has a substantial legal interest in this action
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in that he has an interest in having his prospective transfer application reviewed without regard to race, gender, or ethnicity. Similarly, he claims an interest premised on a desire to obtain financial aid without regard to these considerations. Although these are not the same interests upon which Russell relied in seeking intervention, they likely suffice for the present.
However, once a substantial legal interest has been established, the Court asks a related question: whether the “intervenor’s ability to protect that interest may be impaired in the absence of intervention,” or, in this case, in the absence of continued intervention. Michigan, 424 F.3d at 443. Generally speaking, satisfaction of the latter inquiry entails only a “minimal” burden. Grutter, 188 F.3d at 399. In this case, although Eric Russell has shown a substantial legal interest, he has failed to satisfy the impairment element. As noted earlier, he no longer has an application pending at the Michigan law school. All the evidence suggests that Russell’s transfer application would receive the same treatment regardless of the outcome of this case. Although the parties have submitted less evidence on the topic of financial aid at Michigan, what they have proffered likewise suggests that Russell’s treatment would be the same whether Proposal 2 stands or falls. In other words, irrespective of Eric Russell’s participation in this case and the arguments he might make, Michigan’s treatment of Eric Russell will remain the same.
Assistant Dean Zearfoss’s undisputed testimony establishes that race is not considered in evaluating transfer applications; this was the case even before Proposal 2 (dating back to at least 2001, when Zearfoss took over); and Michigan would not change this policy if Proposal 2 were struck down. Russell makes a valid point that, notwithstanding Zearfoss’s representation, the university could legally consider race in transfer applications if the Court invalidated Proposal 2. “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive
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a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 289 (1982). The theory behind this rule seems to be that, when the defendant is able to commence the practice once more and has only stopped following the initiation of litigation, voluntary cessation of the practice is inherently suspect. See ibid. However, the Sixth Circuit and other courts have confirmed that the holding in Aladdin’s Castle hinged largely on the fact that the defendant in that case had expressed an intent to take up the challenged practice once more if the case were dismissed as moot. Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997) (“Critical to the Court’s decision [in Aladdin’s Castle], however, was the City’s announced intention to reenact the unconstitutional ordinance if the case was dismissed as moot.”) (citing Aladdin’s Castle, 455 U.S. at 289-90); see also Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 901 (9th Cir. 2007) (stating that Aladdin’s Castle is limited to the “rare situation where it is virtually certain that the repealed law [will] be reenacted,” and the fact that litigation may have prompted the repeal does not alone evince an intent to reenact) (internal quotes omitted).
In this case it is inappropriate to second-guess Michigan’s representation when the evidence suggests its historical and future avoidance of consideration of race in transfer applications is not mere lip-service. Where a defendant’s voluntary cessation of a challenged practice may be inherently suspect, see Aladdin’s Castle, 455 U.S. at 289, there is nothing suspicious about a defendant proclaiming that it will continue to abide by a policy it has employed for years and which has not been changed materially by the commencement of litigation or the predicate events of that litigation. Michigan has not voluntarily ceased a challenged practice; it has simply stood by a course of action that is valid under Proposal 2.
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On a related note, Russell suggests that Zearfoss’s testimony leaves open the possibility that Michigan may consider ethnicity, as opposed to race, in the transfer application process. This argument finds no support in the record. Although the definitions of race and ethnicity may be distinct, when Zearfoss referred to ethnicity, she used the term as if it were interchangeable with race. Whatever ambiguity may exist on this point does not alter Zearfoss’s testimony that Mr. Russell will not be treated differently than others because he is white.
The evidence in this case also suggests that Russell’s other interest concerning Michigan – equal treatment in financial aid decisions – will likewise not be impaired if his participation in this litigation is discontinued. Although Zearfoss stated that financial aid was within her area of expertise “to a certain degree,” she represented unequivocally that Proposal 2 has not impacted the financial aid process. Zearfoss dep. at 215-16. This testimony has not been contradicted, and there is no reason to think that Michigan would consider race in its financial aid process in the event Proposal 2 were struck down.
The same conclusion can be made with respect to Russell’s matriculation through Wayne’s law school. Dean Wu testified that “[r]ace will not affect any financial aid decision made as to Eric Russell or any other student at Wayne State University Law School.” Wu dep. at 185. Further, he stated that he has no reason to believe this would change in the event Proposal 2 were invalidated. It is unclear whether race was considered in the context of need-based financial aid before Proposal 2; there is in fact no evidence on the point. However, it is clear that race, ethnicity, or gender were factors in approximately fourteen annual scholarships. Wu dep. at 238. Wu testified that, following the passage of Proposal 2, he or a development officer “systematically approach[ed]” the donors to inform them that such criteria were impermissible. Ibid. Some of the donors – it is unclear how
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many – agreed to continue funding the scholarships with elimination of the impermissible criteria. Id. at 239. Accordingly, assuming he met the remaining criteria (for instance, one or more of the scholarships have been set aside for people from a particular geographic area), Russell “would be eligible to receive those scholarships.” Ibid. This evidence remains unrebutted.
The Court concludes, therefore, that Eric Russell has failed to establish that impairment of his substantial legal interest with respect to both Michigan and Wayne State is possible if continued intervention is denied. Although proof of impairment need only be “minimal,” Grutter, 188 F.3d at 399, this element poses a burden nonetheless, which Russell has failed to carry.
Finally, having the benefit of reviewing the summary judgment briefs, it is apparent that Russell’s interest in the litigation now parallels that of the attorney general. At one point in this litigation, the attorney general’s lack of consistency in its acceptance of Proposal 2 was characterized by the court of appeals as “puzzl[ing],” Coalition to Defend Affirm. Action v. Granholm, 473 F.3d 237, 246 (6th Cir. 2006), and rightly so. However, it now appears that the attorney general has resolved to defend the measure, making arguments in his motion brief that Russell himself echoes in his own filings. The fact that the two summary judgment motions duplicate each other convinces the Court that Russell’s presence in the litigation is a mere makeweight that adds nothing of substance to the debate over Proposal 2’s constitutionality. Therefore, it is apparent that the attorney general – the party now before the Court – adequately represents the intervening defendant’s interest, which has now matured into a judgment in the State’s favor.
The motion for summary judgment as to intervening defendant Eric Russell, therefore, will be granted.
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III. The motion by Jennifer Gratz to intervene as a defendant can be disposed of quite easily based on her failure to satisfy any of the four factors required to establish a right to intervene. First, the motion is untimely. Timeliness is “evaluated in the context of all relevant circumstances.” Stupak-Thrall, 226 F.3d at 472-73 (internal quotation marks omitted). Several factors are considered, including the developments in the case, the purpose for intervention, and how long the proposed intervenors knew of their interest in the property or transaction at issue before they sought permission to intervene. Id. at 473-74. This case has now proceeded to a final disposition, and Gratz did not seek intervention until after discovery closed and all the parties filed their summary judgment motions. The purpose for intervention Gratz cites is to take up the cause of white law students defending Proposal 2 in the event Mr. Russell is dismissed from the case because of his changed circumstances. However, Mr. Russell’s application to the Michigan law school was decided adversely to him in January 2007, and he was admitted to and began attending Wayne’s law school in August 2007. Ms. Gratz has been aware of this case throughout its pendency. She has not explained the delay in applying for intervention. Second, Ms. Gratz has not identified a substantial legal interest in the subject matter of the case. She has no application to any Michigan school pending. She represents in her motion that she might apply to Michigan’s law school, but she testified under oath in her deposition in San Francisco in this case that she is a resident of California and has no immediate plans to return to Michigan. The Court finds no credible evidence that Ms. Gratz has an interest in the legal issues in this case that derives from her attempt to situate herself similarly to Russell’s pre-admission-decision posture. Of course, Ms. Gratz also directed the activities of the Michigan Civil Rights Initiative Committee,
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which was the driving force behind the passage of Proposal 2, suggesting that she has an ideological interest in defending the enforcement of the state constitutional amendment. However, the Sixth Circuit has deemed a mere interest in the “subsequent enforcement of the rule after its enactment” an insufficient reason to support intervention by right. Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 345 (6th Cir. 2007). The court explained:
[T]he public at large – including public interest groups – has an interest in the procedure by which a given legal requirement is enacted as a matter of democratic legislative process. On the other hand, in a challenge to the constitutionality of an already-enacted statute, as opposed to the process by which it is enacted, the public interest in its enforceability is entrusted for the most part to the government, and the public’s legal interest in the legislative process becomes less relevant. Ibid. Gratz’s ideological interest is no different than that of the organization she directed, the MCRI, to which the Court already denied intervention. Her ability to press these issues is cast into doubt by her apparent “confusion at the evidentiary hearing [on the propriety of MRCI’s conduct in obtaining petition signatures] as to the purpose of the MCRI’s proposal.” Operation King’s Dream v. Connerly, 501 F.3d 584, 590 (6th Cir. 2007). Moreover, the Sixth Circuit has held that “the MCRI’s . . . status as [an] organization[] involved in the process leading to the adoption of Proposal 2 is insufficient to provide [it] with a substantial legal interest in a lawsuit challenging the validity of those portions of Michigan’s constitution amended by Proposal 2.” Coalition to Defend Affirmative Action v. Granholm, 501 F.3d 775, 782 (6th Cir. 2007). Third, since Gratz has not demonstrated a sufficient interest to support intervention by right, she cannot show that denial of intervention will impair her ability to protect a substantial interest. Coalition to Defend Affirmative Action, 240 F.R.D. at 375 (“Of course, the inability to protect one’s interest posits the existence of an interest to begin with.”). The disposition of the summary
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judgment motions reinforces the fact that intervention is not necessary to defend the ballot proposal as well.
Fourth, as with Eric Russell, the attorney general will adequately represent Gratz’s interest, such as it is, in matters before the Court.
Gratz also seeks permissive intervention under Rule 24(b). An applicant for permissive intervention “must prove that the motion for intervention is timely, there is at least one common question of law or fact, and the balancing of undue delay, prejudice to the original parties, and any other relevant factors favors intervention.” Coalition to Defend Affirmative Action, 240 F.R.D. at 377 (citing Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir. 1997)). It is apparent that Gratz’s motion has come too late. The case in the district court is over, at least for now. Allowing another party into the litigation would do nothing but prolong the process and delay the parties’ inevitable date with the court of appeals.
For these reasons, the motion to intervene as a party defendant by Jennifer Gratz will be denied.
IV. Because the attorney general’s motion for summary judgment was granted, there is no need for the Court to address the class certification motions. Rule 23(c) provides: “At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Fed. R. Civ. P. 23(c)(1)(A). Although the Sixth Circuit has not interpreted this language, other courts and commentators have noted that a district court may decide dispositive motions, including motions for summary judgment, prior to entertaining class certification. A district court enjoys discretion in determining whether and when
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to certify a case, Reeb v. Ohio Dept. of Rehabilitation and Correction, 435 F.3d 639, 643 (6th Cir. 2006), and postponing a ruling on that matter in the interest of overall efficiency is appropriate.
The Manual for Complex Litigation reflects the basic idea: The court may rule on motions pursuant to Rule 12, Rule 56, or other threshold issues before deciding on certification; however, such rulings bind only the named parties. Most courts agree, and Rule 23(c)(1)(A) reflects, that such precertification rulings on threshold dispositive motions are proper, and one study found a substantial rate of precertification rulings on motions to dismiss or for summary judgment. Precertification rulings frequently dispose of all or part of the litigation.
Manuel for Complex Litigation (Fourth ed.) § 21.133. As Rule 23 suggests, extensive discovery is often needed to rule on motions for class certification. See Fed. R. Civ. P. 23(a)-(b). Although conceptually distinct, the facts discovered often pertain to the merits. See Oscar Private Equity Investments, Inc. v. Allegiance Telecom, Inc., 487 F.3d 261, 268 (5th Cir. 2007) (observing that merits and certification questions often overlap); Miles v. Merrill Lynch, 471 F.3d 24, 41 (2d Cir. 2006) (“[T]he obligation to make [certification] determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement.”); Fed. R. Civ. P. 23 Advisory Committee Notes to the 2003 Amendments (“[I]t is appropriate to conduct controlled discovery into the ‘merits,’ limited to those aspects relevant to making the certification decision on an informed basis.”). Therefore, if it becomes apparent that the case cannot proceed on the merits, it makes little sense to devote scare judicial resources to a merely academic certification analysis. See Wright v. Schock, 742 F.2d 541, 544 (9th Cir. 1984) (“It is reasonable to consider a Rule 56 motion first when early resolution of a motion for summary judgment seems likely to protect both the parties and the court from needless and costly further litigation.”). As the Oscar court explained, the authorities’ recognition of this and other
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circumstances has “shaped the evolution of class certification and Rule 23. Rule 23(c)(1)(A) no longer demands that the district court rule on class certification ‘as soon as practicable,’ but instead insists only upon a ruling ‘at an early practicable time.’” See Oscar, 487 F.3d at 267.
Dismissal prior to certification is res judicata as to the class representatives, but has no effect on the putative class members. Wright, 742 F.2d at 544. Entry of summary judgment dismissing the claims of class representatives normally has the effect of mooting a motion for class certification. Cowen v. Bank United of Texas, 70 F.3d 937, 941 (7th Cir. 1995); see also Holman v. Rock Financial Corp., 388 F.3d 930, 941 (6th Cir. 2004) (concluding that “[w]e need not address the district court’s denial of Plaintiff’s motion for class certification because, as held above, the district court appropriately dismissed her complaint on the merits”).
The Court’s decision to grant summary judgment in favor of the State moots the class certification motions. Therefore, these motions will be denied.
V. The Court finds that Eric Russell no longer has a sustainable position to support intervention. Likewise, Jennifer Gratz has failed to demonstrate that she should intervene either by right or by leave. The decision on the merits of the plaintiffs’ claims in the summary judgment proceedings renders a decision on class certification unnecessary. Similarly, the dismissal of the action renders moot the pending discovery motions. Accordingly, it is ORDERED that the Cantrell plaintiffs’ motion for summary judgment as to intervening defendant Eric Russell [dkt #172] is GRANTED. Eric Russell is dismissed as a party defendant to these consolidated actions.
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It is further ORDERED that intervening defendant Eric Russell’s motion for summary judgment [dkt #202] is DENIED as moot.
It is further ORDERED that the plaintiffs’ respective motions to certify the matters as class actions [dkt #107, 121] are DENIED as moot.
It is further ORDERED that the Cantrell plaintiffs’ motion to compel discovery [dkt #156] is DENIED as moot.
It is further ORDERED that intervening defendant Eric Russell’s motion to compel discovery from the university defendants [dkt #169] is DENIED as moot.
It is further ORDERED that the motion to intervene by Jennifer Gratz [dkt #241] is DENIED.
s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: March 18, 2008
PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on March 18, 2008.
s/Felicia M. Moses FELICIA M. MOSES
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 2:06-cv-15024-DML-RSW Doc # 258 Filed 12/11/08 Pg 1 of 8 Pg ID 5448

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION,

INTEGRATION AND IMMIGRATION RIGHTS AND

FIGHT FOR EQUALITY BY ANY MEANS NECESSARY

Case No. 06-15024

(BAMN), UNITED FOR EQUALITY AND AFFIRMATIVE Hon. David M. Lawson

ACTION LEGAL DEFENSE FUND, RAINBOW PUSH

COALITION, CALVIN JEVON COCHRAN, LASHELLE

BENJAMIN, BEAUTIE MITCHELL, DENESHA RICHEY,

STASIA BROWN, MICHAEL GIBSON, CHRISTOPHER

SUTTON, LAQUAY JOHNSON, TURQOISE WISE- OPINION AND ORDER DENYING

KING, BRANDON FLANNIGAN, JOSIE HUMAN,

CANTRELL PLAINTIFFS’ MOTION

ISSAMAR CAMACHO, KAHLEIF HENRY,

TO ALTER OR AMEND

SHANAE TATUM, MARICRUZ LOPEZ,

JUDGMENT

ALEJANDRA CRUZ, ADARENE HOAG, CANDICE

YOUNG, TRISTAN TAYLOR, WILLIAMS FRAZIER,

JERELL ERVES, MATTHEW GRIFFITH,

LACRISSA BEVERLY, D’SHAWNM

FEATHERSTONE, DANIELLE NELSON,

JULIUS CARTER, KEVIN SMITH, KYLE

SMITH, PARIS BUTLER, TOUISSANT KING,

AIANA SCOTT, ALLEN VONOU, RANDIAH

GREEN, BRITTANY JONES, COURTNEY DRAKE,

DANTE DIXON, JOSEPH HENRY REED,

AFSCME LOCAL 207, AFSCME LOCAL 214,

AFSCME LOCAL 312, AFSCME LOCAL 836,

AFSCME LOCAL 1642, AFSCME LOCAL 2920,

and the DEFEND AFFIRMATIVE ACTION PARTY,

Plaintiffs,

v.

THE REGENTS OF THE UNIVERSITY OF MICHIGAN, the BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, the BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, the TRUSTEES of any other public college or university, community college, or school district, ATTORNEY GENERAL MICHAEL COX, and ERIC RUSSELL,

Defendants,

2:06-cv-15024-DML-RSW Doc # 258 Filed 12/11/08 Pg 2 of 8 Pg ID 5449

-and-

CHASE CANTRELL, M.N., a minor child, by Karen Nestor, CONSOLIDATED CASES

Mother and Next Friend, KAREN NESTOR, Mother and

Next Friend of M.N., a minor child, C.U., a minor child, by

Paula Uche, Mother and Next Friend, PAULA UCHE,

Case No. 06-15637

Mother and Next Friend to C.U., a minor child, JOSHUA

Hon. David M. Lawson

KAY, SHELDON JOHNSON, MATTHEW COUNTRYMAN,

M.R., a minor child, by Brenda Foster, Mother and Next Friend,

BRENDA FOSTER, Mother and Next Friend of M.R., a minor

child, BRYON MAXEY, RACHEL QUINN, KEVIN GAINES,

DANA CHRISTENSEN, T.J., a minor child, by Cathy Alfaro,

Guardian and Next Friend, CATHY ALFARO, Guardian and

Next Friend of T. J., a minor child, S. W., a minor child, by

Michael Weisberg, Father and Next Friend, MICHAEL

WEISBERG, Father and Next Friend of S. W., a minor child,

CASEY KASPER, SERGIO EDUARDO MUNOZ, ROSARIO

CEBALLO, KATHLEEN CANNING, EDWARD KIM, M.C.C. II,

a minor child, by Carolyn Carter, Mother and Next Friend,

CAROLYN CARTER, Mother and Next Friend of M.C.C., II,

a minor child, J.R., a minor child, by Matthew Robinson,

Father and Next Friend, MATTHEW ROBINSON,

Father and Next Friend of J.R., a minor child,

Plaintiffs,

v.

ATTORNEY GENERAL MICHAEL COX and ERIC RUSSELL,

Defendants, _____________________________________________________/

OPINION AND ORDER DENYING CANTRELL PLAINTIFFS’ MOTION TO ALTER OR AMEND JUDGMENT

On March 18, 2008, the Court entered summary judgment in favor of the State in these

consolidated cases, thereby rejecting the plaintiffs’ claims that Proposal 2 – which amended

Michigan’s state constitution by prohibiting affirmative action programs in public education,

employment, and contracting – offended the United States Constitution. The Cantrell plaintiffs now

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ask the Court to alter or amend the judgment on the theory that the Court relied upon an untenable distinction between prohibiting “preferential treatment” and withholding “equal protection” in rejecting their arguments based on their Hunter/Seattle theory. The Court, however, will abide by its original decision.
Federal Rule of Civil Procedure 59(e) authorizes a district court to “alter or amend a judgment” in the case of a clear error of law, newly discovered evidence, an intervening change in controlling law, or manifest justice. Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)); GenCorp., Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (citing Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
The Cantrell plaintiffs cite three bases of perceived legal error, although they all entail the distinction this Court drew between a state constitutional amendment that prohibits “preferential” treatment and one that denies “equal” treatment. There is no disputing that the Court found this difference important, reasoning that legislation making it more difficult for certain groups to achieve preferential treatment is significantly different than legislation that burdens efforts to achieve parity. See Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich., 539 F. Supp. 2d 924, 956-57 (E.D. Mich. 2008) (citing Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 707-08 (9th Cir. 1997)). The Cantrell plaintiffs submit that this distinction is “inconsistent with the process-based nature of the Hunter-Seattle principle,” Br. in Supp. at 3; conflicts with precedent, id. at 7; and is “judicially unmanageable,” id. at 9.
The plaintiffs contend that the Court misapplied Hunter v. Erickson, 393 U.S. 385 (1969), Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), and Romer v. Evans, 517 U.S. 620
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(1996), by failing to understand that those cases recognized a right to fairness in the political process, as opposed to entitlement to a particular outcome. The plaintiffs submit that to consider differently legislation that burdens, on the one hand, a group’s interest in preferential treatment and, on the other, its interest in equal treatment is to inject a substantive component into the analysis that is inconsistent with the Supreme Court’s jurisprudence. This Court respectfully disagrees. To acknowledge that there are limits to the Hunter/Seattle doctrine based on the nature of the legislative agenda that is burdened is not to tear the doctrine from its moorings; in fact, the Supreme Court’s decisions placed substantial weight on this variable.
In Hunter, the Court not only stressed that the challenged ordinance “treat[ed] racial housing matters differently from other racial and housing matters,” Hunter, 393 U.S. at 389, but also that it facilitated a community’s tendency to discriminate, see id. at 391 (“[A]lthough the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law’s impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that.”).
In Romer, the Court addressed the constitutionality of an amendment to Colorado’s Constitution that prohibited “all legislative, executive or judicial action at any level of state or local government designed to protect . . . gays and lesbians” from discrimination. Romer, 517 U.S. at 624. The Court found this repugnant to the Equal Protection Clause because it “withd[rew] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it [forbade] reinstatement of these laws and policies,” save by another amendment. Id. at 627.
Seattle admittedly creates an unevenness in this line of thought, which the plaintiffs seek to exploit. In that case, a statewide initiative was passed that effectively prohibited desegregative
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busing. Seattle, 458 U.S. at 462. As in Hunter, the Court held that the initiative effectuated a racial classification by “remov[ing] the authority to address a racial problem – and only a racial problem – from the existing decisionmaking body, in such a way as to burden minority interests.” Id. at 474. That selective restructuring of school board authority burdened future attempts to integrate (and thus minority interests) “by lodging decision-making authority over the question at a new and remote level of government.” Id. at 483.
Because prohibiting integration (when it is not constitutionally mandated) is not tantamount to discrimination, the plaintiffs make a fair point: the Court in Seattle did not (and could not) rely on the notion that the restructuring at issue impeded efforts to secure equal treatment. But this does not mean that any political restructuring with a racial focus that happens to burden minority interests is unconstitutional. The initiative in Seattle is still fundamentally different than Proposal 2 in that racial integration programs do not presumptively offend the Equal Protection Clause, whereas affirmative action programs might. The Ninth Circuit keyed in on this concept in Coalition for Economic Equity v. Wilson, writing as follows:
The district court perceived no relevant difference between the busing programs at issue in Seattle and the racial preference programs at issue here. We have recognized, however, that “‘stacked deck’ programs [such as race-based ‘affirmative action’] trench on Fourteenth Amendment values in ways that ‘reshuffle’ programs [such as school desegregation] do not.” Associated Gen. Contractors of Cal. v. San Francisco Unified Sch. Dist., 616 F.2d 1381, 1387 (9th Cir.), cert. denied, 449 U.S. 1061 603 (1980). Unlike racial preference programs, school desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights. Id. Coalition for Economic Equity, 122 F.3d at 708 n.16. Although certain aspects of the Ninth Circuit’s discussion have been undermined – the Supreme Court held in Grutter v. Bolinger, 539 U.S. 306, 334-35 (2003), that racial preferences may be necessary to further a compelling state
-5-

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interest in certain circumstances, and implied in Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738, 2751 (2007), that desegregation programs may deprive individuals of legal rights – the core principle remains sound. Desegregation is constitutionally required in certain instances, see, e.g., Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 453-55 (1979); Davis v. Bd. of School Comm’rs of Mobile Cty., 402 U.S. 33, 37-38 (1971); Green v. School Bd. of New Kent Cty., 391 U.S. 430, 441-42 (1968); Brown v. Bd. of Educ., 347 U.S. 483, 493-96 (1954); but the Supreme Court has never held that affirmative action is required, and Grutter made clear that it is barely tolerated. See Grutter, 539 U.S. at 341-43 (confirming that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race,” and explaining in light of that, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today”) (internal quotation marks omitted). It is reasonable to take account of this circumstance in interpreting the scope of the Hunter/Seattle doctrine.
The Court also must reject the plaintiffs’ argument that distinguishing between an amendment that prohibits “preferential” treatment and one that denies “equal” treatment is “judicially unmanageable.” As an initial matter, this argument is premised on a faulty assumption about the nature of adjudication. The Court does not render decisions by assessing how useful they may prove to future practitioners or judges. The Court’s role is limited to ascertaining the law and applying it to the facts presented. Policy may inform the law in certain respects, but it cannot displace it. The Court will not contradict its view of the law simply because the plaintiffs perceive that this view may be difficult to apply.
-6-

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The Court also disagrees with the plaintiffs’ assertion that the distinction is too nice to understand and that it is mired in subjectivity. Courts, just like individuals, may disagree on the propriety of affirmative action in public education for a host of reasons. In cases such as this, a court’s objective assessment of the legal issues may even be at odds with its subjective analysis of sound policy. But the idea that affirmative action constitutes race-based preferential treatment is well established by Supreme Court precedent. Gratz v. Bollinger, 539 U.S. 244, 270 (2003); Grutter, 539 U.S. at 326; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Granted, it may not be so clear in other contexts whether the burdened legislative agenda calls for preferential (as opposed to equal) treatment. But courts deal with tough calls on a daily basis, and there is little doubt here that they will be equal to the tasks to come.
Finally, it bears noting that the challenges in this case were brought barely before the ink on Proposal 2 was dry. There is little in the record addressing the impact the legislation has had, or the difficulty in securing equal treatment it may cause. If objective facts ultimately demonstrate that the plaintiffs’ worst fears are coming to pass, then an as-applied challenge may be appropriate.
The Court concludes that the Cantrell plaintiffs are not entitled to alteration or amendment of the judgment pursuant to Rule 59(e). The Court did not commit a clear error of law in determining that Proposal 2 facially passes muster under Hunter and progeny.
Accordingly, it is ORDERED that the motion to alter or amend the judgment by the Cantrell plaintiffs [dkt #253] is DENIED.
s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: December 11, 2008
-7-

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PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on December 11, 2008.
s/Felicia M. Moses FELICIA M. MOSES
-8-

 
 2:06-cv-15024-DML-RSW Doc # 253 Filed 04/01/08 Pg 1 of 21 Pg ID 5421

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION, et al.,

Plaintiffs,
v.
JENNIFER GRANHOLM, REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, MICHAEL COX, ERIC RUSSELL, and the TRUSTEES OF any other public college or university, community college or school district,

Case No. 06-15024 Hon. David M. Lawson
CONSOLIDATED CASES

Defendants.

- and -
CHASE CANTRELL, et al., Plaintiffs,
v. JENNIFER GRANHOLM, in her Official Capacity as Governor of the State of Michigan,
Defendant.

Case No. 06-15637 Hon. David M. Lawson

THE CANTRELL PLAINTIFFS’ MOTION TO ALTER OR AMEND JUDGMENT
Pursuant to Federal Rule of Civil Procedure 59(e) and Local Rule 7.1(g),
and for the reasons set forth in the attached Memorandum, Plaintiffs Chase Cantrell, et al.
(the “Cantrell Plaintiffs”) respectfully move this Court to modify or amend its judgment

2:06-cv-15024-DML-RSW Doc # 253 Filed 04/01/08 Pg 2 of 21 Pg ID 5422
dismissing this action. In support of this motion, the Cantrell Plaintiffs submit the accompanying Memorandum of Law in support thereof.
Pursuant to Eastern District of Michigan Local Rule 7.1, movants have conferred with counsel for all parties via email. The Coalition Plaintiffs consent to the relief sought in this motion. The University Defendants take no position respecting the relief sought in this motion. The Attorney General opposes this motion.

2:06-cv-15024-DML-RSW Doc # 253 Filed 04/01/08 Pg 3 of 21 Pg ID 5423
MEMORANDUM OF LAW IN SUPPORT OF THE CANTRELL PLAINTIFFS’ MOTION TO ALTER OR AMEND JUDGMENT Issue Presented
Whether the Court should alter or amend judgment pursuant to Fed. R. Civ. P. 59(e) and E.D. Mich. L. R. 7.1(g).
Controlling Authorities Fed. R. Civ. P. 59(e) E.D. Mich. L. R. 7.1(g) United States v. Carolene Products, 304 U.S. 144 (1938) Hunter v. Erickson, 393 U.S. 385 (1969) Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)

2:06-cv-15024-DML-RSW Doc # 253 Filed 04/01/08 Pg 4 of 21 Pg ID 5424
Table of Contents Page Preliminary Statement..........................................................................................................1 Argument .............................................................................................................................2 I. THE COURT’S DISTINCTION BETWEEN PRECLUDING
“PREFERENTIAL TREATMENT” AND WITHHOLDING “EQUAL PROTECTION” IS INCONSISTENT WITH THE PROCESS-BASED NATURE OF THE HUNTER-SEATTLE PRINCIPLE. ........................................3 II. THE COURT’S DISTINCTION BETWEEN PRECLUDING “PREFERENTIAL TREATMENT” AND WITHHOLDING “EQUAL PROTECTION” IS INCONSISTENT WITH PRECEDENT. ................................7 III. THE DISTINCTION BETWEEN BARRING “PREFERENTIAL TREATMENT” AND WITHHOLDING “EQUAL PROTECTION” IS JUDICIALLY UNMANAGEABLE. ......................................................................9 Conclusion .........................................................................................................................12
ii

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Pursuant to Fed. R. of Civ. P. 59(e) and E.D. Mich. L. R. 7.1(g), Plaintiffs Chase Cantrell, et al. (the “Cantrell Plaintiffs”) respectfully move this Court to alter or amend this Court’s entry of summary judgment for the Attorney General and against the Cantrell Plaintiffs.1
Preliminary Statement The Cantrell Plaintiffs respectfully ask this Court to alter or amend its decision by correctly applying the Hunter-Seattle principle without regard to the novel distinction between precluding “preferential treatment” and withholding “equal protection.” The Cantrell Plaintiffs urge a single, simple point of law: the distinction between “preferential treatment” and “equal protection” is not a tenable means by which to limit the scope of the Hunter-Seattle principle. Such a distinction is contrary to the focus of the Hunter-Seattle principle, which protects a fair political process rather than a particular political outcome. Moreover, the “preferential treatment”/ “equal protection” distinction finds no support in Hunter v. Erickson, 393 U.S. 385 (1969), or Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), and is too judicially unmanageable to be the basis for the doctrine. Properly applied, the Hunter-Seattle doctrine reveals Proposal 2 as a discriminatory law that denies the Cantrell Plaintiffs equal protection by unfairly burdening them in the political process on the basis of race.
1 Federal Rule of Civil Procedure 59(e) authorizes motions “to alter or amend a judgment” where, among other reasons, the district court has made a clear error of law. GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999); see also Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Similarly, motions for reconsideration may also be granted pursuant to E.D. Mich. L. R. 7.1(g) when the moving party shows a palpable defect that misled the court and the parties, and that correcting the defect will result in a different disposition of the case. Palmer v. Buscemi, No. 05-10094, 2007 WL 3037715, at *1 (E.D. Mich. Oct. 16, 2007). A “palpable defect” is a defect which is obvious, clear, unmistakable, manifest, or plain. Id.
1

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Argument This case requires the Court to define when a state’s racially selective exclusion of issues from the normal political and administrative agenda denies equal protection of the laws to members of racial groups with special interest in those issues. The burden on political participation in this case is imposed by an amendment to the Michigan Constitution that prohibits the State and its political subdivisions from “discriminat[ing] against, or grant[ing] 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.” Mich. Const. art. I, § 26(1) (hereinafter “Proposal 2”). As this Court noted in granting the Attorney General’s motion for summary judgment, the selective exclusion of issues with a racial focus from the states’ normal decisionmaking process is not governed by ordinary equal protection principles but rather by the standards set forth in Hunter, 393 U.S. at 390-91, and Washington v. Seattle, 458 U.S. at 472 (the “Hunter-Seattle” principle). Although finding that the Cantrell Plaintiffs had plainly established the elements of a Hunter-Seattle claim, this Court held that Hunter-Seattle does not apply to Proposal 2, because Proposal 2 merely barred racial minorities from obtaining “preferential treatment” on the basis of race but did not deprive racial minority groups of “the means of obtaining equal protection.” (Op. and Ord. Granting in Part and Denying in Part Univ. Defs.’ Mot. to Dismiss, Denying Cantrell Pls.’ Mot. for Summ. J., Granting Att. Gen.’s Mot for Summ. J., and Dismissing Consol. Cases, dated Mar. 18, 2008 (“Op.”) at 51). In reaching this conclusion, this Court erroneously followed the Ninth Circuit’s decision in Coalition for Economic Equity v. Wilson, 122 F.3d 692, 707-709 (9th Cir. 1997), which deployed a novel
2

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distinction between “preference” and “protection” that no other court has adopted in order to uphold a nearly identical amendment to the California Constitution. Contrary to Hunter-Seattle and the Equal Protection Clause itself, the application of this erroneous and unprecedented distinction tolerates laws that impose a special disability upon racial minorities. I. THE COURT’S DISTINCTION BETWEEN PRECLUDING “PREFERENTIAL
TREATMENT” AND WITHHOLDING “EQUAL PROTECTION” IS INCONSISTENT WITH THE PROCESS-BASED NATURE OF THE HUNTERSEATTLE PRINCIPLE.
First, the distinction between precluding “preferential treatment” and withholding “equal protection” is fundamentally inconsistent with the character of Hunter-Seattle as an entitlement not to a particular outcome but to a fair political process. The Hunter-Seattle principle goes beyond conventional equal protection analysis precisely by focusing on political procedures rather than on political outcomes. In equal protection challenges not presenting the Hunter-Seattle process problem, the court will not ordinarily subject a law to heightened scrutiny absent a suspect classification or proof of racially discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-41 (1976). But the Hunter-Seattle principle addresses process problems in which these requirements would be misplaced. As this Court correctly observed, “the idea that a political restructuring claim must be based on purposeful discrimination finds no support in the cases.” (Op. at 48.) Instead, Hunter-Seattle requires only that the challenged law have a “racial focus,” in that it excludes from the ordinary political process issues that obviously have special relevance to the members of a particular racial group.
The immateriality of the “discriminatory purpose” requirement follows entirely from the process-based nature of the injury identified by the Hunter-Seattle principle. With ordinary legislation, a law’s merely foreseeable effects on members of a particular racial group
3

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are insufficient to trigger heightened scrutiny. Instead, there must be some specific proof that the
challenged facially neutral law was enacted through a process corrupted by racial prejudice. See
Washington v. Davis, 426 U.S. at 240-42. When, however, a law carves out from the ordinary
political process issues of special pertinence to racial minorities, then the law wears its
procedural flaws on its face. Such “legislation . . . restricts those political processes which can
ordinarily be expected to bring about repeal of undesirable legislation,” United States v.
Carolene Products, 304 U.S. 144, 152 n.4 (1938), and the classic justification for suspending
judicial deference to the outcomes of fair political processes applies. See John Hart Ely,
Democracy and Distrust: A Theory of Judicial Review 103 (1980) (justifying heightened judicial
scrutiny when “the ins are choking off the channels of political change to ensure that they will
stay in and the outs will stay out”). Thus, the Hunter-Seattle doctrine is merely an application of
the core Fourteenth Amendment principle that state laws tilting the political process against a particular racial group will be regarded with special suspicion.2
2 The process-based nature of the Hunter-Seattle principle is widely recognized by both courts and scholars. See, e.g., Seattle, 458 U.S. at 485-86 (noting basis of Hunter-Seattle principle in Carolene Products’ principle that judicial deference is inappropriate when legislation “curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities” and quoting Carolene Products, 304 U.S. at 153, n. 4); Vikram D. Amar & Evan H. Caminker, Equal Protection, Unequal Political Burdens, and the CCRI, 23 Hastings Const. L.Q. 1019, 1041 (1996) (“Hunter and Seattle reflect what might be called a political process concern embedded within equal protection jurisprudence.”); Alan Howard and Bruce Howard, The Dilemma of the Voting Rights Act – Recognizing the Emerging Political Equality Norm, 83 Colum. L. Rev. 1615, 1645-46 (1983) (“The majority in Seattle School District embraced the theme of Justice Harlan’s concurrence in Hunter. The Court indicated that states must structure their political institutions according to what the Court called ‘neutral principles’ that ‘provid[e] a just framework within which the diverse political groups in the society may fairly compete’”) (internal quotations omitted); John E. Nowak & Ronald D. Rotunda, Constitutional Law 660 (1995) (“A state may not place ‘in the way of the racial minority’s attaining its political goal any barriers which, within the state’s political system taken as a whole, are especially difficult of surmounting, by comparison with those barriers that normally stand in
4

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By insisting that the Hunter-Seattle principle applies only to laws that impede efforts to obtain “equal protection” in the sense of protection from the outcome-defined harm of discrimination, this Court has erroneously imposed an outcome-based limit on a process-based entitlement. The Court’s opinion justified the limit by repeating Coalition for Economic Equity’s demand that the violation of the Hunter-Seattle principle lead to a denial of equal protection in substance. But this reasoning mistakes the kind of injury against which Hunter-Seattle protects. Being deprived of an equal opportunity to influence the political process is itself the denial of equal protection that Hunter-Seattle prohibits, irrespective of what that process might produce.
Other examples make clear the error in Coalition for Economic Equity’s logic. Suppose, for instance, an example in which the voters of Michigan approved an amendment to the state constitution barring any public university from offering courses that focused on African-American history.3 Under the Ninth Circuit’s reasoning, such a law would not violate the Hunter-Seattle principle, because the courses prohibited would not themselves have protected any person from unequal treatment on the basis of race. Indeed, given the limited teaching resources at any university, offering specialized courses in African-American history might well be regarded as a form of “preferential treatment,” because no university can afford to offer courses in every form of history desired by its student body. But it defies common sense to say the way”) (quoting Charles Black, Foreword, “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv. L. Rev. 69, 82 (1967-68)).
3 Such an amendment would be formally race-neutral in that it would not classify any person based on race: both black and white students would be denied the opportunity to study AfricanAmerican history. Moreover, the voters might have a race-neutral justification for such a constitutional amendment, perhaps regarding courses in African-American history as distractions from the core educational mission of the universities. Therefore, ordinary equal protection principles would not obviously invalidate such a measure.
5

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that such an amendment would not violate the Hunter-Seattle principle. Given that university officials would remain free to consider favorably every other student’s claims for specialized courses, the exclusion of any power to give meaningful consideration to courses of special relevance to black students would obviously deprive those students of an equal chance to lobby for their curricular interests. Similarly, Proposal 2 deprives students with a particular interest in race-conscious admissions from lobbying – as every other student may do – for the inclusion of one of the most significant aspects of their application. Such a harm is particularly acute for many applicants of color for whom racial identity is the most essential component of how they view themselves and what they uniquely bring to a university seeking a diverse student enrollment.
If children of alumni, oboe players, track stars, and residents of the Upper Peninsula are all permitted to press their arguments to university administrators that their experience is educationally valuable, then racial minorities must be given the same chance to persuade university administrators that their racial experience is likewise educationally valuable. To hold otherwise on the ground that affirmative action is merely “preferential treatment” that does not remedy denials of equal protection is to mistake the point of Hunter-Seattle. The injury imposed by Proposal 2 is not that Proposal 2 bars affirmative action programs; the injury is that Proposal 2 bars university officials from giving equal – indeed, any – consideration to the interests of racial minorities, thereby depriving those minorities of a level playing field.
6

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II. THE COURT’S DISTINCTION BETWEEN PRECLUDING “PREFERENTIAL TREATMENT” AND WITHHOLDING “EQUAL PROTECTION” IS INCONSISTENT WITH PRECEDENT. This Court’s distinction between barring “preferential treatment” and denying
“equal protection” is also inconsistent with precedent. In particular, Washington v. Seattle struck down Initiative 350 even though that statewide initiative eliminated only an integrative busing program that was not constitutionally required to insure the equal protection of the laws. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. at 461-64; see also Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738, 2761 (2007) (noting that the Seattle school district was “never segregated by law”). Such voluntary busing programs, when restricted on the basis of an individual student’s race, may constitute “preferential treatment” by allowing some students to attend particular schools to the exclusion of other students. See Parents Involved in Community Schools, 127 S.Ct. at 2768. As Professors Vikram Amar and Evan Caminker have noted, “[i]n a very meaningful sense, then, the busing at issue [in Washington v. Seattle] was affirmative action – and yet the Court applied Hunter to invalidate Initiative 350.” Amar & Caminker, 23 Hastings Const. L.Q. at 1033.
The Ninth Circuit in Coalition for Economic Equity has not provided any coherent principle by which to distinguish voluntary busing programs that are restricted on the basis of an individual student’s race from affirmative action programs that deny applicants seats at universities because of race. In either case, the program in question might be said to provide some students with “preferential treatment.” The Ninth Circuit attempted to distinguish K-12 school integration programs from university affirmative action programs by arguing that, “[u]nlike racial preference programs, school desegregation programs are not inherently
7

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invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights.” Coalition for Economic Equity, 122 F.3d at 708 n.16. But the Supreme Court’s decisions in Grutter v. Bollinger, 539 U.S. 306 (2003), and Parents Involved in Community Schools, defeat these assertions. Grutter establishes that “racial preference programs” are not always “inherently invidious,” Grutter, 539 U.S. at 334-45, and do not work “wholly to the benefit of certain members of one group” but instead may benefit the entire student body, id. at 328-32. And Parents Involved in Community Schools noted that K-12 school desegregation programs that prejudice individual students on the basis of their race can impose injury and thereby “deprive citizens of rights.”4 See Parents Involved in Community Schools, 127 S.Ct. at 2751.
Significantly, other than the Ninth Circuit in Coalition for Economic Equity, no other court has adopted this novel distinction. And Washington v. Seattle, 393 U.S at 469-70, -which, unlike the Coalition case, is binding authority -- rejects this distinction. In short, there simply is no plausible way to distinguish Initiative 350 in Washington v. Seattle from Proposal 2
4 The Ninth Circuit’s opposite conclusion was supported only by a citation to Associated Gen. Contractors of Cal. v. San Francisco Unified Sch. Dist.,616 F.2d 1381, 1387 (9th Cir. 1980), a case that concerned neither university admissions nor student busing. In Associated General Contractors, the court stated only in dicta that busing remedies for de jure segregation were more defensible than the racial-quota system of public contracting then under consideration. Even if this is correct, Associated General Contractors was decided before Washington v. Seattle, which struck down a prohibition upon voluntary desegregative busing. The case therefore provides no basis for distinguishing between Proposal 2 and Washington v. Seattle’s Initiative 350.
8

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in Michigan on the ground that the latter provides mere “preferential treatment” while the former provides “equal protection.” III. THE DISTINCTION BETWEEN BARRING “PREFERENTIAL TREATMENT”
AND WITHHOLDING “EQUAL PROTECTION” IS JUDICIALLY UNMANAGEABLE.
Quite apart from its lack of foundation in any precedent, the distinction between barring “preferential treatment” and withholding “equal protection” is so subjective as to be judicially unmanageable. Whether a race-conscious policy bestows “preferential treatment” on its beneficiaries turns on whether those beneficiaries receive some preference that similarly situated persons do not receive. But determining which persons are similarly situated to the beneficiaries of the race-conscious policy is an ad hoc and politically controversial inquiry unguided by any clear legal standards.
Consider, for instance, university admission policies that take the race of an applicant into account, along with countless other non-racial factors. Such policies give “preferential” treatment to members of racial minorities only if one assumes that their racial experiences are less relevant to the educational process than all of the non-racial factors that the university admittedly considers – factors like one’s county of residence, parental alumni status, athletic prowess, summer jobs and volunteer work, etc. If one’s identity as a member of a racial group is just as educationally relevant as one’s status as the child of an alumnus of a public university, then refusing to consider the former does not merely remove “preferential treatment” but instead imposes a special disability.
Grutter held that an applicant’s racial identity can be educationally relevant and that a university can have a compelling interest in considering racial identity in admissions. If
9

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this is so, then excluding all consideration of race across the board while permitting universities to consider a host of factors that bear only tangential relevance to the educational experience – for instance, parental alumni status – might reasonably be regarded as imposing a special disability rather than bestowing “preferential treatment.” At the very least, defining the concept of “preferential treatment” will turn into a circular political quagmire, forcing courts across the country to take a stand on the relevance of race to the educational process without any judicially manageable standard to guide its discretion. Cantrell Plaintiffs urge this Court to reject any doctrine that requires subjectivity and provides no clear guidance to the courts or the citizenry.
The difficulties posed by the concept of “preferential treatment” are wellillustrated by the Supreme Court’s decision in Romer v. Evans, 517 U.S. 620 (1996). Amendment 2, the state constitutional amendment invalidated by the Court in Romer, had been defended by its proponents as an effort to curb “special rights” for gay and lesbian persons. These proponents argued that anti-discrimination laws protecting persons from private discrimination on the basis of sexual orientation in housing, employment, public accommodations, and other contexts bestowed “special rights” on their beneficiaries, because private actors are normally free to discriminate in their contractual relations, subject only to a few exceptions contained in existing anti-discrimination legislation. Romer, 517 U.S. at 626. The Romer Court rejected this characterization of Amendment 2 because the provision eliminated a wide swath of group-based protections from discrimination in both public and private contexts. Id. at 626-28. In the words of the Romer Court,
“We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost
10

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Id. at 631.

limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”

The status of a right as a “special right” (or, congruently, as “preferential

treatment”), in short, requires an assessment not only of the rights that “most people . . . already

have” but also those protections that “most people” might “need.” Id. The Romer Court could

easily find that Amendment 2 did not block “special rights,” because Amendment 2 imposed “a

broad and undifferentiated disability on a single named group.” Id. at 632. When a measure

such as Proposal 2 imposes a more targeted disability on a group, depriving its members of the

opportunity to persuade university administrators that their distinctive racial experience is

educationally relevant, the assessment of whether the measure imposes a special burden or

eliminates “preferential treatment” will be much more difficult.

Rather than embark on the quixotic attempt to define whether some right affords

“special” or “preferential” treatment as opposed to “equal protection,” Cantrell Plaintiffs urge

this Court to adopt a much simpler test, consistent with settled equal protection precedent and the

procedural character of the Hunter-Seattle doctrine. The Court should hold that, when a state

constitutional amendment strips the state’s ordinary political and administrative process of the

power to address a narrow category of issues of special pertinence to a racial minority, then such

an amendment falls squarely within the Hunter-Seattle principle.

11

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Conclusion

For the foregoing reasons, the Cantrell Plaintiffs respectfully submit that this

Court should amend its judgment.

April 1, 2008

Respectfully submitted,

s/ with consent of Mark D. Rosenbaum MARK D. ROSENBAUM CATHERINE E. LHAMON ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, California 90026 (213) 977-9500 mrosenbaum@aclu-sc.org clhamon@aclu-sc.org

s/ with consent of Laurence H. Tribe LAURENCE H. TRIBE (Admission Pending) Hauser Hall 420 1575 Massachusetts Avenue Cambridge, Mass. 02138 617-495-4621 larry@tribelaw.com

s/ with consent of Melvin Butch Hollowell, Jr. MELVIN BUTCH HOLLOWELL, JR. (P37834) General Counsel, Detroit Branch NAACP Allen Brothers PLLC 400 Monroe St., Suite 220 Detroit, MI 48226 (313) 962-7777 mbh@allenbrotherspllc.com

/s Karin A. DeMasi KARIN A. DEMASI Cravath, Swaine & Moore LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212) 474-1000 kdemasi@cravath.com

12

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s/ with consent of Kary L. Moss KARY L. MOSS (P49759) MICHAEL J. STEINBERG (P43085) MARK P. FANCHER (P56223) American Civil Liberties Union Fund of Michigan 60 W. Hancock Street Detroit, MI 48201 (313) 578-6814 kmoss@aclumich.org msteinberg@aclumich.org mfancher@aclumich.org

s/ with consent of Victor Bolden VICTOR BOLDEN ANURIMA BHARGAVA NAACP Legal Defense & Educational Fund 99 Hudson Street, 16th Floor New York, NY 10013 (212) 965-2200 abhargava@naacpldf.org

s/ with consent of Erwin Chemerinsky ERWIN CHEMERINSKY Duke University School of Law Science Drive & Towerview Rd. Durham, N.C. 27708 (919) 613-7173 Chemerinsky@law.duke.edu

s/ with consent of Daniel P. Tokaji DANIEL P. TOKAJI (Admission Pending) The Ohio State University Moritz College of Law 55 W. 12th Ave. Columbus, OH 43206 (614) 292-6566 tokaji.1@osu.edu

13

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s/ with consent of Dennis Parker DENNIS PARKER (Admission Pending) ALEXIS AGATHOCLEOUS (Admission Pending) American Civil Liberties Union Foundation Racial Justice Program 125 Broad St., 18th Floor New York, NY 10004-2400 (212) 519-7832 dparker@aclu.org

s/ with consent of Jerome R. Watson JEROME R. WATSON (P27082) Michigan State Conference, NAACP Miller, Canfield, Paddock and Stone, P.L.C. 150 West Jefferson, Suite 2500 Detroit, MI 48226 (313) 963-6420 Watson@millercanfield.com

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
Case 06-15024 Hon. David M. Lawson

COALITION TO DEFEND AFFIRMATIVE ACTION, et al.,
Plaintiffs,
vs.

CONSOLIDATED CASES CERTIFICATE OF SERVICE

JENNIFER GRANHOLM, et al.,

Defendants.

Case 06-15637 Hon. David M. Lawson

perjury:

KARIN A. DEMASI hereby certifies the following under the penalty of

On the 1st day of April, 2008, I filed the foregoing document electronically and it is available for viewing and downloading from the ECF system. Service was accomplished by means of Notice of Electronic Filing upon:

2:06-cv-15024-DML-RSW Doc # 253 Filed 04/01/08 Pg 20 of 21 Pg ID 5440
Sharon L. Browne slb@pacificlegal.org,bas@pacificlegal.org
Erwin S. Chemerinsky chemerinsky@law.duke.edu
Charles J. Cooper ccooper@cooperkirk.com
Karin A. DeMasi kdemasi@cravath.com,jrichman@cravath.com
Mark P. Fancher mfancher@aclumich.org
Alan W. Foutz awf@pacificlegal.org,IncomingLit@pacificlegal.org,ba s@pacificlegal.org
Melvin J. Hollowell , Jr mbh@allenbrotherspllc.com
Sheldon H. Klein klein@butzel.com
James E. Long longj@michigan.gov,ThelenN@michigan.gov
Robin Luce Herrmann luce-herrmann@butzel.com , roudonis@butzel.com
Heather S. Meingast meingasth@michigan.gov
Laurie J. Michelson michelso@butzel.com,vancleve@butzel.com
Kerry L. Morgan kmorganesq@aol.com
Kary L. Moss kmoss@aclumich.org
Brian O. Neill neillb@michigan.gov,pawlusc@michigan.gov
Margaret A. Nelson nelsonma@michigan.gov,toddwl@michigan.gov,richardsd@ michigan.gov
2

2:06-cv-15024-DML-RSW Doc # 253 Filed 04/01/08 Pg 21 of 21 Pg ID 5441
Leonard M. Niehoff niehoff@butzel.com
Jesse M. Panuccio jpanuccio@cooperkirk.com
Joseph E. Potchen potchenj@michigan.gov,vanbeelenl@michigan.gov,robiso nr@michigan.gov
Michael E. Rosman rosman@cir-usa.org,kokolis@cir-usa.org
Brent E. Simmons simmonbr@cooley.edu
Brigham C. Smith Bsmith@ci.lansing.mi.us,spodlesk@ci.lansing.mi.us
Michael J. Steinberg msteinberg@aclumich.org,bbove@aclumich.org
Reginald M. Turner , Jr rturner@clarkhill.com
George B. Washington scheff@ameritech.net
Jerome R. Watson watson@millercanfield.com,leidner@millercanfield.com
William F. Young wyoung@wsbyc.com Dated at New York, New York, this 1st day of April, 2008. s/ Karin A. DeMasi Karin A. DeMasi
3

 
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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
File Name: 11a0174p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

Nos. 08-1387/1534

X

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT

-

RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,

-,>

Plaintiffs-Appellants (08-1387)/ -

v.

Cross-Appellees,

-

-

REGENTS OF THE UNIVERSITY OF MICHIGAN, -

BOARD OF TRUSTEES OF MICHIGAN STATE

-

UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE

-

COLEMAN; IRVIN D. REID; LOU ANNA K.

-

SIMON,

-

Defendants-Appellees/Cross-Appellants (08-1534),

-

MICHAEL COX, Michigan Attorney General, -

Intervenor-Defendant-Appellee. -

-

No. 08-1389 COALITION TO DEFEND AFFIRMATION

-

ACTION, INTEGRATION AND IMMIGRANT

-

RIGHTS AND FIGHT FOR EQUALITY BY ANY

-

MEANS NECESSARY (BAMN), et al., Plaintiffs,

-

CHASE CANTRELL, et al.,

-

Plaintiffs-Appellees, -

v. REGENTS OF THE UNIVERSITY OF MICHIGAN,

-

BOARD OF TRUSTEES OF MICHIGAN STATE

-

UNIVERSITY; BOARD OF GOVERNORS OF

-

WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K.

-

SIMON,

-

Defendants, -

ERIC RUSSELL, Intervenor-Defendant-Appellant,
JENNIFER GRATZ,

-

Proposed Intervenor-Appellant. -

-

Nos. 08-1387/1389/1534; 09-1111

1

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No. 09-1111

-

COALITION TO DEFEND AFFIRMATION ACTION, INTEGRATION AND IMMIGRANT

-

RIGHTS AND FIGHT FOR EQUALITY BY ANY

-

MEANS NECESSARY (BAMN), et al.,

-

CHASE CANTRELL, et al.,

Plaintiffs,

-

-

Plaintiffs-Appellants, -

v.

-

REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE

-

UNIVERSITY; BOARD OF GOVERNORS OF

-

WAYNE STATE UNIVERSITY; MARY SUE

-

COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,

-

Defendants, -

MICHAEL COX, Michigan Attorney General, -

Intervenor-Defendant-Appellee. -

-

N

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-15024—David M. Lawson, District Judge.

Argued: November 17, 2009

Decided and Filed: July 1, 2011

Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

_________________

COUNSEL
ARGUED: George Boyer Washington, Shanta Driver, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, Karin A. DeMasi, CRAVATH, SWAINE & MOORE LLP, New York, New York, Mark D. Rosenbaum, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, Los Angeles, California, for Plaintiffs. Margaret A. Nelson, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Leonard M. Niehoff, LEN NIEHOFF & ASSOCIATES, Chelsea, Michigan, Jesse Panuccio, COOPER & KIRK, PLLC, Washington, D.C., for Defendants. ON BRIEF: George Boyer Washington, Shanta Driver, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, Karin A. DeMasi, CRAVATH, SWAINE & MOORE LLP, New York, New York, Mark D. Rosenbaum, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, Los Angeles, California, Kary L. Moss, Michael J. Steinberg, Mark P.

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Fancher, ACLU FUND OF MICHIGAN, Detroit, Michigan, Joshua I. Civin, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., Washington, D.C., for Plaintiffs. Margaret A. Nelson, Heather S. Meingast, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Leonard M. Niehoff, LEN NIEHOFF & ASSOCIATES, Chelsea, Michigan, Jesse Panuccio, Charles J. Cooper, David H. Thompson, COOPER & KIRK, PLLC, Washington, D.C., Kerry L. Morgan, PENTIUK, COUVEREUR & KOBILJAK, Wyandotte, Michigan, Michael E. Rosman, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., for Defendants. Daniel M. Levy, MICHIGAN DEPARTMENT OF CIVIL RIGHTS, Detroit, Michigan, for Amicus Curiae. Sharon L. Browne, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amicus Curiae.
COLE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. GIBBONS, J. (pp. 41–59), delivered a separate opinion concurring in part and dissenting in part.
_________________
OPINION _________________
COLE, Circuit Judge. Proposal 2 is a successful voter-initiated amendment to the Michigan Constitution. In relevant part, it prohibits Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity, or national origin.” Mich. Const. art. I, § 26. Our task is to determine whether Proposal 2 is constitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Fortunately, the slate is not blank. The Supreme Court has twice held that equal protection does not permit the kind of political restructuring that Proposal 2 effected. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); Hunter v. Erickson, 393 U.S. 385 (1969). Applying Hunter and Seattle, we find that Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.
Accordingly, we REVERSE the district court’s grant of summary judgment for the
Defendants-Appellees and order the court to enter summary judgment in favor of the
Plaintiffs-Appellants. Also, we AFFIRM the district court’s decision granting the
Cantrell Plaintiffs’ motion for summary judgment as to Eric Russell, and AFFIRM the

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district court’s decision denying the University Defendants’ motion to be dismissed as parties.
I. BACKGROUND
A. Factual Background
These appeals are the latest chapter in the battle over the use of race-conscious admissions policies at Michigan’s public colleges and universities. This saga began during the 1960s and 1970s, when African-American and other minority students and citizens first successfully lobbied for the adoption of these policies. The policies remained largely in place until challenges to them in the late 1990s, culminating in the Supreme Court’s decisions in Gratz v. Bollinger, 539 U.S. 244 (2003), and Grutter v. Bollinger, 539 U.S. 306 (2003), which held that “universities cannot establish quotas for members of certain racial groups” or treat their applications uniquely. Grutter, 539 U.S. at 334. But the universities may “consider race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration,” along with other relevant factors. Id.
Following these decisions, Ward Connerly, a former University of California Regent who had championed a proposition in California similar to the one at issue here, and Jennifer Gratz, the lead plaintiff in Gratz, mobilized to place on Michigan’s November 2006 statewide ballot a proposal to amend the Michigan Constitution “to prohibit all sex- and race-based preferences in public education, public employment, and public contracting.” Operation King’s Dream v. Connerly, 501 F.3d 584, 586 (6th Cir. 2007). The initiative—officially designated Proposal 06-2 but commonly known as “Proposal 2”—was characterized as a proposal “to amend the State Constitution to ban affirmative action programs.” See Notice of State Proposals for November 7, 2006 General Election, http://www.michigan.gov/documents/sos/ED-138_State_Prop_1106_174276_7.pdf, at 5 (last visited June 24, 2011). Though Proposal 2 “found its way on the ballot through methods that undermine[d] the integrity and fairness of our democratic processes,” Operation King’s Dream, 501 F.3d at 591, once there it garnered

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enough support among Michigan voters to pass, on November 7, 2006, by a margin of 58% to 42%, see Mich. Dep’t of State, 2006 Official Michigan General Election Results, http://miboecfr.nicusa.com/election/results/06GEN/90000002.html (last visited June 24, 2011).
Proposal 2 amended the Michigan Constitution by adding the following pertinent provisions to Article I—titled “Affirmative action”:
(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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.
(2) The state shall 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.
(3) For the purposes of this section “state” includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.
Mich. Const. art. I, § 26. It took effect in December 2006 and wrought two significant changes to the admissions policies at Michigan’s public colleges and universities. First, it forced them to modify the policies they had in place for nearly a half-century to remove consideration of “race, sex, color, ethnicity, or national origin” in admissions decisions. No other admissions criteria—for example, grades, athletic ability, or family alumni connections—suffered the same fate. Second, Proposal 2 entrenched this prohibition at the state constitutional level, thus preventing the public colleges and universities or their boards from revisiting this issue without repeal or modification of Proposal 2. We review these changes later in greater detail, and there discuss their significance.

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B. Procedural Background
The litigation surrounding Proposal 2 has been lengthy and complicated. On November 8, 2006, the day after Proposal 2’s approval, a collection of interest groups and individuals, including the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary (“Coalition Plaintiffs”), filed suit in the United States District Court for the Eastern District of Michigan. They named as defendants then-Governor Jennifer Granholm, the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University (“University Defendants”) and alleged that the provisions of Proposal 2 affecting public colleges and universities violated the United States Constitution and federal statutory law. About one month later, the Michigan Attorney General (“Attorney General”) filed a motion to intervene as a defendant; the court granted his motion the same day.
On December 19, 2006, a group of faculty members and prospective and current students at the University of Michigan (“the Cantrell Plaintiffs”) filed a similar suit in the United States District Court for the Eastern District of Michigan against then Governor Granholm. Eric Russell, then an applicant to the University of Michigan Law School, and Toward A Fair Michigan (“TAFM”), a non-profit corporation formed to ensure implementation of Proposal 2, intervened in the litigation as defendants soon thereafter. The district court consolidated the two cases on January 5, 2007, and the Attorney General was permitted to intervene in the Cantrell lawsuit as part of the consolidation order. Because the Attorney General effectively replaced then-Governor Granholm as the representative of Michigan in this litigation, both Plaintiffs’ groups later stipulated to her dismissal as a party.
On December 19, 2006, the district court issued what was, in effect, a preliminary injunction, postponing application of Proposal 2 to the universities’ admissions and financial-aid policies until July 1, 2007, the conclusion of the 2006-2007 admissions and financial-aid cycle. The district court’s order stemmed from a stipulation

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among the University Defendants, Coalition Plaintiffs, Granholm, and the Attorney General consenting to the injunction. (Amended Order Granting Temporary Injunction and Dismissing Cross-Claim, Dist. Ct. Docket No. 39 (“Coal. I”).) Russell and TAFM, while awaiting approval as intervenors, opposed the Attorney General’s stipulation and sought a stay of the injunction from the district court. When two days had passed without a ruling on their motions, Russell and TAFM filed with us an “Emergency Motion for a Stay Pending Appeal.” We granted their motion. Coal. to Defend Affirmative Action v. Granholm (Coal. II), 473 F.3d 237, 252 (6th Cir. 2006), application to vacate stay denied, 549 U.S. 1176 (2007). Meanwhile, we approved the district court’s decision to allow solely Russell and TAFM to intervene in the Proposal 2 litigation. Coal. to Defend Affirmative Action v. Granholm (Coal. III), 501 F.3d 775 (6th Cir. 2007).
On October 5, 2007, the Cantrell Plaintiffs filed a motion for summary judgment as to intervening defendant Russell, arguing that he should be dismissed from the litigation because he no longer represented an interest distinct from that of the Attorney General. On October 17, 2007, the University Defendants filed a motion asking to be dismissed as parties. On November 30, 2007, the Attorney General filed a motion to dismiss for lack of standing or, in the alternative, a motion for summary judgment on the merits as to all Plaintiffs. Russell and the Cantrell Plaintiffs likewise filed motions for summary judgment the same day. On March 18, 2008, the district court issued two orders addressing these motions.
In the first order, the court denied the University Defendants’ request to be dismissed as parties and the Cantrell Plaintiffs’ motion for summary judgment and granted the Attorney General’s motion for summary judgment, rejecting the Plaintiffs’ arguments that Proposal 2 violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. IV), 539 F. Supp. 2d 924, 950-58 (E.D. Mich. 2008). In the second order, the court granted the Cantrell Plaintiffs’ motion for summary judgment, dismissing Russell as an intervenor. Coal. to Defend Affirmative Action v.

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Regents of the Univ. of Mich. (Coal. V), 539 F. Supp. 2d 960 (E.D. Mich. 2008). The Cantrell Plaintiffs subsequently moved the court to reconsider the first order, but the court denied the motion. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VI), 592 F. Supp. 2d 948 (E.D. Mich. 2008).
These appeals followed. The University Defendants appeal the court’s denial of their motion to be dismissed as parties. Russell appeals the court’s grant of the Cantrell Plaintiffs’ motion for summary judgment dismissing him as a party to the action. The Cantrell Plaintiffs appeal the court’s grant of the Attorney General’s motion for summary judgment and its denial of their motion for reconsideration. Similarly, the Coalition Plaintiffs appeal the court’s grant of the Attorney General’s motion for summary judgment.
II. ANALYSIS
A. Proposal 2’s Constitutionality
The Equal Protection Clause provides that no state shall “deny to any person . . . the equal protection of the laws.” U.S. Const. amend. XIV. The Plaintiffs argue that Proposal 2 violates this provision in two distinct ways. Both Plaintiffs groups argue that Proposal 2 violates the Equal Protection Clause by impermissibly restructuring the political process along racial lines (the “political process” argument), and the Coalition Plaintiffs contend that Proposal 2 violates the Equal Protection Clause also by impermissibly classifying individuals on the basis of race (the “traditional” argument).
We review de novo a district court’s grant of summary judgment and denial of a motion for reconsideration of that decision. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1047 (6th Cir. 2001). Whether a state’s constitution violates the federal constitution is a question of law, which we also review de novo. Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir. 2008).

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1. “Political Process” Equal Protection Analysis
The Equal Protection Clause “guarantees racial minorities the right to full participation in the political life of the community. It is beyond dispute . . . that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner.”1 Seattle, 458 U.S. at 467. But the Equal Protection Clause reaches even further, and prohibits “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Id. (internal quotation marks and citation omitted). “[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” Hunter, 393 U.S. at 393.
The Supreme Court’s statements in Hunter and Seattle clarify that equal protection of the laws is more than a guarantee of equal treatment under the law substantively. It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities. In effect, the political process theory hews to the unremarkable belief that, when two competitors are running a race, one may not require the other to run twice as far, or to scale obstacles not present in the first runner’s course. Ensuring the fairness

1For this reason, the Supreme Court has repeatedly held that legislative enactments that burden racial minorities’ ability to participate in the political process may violate the Constitution. See, e.g., White v. Regester, 412 U.S. 755 (1973) (invalidating “multimember” electoral districts that minimized the voting strength of resident Mexican-Americans); Harman v. Forssenius, 380 U.S. 528 (1965) (holding unconstitutional a statute that required voters either to file an annual certificate of residence or pay a poll tax “born of a desire to disenfranchise the Negro”); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that political redistricting that redefined municipal borders to exclude black residents would violate the Equal Protection Clause); Smith v. Allwright, 321 U.S. 649 (1944) (requiring the state Democratic party to admit black members in order that they be allowed to vote in the party primary election); Lane v. Wilson, 307 U.S. 268 (1939) (holding unconstitutional a statute having the effect of requiring all black citizens to apply for voting registration within a ten-day period or be forever barred from registering, but subjecting virtually no white citizens to the same requirement); Nixon v. Herendon, 273 U.S. 536 (1927) (holding unconstitutional a statute prohibiting black citizens from participating in primary elections for the state Democratic Party); Guinn v. United States, 238 U.S. 347 (1915) (holding unconstitutional a statute having the effect of subjecting all black citizens, but virtually no white citizens, to a literacy test in order to vote in state elections). In all these cases, the Court invalidated procedural hurdles that impeded racial minorities’ political participation by either making it more difficult for these minorities to vote or diluting their voting power.

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of political processes, in particular, is essential, because an electoral minority is by definition disadvantaged in its attempts to pass legislation; and “discrete and insular minorities” are especially so given the unique hurdles they face. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
Ensuring a fair political process is nowhere more important than in education. Education is the bedrock of equal opportunity and “the very foundation of good citizenship.” Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). Safeguarding the guarantee “that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” Grutter, 539 U.S. at 331-32 (quoting Br. for United States as Amicus Curiae 13). “Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. . . . [T]o cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Id. at 332 (citation omitted). Therefore, in the context of education, we must apply the “political process” protection with the utmost rigor given the high stakes.
Of course, the Constitution does not protect minorities from political defeat: Politics necessarily produces winners and losers. We must therefore have some way to differentiate between the constitutional and the impermissible. And Hunter and Seattle do just that. They provide the benchmark for when the majority has not only won, but also rigged the game to reproduce its success indefinitely.
i. Hunter and Seattle
a. Hunter
The Supreme Court in Hunter addressed a situation where the citizens of Akron, Ohio overturned a fair housing ordinance enacted by the City Council. 393 U.S. at 386. The citizenry did more than merely repeal the ordinance, however. It amended the city charter through a referendum to require the approval of a majority of the electorate

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before any ordinance regulating real estate “on the basis of race, color, religion, national origin or ancestry”—past or future—could become effective. Id. at 387, 390 n.6. In other words, only ordinances based on the identified factors required approval of the majority; ordinances based on any other factor required only a vote by the City Council:
In essence, the amendment changed the requirements for the adoption of one type of local legislation: to enact an ordinance barring housing discrimination on the basis of race or religion, proponents had to obtain the approval of the City Council and of a majority of the voters citywide. To enact an ordinance preventing housing discrimination on other grounds, or to enact any other type of housing ordinance, proponents needed the support of only the City Council.
Seattle, 458 U.S. at 468 (describing Hunter). The effect was not only to halt operation of the existing fair housing ordinance, but also to erect a barrier to any similar ordinance in the future. Hunter, 393 U.S. at 389.
The Court found that the disparity between the process for enacting a future fair housing ordinance and that for enacting any other housing ordinance “place[d] special burden[s] on racial minorities within the governmental process” by making it “substantially more difficult to secure enactment” only of legislation that would be to their benefit. Id. at 390-91. While the enactment treated “Negro and white, Jew and gentile” in an identical manner, the Court found that “the reality is that the law’s impact falls on the minority.” Id. at 391. That the law had been enacted via a popular referendum did not save it from implementing “a real, substantial, and invidious denial of the equal protection of the laws.” Id. at 392-93.
b. Seattle
In Seattle, a case identical in many respects to the one we confront here, the Supreme Court applied Hunter to strike down a state statute, also enacted via a referendum, that prohibited racially integrative busing. Seattle, 458 U.S. at 487. Prior to the referendum, Seattle School District No. 1 (“District”) had implemented a school desegregation plan—making extensive use of mandatory reassignments—to accelerate

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its program of desegregation. Id. at 460-61. The District was under no obligation to adopt this plan: Following Brown v. Board of Education, 347 U.S. 483 (1954), and 349 U.S. 294 (1955), school boards had been “charged with the affirmative duty to take whatever steps might be necessary” to integrate schools that were unconstitutionally segregated because of racial discrimination, Green v. Cnty. Sch. Bd., 391 U.S. 430, 43738 (1968), but there had been no finding that the de facto segregation in Seattle’s schools was the product of discrimination. Nonetheless, the school board implemented the plan to accelerate its existing program of voluntary busing, which some constituencies saw as insufficiently alleviating racial imbalances. Seattle, 458 U.S. at 460.
In response, Seattle residents drafted a statewide measure, Initiative 350, providing in relevant part that “no school board . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student’s place of residence.” Id. at 462 (alteration in original) (internal quotation mark omitted). Though the initiative was worded as a general ban on all forms of mandatory busing, its myriad exceptions made its real effect to eliminate school reassignments for racial purposes only, except where a court ordered such reassignments to remedy unconstitutional segregation. Id. at 462-63 (noting that Initiative 350 was phrased so as not to “prevent any court of competent jurisdiction from adjudicating constitutional issues relating to the public schools”). Initiative 350 made it on the Washington ballot and passed by a substantial margin, attracting over 65% of the statewide vote. Id. at 463.
The Court found that Initiative 350, like the Akron city charter amendment, violated the Equal Protection Clause. Id. at 487. Relying on Hunter and the Court’s summary affirmance of Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970) (three-judge panel), aff’d, 402 U.S. 935 (1971), the Court stated that these two cases yielded a “simple but central principle”: While “laws structuring political institutions or allocating political power according to neutral principles” are not subject to challenges under the Fourteenth Amendment, “a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to

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determine the decisionmaking process.” Seattle, 458 U.S. at 469-70 (internal quotation marks omitted). Echoing Hunter, the Court explained that this distinct analysis is necessary because such non-neutral allocations of power “place[] special burdens on racial minorities within the governmental process, thereby making it more difficult for certain racial and religious minorities than for other members of the community to achieve legislation that is in their interest.” Id. at 470 (internal quotation marks, citations, and brackets omitted).
The Court dismissed the argument that Initiative 350 was not intended to prevent busing for racially-integrative purposes, and explained why Initiative 350 violated the “simple but central” principle animating Hunter and Nyquist. Seattle, 458 U.S. at 471.
First, as a threshold matter, the Court concluded that desegregation of the public schools, like the fair housing ordinance in Hunter, “at bottom inures primarily to the benefit of the minority, and is designed for that purpose.” Id. at 472. The Court reasoned that, while “white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom,” desegregation is of primary benefit to minority children because these children “can achieve their full measure of success only if they learn to function in—and are fully accepted by—the larger community. Attending an ethnically diverse school may help accomplish this goal by preparing minority children for citizenship in our pluralistic society.” Id. at 472-73 (internal quotation marks omitted). Because racial minorities therefore had reason to “consider busing for integration to be ‘legislation that is in their interest,’” the “racial focus of Initiative 350 . . . suffices to trigger application of the Hunter doctrine.” Id. at 474 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).
Second, having concluded that Initiative 350 targeted a busing program that “inures primarily to the benefit of the minority,” the Court held that “the practical effect of Initiative 350 is to work a reallocation of power of the kind condemned in Hunter.” Id. As the Court explained, Initiative 350, like the amendment to the city charter in Hunter, did more than repeal the school board’s busing program:

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The initiative removes the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests. Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board. . . . As in Hunter, then, the community’s political mechanisms are modified to place effective decisionmaking authority over a racial issue at a different level of government.
Id. By removing authority over busing for racial purposes from the school board and placing this authority at a more remote level of government, Initiative 350 required “those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action,” and disadvantaged “those who would benefit from laws barring de facto desegregation.” Id. at 474-75 (internal quotation mark omitted). Accordingly, the Court held that Initiative 350, in placing “special burdens on racial minorities,” violated the Equal Protection Clause. Id. at 470.
In sum, Hunter and Seattle require us to apply strict scrutiny to enactments that change the governmental decisionmaking process for determinations with a racial focus. Seattle, 458 U.S. at 470; Hunter, 393 U.S. at 391; cf. Carolene Prods., 304 U.S. at 153 n.4 (arguing that more exacting judicial scrutiny is required when the majority curtails “the operation of those political processes ordinarily to be relied upon to protect minorities”).
ii. Application of the Hunter/Seattle Test
Hunter and Seattle thus expounded the rule that an enactment deprives minority groups of equal protection of the laws when it: (1) has a racial focus, targeting a goal or program that “inures primarily to the benefit of the minority”; and (2) works a reallocation of political power or reordering of the decisionmaking process that places “special burdens” on a minority group’s ability to achieve its goals through that process. Seattle, 458 U.S. at 470; Hunter, 393 U.S. at 391.

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Applying this rule here, we conclude that Proposal 2 targets a program that “inures primarily to the benefit of the minority” and reorders the political process in Michigan in such a way as to place “special burdens” on racial minorities.
a. Racial Focus
The first prong of the Hunter/Seattle test requires us to determine whether Proposal 2 has a “racial focus.” See Seattle, 458 U.S. at 473. The Court explained that the question is not whether “members of the racial majority both favored and benefited from” the program or policy at issue, but whether the policy targeted by the law “at bottom inures primarily to the benefit of the minority, and is designed for that purpose.” Id. at 472.
In Seattle, the Court observed that programs—in that context, the busing of children to increase the number of integrated schools—furthering the education of minority children enable them “to function in—and . . . [be] fully accepted by—the larger community.” Id. at 473. Such programs do so, the Court explained, through “preparing minority children for citizenship in our pluralistic society, while . . . teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.” Id. (internal quotation marks and citation omitted); see also Grutter, 539 U.S. at 330-32 (“[T]he [University of Michigan] Law School’s [race-conscious] admissions policy promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races. . . . [T]he diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity.” (fourth alteration in original) (internal quotation marks omitted)). The Seattle Court then concluded that Initiative 350 had a racial focus, because “it is enough that minorities may consider busing for integration to be ‘legislation that is in their interest.’” Seattle, 458 U.S. at 474 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).
Proposal 2, like Initiative 350, has a “racial focus,” because the Michigan universities’ affirmative-action programs “inure[] primarily to the benefit of the

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minority, and [are] designed for that purpose,” for the reasons articulated by the Court in Seattle. See id. at 472. Just as the desegregative busing programs at issue in Seattle were designed to improve racial minorities’ representation at many public schools, see id. at 460, race-conscious admissions policies increase racial minorities’ representation at institutions of higher education, see, e.g., Grutter, 539 U.S. at 316, 328-33 (describing the University of Michigan Law School’s minority-student-enrollment aims); Gratz, 539 U.S. at 253-56 (describing admissions policies at the University of Michigan regarding underrepresented minority groups). Indeed, underrepresented minorities lobbied for the adoption of such policies at Michigan’s universities in the first place for this reason, (see Anderson Report, Dist. Ct. Docket No. 222 Ex. L, at 16-23), and, further, the unrebutted evidence in the record indicates that Proposal 2 will likely negatively impact minority representation at Michigan’s institutions of higher education, (see Connerly Dep., Dist. Ct. Docket No. 222 Ex. A, at 119-21; Spencer Dep., Dist. Ct. Docket No. 203 Ex. D, at 100-01; Wu Dep., Dist. Ct. Docket No. 203 Ex. F, at 78; Zearfoss Dep., Dist. Ct. Docket No. 205 Ex. 3, at 56-57). Ample evidence thus grounds our conclusion that raceconscious admissions policies “inure[] primarily to the benefit of the minority.” See Seattle, 458 U.S. at 472.
Yet the Attorney General argues, and we previously suggested, that the nowdefunct Michigan admissions policies benefitted women as well, and that saves them. See Coal. II, 473 F.3d at 250-51. Our prior suggestion does not bind us, see Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007), and we now reject it. The Supreme Court made it clear that even policies benefitting the majority—let alone another minority—may have a “racial focus,” so that lens does not clarify anything. See Seattle, 458 U.S. at 472. In fact, it serves only to blur what is in reality a clear test: The question is not whether the challenged law “burdens minority interests and minority interests alone,” Coal. II, 473 F.3d at 250, but whether the law targets policies that minorities may consider in their interest, Seattle, 458 U.S. at 472. Even a cursory examination of the cases confirms this understanding. In Hunter, the ordinance likewise burdened non-racial minorities, including Catholics, Hispanics

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and numerous other groups (which, grouped together, would constitute a majority of the electorate), but the Court held that the law had a racial focus. 393 U.S. at 387. The same was true of the policy at issue in Nyquist, and the Court again agreed that it had a racial focus. 318 F. Supp. at 716-17. Likewise, as explained above, the race-conscious admissions policies stymied by Proposal 2 are in the interest of racial minorities and inure primarily to their benefit, so the polices have a racial focus as well.
This conclusion is not impacted by the fact that increased representation of racial minorities in higher education also benefits students of other groups and our nation as a whole. Cf. Grutter, 539 U.S. at 327-33 (describing the varied benefits supporting Michigan’s compelling interest in increasing racial diversity at public institutions of higher education). Similar benefits accrued to children at integrated public schools under Seattle’s desegregative busing plan, which the Supreme Court explicitly recognized: “[I]t should be . . . clear that white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom . . . [by] teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.” Seattle, 458 U.S. at 472-73. Nonetheless, the Seattle Court found that the wider benefits of the busing plan did not serve to distinguish Hunter, “for we may fairly assume that members of the racial majority both favored and benefited from Akron’s fair housing ordinance.” Id. at 472. By the same token, race-conscious admissions policies’ wider benefits do not undermine the conclusion that their primary beneficiaries are racial minorities.
We therefore find that the race-conscious admissions policies now barred by Proposal 2 inure primarily to the benefit of racial minorities and that Proposal 2, insofar as it prohibits consideration of applicants’ race in admissions decisions, has a “racial focus.”

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b. Reordering the Political Process to Place Special Burdens on Racial Minorities
The second prong of the Hunter/Seattle test asks us to determine whether Proposal 2 works a reallocation of political power or reordering of the political process that places “special burdens” on racial minorities. See Seattle, 458 U.S. at 470; Hunter, 393 U.S. at 391.
1. Does Proposal 2 Reorder a “Political” Process?
The first issue within this prong is whether the Michigan admissions committees are “political,” as that term is used in the Hunter/Seattle test. We begin by examining the word itself. “Political” has two possible meanings relevant to our discussion: “of or relating to government,” Merriam-Webster, Webster’s Third New International Dictionary: Unabridged 1755 (1993) (first definition), or “of, relating to, or involved in party politics,” id. (third definition). Examining the Court’s language, we conclude that the “political” requirement seeks to ensure that the process at issue relates to government.
The political processes relevant in Hunter and Seattle were the Akron publichousing structure and the Washington public schools’ student-assignment system, respectively. See Seattle, 458 U.S. at 474; Hunter, 393 U.S. at 390, 393. Clarifying the “political” nature of the latter, the Court referred to the “political process” interchangeably as a “decisionmaking process” and a “governmental process,” and explained that the political power allocation in question is of “governmental power.” Seattle, 458 U.S. at 470. The Court elsewhere identified the relevant characteristics that made the school boards “political”: They were “creatures of the State” and had to “give effect to policies announced by the state legislature.” Id. at 476. In other words, the boards were “political” because they were governmental entities, not necessarily electoral or partisan ones. Id. Even more explicitly, the Court found that Initiative 350’s flaw was “us[ing] the racial nature of an issue to define the governmental decisionmaking structure.” Id. at 470 (emphasis added); see also id. at 474 (“As in

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Hunter, then, the community’s political mechanisms are modified to place effective decisionmaking authority over a racial issue at a different level of government.” (emphasis added)). Indeed, the Court noted that the political “reallocation of power of the kind condemned in Hunter” is the removal of “authority . . . from the existing decisionmaking body.” Id. (emphasis added); see also id. at 477 (“[I]t is irrelevant that the State might have vested all decisionmaking authority in itself, so long as the political structure it in fact erected imposes comparative burdens on minority interests . . . .” (emphasis added)). Thus, a process is “political” under Hunter and Seattle if it involves governmental decisionmaking.
The dissent disagrees. It defines a “political process” narrowly, as one “through which the people exercise their right to govern themselves,” Slip Op. at 13, or one that is “electoral,”2 id. at 18-19 & n.6, and suggests that a process is political only if it involves direct elections. In so doing, the dissent misapprehends the “political” nexus required in the Hunter/Seattle test. The electoral nature of a state system is relevant not to the political nature of a process, but to the reordering at issue. The Court’s point in requiring that there be reordering of a “political process” was merely to ensure that the process was state-directed (“governmental”) and mattered (“decisionmaking”), the same way Title VII cases require the alleged discriminatory act to relate to a company agent with relevant authority. No link to the electoral process is required to find a given process “political.”
The dissent latches on to a lone mention of an “electorate” in Seattle to argue that the Hunter/Seattle political process must be an electoral, or voting-centered, political process. The statement at issue, however, was simply the Court’s quotation of the language setting forth the school board’s authority under Washington law. See Seattle, 458 U.S. at 478 (quoting Wash. Rev. Code § 28A.58.758(1)). And that quotation sits in
2By “electoral,” the dissent must mean “of or relating to election.” See Merriam-Webster, Webster’s Third New International Dictionary: Unabridged 731 (1993). Nothing in either definition of “political,” however, relates more than tangentially to an election or voting: Yes, in a democracy, government exists because of elections, but the Court did not require there to be a “political process” for the purpose of elucidating first principles. The second meaning of government—in effect, “partisan”—is more related to elections, but the cases do not support (and the dissent does not advocate) such a reading.

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a section explaining the structure of Washington’s educational system generally and the power of the school boards specifically. See id. To argue that the key insight to the entire Hunter/Seattle test lies in this solitary quotation is unsupportable, especially given the abundance of language to the contrary in those cases. Moreover, there is no language in this section of Seattle suggesting that the Court was defining what it meant by a “political process.” A process thus is “political” if it involves governmental decisionmaking. Nothing more is required.
This point is hammered home by the Court’s affirmance of, and subsequent reliance (in Seattle) on, Nyquist. In Nyquist, the Court agreed with the three-judge panel that an enactment to New York’s laws unconstitutionally reordered the political process when the enactment “prohibit[ed] state education officials and appointed school boards” from performing various education-related functions “for the purpose of achieving racial equality in attendance.” 318 F. Supp. at 712 (emphasis added). The fact that the school boards at issue were not elected did not affect the Court’s decision.3 The Hunter/Seattle test therefore requires simply that the process at issue involve governmental decisionmaking.
Yet even using the dissent’s erroneous definition of “political” as “electoral,” the admissions committees here still qualify as “political.” For in addition to possessing the same character as the school boards in Seattle and Nyquist and the Akron housing institutions in Hunter, they fall squarely within Michigan’s electoral system.
The Michigan Constitution, the foundation of Michigan’s government, establishes three public universities—the University of Michigan, Michigan State University, and Wayne State University—and grants the governing board of each university control of its respective institution. Mich. Const. art. VIII, § 5; see also id. art. VIII, § 6 (allowing the establishment of other institutions of higher learning, such as
3Likewise, the dissent’s dwelling on the term “legislation,” see Slip Op. at 13-14, misapprehends that term’s usage in the Hunter/Seattle test, for the Court considered the school board policies in Seattle and Nyquist to constitute such “legislation,” see Seattle, 458 U.S. at 470, 474-75 & n.17; Nyquist, 318 F. Supp. at 718-19, and the admissions policies at Michigan’s colleges and universities are of an identical character.

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Michigan’s other public colleges and universities, and according their governing boards similar control). At each institution, these boards and their members have slightly differing names—“Board of Trustees,” “Board of Governors,” “Board of Regents,” and so on—but the same role: to run, with plenary authority, their respective institution. Id. art. VIII, §§ 5-6; Glass v. Dudley Paper Co., 112 N.W.2d 489, 490 (Mich. 1961). Michigan law has confirmed this absolute authority again and again. See, e.g., Glass, 112 N.W.2d at 490; Attorney Gen. ex rel. Cook v. Burhans, 7 N.W.2d 370, 371 (Mich. 1942); Bd. of Regents of Univ. of Mich. v. Attorney Gen., 132 N.W. 1037, 1040 (Mich. 1911); 1979-80 Mich. Op. Atty Gen. 578, 1980 WL 114008, at *1-2 (Mich. A.G. Jan. 31, 1980).
Eight elected individuals populate each of these boards, and they hold office for eight years. Mich. Const. art. VIII, § 5; see also id. art. VIII, § 6. The boards govern the universities, including enacting the regulations that direct the university’s government and determining when to retain or remove the president or faculty. See Mich. Comp. Laws §§ 390.3-.6 (University of Michigan).4 The meetings at which the board takes such action are generally public. See id. § 390.20. Meanwhile, the bylaws, over which the boards have complete authority, detail the admissions procedures.5 See Univ. of Mich., Bylaws of the Bd. of Regents § 8.01, available at

4Though the statutes and bylaws cited in this paragraph govern only the University of Michigan, the boards of the other public colleges and universities in Michigan are similarly empowered. See, e.g., Mich. Comp. Laws §§ 390.102-.107 (Michigan State University), 390.641-.645 (Wayne State University).
5At Michigan State University, the Provost of the University “shall be appointed by the Board [of Trustees],” “shall serve at the pleasure of the Board,” and “[s]hall be responsible for supervising procedures and policies relating to the admission of students.” Mich. State Univ., Bd. of Trs. Bylaws, art. 4, available at http://www.trustees.msu.edu/bylaws (last visited June 24, 2011). The Board retains the authority to “determine and establish the qualifications of students for admission at any level” upon the recommendation of the President, whom the Board elects and who also serves at its pleasure, id. arts. 1, 4, as well as the more general authority to reallocate responsibility for admissions to other officers or to itself, see id. art. 17.
At Wayne State University, the President, elected by the Board, is authorized to establish specific admissions standards for undergraduate and graduate degree programs after (s)he has consulted with the relevant college or school and the Graduate Council, see Mich. Const. art. VIII § 5; Wayne State Univ. Statutes §§ 2.34.09.090, 2.34.12.350, available at http://www.bog.wayne.edu/code (last visited June 24, 2011), and the Board may amend its regulations to alter, remove, or shift this authority as it sees fit, see Wayne State Univ., Bd. of Governor Bylaws 10, available at http://www.bog.wayne.edu/files/bylaws.pdf (last visited June 24, 2011) (describing the Board’s authority to enact bylaws and regulations for the governance of the University).

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http://www.regents.umich.edu/bylaws (last visited June 24, 2011). Nothing prevents the boards from altering this framework for admissions decisions if they are so inclined. See Mich. Const. art. VIII, § 5; Mich. Comp. Laws §§ 390.3-.6; Univ. of Mich., Bylaws of the Bd. of Regents § 8.01, available at http://www.regents.umich.edu/bylaws (last visited June 24, 2011).
Attempting to argue to the contrary, the dissent claims that the admissions committees are not connected to Michigan’s electoral political system because the governing boards of the universities “have fully delegated the responsibility for establishing admissions standards.” Slip Op. at 11 (emphasis added). The dissent rests this argument on “the testimony of the law school deans in this case.” Id. at 14. But the dissent’s argument fails for two reasons. First, the testimony the dissent references does not support the dissent’s claim of “full delegation” or the idea that the boards could not theoretically change the policies; it merely describes the current admissions structures. There is one exception to this observation, however: former-Dean Wu’s personal opinion that modification of the admissions structure might “precipitate a constitutional crisis.” (Wu Dep., Dist. Ct. Docket No. 203 Ex. F, at 191-92). But this opinion is inadmissible as both speculation and a legal conclusion (notably, with no basis in Michigan law). See Torres v. Cnty. of Oakland, 758 F.2d 147, 149-51 (6th Cir. 1985).
Second, and much more to the point, the structure of Michigan’s colleges and universities is a question of law, for it is set by constitution, statutes and regulations. See United States v. Dedman, 527 F.3d 577, 584-85 (6th Cir. 2008). And we would be remiss to rely on witness testimony to decide such questions, see Fed. R. Evid. 701; Torres v. Cnty. of Oakland, 758 F.2d 147, 149-51 (6th Cir. 1985); cf. Becht v. Owens Corning Fiberglas Corp., 196 F.3d 650, 654 (6th Cir. 1999), particularly where as here a clear statutory structure is weighed against unfounded supposition. Still, the dissent protests: “As they currently stand, the faculty admissions committees are islands unto themselves, vested with the full and unreviewed authority to set admissions policy for their respective university programs.” Slip Op. at 14. The current boards’ policies, however, are besides the point. The key question is whether the boards’ current

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policies—in the form of bylaws and regulations—could be altered, for example if the people of Michigan elected different boards dedicated to changing the universities’ admissions policies. Michigan law provides a resounding “yes,” see Mich. Const. art. VIII, §§ 5-6; cf. Mich. State Univ., Bd. of Trs. Bylaws, art. 5 (stipulating that “[t]he delegation of any authority by the Board to any committee shall not operate to relieve the Board or any member thereof of any responsibility imposed by law or the State Constitution”), and the dissent points us to no law indicating otherwise.
Moreover, because the dissent does not question the boards’ electoral nature, the dissent’s argument implies another untenable proposition: that delegation of admittedly electoral power to an unelected body renders the power ultimately exercised nonelectoral. As an initial matter, the appointed boards in Nyquist soundly rebuff this argument. Yet the argument cannot hold water even aside from Nyquist. Let us begin by dissecting the dissent’s contention in a more familiar electoral framework: the federal system. In parallel to Michigan’s university structure, the members of the National Security Council (“NSC”) are likewise unelected individuals receiving delegated electoral political power, though from the President of the United States. Do we consider the power they wield to be electoral? Of course. That they are a step removed from the electoral process does not mean that they are not exercising electoral political power. See Carter v. Carter Coal Co., 298 U.S. 238, 296 (1936) (“And the Constitution itself is in every real sense a law—the lawmakers being the people themselves, in whom under our system all political power and sovereignty primarily resides . . . . It is by that law, and not otherwise, that the legislative, executive, and judiciary agencies which it created exercise such political authority as they have been permitted to possess.” (emphasis added)); see also Mistretta v. United States, 488 U.S. 361, 393 (1989) (referring to the United States Sentencing Commission’s work as of a “significantly political nature”); cf. Walsh v. Heilmann, 472 F.3d 504, 506 (7th Cir. 2006) (“Many units of government delegate important decisions to middle management, and when they do this they may insist that the holders of the delegated power be reliable implementers of the elected officials’ platforms.” (emphasis added)). If American voters do not like

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what the NSC does, they may exact an electoral price against the person from whom the NSC receives its power: the President.6 The same is true of the admissions committees here, which wield the electoral power bestowed on them—through the boards—ultimately by the Michigan Constitution. See Part II.A.1.ii.b.2, infra.
In sum, we find apt the Court’s rejoinder to claims similar to those the Attorney General and the dissent make: “[T]hat a State may distribute legislative power as it desires . . . furnish[es] no justification for a legislative structure which otherwise would violate the Fourteenth Amendment.” Seattle, 458 U.S. at 476 (quoting Hunter, 393 U.S. at 392) (first alteration added). Michigan, like “Washington[,] . . . has chosen to make use of a more complex governmental structure” than direct administration by the legislature, or even the university boards, of admissions decisions in university and college affairs. See id. at 476-77. However, as we have explained, the fact that the admissions committees received the political power they exercise through delegation rather than direct election is irrelevant to the nature of that power and thus the applicability of the Hunter/Seattle test.
Therefore, the admissions committees are “political” because they are governmental decisionmaking bodies. And even if they had to be tied to the electoral system, they are, because the individuals delegated with principal responsibility for admissions policies at Michigan’s public colleges and universities are appointed by the institutions’ governing boards—which are either elected by the citizens of Michigan or appointed by elected officials—and the boards are free to reassign this responsibility as

6Put more pointedly, it is the electoral structure that renders the power wielded electoral, not the nature of the person’s position. No matter how many times this power is delegated, or to whom, an elected official is ultimately responsible for it. For example, though two State Department employees may reach their posts by different paths, one hired and one appointed, both individuals’ power stems from the President, and they perform the same function: the work of the President. And a building manager working for the General Services Administration (“GSA”), like a faculty member on a public university’s admissions committee, is hired and performs a function existing equally in the private sector. The building manager’s private counterpart does not exercise electoral power, yet the GSA employee and Michigan faculty member do. The difference lies in the ultimate source of these latter two individuals’ authority: the government. The fact remains that an elected official—be it the President of the United States, the Governor of Michigan, or a member of one of the university boards—is accountable to the electorate for the power that he delegated to the GSA, State Department, or university admissions committees, and he could equally choose to delegate that power to someone else or exercise it himself. This is what it means for power to be electoral.

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they see fit. Thus, there is little doubt that Proposal 2 affects a “political process” under Hunter and Seattle.
2. Does Proposal 2 Effect a “Reordering” of the Political Process so as to Place Special Burdens on Racial Minorities? The next issue is whether Proposal 2 reordered the political process to place special burdens on racial minorities. We find that Proposal 2 burdens racial minorities for the reasons articulated in Part II.A.1.ii.a, supra. As to whether there was a reordering, the Court has found that both implicit and explicit reordering violates the Fourteenth Amendment. See Seattle, 458 U.S. at 474; Hunter, 393 U.S. at 387, 390. In Hunter, the express language of the charter amendment required any ordinance regulating real estate “on the basis of race, color, religion, national origin or ancestry” to be approved by a majority of the electorate and the City Council, as opposed to solely the City Council for other real-estate ordinances. 393 U.S. 387, 390.
In Seattle, however, the reordering was implicit: On its face, Initiative 350 simply prohibited school boards from using mandatory busing, but its practical effect was that “[t]hose favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate” through overturning Initiative 350. 458 U.S. at 474. Nonetheless, “authority over all other student assignment decisions . . . remains vested in the local school board.” Id. The Seattle Court then clarified what sort of reordering contravenes the “political process” theory: “The evil condemned by the Hunter Court was not the particular political obstacle of mandatory referenda imposed by the Akron charter amendment; it was, rather, the comparative structural burden placed on the achievement of minority interests.”7 Id. at 474 n.17 (emphasis added). Thus, any “comparative structural burden,” be it local or state-wide or national, satisfies the reallocation prong of the Hunter/Seattle test. Id.

7The Court’s statement here rebuffs the dissent’s attempt to argue that the “relevant lawmaking authority” also must be reallocated from a “local legislative body” to a “more complex government structure” with a broader constituency. See Slip Op. at 7.

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We face here an enactment even more troubling than those at issue in Hunter and Seattle, as the hurdle Proposal 2 creates is of the highest possible order. An interested Michigan citizen may use any number of avenues to change the admissions policies on an issue unrelated to race. He may lobby the admissions committees directly, through written or in-person communication if the latter is available, or petition higher administrative authorities at the university: the dean of admissions, the president or dean of the university, or the university’s board. See Part II.A.1.ii.b.1, supra; see also, e.g., Univ. Defs. Admis., Dist. Ct. Docket No. 172 Ex. I, at 11, 14-15, 17-20; Wu Dep., Dist. Ct. Docket No. 203 Ex. F, at 190; Zearfoss Dep., Dist. Ct. Docket No. 205 Ex. 3, at 20910. And there is no question that the admissions committees are very much accountable to the universities’ boards, which retain ultimate—and politically accountable— responsibility over admissions policies. See Mich. Const. art. VIII, §§ 5-6.
The individual seeking this non-race-related change may also seek to affect the election—through voting, campaigning, or otherwise—of any one of the eight board members whom the individual believes will champion his cause and revise the review of admissions determinations accordingly. These elections, though state-wide in scope, would likely be much more manageable than those surrounding constitutional amendments, which can be expensive, lengthy, and complex, (see Wilfore Decl., Dist. Ct. Docket No. 203 Ex. C ¶¶ 10, 29-30). Only as a last resort would the effort and expense of campaigning for an amendment to the Michigan Constitution be required—the only option that remains open for proponents of race-based admissions criteria.
Meanwhile, a Michigan citizen seeking that Michigan universities adopt racebased admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution. Placing a proposed constitutional amendment abrogating Proposal 2 on the ballot would require either the support of two-thirds of both the Michigan House of Representatives and Senate, see Mich. Const. art. XII, § 1, or the signatures of a number of voters equivalent to at least ten percent of the number of votes cast for all candidates for governor in the preceding general election, see id. art XII, § 2.

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A majority of the voting electorate would then have to approve the amendment. See id. art. XII, §§ 1-2.
Only after traversing this difficult and costly process, (see Wilfore Decl., Dist. Ct. Docket No. 203 Ex. C ¶¶ 10, 29-30), would the now-exhausted Michigan citizen reach the starting point of his opponent who sought a non-race-related admissions policy change. By amending Michigan’s Constitution to prohibit university admissions units from utilizing race-conscious admissions policies, proponents of Proposal 2 thus removed the authority to institute racially-focused policies from Michigan’s universities and lodged it at the most remote level of Michigan’s government, the state constitution.
In other words, as with the unconstitutional enactment in Hunter, proponents of race-conscious admissions policies now have to obtain the approval of the Michigan electorate and (if they are successful) the admissions units or other university powers, whereas proponents of other admissions policies need only the support of the latter. See Seattle, 458 U.S. at 468, 474 (describing Hunter).
The stark contrast between the avenues for political change available to different admissions proponents following Proposal 2 illustrates why the amendment cannot be construed as a mere repeal of an existing race-related policy. Had those favoring abolition of race-conscious admissions successfully lobbied the universities’ admissions units, just as underrepresented minorities did to have these policies adopted in the first place, there would be no equal protection problem. As the Supreme Court has made clear, “‘the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification.’” Seattle, 458 U.S. at 483 (quoting Crawford v. Bd. of Educ., 458 U.S. 527, 539 (1982)); accord Hunter, 393 U.S. at 390 n.5. Crawford brings this distinction into focus, because the Court-approved political action in that case (amendment of the California constitution) occurred at the same level of government as the original enactment (a prior amendment of the California constitution), thus leaving the rules of the political game unchanged. 458 U.S. at 532, 540.

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As illustrated above, however, Proposal 2 “works something more than the ‘mere repeal’ of a desegregation law by the political entity that created it.” Seattle, 458 U.S. at 483. Rather, like Initiative 350 did for any future attempt to implement race-based busing (and the Akron city charter amendment did for any future attempt to enact a fair housing ordinance), “by lodging decisionmaking authority over the question at a new and remote level of government,” Proposal 2 “burdens all future attempts” to implement race-conscious admissions policies. Id.
By the same token, precisely because Proposal 2 places special burdens on a political program of particular importance to racial minorities, it is not a sufficient response to point out that these minorities remain free to repeal it. The “simple but central principle” of Hunter and Seattle is that the Equal Protection Clause prohibits requiring racial minorities to surmount more formidable obstacles to achieve their political objectives than other groups face. See id. at 469-70. As the Supreme Court has recognized, such special procedural barriers to minority interests discriminate against racial minorities just as surely as—and more insidiously than—substantive legal barriers challenged under the traditional equal protection rubric. See id. at 467 (“[T]he Fourteenth Amendment also reaches a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” (internal quotation marks and citation omitted)). Because less onerous avenues to effect political change remain open to those advocating consideration of non-racial factors in admissions decisions, Michigan cannot force those advocating for consideration of racial factors to go down a more arduous road than others without violating the Fourteenth Amendment.
We thus conclude that Proposal 2 reorders the political process in Michigan to place special burdens on minority interests.

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iii. Proposed Permutations of the Hunter/Seattle Test
a. Is Prohibiting “Preferential Treatment” Different From Prohibiting “Discrimination”? The Attorney General asserts that Hunter and Seattle are inapplicable to Proposal 2 because the cases govern only enactments that burden racial minorities’ ability to obtain protection from discrimination through the political process, whereas Proposal 2 burdens racial minorities’ ability to obtain preferential treatment. In support of this distinction, the Attorney General points to our preliminary injunction ruling, and decisions of the Ninth Circuit and the district court. See Coal. II, 473 F.3d at 251; Coal. for Econ. Equity, 122 F.3d at 708; Coal. IV, 539 F. Supp. 2d at 956-57. None of these decisions is binding on us. See Tenke Corp., 511 F.3d at 542 (“[C]onclusions of law made by a court granting [a] preliminary injunction are not binding at trial on the merits.” (internal quotation mark omitted)); Cross Mountain Coal. v. Ward, 93 F.3d 211, 217 (6th Cir. 1996) (“[T]he decisions of other circuits are entitled to our respect, [but] they are not binding upon us.”). And we do not find them persuasive.
We turn first to the distinction at issue and its true meaning. Differentiation between “discrimination” and “preference” in this context finds its origin in the Ninth Circuit. See Coal. for Econ. Equity, 122 F.3d at 707-09. The Coalition for Economic Equity court began by stating that “[e]ven a state law that does restructure the political process can only deny equal protection if it burden’s an individual’s right to equal treatment.” Id. at 707 (emphasis added). The court then continued: “It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment.” Id. at 708. In so positing, the Ninth Circuit added another element to the Hunter/Seattle test. That element, stripped of the controversial and obfuscating distinction between “discrimination” and “preference,” boils down to a belief that an enactment violates the Equal Protection Clause under Hunter and Seattle only if it undermines state action that is constitutionally mandated

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(“discrimination”), as opposed to constitutionally permissible (“preference”).8 Put differently: An enactment is unconstitutional if it transgresses a constitutionallymandated action, i.e., an enactment is unconstitutional under the “political process” framework only if the enactment is already unconstitutional under the “traditional” rubric. But this reasoning defies logic. Using this rationale, the political process theory would be superfluous, for an aggrieved citizen could sue to enjoin the unconstitutional law under the traditional equal protection analysis. For that very reason, the Court created the “political process” theory in the context of cases addressing state action that is constitutionally permissible (or “preferential” to use the Attorney General and Ninth Circuit’s terminology). The facts of those very cases thus prohibit this distinction.
The Court in Hunter rejected the argument that the Akron amendment’s effect was moot because the amendment was invalid under the 1968 Civil Rights Act, see Hunter, 393 U.S. at 388-89, or that traditional equal protection resolved the case, id. at 389. Seattle even more clearly involved constitutionally-permissible state action, as Initiative 350 responded to a voluntary school board effort to reduce the impact of de facto segregation. 458 U.S. at 460-61. The school board was under no obligation to undertake this effort because there had been no finding that the segregation was motivated by racial discrimination—a fact that the Seattle dissent repeatedly pointed out. See, e.g., id. at 491-92 (Powell, J., dissenting) (“The Court has never held that there is an affirmative duty to integrate the schools in the absence of a finding of unconstitutional segregation. . . . Certainly there is no constitutional duty to adopt mandatory busing in the absence of such a violation.”). Rather, the Board’s plan was an ameliorative measure designed to combat the effects of Seattle’s segregated housing patterns and “alleviate the isolation of minority students.” Id. at 460. It is inaccurate, therefore, to suggest that Initiative 350 made it “more difficult for minorities to obtain protection from
8This must be so because there is no free-floating “right” to be free of discrimination. That right must therefore find its basis in either the United States Constitution—primarily through the Equal Protection Clause—or a federal statute. The latter was not at issue in Coalition for Economic Equity, so the Equal Protection Clause must ground the right discussed by the Ninth Circuit. Therefore, the only possible reading of the Ninth Circuit’s decision is that the Equal Protection Clause, through the “political process” theory, only protects action which the Equal Protection Clause, through the “traditional” theory, already protects.

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discrimination through the political process.” Coal. II, 473 F.3d at 251. Quite the contrary: As the district court recognized, “[b]ecause prohibiting integration (when it is not constitutionally mandated) is not tantamount to discrimination, . . . the Court in Seattle did not (and could not) rely on the notion that the restructuring at issue impeded efforts to secure equal treatment.”9 Coal. VI, 592 F. Supp. 2d at 951.
Similarly, in Nyquist, the New York Legislature responded to attempts to remedy de facto segregation “generated in large part by local housing patterns and economic conditions,” 318 F. Supp. at 717, by passing a law prohibiting “state education officials and appointed school boards from assigning students, or establishing, reorganizing or maintaining school districts . . . for the purpose of achieving racial equality in attendance,” id. at 712. Applying Hunter, the court concluded that “by prohibiting the implementation of plans designed to alleviate racial imbalance in the schools,” the statute “creates a clearly racial classification, treating educational matters involving racial criteria differently from other educational matters and making it more difficult to deal with racial imbalance in the public schools.” Id. at 718-19. In reaching this conclusion, the court rejected the defendants’ argument that this classification did not violate the Equal Protection Clause because “in the absence of de jure segregation, the state is under no obligation to take affirmative action to reduce de facto segregation.” Id. at 719. The court reasoned that the process-based nature of the Hunter inquiry precluded this distinction:

9In holding that Proposal 2 nonetheless does not violate the Equal Protection Clause, the district court asserted that the race-conscious admissions policies at issue here should be distinguished from the voluntary desegregative busing program at issue in Seattle because, unlike race-conscious admissions policies, “school desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights.” Coal. VI, 592 F. Supp. 2d at 951 (quoting Coal. for Econ. Equity, 122 F.3d at 708 n.16).
This purported distinction is erroneous and flies in the face of the Supreme Court’s decisions in Grutter and Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). In Grutter, the Supreme Court showed how narrowly-tailored race-conscious admissions programs are not “inherently invidious,” see 539 U.S. at 334-44, and do not work “wholly to the benefit of members of one group,” see id. at 330. The Court explained: “[T]he skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Id. In Parents Involved, the Court held that voluntary school desegregation programs can impose injury, depriving citizens of rights. 551 U.S. at 719.

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[T]he argument that the state has not discriminated because it has no constitutional obligation to end de facto racial imbalance fails to meet the issue under Hunter v. Erickson. The statute places burdens on the implementation of educational policies designed to deal with race on the local level. . . . The discrimination is clearly based on race alone, and the distinction created in the political process, based on racial considerations, operates in practice as a racial classification.
Id. Accordingly, the court held the law unconstitutional, a decision that the Supreme Court summarily affirmed, 402 U.S. 935 (1971), and then subsequently relied on in Seattle.
It should be unsurprising, then, that the language of these decisions encompasses any legislation in the racial minorities’ interest, and thus is broader than it would be were the Attorney General’s distinction valid. See, e.g., Seattle, 458 U.S. at 467 (noting the Fourteenth Amendment protects against distortions of the political process that “place special burdens on the ability of minority groups to achieve beneficial legislation” (emphasis added)); id. at 470 (requiring searching judicial scrutiny where state action makes it more difficult for racial minorities “to achieve legislation that is in their interest” (emphasis added) (internal quotation mark omitted)); id. at 474 (finding it “enough that minorities may consider busing for integration to be legislation that is in their interest” (emphasis added) (internal quotation mark omitted)); Hunter, 393 U.S. at 393 (“[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote . . . .” (emphasis added)); cf. Nyquist, 318 F. Supp. at 720 (holding that the state “has acted to make it more difficult for racial minorities to achieve goals that are in their interest” (emphasis added)).
The cases’ context and reasoning, discussed above, crystallize the point of the Hunter/Seattle doctrine. The political process theory does not serve as a duplicative backstop against already unconstitutional action. Instead, it prevents the placement of special procedural obstacles on minority objectives, whatever those objectives may be. The distinction urged by the Attorney General thus erroneously imposes an outcome-

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based limitation on a process-based right. Again, what matters is if racial minorities are forced to surmount procedural hurdles in reaching this goal over which other groups do not have to leap. If racial minorities do, the disparate procedural treatment violates the Equal Protection Clause, regardless of the goal sought. Accordingly, whether “all governmental use of race must have a logical end point,” as the dissent asserts, Slip Op. at 21 (quoting Grutter, 539 U.S. at 342), is irrelevant to the constitutionality of Proposal 2 under Hunter and Seattle. The equal protection injury imposed by Proposal 2 is not the Michigan electorate’s attempt to end affirmative action, but the method by which it sought to do so.
b. Does a Law Place Special Burdens on Minorities Even When Multiple Minorities Affected by the Enactment, Cobbled-Together, Would Constitute a Numerical Majority?
As to the issue of burdening minorities, the Attorney General argues that Proposal 2 places no special burden on racial minorities because they, together with women, constitute a numerical majority of voters and thus could theoretically repeal Proposal 2.10 In so arguing, he points to the Hunter Court’s statement in dicta that “[t]he majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that.” 393 U.S. at 391.
The Attorney General’s argument is without merit. Examination of the context of that statement from Hunter reveals that the quotation referred to the racial majority at issue in that case, not the ad-hoc and theoretical numerical majority posited by the Attorney General. See id. And as the district court cogently stated:
The argument that racial minorities plus women constitute a majority of the population, and therefore Proposal 2 does not discriminate against minorities . . . borders on nonsense. The attempt to cobble together an artificial coalition of women and racial minorities in an effort to construct a numerical majority of citizens ignores the fact that affirmative action programs generally are targeted to benefit insular groups that separately
10We address this argument separately because our “racial focus” analysis does not encompass it fully. See Part II.A.1.ii.a, supra.

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have suffered from discriminatory practices in the past because of perceived traits unique to that group alone. Lumping minority groups into a contrived category does not allow any greater political influence over the process of advocating for affirmative action programs to achieve racial parity or otherwise render the process of changing the state constitution “bothersome but no more than that.”
Coal. IV, 539 F. Supp. 2d at 956 (quoting Hunter, 393 U.S. at 391); cf. Growe v. Emison, 507 U.S. 25, 41 (1989) (noting that, under the Voting Rights Act, “a court may not presume bloc voting within even a single minority group,” and so “it ma[kes] no sense for . . . [a court to] indulge that presumption as to bloc voting within an agglomeration of distinct minority groups”).
Finally, as the Supreme Court has long recognized, minority groups may face political disadvantages independent of their numerical strength. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (noting that minority groups may be “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process”); cf. Frontiero v. Richardson, 411 U.S. 677, 686 n.17 (1973) (observing that women are underrepresented politically even though “[i]t is true, of course, that when viewed in the abstract, women do not constitute a small and powerless minority”). Therefore, it is a considerable oversimplification—and simply inaccurate—to conflate a simple numerical majority comprised of members of different minority groups with a political majority for which “a referendum might be bothersome but no more than that.” Hunter, 393 U.S. at 391.
c. Does the Hunter/Seattle Test Contain an Intent Requirement?
Drawing on the language from Seattle that Initiative 350 “was effectively drawn for racial purposes,” and “enacted because of, not merely in spite of, its adverse effects upon busing for integration,” 458 U.S. at 471 (internal quotation marks omitted), the Attorney General also argues that a reallocation of political decisionmaking violates the

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Equal Protection Clause only if the Plaintiffs can demonstrate it was motivated by purposeful racial discrimination.
However, “the idea that a political restructuring claim must be based on [a finding of] purposeful discrimination finds no support in the [Supreme Court’s] cases.” Coal. IV, 539 F. Supp. 2d at 956. Indeed, in Seattle, the Court expressly rejected this argument. Acknowledging that “‘purposeful discrimination is the condition that offends the Constitution,’” 458 U.S. at 484 (quoting Pers. Adm’r v. Feeney, 442 U.S. 256, 274 (1979)), the Court nonetheless emphasized that “[w]e have not insisted on a particularized inquiry into motivation in all equal protection cases.” Id. at 485. Rather, “‘[a] racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.’” Id. (quoting Feeney, 442 U.S. at 272). Legislation like that in Hunter, Seattle, and here, which restructures the political process along racial lines and places special burdens on racial minorities, thus “falls into an inherently suspect category,” regardless of whether purposeful racial discrimination is its demonstrated motivation. Id.
iv. “Political Process” Conclusion
Proposal 2 thus modifies Michigan’s political process “to place special burdens on the ability of minority groups to achieve beneficial legislation.” See Seattle, 458 U.S. at 467.
v. Strict Scrutiny
Because Proposal 2 fails the Hunter/Seattle test, it must survive strict scrutiny to stand. See Seattle, 458 U.S. at 485. Under strict scrutiny, the Attorney General must prove that Proposal 2 is “necessary to further a compelling state interest.” Crawford, 458 U.S. at 536. In Seattle, the Court did not consider whether a compelling state interest might justify a state’s enactment of a racially-focused law that restructures the political process, because the government did not make the argument. Seattle, 458 U.S.

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at 485 n.28. Because the Attorney General likewise does not assert that Proposal 2 satisfies a compelling state interest, we need not consider this argument either.11
We therefore hold that those portions of Proposal 2 that affect Michigan’s public institutions of higher education violate the Equal Protection Clause.12
2. “Traditional” Equal Protection Analysis
Having found that Proposal 2 deprives the Plaintiffs of equal protection of the law under a “political process” theory, we do not reach the question of whether it also violates the Equal Protection Clause when assessed under the traditional framework.
B. Ancillary Matters
We now turn briefly to the ancillary questions of whether the district court properly dismissed Russell and refused to dismiss the University Defendants.
1. The University Defendants’ Non-Dismissal
The University Defendants appeal the district court’s denial of their motion to be dismissed as misjoined parties under Rule 21 of the Federal Rules of Civil Procedure. We review the district court’s decision for abuse of discretion and must affirm unless we are “left with a definite and firm conviction that the trial court committed a clear error of judgment.” Letherer v. Alger Group, 328 F.3d 262, 266 (6th Cir. 2003) (internal quotation marks omitted), overruled on other grounds by Powerex Corp. v. Reliant Energy Servs., 551 U.S. 224 (2007).
11Further, the two “compelling interests” advanced by amicus Russell are not actually compelling interests, as their rationale presumes that Proposal 2 does not suffer from any constitutional infirmity. Moreover, Russell does not show that Proposal 2 is necessary to further these “compelling” state interests.
12The dissent also makes much ado of the Seattle majority’s response to Justice Powell’s dissenting argument that the majority’s decision would require finding unconstitutional a situation in which a higher authority within a university attempted to alter an admissions committee’s decision to develop an affirmative-action plan. See Seattle, 458 U.S. at 480 n.23 (responding to id. at 498 n.14 (Powell, J., dissenting)). However, the hypothetical situation Justice Powell described is entirely distinguishable from that at issue here, in which decisonmaking authority has been removed to the highest level of state government, not to a higher level of authority within the university. The fact that some reorderings of political processes may be de minimis does not mean that all are. Accordingly, Justice Powell’s argument and the Seattle majority’s Delphic response—made in dicta in a footnote with no supporting explanation—are inapposite.

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The district court concluded that the University Defendants were properly joined parties under Federal Rule of Civil Procedure 20(a) because “[i]f this Court were to find Proposal 2 unconstitutional, affirmative action would not automatically be reinstated into the admissions process. Rather, the universities would have to choose to do so on their own.” Coal. IV, 539 F. Supp. 2d at 941. The court therefore found that dismissal under Rule 21 was inappropriate. The University Defendants contend, however, that they lack the authority to provide Plaintiffs with the requested relief, an injunction against Proposal 2’s enforcement, and therefore should be dismissed. In support of their argument, the University Defendants point us to an unpublished district court opinion. See Brooks v. Glenn Cnty., No. CV288-146, 1989 U.S. Dist. LEXIS 4776 (S.D. Ga. Apr. 25, 1989). We are not persuaded.
Rule 21 states in relevant part: “On motion or on its own, the court may at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21. “The Federal Rules of Civil Procedure do not define misjoinder, but the cases make clear that misjoinder of parties occurs when [parties] fail to satisfy the conditions for permissive joinder under Fed. R. Civ. P. 20(a).” Glendora v. Malone, 917 F. Supp. 224, 227 (S.D.N.Y. 1996). Rule 20(a) requires that a right to relief be asserted against joined defendants. Therefore, “[a] misjoinder of parties . . . frequently is declared because no relief is demanded from one or more of the parties joined as defendants.” Letherer, 328 F.3d at 267 (quoting 7 Charles Alan Wright et al., Federal Practice and Procedure § 1683, at 475-76 (3d ed. 2001)).
The discretionary language of Rule 21, coupled with our deferential standard of review, presents a high hurdle for reversal of the district court’s determination. Here, because Proposal 2 is unconstitutional and university action is necessary to re-implement affirmative-action policies, we AFFIRM the district court’s denial of the University Defendants’ motion.

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2. Russell’s Dismissal
Intervening defendant Russell, a law student at Wayne State University at the time of oral argument, challenges the district court’s decision to dismiss him from the case because he no longer satisfied the requirements for intervention. We review de novo a district court’s grant of summary judgment. Chen, 580 F.3d at 400. “Summary judgment should be granted when the moving party can ‘show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56(c)). We also review de novo district court decisions on motions to intervene as of right, except for the element of timeliness, which is reviewed for abuse of discretion. Northland Family Planning Clinic v. Cox, 487 F.3d 323, 344 (6th Cir. 2007).
Under Federal Rule of Civil Procedure 24(a), an interested party must meet several requirements before being permitted to intervene as of right: (1) his motion to intervene must be timely; (2) he must have a substantial legal interest in the subject matter of the case; (3) he must demonstrate that his ability to protect that interest will be impaired in the absence of intervention; and (4) he must demonstrate that the parties already before the court do not adequately represent his interest. See Coal. III, 501 F.3d at 779. An intervenor also must continue to meet these requirements throughout the duration of the litigation, as courts must be able to ensure that parties maintain a live interest in a case. Accord Morgan v. McDonough, 726 F.2d 11, 14-15 (1st Cir. 1984) (affirming the dismissal of an intervening party whose legal interest had lapsed because “even if [the party’s original] intervention . . . were of right, . . . it would have gained no absolute entitlement to continue as a party until the termination of the suit”); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 758 A.2d 916, 927 n.15 (Conn. App. Ct. 2000) (“A court also has the authority to dismiss intervenors once their interest in the matter has expired. Federal cases illustrate that intervention as of right does not grant absolute entitlement to continue as a party until termination of the suit.”); see also Fed. R. Civ. P. 24 advisory committee’s note (“An intervention of right . . . may be subject to appropriate conditions or restrictions responsive among other things to the

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requirements of efficient conduct of the proceedings.”); cf. Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955, 963 n.1 (6th Cir. 2009) (declining to consider the defendantintervenors’ arguments regarding plaintiff’s standing because the intervenors’ ability to protect their interests was impaired only at later stages of litigation).
Here, there is no genuine issue of material fact as to whether the Attorney General adequately represents Russell’s interests. While Russell’s burden in showing that “representation of his interest ‘may be’ inadequate” is “minimal,” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972), he still must overcome “the presumption of adequate representation” that arises if he shares “the same ultimate objective as a party to the suit,” United States v. Michigan, 424 F.3d 438, 443-44 (6th Cir. 2005). Although the Attorney General’s and Russell’s interests initially diverged—the Attorney General agreed to a stipulation to delay the application of Proposal 2, whereas Russell had an interest in Proposal 2’s immediate enforcement—their interests are now aligned. Both now share the same ultimate objective: the validation of Proposal 2. The Attorney General has mounted a firm defense of Proposal 2 and succeeded in convincing the district court to grant summary judgment in his favor. See Coal. IV, 539 F. Supp. 2d at 924. As the district court noted, the Attorney General’s and Russell’s summary judgment motions “duplicate each other.” Coal. V, 539 F. Supp. 2d at 971. Thus, we agree with the district court’s conclusion that “Russell’s presence in the litigation is a mere makeweight that adds nothing of substance to the debate over Proposal 2’s constitutionality.” Id. Russell’s intervention in this litigation is therefore no longer proper.
Accordingly, we AFFIRM the district court’s grant of the Cantrell Plaintiffs’ motion for summary judgment regarding Russell. While Russell is hereby dismissed as a party to this case, we nonetheless have considered his filings as we would those of amicus curiae.

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III. CONCLUSION
For the reasons above, we AFFIRM the district court’s decision granting the Cantrell Plaintiffs’ motion for summary judgment as to Eric Russell, AFFIRM the district court’s decision denying the University Defendants’ motion to be dismissed as parties, and, because those provisions of Proposal 2 affecting Michigan’s public colleges and universities are unconstitutional as a matter of law, REVERSE the district court’s decision granting the Defendants-Appellees’ motion for summary judgment and order the court to enter summary judgment in favor of the Plaintiffs-Appellants.

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__________________________________________________________
CONCURRING IN PART AND DISSENTING IN PART __________________________________________________________
JULIA SMITH GIBBONS, Circuit Judge, concurring in part and dissenting in part. I join the majority’s opinion with respect to the procedural issues discussed in part II.B. I disagree, however, with the majority’s conclusion that Proposal 2 is unconstitutional under a political restructuring theory of the Equal Protection Clause. In my view, Proposal 2 does not impermissibly restructure the political process in the state of Michigan to burden the ability of minorities to enact beneficial legislation. Moreover, Proposal 2 is not unconstitutional under traditional equal protection analysis. I therefore respectfully dissent.
I.
In November 2006, the people of Michigan amended the Michigan Constitution to prohibit the state, including its public colleges and universities, from discriminating against or granting 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, and public contracting. Mich. Const. art. I, § 26. A primary purpose and effect of this amendment was to remove the ability of state colleges and universities to employ then-existing race- and gender-preference admissions policies. Accordingly, the plaintiffs challenge the amendment as it relates to the state’s colleges and universities.
Because “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause,” Grutter v. Bollinger, 539 U.S. 306, 327 (2003), it is important to consider the legal backdrop from which the effort to amend the Michigan Constitution unfolded. See Hunter v. Erickson, 393 U.S. 385, 391–92 (1969) (assessing the challenged referendum provision against the relevant legislative and legal background). The race-based admissions polices used by state universities in Michigan are familiar to the courts and the people of Michigan. See Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 240 (6th Cir. 2006). The policies employed by the

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University of Michigan formed the basis of the significant and highly publicized Equal Protection challenges in Grutter and Gratz v. Bollinger, 539 U.S. 244 (2003). And, as noted by the majority, the effort by Ward Connerly and Jennifer Gratz to mobilize for a statewide ballot initiative occurred in direct response to the result in Grutter. Granholm, 473 F.3d at 240.
In Grutter, the Supreme Court concluded that diversity is a compelling state interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. 539 U.S. at 325, 328. Analyzing the highly individualized, holistic approach taken by the University of Michigan Law School, which considered “all pertinent elements of diversity,” id. at 341 (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978) (opinion of Powell, J.)), the Court found that the university had narrowly tailored its approach to the purpose of diversity in higher education. Id. at 333–41. In Grutter’s companion case the Court, however, reaffirmed that the use of racial classifications are a “highly suspect tool,” id. at 326 (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion)), subject to strict scrutiny because “‘[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.’” Gratz, 539 U.S. at 270 (quoting Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J., dissenting)). The Court reiterated that “remedial race-based governmental action generally ‘remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.’” Grutter, 539 U.S. at 341 (quoting Bakke, 438 U.S. at 308 (opinion of Powell, J.)). Finally, the Court was mindful that because “‘[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race’ . . . race-conscious admissions policies must be limited in time.” Id. at 341–42 (quoting Palmore v. Sidoti, 466 U.S. 429, 432 (1984)).
The Court also indicated that the ability to fashion a time limit on the use of raceconscious admissions policies is not a tool placed primarily in the hands of the courts. Rather, it is first and foremost in the hands of states and their public universities. See

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Grutter, 539 U.S. at 342 (“[T]he durational requirement can be met by sunset provisions in race-conscious academic polices and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.”); see also id. (describing state-law prohibitions on the use of racial preferences in admissions in California, Florida, and Washington). Indeed, the Court has repeatedly confirmed that the repeal or modification of race-related polices does not necessarily run afoul of the Equal Protection Clause. See Hunter, 393 U.S. at 390 n.5; Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 483 (1982) (“[T]he simple repeal or modification of desegregation or antidiscrimination laws, without more, has never been viewed as embodying a presumptively invalid racial classification.” (quoting Crawford v. Bd. of Educ., 458 U.S. 527, 539 (1982))). A state or university may conclude, for example, that the use of racial preferences may no longer be necessary to further the interest in diversity, that the burdens associated with those preferences are too heavy, or that the means employed no longer enjoy legitimacy in the eyes of the people. And, as was the case with the California prohibition mentioned by the Court, it follows that a state or its electorate may act to impose a time limit, or end the use of racial preferences outright, when its public universities have not. See Coal. for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).
It is from this legal backdrop that the popular effort to amend the Michigan Constitution to prevent the use of affirmative action in admissions developed. Taking it into account, we must turn to whether Michigan’s repeal of this type of racial classification by constitutional amendment violates the Equal Protection Clause.
II.
As an initial matter, a broad view of plaintiff’s contentions provides context and a bit of common sense about the requirements of the Constitution. Plaintiffs’ argument is that the Equal Protection Clause prohibits Michigan from prohibiting discrimination in admissions to public colleges and universities through the passage of Proposal 2. Calling an admissions practice a preference does not transform the practice into a

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nondiscriminatory one; preferences do indeed permit discrimination. Yet, we know that the Equal Protection Clause prevents “official conduct discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229 (1976).
Grutter and Gratz represent the Supreme Court’s response to a university’s use of racial preferences in admissions and together develop the circumstances under which policies that take race into account may be used. The burden on the university is a difficult one; it may use race as a factor only when there is a compelling interest in doing so and when the use is narrowly tailored. Racial preferences are not favored under the law but must be exactingly justified. No constitutional jurisprudence exists that requires their use. And, as the Supreme Court has told us, “the Equal Protection Clause is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place.” Crawford, 458 U.S. at 538–39.
Within this broad constitutional landscape, plaintiffs contend that passage of Proposal 2 violated the Equal Protection Clause. They base their argument on Hunter and Seattle. These cases, without a doubt, secure racial minorities the right to equal process within the political arena. Seattle, 458 U.S. at 467; Hunter, 393 U.S. at 391. They prohibit a “distortion of the political process,” Crawford, 458 U.S. at 538 n.14, by which a state “disadvantage[s] [a] particular group by making it more difficult to enact legislation in its behalf,” Seattle, 458 U.S. at 476 (quotation marks and citation omitted), by “mak[ing] use of a more complex governmental structure,” id. at 477, or “lodging decisionmaking authority over the question at a new and remote level of government,” id. at 483. But they do not guarantee that racial minorities will win every political battle. Id. at 484 (“If a governmental institution is to be fair, one group cannot always be expected to win . . . .” (quoting Hunter, 393 U.S. at 394 (Harlan, J., concurring))). Nor do they hold that the repeal of those policies is impermissible, although they may be preferred by significant numbers of racial minorities. Rather, Hunter, Seattle, and Crawford outline the constitutional limits on a particular type of political restructuring: the enactment of comparative structural burdens on “the ability of minority groups to achieve beneficial legislation.” Seattle, 458 U.S. at 467. Because these cases do not

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prohibit “every attempt to address a racial issue, ” id. at 485, it is important to consider the limiting bounds of this type of political restructuring challenge.
A.
In reviewing a Hunter political process challenge, we must, of course, consider whether the particular legislation or popular referendum at issue serves to impermissibly “distort” the state’s political processes. Crawford, 458 U.S. at 541. Seattle makes clear that “the voters of the polity may express their displeasure through an established legislative or referendum procedure when particular legislation arouses passionate opposition.” 458 U.S. at 483 (internal quotation marks and citation omitted). The state or its voters, however, may not “make[] the enactment of racially beneficial legislation difficult” by “lodging decisionmaking authority over the question at a new and remote level of government.” Id. And they may “no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than [they] may dilute any person’s vote.” Id. at 476 (quoting Hunter, 393 U.S. at 392–93). Seattle and Hunter therefore protect “the ability of minorities to participate in the process of selfgovernment.” Id. at 480 n.23.
In Hunter, the impermissible political restructuring took the form of a more burdensome extra step in the City of Akron’s legislative process. The people of Akron had amended their city charter by popular referendum to require that any city ordinance regulating real property “on the basis of race, color, religion, national origin, or ancestry” be subject to approval by a mandatory popular referendum, while all other ordinances regulating real estate only required the approval of the City Council. Hunter, 393 U.S. at 387, 390. The Hunter Court concluded that this amounted to an unconstitutional political restructuring because the charter amendment “obviously made it substantially more difficult to secure enactment of ordinances” barring discrimination in real estate. Id. at 390. Indeed, those minority voters supporting property-related anti-discrimination ordinances would not only have to win a legislative battle in the Akron City Council, but they would then have to win a public-referendum battle as well. Id. The default political

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structure entrenched in the mechanisms of a city council, which may allow for particularized and localized electoral pressure on individual council members, was therefore supplemented with the far more diffuse, and potentially onerous, political structure inherent in winning popular approval of a law with a discrete set of immediate beneficiaries.
In Seattle, the voters of the state effectuated a more implicit restructuring of the legislative process. In the 1970s, the locally elected Seattle school board passed and implemented a series of school desegregation programs aimed at alleviating the isolation of minority students caused by segregated housing patterns. Seattle, 458 U.S. at 459–60. In 1977, local opponents of these measures, having previously failed in their attempt to recall School Board members who had voted for desegregation programs, id. at 460 n.1, organized to end Seattle’s use of the programs at the statewide level, id. at 461–62. Their statewide initiative provided that local school boards could not employ mandatory desegregative busing except possibly when required as part of a judicial decree. Id. at 462–63. In enacting this initiative, the people of Washington thus moved the locus of political authority over this particular issue from the local to the statewide level, “requir[ing] those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action.” Id. at 474.
In both cases where the Court found an impermissible political restructuring, the relevant lawmaking authority was reallocated from a local legislative body to the “more complex government structure,” id. at 477, of the city- or state-wide general electorate,1 thereby placing a “comparative structural burden . . . on the political achievement of minority interests,” id. at 475 n.17. A key consideration in analyzing a Hunter political structure challenge, therefore, is whether the challenged law impacts the ability of minorities to secure “legislation that is their interest” as minorities. Id. at 474; see also id. at 475 n.17 (“Thus, in Hunter, the procedures for enacting racial legislation were modified in a such a way as to place effective control in the hands of the citywide
1In Seattle, Initiative 350 could also have been repealed by the state legislature after a period of two years. See 458 U.S. at 463 n.4.

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electorate. Similarly here [in Seattle], the power to enact racial legislation has been reallocated.”). Given the structural considerations inherent in this type of Equal Protection challenge, it is important to fully examine the particular political structures at work in this case to determine whether the people of Michigan have restructured the state’s lawmaking process in the manner prohibited by Hunter and Seattle.
i.
“The Michigan Constitution confers a unique constitutional status on [its] public universities and their governing boards.” Federated Publ’ns, Inc. v. Bd. of Trustees of Mich. State Univ., 594 N.W.2d 491, 495–96 (Mich. 1999) (citing Mich. Const. art. VIII, §§ 5 and 6). The status of these boards has been described by the Michigan Supreme Court as “the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its functions, is coordinate with and equal to that of the legislature.” Id. at 496 n.8 (quoting Bd. of Regents of the Univ. of Mich. v. Auditor Gen., 132 N.W. 1037, 1039 (Mich. 1911)). Each governing board is vested with the power of “general supervision of its institutions and the control and direction of all expenditures from the institution’s funds.”2 Mich. Const. art. VIII, § 5. With this power comes significant independence, as the state constitution “limit[s] the Legislature’s power” over the universities such that it “may not interfere with the management and control of” the universities. Federated Publ’ns, 594 N.W.2d at 497 (quotation marks and citation omitted). Therefore, the “constitutional autonomy of these institutions is plenary as to its educational programs, but does not insulate them from the health and safety laws of the state.” 1979-1980 Mich. Op. Att’y Gen. 578, 1980 WL 114008 (1980); see also Federated Publ’ns, 594 N.W.2d at 497.
2The Michigan Constitution divides its state public universities into two categories. The first category, detailed in Mich. Const. art. VIII, § 5, consists of the University of Michigan, Michigan State University, and Wayne State University. The second category includes “other institutions of higher education established by law having authority to grant baccalaureate degrees.” Mich. Const. art. VIII, § 6. This category includes, for example, Eastern Michigan University, Central Michigan University, and Grand Valley State University. See Mich. Const. art. VIII, § 4 (listing universities for which the state legislature shall appropriate moneys). Because the Plaintiffs focus on the universities described in section five, and because it is unclear from the record whether the universities described in section six employ race-conscious admissions policies, the following discussion will primarily pertain to the University of Michigan, Michigan State University, and Wayne State University.

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The constitution provides for eight-member governing boards, elected to statewide office for eight-year terms.3 Mich. Const. art. VIII, § 5. Elections are typically staggered, with, for example, an election every two years for regents of the University of Michigan. See About the Board of Regents, http://www.regents.umich.edu/about/ (last visited May 4, 2011); MSU Board of Trustees, http://www.trustees.msu.edu/about/establishment.html (last visited May 4, 2011); About the Board of Governors, http://bog.wayne.edu/about.php (last visited May 4, 2011).
As a preliminary matter, the majority suggests that our examination of the pertinent political structures must end with the Michigan Constitution. The majority opinion concludes that we may not rely on the testimony of university officials because the structure of the colleges and universities is a “question of law, for it is set by constitution, statutes and regulations.” (Maj. Op. at 22.) Here, the nature of the decision-making process for admissions is one of both law and fact, and the witnesses gave instructive testimony that was within their personal knowledge.4 Examination of the record is appropriate to ascertain how the decisions at issue are in fact made.
Although these universities and their respective boards are created by the Michigan Constitution, the admissions policies are placed within the control of the boards or school authorities only within each board’s bylaws. See University of Michigan Board of Regents, Bylaws Chapter VIII: Admission and Registration of Students, http://www.regents.umich.edu/bylaws/bylaws08.html (last visited May 4, 2011) (vesting responsibility for the admission of students in the associate vice provost and executive director of undergraduate admissions at the Ann Arbor campus, in the director of admissions and orientation at the Dearborn campus, and in the director of
3By contrast, the governing boards of the other state universities are appointed by the governor by and with the advice and consent of the state senate. Mich. Const. art. VIII, § 6.
4Oddly, the majority characterizes this testimony as opinion testimony inadmissible under Federal Rule of Evidence 701. To the extent the witnesses offered opinions, which were hardly the thrust of their testimony, their lay opinions were perfectly admissible. Any opinions were rationally based on the witnesses’ perceptions, helpful to an understanding of the testimony or a fact in issue, and not based on the specialized knowledge of experts.

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undergraduate admissions at the Flint campus); Michigan State University Board of Trustees, Bylaws, http://www.trustees.msu.edu/bylaws/#article8 (last visited May 4, 2011) (“The [MSU] Board encourages and supports the faculty in the development of educational and other programs . . . . Upon the recommendation of the President the Board may determine and establish the qualifications of students for admission at any level . . . .”); Wayne State University Board of Governors, Statutes, http://bog.wayne.edu/code/2_34_09.php (last visited May 4, 2011) (“After consultation with the College or School, the [Board-elected] President or his/her designee is authorized to establish specific admissions standards for degree programs.”). Thus, the admissions policies are not set forth by the state constitution, and it is necessary to look to testimony to determine where the power to set admissions policy lies.
The governing boards have fully delegated the responsibility for establishing admissions standards to several program-specific administrative units within each institution, which set admissions criteria through informal processes that can include a faculty vote. (DE 172, Pls.’ Russ. Mot., Ex. I (Univ. Defs.’ Resp.) Nos. 4, 7; DE 203, Pls.’ SJ Mot., Ex. E. (Zearfoss Dep.) at 64, 213–14, Ex. F. (Wu Dep.) at 190–91.) For example, as noted by the majority, the University of Michigan Law School admissions policy is set exclusively by the law school faculty admissions committee, with major substantive changes occasionally voted upon by the entire law school faculty. (Maj. Op. at 25 (referring to the admissions committees as “the individuals delegated with principle responsibility for admissions policy”); Zearfoss Dep. at 213.) Similarly, as described by its former dean, at the Wayne State University Law School the ultimate decision whether to change admissions standards rests with the faculty alone. (Wu Dep. at 190–91.) Thus, as the Cantrell Plaintiffs readily admit, the “faculty are the primary architects of all the admissions criteria and protocols.” (Reply Br. at 20 n.11.)
At neither university, however, is there a system in place to review or alter admissions policies at a level above a vote of the faculty. Sarah Zearfoss, the dean of admissions at the University of Michigan Law School, testified that no one could change the school’s admissions policy other than the faculty admissions committee or the faculty

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itself, because “there’s no higher body” to which someone unhappy with an admissions policy could advocate change. (Zearfoss Dep. at 214.) And Frank Wu, then the dean at Wayne State University Law School, agreed that “only the faculty at the law school has the authority to create and approve the admissions policy” at the school. (Wu Dep. at 191.) Indeed, Wu testified that the admissions policy is not subject to the approval of the Wayne State University Board of Governors, and, in his view, if the Board of Governors attempted to alter the decision of the law school’s faculty with respect to criteria for admission, “it would precipitate a constitutional crisis.” (Wu Dep. at 192.) Each institution’s board may superficially have “plenary authority” over its respective institution (see Maj. Op. at 21), but the ultimate authority to set admissions policy rests exclusively with each program-specific faculty within the universities.
ii.
The majority characterizes the dissent as reading Hunter and Seattle too narrowly by defining the political processes with which they deal as “electoral” processes. While the political processes in Hunter and Seattle are electoral in the sense that they relate to what electoral methods are employed to make policy, the majority opinion, not the dissent, draws the line between political and electoral. The point is simply that the situation here differs greatly from that of Hunter and Seattle in the ways described in this opinion; these program-specific faculty admissions committees are far afield from the legislative bodies from which lawmaking authority was removed in Hunter and Seattle. The most crucial and overarching difference, of course, is that the faculty admissions committees and individual faculty members are not politically accountable to the people of Michigan.
In Seattle, the court emphasized that the type of action it found objectionable was the creation of comparative burdens “on minority participation in the political process.” 458 U.S. at 480 n.23; see id. at 486 (“[M]inorities are no less powerless with the vote than without it when a racial criterion is used to assign governmental power in such a way as to exclude particular racial groups ‘from effective participation in the political

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proces[s].’” (quoting Mobile v. Bolden, 446 U.S. 55, 94 (1980) (White, J., dissenting))). The Seattle majority, however, did not view state university admissions committees as a part of the “political process” in the manner of an elected school board or city council. A dialogue between the majority and dissent in Seattle is particularly instructive on this point. In dissent, Justice Powell, critiquing the potential breadth of the majority’s holding, argued:
Thus, if the admissions committee of a state law school developed an affirmative-action plan that came under fire, the Court apparently would find it unconstitutional for any higher authority to intervene unless that authority traditionally dictated admissions policies. As a constitutional matter, the dean of the law school, the faculty of the university as a whole, the university president, the chancellor of the university, and the board of regents might be powerless to intervene despite their greater authority under state law.
Id. at 498 n.14 (Powell, J., dissenting). The majority, however, flatly dismissed this concern as a misunderstanding of the court’s decision: “It is evident, then, that the horribles paraded by the dissent, post, at [footnote 14 of the dissent]—which have nothing to do with the ability of minorities to participate in the process of selfgovernment—are entirely unrelated to this case.” Id. at 480 n.23 (emphasis added).
For the Seattle majority, then, an impermissible reordering of the political process meant a reordering of the processes through which the people exercise their right to govern themselves. See id. at 486 (“And when the State’s allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the ‘special condition’ of prejudice, the governmental action seriously ‘curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities’ . . . from the ‘majoritarian political process.’” (emphasis added) (citing United States v. Carolene Prods. Co. 304 U.S. 144, 153 n.4 (1938) and San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 28 (1973))); id. at 467 (“But the Fourteenth Amendment also reaches a “political structure that treats all individuals as equals . . . yet more subtly distorts governmental processes in such a way as to place special burdens

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on the ability of minority groups to achieve beneficial legislation.” (emphasis added) (quoting Bolden, 446 U.S. at 84)).
The evidence reveals that the academic processes at work in state university admissions in Michigan are not “political processes” in the manner contemplated in Seattle. Unlike the Seattle School Board and the Akron City Council, the various university admissions committees in Michigan and their faculty members are unelected. As at most public universities, tenured faculty members have significant vested rights associated with their employment in order to preserve academic freedom and independence. The faculty members who are permitted to vote on policy matters are therefore significantly insulated from political pressure by virtue of their tenure. Such faculty are beholden to no constituency—student, local, or otherwise. And, as demonstrated by the testimony of the law school deans in this case, the people of Michigan have no ability to exert electoral pressure on the university decision makers to change their admissions polices. As they currently stand, the faculty admissions committees are islands unto themselves, vested with the full and unreviewed authority to set admissions policy for their respective university programs.
The majority opinion discounts the differences between facts here and those of Hunter and Seattle by arguing that processes are considered “political” as long as there is “governmental decisionmaking.” In this argument it relies on Nyquist v. Lee, 318 F. Supp. 710 (W.D.N.Y. 1970), aff’d Nyquist v. Lee, 402 U.S. 935 (1971), a case from the Western District of New York that was summarily affirmed by the Supreme Court and cited in Seattle. In Nyquist, the court found that a New York statute that “prohibit[ed] state education officials and appointed school boards from assigning students, or establishing, reorganizing or maintaining school districts, school zones or attendance units for the purpose of achieving racial equality in attendance” unconstitutionally reordered the political process in violation of the Equal Protection Clause. Nyquist, 318 F. Supp. at 712, 720. The majority suggests that because appointed school boards were part of the political process at issue in Nyquist, the university faculty admissions committees are similarly part of the political process. (Maj. Op. at 20.) The decision in

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Nyquist, however, made note of how the local boards were accountable to the community: “Parties considering themselves aggrieved by local board actions may seek to have the Commissioner enforce those policies. [The New York statute], however, singles out for different treatment all plans which have as their purpose the assignment of students in order to alleviate racial imbalance.” Id. at 719 (internal citations omitted). Thus, even the appointed school boards were accountable to the community in a way in which the faculty admissions committees certainly are not. Again, the point is not selecting a label for the processes, but examining the factual similarities or dissimilarities of the situations.
There is no “local” university constituency as there is a local constituency for a city council or city school board, i.e., the city’s voters. Rather, despite there being a broad student, faculty, and staff community associated with each university, Michigan’s state universities were established as state-wide institutions with a state-wide constituency.5 The faculty admissions committees therefore do not “represent” any local constituency at all. This is particularly important because the Seattle majority looked closely at the fact that Washington’s lodging of political decisionmaking authority over the busing question at the statewide level directly burdened minority interests by “making the enactment of racially beneficial legislation difficult, [because] the particular program might not have inspired opposition had it been promulgated through the usual [local] legislative processes used for comparable legislation.” 458 U.S. at 483–84. The court continued:
That phenomenon is graphically demonstrated by the circumstances of this litigation. The longstanding desegregation programs in Pasco and Tacoma, as well as the Seattle middle school integration plan, have functioned for years without creating undue controversy. Yet they have been swept away, along with the Seattle Plan, by Initiative 350. As a practical matter, it seems most unlikely that proponents of desegregative busing in small communities such as Tacoma or Pasco will be able to

5Indeed, some students, prospective students, alumni, and faculty members at each university are not members of that state-wide constituency, comprised of citizens and voters of the state of Michigan.

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obtain the statewide support now needed to permit them to desegregate the schools in their communities.
Id. at 484 n.27. The availability of “local” decisionmaking is therefore important when the political power of groups who could succeed at the local level is “diluted” in the statewide decisionmaking process. The universities here, however, are statewide institutions with a statewide constituency. There is nothing local about them.
The committees are also hardly the model of accessibility and locus of effective lobbying assumed by the majority. While members of the public may attend faculty meetings at which admissions standards are reviewed, there is no mechanism by which a member of the public—student or not—can move the committees to amend the admissions standards. (Wu Dep. at 190; Zearfoss Dep. at 209.) And, while interested students and members of the public are, with advance notice, permitted to speak at faculty meetings to comment on the admissions policies, the committees are not required to consider these comments seriously, issue written findings addressing these concerns, or do more than provide a forum for interested individuals to speak. (Zearfoss Dep. at 209–10; Wu Dep. at 190.) Rather, it appears that the main source of divergent views on admissions policies is the faculty members themselves. (Zearfoss Dep. at 210.)
While the majority appears to see no reason to distinguish between these unelected and unresponsive program-specific faculty admissions committees and the legislative bodies from which lawmaking authority was removed in Hunter and Seattle, a consideration of political accountability in the political process is squarely grounded in the Seattle opinion. In Seattle, the Court undertook a close examination of Washington’s system of “establish[ing] the local school board, rather than the State, as the entity charged with making decisions of the type at issue,” 458 U.S. at 477:
But Washington has chosen to meet its educational responsibilities primarily through “state and local officials, boards, and committees,” and the responsibility to devise and tailor educational programs to suit local needs has emphatically been vested in the local school boards. . . . Thus “each common school district board of directors” is made “accountable for the proper operation of [its] district to the local community and its

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electorate.” To this end, each school board is “vested with the final responsibility for the setting of policies ensuring quality in the content and the extent of its educational program.”
Id. at 478 (citations omitted) (emphasis added); see also id. (noting the “disclosure and reporting provisions specifically designed to ensure the board’s ‘accountability’ to the people of the community” (emphasis added)). It was only upon its consideration of the state statutory structure’s vesting of decisionmaking in local and politically accountable school boards that the Court could conclude that “placing power over desgregative busing at the state level . . . restructured the Washington political process.” Id. at 480.
Taking this into account, it is difficult to conclude that, in amending their state constitution to prohibit the use of racial preferences in university admissions, the people of Michigan modified “the community’s political mechanisms . . . to place effective decisionmaking authority over a racial issue at another level of government.” Id. at 474 (emphasis added). Michigan has not “‘burden[d] all future attempts’ to implement raceconscious admissions policies” “‘by lodging decisionmaking authority over the question at a new and remote level of government.’” (Maj. Op. at 28 (quoting Seattle, 458 U.S. at 483).) Having no direct or indirect influence on the bodies vested with authority to set admissions standards—the faculty committees—the people of Michigan made a political change at the only level of government actually available to them as voters. The Michigan electorate, therefore, as opposed to choosing a more complex structure for lawmaking, employed the one method available to exert electoral pressure on the mechanisms of government.
The lack of a viable electoral mechanism to change university admissions policies at a sub-constitutional level also means that the voters’ use of a constitutional amendment in this instance also does not serve to create “comparative structural burden[s] on the political achievement of minority interests.” Seattle, 458 U.S. at 474 n.17. If, as is the evidence before this court, the voters cannot exert electoral pressure on the fully independent faculty committees, then all voters regardless of racial identity compete on the same level for the political achievement of their higher-education

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interests: the constitutional level. That some academic decisionmaking remains at the faculty-committee level after the implementation of Proposal 2 is of no moment, because that decisionmaking is affirmatively not part of the state’s electoral political process. The same policies that fully insulate faculty members from political opprobrium in their academic pursuits also protect them from political influence on their admissions policymaking. Michigan has chosen to structure its university system such that politics plays no part in university admissions at all levels within its constitutionally created universities. The Michigan voters have therefore not restructured the political process in their state by amending their state constitution; they have merely employed it.6
III.
If Proposal 2 does not effectuate an invalid restructuring of Michigan’s political process, it is not necessary to reach broader questions relating to the substantive reach of the political restructuring doctrine. But again returning to the broader context, it is useful to highlight the tension between the doctrine and recent decisional law on the constitutionality of racial preferences.
Several courts have grappled with the question of whether racial preferences, those policies “potentially so dangerous” that they must be subject to strict scrutiny and “limited in time,” Grutter, 539 U.S. at 342, may be eliminated when the people of a state amend their constitution to do away with all classifications based on race. The core

6Even if—contrary to the evidence before the court—the people of Michigan could exercise effective electoral control over the board of governors at each respective state institution such that they could repeal the use of racial preferences, it is not clear that a choice to make use of a constitutional amendment in that instance would amount to the creation of a comparative political burden on the achievement of minority interests. Indeed, it would make use of neither a more complex or onerous structure of government nor remove the locus of political power from the local to statewide level. Seattle, 458 U.S. at 477, 480. Given the eight-year terms and staggered elections for board members, and the fact that electoral change must happen at the governing board of each individual state university, the process of effectuating political change through the board of governors appears to be arguably a more complex process than the comparative burden of a statewide referendum. And both types of elections—the board member elections and the constitutional referendum—occur at the statewide level with an electorate composed of the at-large statewide voting pool. There are therefore no inherent structural benefits or protections for minority voters in one system over the other. As opposed to the multi-district Akron city council in Hunter, for example, there is no mechanism by which minority voters could exercise bloc or regional voting in the board of governors system in a way that they could not in the state’s constitutional referendum process. The use of the constitutional amendment mechanism, therefore, would not work to create a comparative political burden of the kind found in Hunter and Seattle.

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constitutional question in each of these decisions is clear: should a race-based classification that is presumptively invalid, but permissible under limited circumstances and for a finite period of time, receive the same structural protections against statewide popular repeal as other laws that inure to the interest of minorities?
The Ninth Circuit in Wilson answered in the negative, concluding that California’s Proposition 209 did not violate equal protection because “[i]mpediments to preferential treatment do not deny equal protection.” 122 F.3d at 708. The court relied on an essential constitutional principle: “While the Constitution protects against obstructions to equal treatment, it erects obstructions to preferential treatment by its own terms. . . . The Equal Protection Clause, parked at our most ‘distant and remote’ level of government, singles out racial preferences for severe political burdens—it prohibits them in all but the most compelling circumstances.” Id. The California Supreme Court recently agreed with this conclusion, holding that “Seattle cannot fairly be read as holding that the political structure doctrine protects presumptively unconstitutional racial preferences, as opposed to programs intended to bring about immediate equal treatment.” Coral Constr., Inc. v. San Francisco, 235 P.3d 947, 960 (Cal. 2010). This logic has been further cemented by the Northern District of California, reinforcing the holding in Wilson in light of Grutter. In Coalition to Defend Affirmative Action, Integration and Immigrant Rights v. Schwarzenneger, No. 10-641 SC, 2010 WL 5094278 (N.D. Cal. Dec. 8, 2010), the federal district court stated, “Grutter does not hold that the Constitution requires the use of race in student admission decision; rather, it holds that the Constitution tolerates the use of race as one of many admission factors.” Id. at *6. The court went on to note, “Grutter held that racial preferences, while not presumptively unconstitutional, must be limited in time. In so holding, the Supreme Court cited the ‘race neutral alternatives’ to racial preferences used by ‘[universities], where racial preferences are prohibited by state law.’” Id. (citing Grutter, 539 U.S. at 342) (internal citations omitted).

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These cases take the same approach as the district court in this case,7 and their teaching is that equal treatment is the baseline rule embodied in the Equal Protection Clause, from which racial-preference programs are a departure. We therefore must review them with utmost care. Governing precedent is clear on this point: “‘A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race,’” Grutter, 539 U.S. at 341–42 (quoting Palmore, 466 U.S. at 432), and “all governmental use of race must have a logical end point,” id. at 342. Because racial preference programs are exceptional, it is not altogether clear that the political structure doctrine would invalidate Proposal 2 even if it worked a restructuring of the political process in Michigan. See Coral, 235 P.3d at 966 (Corrigan, J., concurring) (noting that the United States Supreme Court has “approvingly referred to [California’s Proposition 209] as a step in [the] direction” of ending the “governmental use of race” (citing Grutter, 538 U.S. at 342)). However, because Proposal 2 itself works no improper political restructuring under the circumstances before us, we need not address that issue today.
IV.
It should also be noted that Proposal 2 is constitutional under a traditional equal protection analysis. Because the majority’s holding turns on the political restructuring analysis, it declines to address this issue.
“The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229, 239 (1976). We apply strict scrutiny to those laws that racially classify individuals, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995), and intermediate scrutiny to those laws that classify individuals based on gender, United States v. Virginia, 518 U.S. 515, 531 (1996). Racial classifications are subject to strict scrutiny if (1) the law classifies on its face or (2) the law has a discriminatory
7“[A]ffirmative action programs not mandated by the obligation to cure past discrimination are fundamentally different than laws intended to protect against discrimination.” Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich., 539 F. Supp. 2d 924, 957 (E.D. Mich. 2008).

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impact and a discriminatory purpose. See Davis, 426 U.S. at 241. The district court concluded that Proposal 2, which prohibits racial classifications, a fortiori does not classify facially on the basis of race. Coal. to Defend Affirmative Action, 539 F. Supp. 2d at 951. Although the district court did find “sufficient evidence to establish a fact question on the disparate impact part of the test,” it did not find a discriminatory purpose. Id. Indeed, it stated that “the demonstration of a discriminatory purpose . . . dooms [the] conventional equal protection argument.” Id. Furthermore, the district court found the equal protection argument based on gender “even less compelling” due to the less exacting level of scrutiny. Id. at 952. I agree with the conclusions of the district court.
Proposal 2 does not establish a facial racial classification because its text does not draw distinctions on the basis of race; in fact, it prohibits them. Additionally, Proposal 2 does not classify racially on an impact theory because it lacks a discriminatory purpose. “[A]bsent a referendum that facially discriminates racially, or one where although facially neutral, the only possible rationale is racially motivated, a district court cannot inquire into the electorate’s motivations in an equal protection clause context.” Arthur v. Toledo, 782 F.2d 565, 574 (6th Cir. 1986). Thus, no heightened level of scrutiny need be applied to Proposal 2, and under rational basis review, Proposal 2 is easily justifiable. Proposal 2 does not violate the Equal Protection Clause under the conventional analysis.
V.
For the foregoing reasons, I would conclude that Proposal 2 does not violate the Equal Protection Clause of the United States Constitution under either a political restructuring theory or traditional theory of Equal Protection. Accordingly, I would affirm the judgment of the district court.

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FILED

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 08-1387/1389/1534; 09-1111

Jul 01, 2011
LEONARD GREEN, Clerk

Nos. 08-1387/1534 COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,
Plaintiffs-Appellants (08-1387)/Cross-Appellees, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,
Defendants-Appellees/Cross-Appellants (08-1534), MICHAEL COX, Michigan Attorney General,
Intervenor-Defendant-Appellee.

No. 08-1389 COALITION TO DEFEND AFFIRMATION ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,
Plaintiffs, CHASE CANTRELL, et al.,
Plaintiffs-Appellees, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,
Defendants, ERIC RUSSELL,
Intervenor-Defendant-Appellant, JENNIFER GRATZ,
Proposed Intervenor-Appellant.

No. 09-1111 COALITION TO DEFEND AFFIRMATION ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,
Plaintiffs, CHASE CANTRELL, et al.,
Plaintiffs-Appellants, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,
Defendants, MICHAEL COX, Michigan Attorney General,
Intervenor-Defendant-Appellee.

Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

THIS CAUSE was heard on the record from the district court and was argued by counsel. IN CONSIDERATION WHEREOF, it is ORDERED that the decision of the district court is AFFIRMED IN PART. IT IS FURTHER ORDERED that the district court’s grant of summary judgment for the Defendants-Appellees is REVERSED and this court orders the district court to enter summary judgment in favor of the Plaintiffs-Appellants.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

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Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Filed: July 01, 2011

Tel. (513) 564-7000 www.ca6.uscourts.gov

Ms. Sharon Louise Browne Pacific Legal Foundation 3900 Lennane Drive Suite 200 Sacramento, CA 95834-0000
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Mr. Mark P. Fancher ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
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Mr. Daniel M. Levy Michigan Department of Civil Rights 3054 W. Grand Boulevard

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Mr. Alan K. Palmer Kaye Scholer 901 Fifteenth Street, N.W. Suite 1100 McPherson Building Washington, DC 20005
Mr. Jesse M. Panuccio Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036
Mr. Joseph E. Potchen Public Employment Elections & Tort Division P.O. Box 30736 Lansing, MI 48909-0000
Mr. Mark D. Rosenbaum ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017

2:0C6a-csve-:10586-3173-8D9ML-SDDocPumDeonct: #0026010110F0il2e5d6037/01F/1ile1d: P0g7/6031/o2f06141 PPgaIgDe:53034 (63 of 64)

Mr. Michael E. Rosman Center for Individual Rights 1233 20th Street, N.W. Suite 300 Washington, DC 20036-0000

Mr. Michael Jay Steinberg ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201

Mr. John David Taliaferro Kaye Scholer 901 Fifteenth Street, N.W. Suite 1100 McPherson Building Washington, DC 20005

Mr. David H. Thompson Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036

Mr. Laurence H. Tribe 1575 Massachusetts Avenue Suite 420 Hauser Hall Cambridge, MA 02138-0000

Mr. George Boyer Washington Scheff, Washington & Driver 645 Griswold Suite 1817 Detroit, MI 48226-0000

Re:

Case No. 08-1389/09-1111, Coalition to Defend Affirmativ, et al v. Regents of the University of M, et al

Originating Case No. : 06-15024 : 06-15637

Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

Yours very truly,

2:0C6a-csve-:10586-3173-8D9ML-SDDocPumDeonct: #0026010110F0il2e5d6037/01F/1ile1d: P0g7/6041/o2f06141 PPgaIgDe:54035 (64 of 64)

Enclosures Mandate to issue.

Leonard Green, Clerk
Linda K. Martin Deputy Clerk

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0386p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

Nos. 08-1387/1534

;

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT

  

RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,

>

Plaintiffs-Appellants (08-1387)/Cross- 

Appellees, 

v.

 

REGENTS OF THE UNIVERSITY OF MICHIGAN, 

BOARD OF TRUSTEES OF MICHIGAN STATE



UNIVERSITY; BOARD OF GOVERNORS OF



WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K.

  

SIMON,



Defendants-Appellees/Cross-Appellants (08- 

1534), BILL SCHUETTE, Michigan Attorney General,

  

Intervenor-Defendant-Appellee. 



No. 08-1389 COALITION TO DEFEND AFFIRMATIVE

  

ACTION, INTEGRATION AND IMMIGRANT



RIGHTS AND FIGHT FOR EQUALITY BY ANY



MEANS NECESSARY (BAMN), et al., Plaintiffs,

  

CHASE CANTRELL, et al.,



Plaintiffs-Appellees, 

v.



REGENTS OF THE UNIVERSITY OF MICHIGAN,

 

BOARD OF TRUSTEES OF MICHIGAN STATE



UNIVERSITY; BOARD OF GOVERNORS OF



WAYNE STATE UNIVERSITY; MARY SUE



COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,

  

Defendants, 

ERIC RUSSELL,



Intervenor-Defendant-Appellant, JENNIFER GRATZ,

  

Proposed Intervenor-Appellant. 



Nos. 08-1387/1389/1534; 09-1111

1

Nos. 08-1387/1389/1534; Coal. to Defend Affirmative Action, et al. v.

09-1111

Regents of the Univ. of Mich., et al.

Page 2

No. 09-1111



COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT

  

RIGHTS AND FIGHT FOR EQUALITY BY ANY



MEANS NECESSARY (BAMN), et al.,



Plaintiffs, 

CHASE CANTRELL, et al.,

 

Plaintiffs-Appellants, 

v.



REGENTS OF THE UNIVERSITY OF MICHIGAN, 

BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF

  

WAYNE STATE UNIVERSITY; MARY SUE



COLEMAN; IRVIN D. REID; LOU ANNA K.



SIMON,



Defendants,

 

BILL SCHUETTE, Michigan Attorney General, 

Intervenor-Defendant-Appellee. 



1

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-15024—David M. Lawson, District Judge.

Argued: March 7, 2012

Decided and Filed: November 15, 2012

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, DAUGHTREY, MOORE, COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN,
WHITE, STRANCH, and DONALD, Circuit Judges.*

COLE, J., delivered the opinion of court in which MARTIN, DAUGHTREY, MOORE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined; and BATCHELDER, C. J., and GIBBONS, ROGERS, SUTTON, COOK, and GRIFFIN, JJ., joined in Part II.B and C. BOGGS, J. (pp. 37–40), delivered a separate dissenting opinion, in which BATCHELDER, C. J., joined. GIBBONS (pp. 41–57), delivered a separate dissenting opinion, in which BATCHELDER, C. J., and ROGERS, SUTTON, and COOK, JJ., joined, and GRIFFIN, J., joined with the exception of Part III. ROGERS (pg. 58) delivered a separate dissenting opinion, in which COOK, J., joined. SUTTON (pp. 59–69), delivered a separate dissenting opinion in which BATCHELDER, C. J., and

*The Honorable David W. McKeague and the Honorable Raymond M. Kethledge, Circuit Judges, did not participate in deciding this case.

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BOGGS and COOK, JJ., joined. GRIFFIN, J. (pp. 70–74), delivered a separate dissenting opinion.
_________________
COUNSEL
ARGUED: George Boyer Washington, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, for Appellant/Cross-Appellee in 08-1387/1534. John J. Bursch, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee in 08-1387/1534. Leonard M. Niehoff, LEN NIEHOFF & ASSOCIATES, Chelsea, Michigan, Stephanie R. Setterington, VARNUM LLP, Grand Rapids, Michigan for Appellees/Cross-Appellants in 08-1387/1534. Charles J. Cooper, COOPER & KIRK, PLLC, Washington, D.C., for Appellant in 08-1389. Mark D. Rosenbaum, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, Los Angeles, California, George Boyer Washington, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, for Appellees in 08-1389. Mark D. Rosenbaum, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, Los Angeles, California, for Appellant in 09-1111. John J. Bursch, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee in 09-1111. ON BRIEF: George Boyer Washington, Shanta Driver, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, Winifred Kao, ASIAN LAW CAUCUS, San Francisco, California, for the Coalition Plaintiffs. Mark D. Rosenbaum, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, Los Angeles, California, Karin A. DeMasi, CRAVATH, SWAINE & MOORE LLP, New York, New York, for Cantrell Plaintiffs. Michael E. Rosman, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., Charles J. Cooper, David H. Thompson, COOPER & KIRK, PLLC, Washington, D.C., for Appellant in 08-1389. Leonard M. Niehoff, HONIGMAN MILLER SCHWARTZ & COHN, LLP, Ann Arbor, Michigan, for the Universities Defendants. John J. Bursch, Margaret A. Nelson, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Defendant Attorney General. Stephanie R. Setterington, VARNUM LLP, Grand Rapids, Michigan, for Defendants Wayne State University and Irvin Reid. Wilson R. Huhn, THE UNIVERSITY OF AKRON SCHOOL OF LAW, Akron, Ohio, Kenneth C. Yeager, DROCIAK, YEAGER & ASSOCIATES, Los Angeles, California, Daniel M. Levy, MICHIGAN DEPARTMENT OF CIVIL RIGHTS, Detroit, Michigan, Eugene Driker, BARRIS, SOTT, DENN, DRIKER, P.L.L.C., Detroit, Michigan, Catherine M. Mish, Kristen Rewa, CITY OF GRAND RAPIDS, CITY ATTORNEY’S OFFICE, Grand Rapids, Michigan, Doyle O’Connor, Detroit, Michigan, Allison S. Elgart, EQUAL JUSTICE SOCIETY, San Francisco, California, G. Scott Emblidge, MOSCONE EMBLIDGE & SATER LLP, San Francisco, California, Derek T. Ho, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., Barry Levenstam, JENNER & BLOCK LLP, Chicago, Illinois, Michael Francis Smith, THE SMITH APPELLATE LAW FIRM, Washington, D.C., Sharon L. Browne, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amici Curiae.

Nos. 08-1387/1389/1534; Coal. to Defend Affirmative Action, et al. v.

09-1111

Regents of the Univ. of Mich., et al.

_________________
OPINION _________________

Page 4

COLE, Circuit Judge. A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change. We therefore REVERSE the judgment of the district court on this issue and find Proposal 2 unconstitutional. We AFFIRM the denial of the University Defendants’ motion to be dismissed as parties, and we AFFIRM the grant of the Cantrell Plaintiffs’ motion for summary judgment as to Russell.
I.
A. Factual Background
These appeals are before us as an epilogue to the long-running battle over the use of race-conscious admissions policies at Michigan’s public colleges and universities. The saga began during the 1960s and 1970s, when racial minorities first successfully lobbied for the adoption of such policies. They remained largely in place until challenges in the late 1990s culminated in the Supreme Court’s decisions in Gratz v. Bollinger, 539 U.S. 244 (2003), and Grutter v. Bollinger, 539 U.S. 306 (2003), which

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held that “universities cannot establish quotas for members of certain racial groups” or treat their applications uniquely. Grutter, 539 U.S. at 334. But the Court allowed universities to continue “consider[ing] race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration,” along with other relevant factors, id., a holding we do not today address or upset.
Following these decisions, Ward Connerly, a former University of California Regent who had championed a similar proposition in California, and Jennifer Gratz, the lead plaintiff in Gratz, mobilized to place on Michigan’s November 2006 statewide ballot a proposal to amend the Michigan Constitution “to prohibit all sex- and race-based preferences in public education, public employment, and public contracting . . . .” Operation King’s Dream v. Connerly, 501 F.3d 584, 586 (6th Cir. 2007). The initiative—officially designated Proposal 06-2 but commonly known as “Proposal 2”—sought “to amend the State Constitution to ban affirmative action programs.” See Notice of State Proposals for November 7, 2006 General Election, http://www.michigan.gov/documents/sos/ED-138_State_Prop_11-06_174276_7.pdf, at 5 (last visited May 22, 2012). Though Proposal 2 “found its way on the ballot through methods that undermine[d] the integrity and fairness of our democratic processes,” Operation King’s Dream, 501 F.3d at 591, once there, it garnered enough support among Michigan voters to pass by a margin of 58% to 42%.
Proposal 2 amended the Michigan Constitution to include the following provisions, entitled “Affirmative action,” in Article I:
(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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.
(2) The state shall 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.

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(3) For the purposes of this section “state” includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.
Mich. Const. art. I, § 26. Proposal 2 took effect in December 2006 and wrought two significant changes to the admissions policies at Michigan’s public colleges and universities. First, it eliminated the consideration of “race, sex, color, ethnicity, or national origin” in individualized admissions decisions, modifying policies in place for nearly a half-century. No other admissions criterion—for example, grades, athletic ability, geographic diversity, or family alumni connections—suffered the same fate. Second, Proposal 2 entrenched this prohibition at the state constitutional level, thus preventing public colleges and universities or their boards from revisiting this issue—and only this issue—without repeal or modification of article I, section 26 of the Michigan Constitution.
B. Procedural History
The litigation surrounding Proposal 2 has been lengthy and complex. On November 8, 2006, the day after Proposal 2 passed, a collection of interest groups and individuals, including the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary (“Coalition Plaintiffs”), filed suit in the United States District Court for the Eastern District of Michigan. They named as defendants then-Governor Jennifer Granholm, the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University (“University Defendants”), and alleged that the provisions of Proposal 2 affecting public colleges and universities violated the United States Constitution and federal statutory law. The Coalition Plaintiffs limited their request for relief to Proposal 2 as it applies to public education, and did not challenge its constitutionality as it applies to public employment or public contracting. About a month later, the Michigan Attorney General (“Attorney General”) filed a motion to intervene as a defendant, which the district court granted. Shortly

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thereafter, Eric Russell, then an applicant to the University of Michigan Law School, and Toward A Fair Michigan (“TAFM”), a non-profit corporation formed to ensure implementation of Proposal 2, also filed a motion to intervene in the litigation.
On December 19, 2006, a group of faculty members and prospective and current students at the University of Michigan (“Cantrell Plaintiffs”) filed a separate but similar suit in the United States District Court for the Eastern District of Michigan against Granholm. This lawsuit also limited its challenge to Proposal 2 as it applies to public education.
That same day, the district court issued what was, in effect, a preliminary injunction, postponing the application of Proposal 2 to the universities’ admissions and financial-aid policies until July 1, 2007, which was the conclusion of the 2006-2007 admissions and financial-aid cycle. The district court’s order stemmed from a stipulation among the University Defendants, Coalition Plaintiffs, Granholm, and the Attorney General consenting to the injunction. Coal. to Defend Affirmative Action v. Granholm (Coal. I), No. 06-15024, 2006 WL 3953321 (E.D. Mich. Dec. 19, 2006). While awaiting approval as intervenors, Russell and TAFM opposed the Attorney General’s stipulation and sought a stay of the injunction from the district court. When two days passed without a ruling on their motions, Russell and TAFM filed with us an “Emergency Motion for a Stay Pending Appeal,” which we granted. Coal. to Defend Affirmative Action v. Granholm (Coal. II), 473 F.3d 237, 253 (6th Cir. 2006), application to vacate stay denied, 549 U.S. 1176 (2007). Meanwhile, we approved the district court’s decision to allow only Russell to intervene in the Proposal 2 litigation. Coal. to Defend Affirmative Action v. Granholm (Coal. III), 501 F.3d 775 (6th Cir. 2007).
On October 5, 2007, the Cantrell Plaintiffs filed a motion for summary judgment as to Russell, arguing that he should be dismissed from the litigation because he no longer represented an interest distinct from that of the Attorney General. On October 17, 2007, the University Defendants filed a motion to dismiss on the ground that they were not necessary parties to the litigation. On November 30, 2007, the Attorney General

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filed a motion to dismiss for lack of standing or, in the alternative, a motion for summary judgment on the merits as to all Plaintiffs. Russell and the Cantrell Plaintiffs likewise filed motions for summary judgment the same day.
On March 18, 2008, the district court issued two orders addressing these motions. First, the court denied the University Defendants’ request to be dismissed as parties and the Cantrell Plaintiffs’ motion for summary judgment. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. IV), 539 F. Supp. 2d 924, 941, 950-58 (E.D. Mich. 2008). The court also granted the Attorney General’s motion for summary judgment, rejecting the Plaintiffs’ arguments that Proposal 2 violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 960. Second, the court granted the Cantrell Plaintiffs’ motion for summary judgment, dismissing Russell as an intervenor. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. V), 539 F. Supp. 2d 960 (E.D. Mich. 2008). The Cantrell Plaintiffs subsequently moved the court to reconsider the first order, but the court denied the motion. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VI), 592 F. Supp. 2d 948 (E.D. Mich. 2008).
The Plaintiffs, the University Defendants, and Russell appealed these orders to this Court. A panel of this Court reversed the district court’s grant of summary judgment in favor of the Attorney General, concluding that the portions of Proposal 2 that affect Michigan’s public institutions of higher education impermissibly alter the political process in violation of the Equal Protection Clause. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VII), 652 F.3d 607, 631-32 (6th Cir. 2011). This Court also affirmed the district court’s dismissal of Russell and the denial of the University Defendants’ motion to be dismissed. The Attorney General then sought en banc review, which we granted, vacating the panel opinion.

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II.
A. Constitutionality of Proposal 2
The Equal Protection Clause provides that “[n]o state shall . . . deny to any person . . . the equal protection of the laws.” U.S. Const. amend. XIV. The Plaintiffs argue that Proposal 2 violates this provision in two distinct ways. Both Plaintiff groups argue that Proposal 2 violates the Equal Protection Clause by impermissibly restructuring the political process along racial lines (the “political process” argument), and the Coalition Plaintiffs additionally argue that Proposal 2 violates the Equal Protection Clause by impermissibly classifying individuals on the basis of race (the “traditional” argument).
In addressing the Plaintiffs’ arguments, we are neither required nor inclined to weigh in on the constitutional status or relative merits of race-conscious admissions policies as such. This case does not present us with a second bite at Gratz and Grutter—despite the best efforts of the dissenters to take one anyway. This case instead presents us with a challenge to the constitutionality of a state amendment that alters the process by which supporters of permissible race-conscious admissions policies may seek to enact those policies. In other words, the sole issue before us is whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions—something they are specifically allowed to do under Grutter.
We review de novo a district court’s grant of summary judgment and denial of a motion for reconsideration of that decision. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1047 (6th Cir. 2001). Whether a state’s constitution violates the federal constitution is a question of law, which we also review de novo. Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir. 2008).

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1. Equal Protection Within the Political Process
The Equal Protection Clause “guarantees racial minorities the right to full participation in the political life of the community. It is beyond dispute . . . that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner.” Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 467 (1982). But the Equal Protection Clause reaches even further, prohibiting “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Id. (internal quotation marks and citation omitted). “[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” Hunter v. Erickson, 393 U.S. 385, 393 (1969).
The Supreme Court’s statements in Hunter and Seattle emphasize that equal protection of the laws is more than a guarantee of equal treatment under existing law. It is also a guarantee that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them. In effect, the politicalprocess doctrine hews to the unremarkable notion that when two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course. Ensuring the fairness of the political process is particularly important because an electoral minority is disadvantaged by definition in its attempts to pass legislation; this is especially true of “discrete and insular minorities,” who face unique additional hurdles. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
Ensuring a fair political process is nowhere more important than in education. Education is the bedrock of equal opportunity and “the very foundation of good citizenship.” Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). Safeguarding the

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guarantee “that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” Grutter, 539 U.S. at 331-32 (internal quotation marks omitted). Moreover, universities “represent the training ground for a large number of our Nation’s leaders. . . . [T]o cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Id. at 332 (citation omitted). Therefore, in the high-stakes context of education, we must apply the political-process doctrine with the utmost rigor.
Of course, the Constitution does not protect minorities from political defeat: Politics necessarily produces winners and losers. We must therefore have some way to differentiate between the constitutional and the impermissible. And Hunter and Seattle provide just that. They set the benchmark for when the majority has not only won, but has rigged the game to reproduce its success indefinitely.
a. Hunter v. Erickson
In Hunter, the citizens of Akron, Ohio, overturned a fair housing ordinance enacted by the City Council. 393 U.S. at 386. But the citizens did more than merely repeal the ordinance; they amended the city charter through a referendum to require the approval of an electoral majority before any ordinance regulating real estate “on the basis of race, color, religion, national origin or ancestry”—past or future—could take effect. Id. at 387, 390 n.6. In other words, only ordinances based on those factors required a city-wide majority; ordinances based on any other factor required just a vote by the City Council:
[T]he amendment changed the requirements for the adoption of one type of local legislation: to enact an ordinance barring housing discrimination on the basis of race or religion, proponents had to obtain the approval of the City Council and of a majority of the voters citywide. To enact an ordinance preventing housing discrimination on other grounds, or to enact any other type of housing ordinance, proponents needed the support of only the City Council.

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Seattle, 458 U.S. at 468 (describing Hunter). The referendum halted operation of the existing fair housing ordinance, and more importantly for our purposes, erected a barrier to any similar ordinance in the future. Hunter, 393 U.S. at 389-90.
The Supreme Court found that the disparity between the process for enacting a future fair housing ordinance and the process for enacting any other housing ordinance “place[d] special burden[s] on racial minorities within the governmental process” by making it “substantially more difficult to secure enactment” of legislation that would be to their benefit. Id. at 390-91. While the enactment “treat[ed] Negro and white, Jew and gentile in an identical manner,” the Court found that “the reality is that the law’s impact falls on the minority.” Id. at 391. That the law had been enacted via a popular referendum did not save it from working “a real, substantial, and invidious denial of the equal protection of the laws.” Id. at 393.
b. Washington v. Seattle School District No. 1
In Seattle, a case that mirrors the one before us, the Supreme Court applied Hunter to strike down a state statute, also enacted via a referendum, that prohibited racially integrative busing. Seattle, 458 U.S. at 463. Prior to the referendum, Seattle School District No. 1 (“District”) had implemented a school desegregation plan that made extensive use of mandatory reassignments. Id. at 460-61. The District was under no obligation to adopt this plan: following Brown, school boards had been “charged with the affirmative duty to take whatever steps might be necessary” to integrate schools that were unconstitutionally segregated because of racial discrimination, Green v. Cnty. Sch. Bd., 391 U.S. 430, 437 (1968), but there had been no finding that the de facto segregation in Seattle’s schools was the product of discrimination. Nonetheless, the school board implemented the plan to accelerate its existing program of voluntary

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busing, which some constituencies saw as insufficiently alleviating racial imbalances.1 Seattle, 458 U.S. at 460.
In response, Seattle residents drafted a statewide measure—known as Initiative 350—providing in relevant part that “no school board . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student’s place of residence . . . .” Id. at 462 (alteration in original) (quoting Wash. Rev. Code § 28A.26.010 (1981)). Though the initiative was framed as a general ban on mandatory busing, its myriad exceptions made its real effect the elimination of school reassignments for racial purposes only, except where a court ordered such reassignments to remedy unconstitutional segregation. Id. at 462-63. Initiative 350 made it on the Washington ballot and passed by a substantial margin. Id. at 463.
The Court found that Initiative 350, like the Akron city charter amendment, violated the Equal Protection Clause. Id. at 487. The Court stated that its prior cases yielded a “simple but central principle”: while “laws structuring political institutions or allocating political power according to neutral principles” do not violate the Fourteenth Amendment, “a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.” Seattle, 458 U.S. at 469-70. Echoing Hunter, the Court explained that this distinct analysis is necessary because non-neutral allocations of power “place[] special burdens on racial minorities within the governmental process, thereby making it more difficult for certain racial and religious minorities than for other members of the community to achieve legislation that is in their interest.” Id. at 470 (internal quotation marks, citations, and brackets omitted). The Court dismissed the

1It bears repeating that the school board took this step in the absence of a court order or any unconstitutional discrimination whatsoever. The voluntary plan was an ameliorative measure intended to benefit minority students; it was not a protective measure intended to shield minority students from de jure discrimination, which no court had found to exist. See Seattle, 458 U.S. at 460-61; see also infra Part II.A.3.

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argument that Initiative 350 was not intended to prevent busing for racially-integrative purposes, and explained why Initiative 350 violated this “simple but central” principle.
As a threshold matter, the Court concluded that the busing program, like the fair housing ordinance in Hunter, “at bottom inures primarily to the benefit of the minority, and is designed for that purpose.” Id. at 472. The Court reasoned that while “white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom,” desegregation primarily benefits minority children because these children “can achieve their full measure of success only if they learn to function in—and are fully accepted by—the larger community. Attending an ethnically diverse school may help accomplish this goal by preparing minority children for citizenship in our pluralistic society.” Id. at 472-73 (internal quotation marks omitted). Because racial minorities had reason to “consider busing for integration to be ‘legislation that is in their interest,’” the “racial focus of Initiative 350 . . . suffice[d] to trigger application of the Hunter doctrine.” Id. at 474 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).
Having concluded that Initiative 350 targeted a busing program that “inures primarily to the benefit of the minority,” the Court held that “the practical effect of Initiative 350 is to work a reallocation of power of the kind condemned in Hunter.” Id. As the Court explained, Initiative 350 did more than merely repeal the busing program:
The initiative removes the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests. Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board. . . . As in Hunter, then, the community’s political mechanisms are modified to place effective decisionmaking authority over a racial issue at a different level of government.
Id. By removing authority over busing for racial purposes from the school board and placing it at a more remote level of government, Initiative 350 required “those championing school integration to surmount a considerably higher hurdle than persons

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seeking comparable legislative action,” and disadvantaged “those who would benefit from laws barring de facto desegregation as against those who . . . would otherwise regulate student assignment decisions.” Id. at 474-75 (alteration in original) (internal quotation marks omitted). Accordingly, the Court held that Initiative 350 violated the Equal Protection Clause. Id. at 470.
In sum, Hunter and Seattle require us to examine an enactment that changes the governmental decisionmaking process for legislation with a racial focus to determine if it improperly manipulates the channels for change.2 Seattle, 458 U.S. at 470, 485; Hunter, 393 U.S. at 391; cf. Carolene Prods., 304 U.S. at 152 n.4 (noting that more exacting judicial scrutiny is required when the majority curtails “the operation of those political processes ordinarily to be relied upon to protect minorities”). To the extent that it does, we must strike down the enactment absent a compelling state interest.
2. Application of the Hunter/Seattle Test to Proposal 2
Hunter and Seattle thus expounded the rule that an enactment deprives minority groups of the equal protection of the laws when it: (1) has a racial focus, targeting a policy or program that “inures primarily to the benefit of the minority”; and (2) reallocates political power or reorders the decisionmaking process in a way that places special burdens on a minority group’s ability to achieve its goals through that process. See Seattle, 458 U.S. at 467, 472; Hunter, 393 U.S. at 391. Applying this rule here, we conclude that Proposal 2 targets a program that “inures primarily to the benefit of the minority” and reorders the political process in Michigan in a way that places special burdens on racial minorities.

2This holds true for enactments that make it more difficult for minorities to use the political process to obtain any sort of legislation that is in their interest—notwithstanding whether one characterizes such legislation as seeking protection against discrimination or, alternatively, preferential treatment. See infra Part II.A.3.

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a. Racial Focus
The first prong of the Hunter/Seattle test requires us to determine whether Proposal 2 has a “racial focus.” Seattle, 458 U.S. at 474. This inquiry turns on whether the targeted policy or program, here holistic race-conscious admissions policies at public colleges and universities, “at bottom inures primarily to the benefit of the minority, and is designed for that purpose.” Id. at 472. The targeted policy need not be for the sole benefit of minorities, for “it is enough that minorities may consider [the now burdened policy] to be ‘legislation that is in their interest.’” Id. at 474 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).3
Seattle conclusively answers whether a law targeting policies that seek to facilitate classroom diversity, as Proposal 2 does, has a racial focus. In Seattle, the Court observed that programs intended to promote school diversity and further the education of minority children enable these students to “achieve their full measure of success.” Id. at 472-73. Such programs do so through “preparing minority children for citizenship in our pluralistic society, while . . . teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.” Id. at 473 (internal quotation marks and citation omitted). Accordingly, the Court noted that “desegregation of the public schools . . . at bottom inures primarily to the benefit of the minority . . . .” Id. at 472. Because minorities could “consider busing for integration to be ‘legislation that is in their interest,’” the Court concluded that Initiative 350’s effective repeal of such programs had a racial focus sufficient to “trigger application of the Hunter doctrine.” Id. at 474.

3The Attorney General contends that Hunter and Seattle not only require that the targeted legislation has a racial focus, but that the new legislation be enacted with discriminatory intent. This requirement has no basis in law. To the contrary, the Supreme Court has explicitly rejected such an argument. See Seattle, 458 U.S. at 485 (“We have not insisted on a particularized inquiry into motivation in all equal protection cases: ‘A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.’ And legislation of the kind challenged in Hunter similarly falls into an inherently suspect category.”) (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979)).

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The logic of the Court’s decision in Seattle applies with equal force here. Proposal 2 targets race-conscious admissions policies that “promote[] ‘cross-racial understanding,’ help[] to break down racial stereotypes, and ‘enable[] students to better understand persons of different races.’” Grutter, 539 U.S. at 330 (alteration omitted) (internal quotation marks and citation omitted). Just as an integrative busing program is designed to improve racial minorities’ representation at certain public schools, see Seattle, 458 U.S. at 461, race-conscious admissions policies are designed to increase racial minorities’ representation at institutions of higher education, see, e.g., Grutter, 539 U.S. at 316, 328-33; Gratz, 539 U.S. at 253-56. There is no material difference between the enactment in Seattle and Proposal 2, as both targeted policies that benefit minorities by enhancing their educational opportunities and promoting classroom diversity. Further, given that racial minorities lobbied for the implementation of the very policies that Proposal 2 permanently eliminates, it is beyond question that Proposal 2 targets policies that “minorities may consider . . . [to be] in their interest.” Seattle, 458 U.S. at 474. Therefore, Proposal 2 has a racial focus because race-conscious admissions policies at Michigan’s public colleges and universities “inure[] primarily to the benefit of the minority, and [are] designed for that purpose.” Id. at 472.
Seattle not only mandates our conclusion that Proposal 2 is racially focused, but it also dispels any notion that the benefit race-conscious admissions policies may confer on the majority undercuts its “racial focus.” Although it is true that increased representation of racial minorities in higher education benefits all students, see Grutter, 539 U.S. at 327-33; Seattle, 458 U.S. at 472-73, the Supreme Court has made clear that these policies still have a racial focus. In Seattle, the Court recognized that it is “clear that white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom.” Seattle, 458 U.S. at 472 (internal quotation marks omitted). But the Seattle Court found that the wider benefits of the busing plan did not serve to distinguish Hunter, “for we may fairly assume that members of the racial majority both favored and benefited from Akron’s fair housing ordinance.” Id. By the same token, the wider

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benefits of race-conscious admissions policies do not undermine the conclusion that such admissions policies “inure[] primarily to the benefit of the minority . . . .” Id.
Nor do policy arguments attacking the wisdom of race-conscious admissions programs preclude our finding that these programs “inure[] primarily to the benefit of the minority.” Id. Critics of affirmative action maintain that race-conscious admissions policies actually harm minorities by stigmatizing minority students admitted into highcaliber institutions through a perception that they lack sufficient qualifications; by impeding the academic success of minority students admitted to institutions they are not qualified to attend; and by impairing the admissions prospects of traditionally higherperforming minority groups, such as Asian-Americans. But the controversy surrounding the policies that Proposal 2 targets is irrelevant as to whether Proposal 2 itself has a racial focus; rather, this controversy is a “matter[] to be resolved through the political process.” Id. at 474 (“It is undeniable that busing for integration . . . engenders considerably more controversy than does the sort of fair housing ordinance debated in Hunter. But in the absence of a constitutional violation, the desirability and efficacy of school desegregation are matters to be resolved through the political process.”). As in Seattle, “it is enough that minorities may consider [the repealed policy] to be ‘legislation that is in their interest.’” Id. (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).
We find that the holistic race-conscious admissions policies now barred by Proposal 2 inure primarily to the benefit of racial minorities, and that such groups consider these policies to be in their interest. Indeed, we need not look further than the approved ballot language—characterizing Proposal 2 as an amendment “to ban affirmative action programs”—to confirm that this legislation targets race-conscious admissions policies and, insofar as it prohibits consideration of applicants’ race in admissions decisions, that it has a racial focus.4
4It is of no consequence that Proposal 2, by its terms, purports to also prohibit preferences based on sex, color, ethnicity, and national origin. As the primary dissent concedes in a self-defeating footnote, the challenged amendment in Hunter also extended beyond race—covering color, religion, national origin, and ancestry as well. Here, as in Hunter, the clear focus of the challenged amendment is race. The history of Proposal 2 and its description on the ballot leave little doubt. Moreover, allowing drafters of raciallyfocused legislation to evade the protections of the Fourteenth Amendment by nominally including more

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b. A Reordering of the Political Process That Burdens Racial Minorities
The second prong of the Hunter/Seattle test asks us to determine whether Proposal 2 reallocates political power or reorders the political process in a way that places special burdens on racial minorities. See Seattle, 458 U.S. at 467; Hunter, 393 U.S. at 391. We must first resolve (1) whether the affected admissions procedures lie within the “political process,” and then (2) whether Proposal 2 works a “reordering” of this political process in a way that imposes “special burdens” on racial minorities.
i. Proposal 2’s Effect on a “Political Process”
The breadth of Proposal 2’s influence on a “political process” turns on the role the popularly elected governing boards of the universities play in setting admissions procedures. The key question is whether the boards had the power to alter the universities’ admissions policies prior to the enactment of Proposal 2. If the boards had that power and could influence the use (or non-use) of race-conscious admissions policies, then Proposal 2’s stripping of that power works a reordering of the political process because minorities can no longer seek to enact a type of legislation that is in their interest at the board level. But if board members lacked such power, because policy decisions are actually under the control of politically unaccountable faculty members or admissions committees, then Proposal 2’s effect on the political process is negligible.
This issue—whether the admissions policies affected by Proposal 2 are part of a “political process”—was the subject of stark disagreement between the majority and the dissent when this case was originally before a three-judge panel, and it continues to be here. In supplemental briefing, the University Defendants clarified their admissions practices, undercutting the factual and legal basis of the panel dissent’s core contention that Proposal 2 falls outside the political process. We examine the administrative

than one class of individuals would seem to elevate form at the expense of substance.

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structure of Michigan’s public universities and their admissions processes in light of this new information, even though the dissenters choose to look the other way.
The Michigan Constitution establishes three public universities—the University of Michigan, Michigan State University, and Wayne State University—and grants control of each to a governing board.5 Mich. Const. art. VIII, § 5; see also id. § 6 (allowing the establishment of other institutions of higher learning, such as Michigan’s other public colleges and universities, and affording their governing boards similar control). These boards have the same role: to run, with plenary authority, their respective institutions. Id. art. VIII, §§ 5-6; Glass v. Dudley Paper Co., 112 N.W.2d 489, 490 (Mich. 1961). Michigan law has consistently confirmed this absolute authority. See, e.g., Glass, 112 N.W.2d at 490; Att’y Gen. ex rel. Cook v. Burhans, 7 N.W.2d 370, 371 (Mich. 1942); Bd. of Regents of Univ. of Mich. v. Auditor Gen., 132 N.W. 1037, 1040 (Mich. 1911); 1979-80 Mich. Op. Att’y Gen. 578, 1980 WL 114008, at *1-2 (Mich. A.G. Jan. 31, 1980). Indeed, the boards are described as “the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its functions, is co-ordinate with and equal to that of the legislature.” Federated Publ’ns, Inc. v. Bd. of Trs. of Mich. State Univ., 594 N.W.2d 491, 496 n.8 (Mich. 1999) (quoting Bd. of Regents of the Univ. of Mich. v. Auditor Gen., 132 N.W. 1037, 1040 (Mich. 1911)).
Eight popularly elected individuals sit on these boards, and they hold office for eight years. Mich. Const. art. VIII, § 5; see also id. § 6. The boards have the “power to enact ordinances, by-laws and regulations for the government of the university.” Mich. Comp. Laws § 390.5; see also id. §§ 390.3-.6.6 Exercising this power, the boards have

5At each institution, these boards and their members have slightly differing names—for example, “Board of Trustees,” “Board of Governors,” or “Board of Regents.” Mich. Const. art. VIII, § 5.
6Though the statutes and bylaws cited in this paragraph govern only the University of Michigan, the boards of the other public colleges and universities in Michigan are similarly empowered. See, e.g., Mich. Comp. Laws §§ 390.102-.107 (Michigan State University), 390.641-.645 (Wayne State University). For the sake of clarity, we refer exclusively to the University of Michigan’s bylaws and procedures, as they very closely parallel those in place at other Michigan public educational institutions, such as Wayne State University and Michigan State University.

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enacted bylaws—which they have complete authority to revise or revoke—detailing admissions procedures. See Univ. of Mich., Bylaws of the Bd. of Regents § 8.01, available at http://www.regents.umich.edu/bylaws (last visited May 22, 2012) [hereinafter Univ. of Mich. Bylaws]; Mich. State Univ., Bd. of Trs. Bylaws, art. 4, available at http://www.trustees.msu.edu/bylaws (last visited May 22, 2012); Wayne State Univ. Statutes §§ 2.34.09, 2.34.12, available at http://www.bog.wayne.edu/code (last visited May 22, 2012).
The University of Michigan’s bylaws delegate the day-to-day management of undergraduate admissions to the associate vice provost and executive director of undergraduate admissions. See Univ. of Mich. Bylaws § 8.01. Although the board delegates this responsibility, it continues to exercise ultimate decisionmaking authority because it directly appoints the associate vice provost and executive director of undergraduate admissions, id., and because it retains the power to revoke or alter the admissions framework, id. §§ 14.03, 14.04. Nothing prevents the board from adopting an entirely new framework for admissions decisions if it is so inclined. See Mich. Const. art. VIII, § 5; Mich. Comp. Laws §§ 390.3-.6; Univ. of Mich. Bylaws § 8.01. Indeed, that the board can revise its bylaws is not a mere theoretical possibility, but a reality that occurs with some frequency. Since 2008, the University of Michigan’s Board of Regents has revised more than two dozen of its bylaws, two of which fall within Chapter VIII, the section regulating admissions practices.
Of course power in a large university, a vast and highly complex institution, must be delegated. As such, the board fulfills its general supervisory role by conducting monthly public meetings to remain apprised of all university operations and by exercising its power to amend bylaws or revise delegations of responsibility. See Univ. of Mich. Bylaws §§ 1.01, 14.03. At these meetings, the board regularly discusses admissions practices, including the use of race-conscious admissions policies. See, e.g., Univ. of Mich. Bd. of Regents Proceedings, March 2007, 264-65 (report of Provost to Board of Regents regarding new policies to increase the institution’s diversity in the wake of Proposal 2); Univ. of Mich. Bd. of Regents Proceedings, June 2004, 301 (report

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of University President to Board of Regents regarding undergraduate admissions policies in light of Gratz, including efforts to encourage minority applicants); Univ. of Mich. Bd. of Regents Proceedings, July 2003, 11 (discussion of the importance of race-conscious admissions policies in light of Grutter, including comments in support of the University’s efforts in Grutter from six Regents and the University President), available at http://quod.lib.umich.edu/cgi/t/text/text-idx?page=browse&c=umregproc (last visited May 22, 2012). Thus, the elected boards of Michigan’s public universities can, and do, change their respective admissions policies, making the policies themselves part of the political process.7 But even if they did not, the Attorney General provides no authority to support his contention that an unused power is a power abandoned.
Nevertheless, the Attorney General argues, echoed by the dissenters, that admissions decisions lie outside the political process because the governing boards of the universities have “fully delegated” responsibility for establishing admissions standards to politically unaccountable admissions committees and faculty members. But the Michigan Constitution, state statutes, and the universities’ bylaws and current practices directly contradict this argument. Article VIII, section 5 of the Michigan Constitution entrusts the board with “general supervision of its institution.” Mich. Const. art. VIII, § 5. Michigan statutes §§ 390.3-.5 vest full governing authority in the board, including the power to enact bylaws and regulations to promote and achieve the university’s educational mission. See Mich. Comp. Laws §§ 390.3-.5. The University of Michigan bylaws unambiguously retain the power to alter or revoke any bylaw, including any delegation of responsibility. See Univ. of Mich. Bylaws § 14.03. This robust legal authority makes the fact of such delegation irrelevant for our purposes, as the board may revoke the delegation at will.
Moreover, to the extent the Attorney General and the dissenters express concern over the degree to which the board has delegated admissions decisions, that delegation
7As the Michigan Constitution grants the power to establish other institutions of higher education beyond the three universities named above, see Mich. Const. art. VIII, § 6, to the extent the leadership of these institutions are democratically accountable, whether tangentially or directly, their powers are part of the political process.

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does not affect whether admissions decisions should be considered part of the political process. When an elected body delegates power to a non-elected body for the day-to-day implementation of policy, it does not remove the policy from the political process. In the administrative law context, for example, rule-making powers are delegated from the President to appointed cabinet officials, and as a practical matter, further down to civil service professionals. Regardless of the level at which the rule is drafted, the rulemaking process is at all times under the umbrella of the powers of the President. These rules are often the subject of political debate, lobbying, and electioneering, again without regard to who actually drafted the particular rule in question. Without question, federal rule-making is part of the political process. Similarly, whether it is the board or a delegated body that sets the rules for consideration of race in admissions, these decisions fall under the umbrella of the elected board and are thus part of the political process.
Telling evidence that board members can influence admissions policies—bringing such policies within the political process—is that these policies can, and do, shape the campaigns of candidates seeking election to one of the boards. As the boards are popularly elected, citizens concerned with race-conscious admissions policies may lobby for candidates who will act in accordance with their views—whatever they are. Board candidates have, and certainly will continue, to include their views on raceconscious admissions policies in their platforms. See League of Women Voters, 2005 General Election Voter Guide, available at http://www.lwvka.org/guide04/regents/html (last visited May 22, 2012) (noting that a candidate for the Board of Regents pledged to “work to end so-called ‘Affirmative-Action,’ a racist, degrading system”). Indeed, nothing prevents Michigan citizens from electing a slate of regents who promise to review admissions policies based on their opposition to affirmative action. Once elected, the new slate may revise the bylaws, see Univ. of Mich. Bylaws § 14.03, and change their university’s admissions policies—either by entirely revoking the delegation and handling all admissions policies at the board level or by enacting new bylaws giving more explicit direction to admissions committees. Thus, Proposal 2 affects a “political process.”

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ii. Reordering of a “Political Process”
The next issue is whether Proposal 2 reordered the political process in a way that places special burdens on racial minorities. The Supreme Court has found that both implicit and explicit reordering violates the Fourteenth Amendment. See Seattle, 458 U.S. at 474; Hunter, 393 U.S. at 387, 390. In Hunter, the express language of the charter amendment required any ordinance regulating real estate “on the basis of race, color, religion, national origin or ancestry” to be approved by a majority of the electorate and the City Council, as opposed to solely the City Council for other real-estate ordinances. 393 U.S. at 387, 390. This reallocation of power was directly written into the charter amendment, creating “in effect . . . an ‘explicitly racial classification treating racial housing matters differently’” from all other housing matters. Seattle, 458 U.S. at 468 (quoting Hunter, 393 U.S. at 389).
In Seattle, however, the reordering was implicit: On its face, Initiative 350 simply prohibited school boards from using mandatory busing, but its practical effect was to force “[t]hose favoring the elimination of de facto school segregation” to “seek relief from the state legislature, or from the statewide electorate” in order to overturn Initiative 350. Id. at 474. Nonetheless, “authority over all other student assignment decisions . . . remain[ed] vested in the local school board.” Id. Whereas a proponent of smaller class sizes could seek redress at the local level, a proponent of integrative busing had to scale the more onerous hurdle of a successful statewide campaign. The Seattle legislation implicitly reallocated power because the “initiative remove[d] the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body . . . .” Id. Similar to the amendment in Hunter, Initiative 350 modified “the community’s political mechanisms . . . to place effective decisionmaking authority over a racial issue at a different level of government.” Id.
The Seattle Court then clarified what sort of reordering contravenes the politicalprocess doctrine: “[t]he evil condemned by the Hunter Court was not the particular political obstacle of mandatory referenda imposed by the Akron charter amendment; it

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was, rather, the comparative structural burden placed on the political achievement of minority interests.” Id. at 474 n.17 (emphasis added). In both Hunter and Seattle, “the effect of the challenged action was to redraw decisionmaking authority over racial matters—and only over racial matters—in such a way as to place comparative burdens on minorities.” Id. (emphasis added). Thus, any “comparative structural burden,” be it local or statewide or national, satisfies the reordering prong of the Hunter/Seattle test. Id.
The comparative structural burden we face here is every bit as troubling as those in Hunter and Seattle because Proposal 2 creates the highest possible hurdle. This comparative structural burden is most apparent in tracing the channels for change available to a citizen promoting any policy unmodified by Proposal 2 and those available to a citizen promoting constitutionally permissible race-conscious admissions policies.
An interested Michigan citizen may use any number of avenues to change the admissions policies on an issue outside the scope of Proposal 2. For instance, a citizen interested in admissions policies benefitting legacy applicants—sons and daughters of alumni of the university—may lobby the admissions committees directly, through written or in-person communication. He may petition higher administrative authorities at the university, such as the dean of admissions, the president of the university, or the university’s board. He may seek to affect the election—through voting, campaigning, or other means—of any one of the eight board members whom the individual believes will champion his cause and revise admissions policies accordingly. And he may campaign for an amendment to the Michigan Constitution.
Each of these methods, respectively, becomes more expensive, lengthy, and complex. Because Proposal 2 entrenched the ban on all race-conscious admissions policies at the highest level, this last resort—the campaign for a constitutional amendment—is the sole recourse available to a Michigan citizen who supports enacting such policies. That citizen must now begin by convincing the Michigan electorate to amend its constitution—an extraordinarily expensive process and the most arduous of

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all the possible channels for change. Just to place a proposed constitutional amendment repealing Proposal 2 on the ballot would require either the support of two-thirds of both the Michigan House of Representatives and Senate, see Mich. Const. art. XII, § 1, or the signatures of a number of voters equivalent to at least ten percent of the number of votes cast for all candidates for governor in the preceding general election, see id. art. XII, § 2. Once on the ballot, the proposed amendment must then earn the support of a majority of the voting electorate to undo Proposal 2’s categorical ban. See id. art. XII, §§ 1-2.
Only after traversing this difficult and costly road would our now-exhausted citizen reach the starting point of his neighbor who sought a legacy-related admissions policy change. After this successful constitutional amendment campaign, the citizen could finally approach the university—by petitioning the admissions committees or higher administrative authorities—to request the adoption of race-conscious admissions policies. By amending the Michigan Constitution to prohibit university admissions units from using even modest race-conscious admissions policies, Proposal 2 thus removed the authority to institute any such policy from Michigan’s universities and lodged it at the most remote level of Michigan’s government, the state constitution. As with the unconstitutional enactment in Hunter, proponents of race-conscious admissions policies now have to obtain the approval of the Michigan electorate and, if successful, admissions units or other university powers—whereas proponents of other non-universal admissions factors need only garner the support of the latter. See Seattle, 458 U.S. at 468, 474.
The “simple but central principle” of Hunter and Seattle is that the Equal Protection Clause prohibits requiring racial minorities to surmount more formidable obstacles than those faced by other groups to achieve their political objectives. See id. at 469-70. A state may not “allocate[] governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.” Id. at 470. As the Supreme Court has recognized, such special procedural barriers to minority interests discriminate against racial minorities just as surely as—and more insidiously

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than—substantive legal barriers challenged under the traditional equal protection rubric. See id. at 467 (“[T]he Fourteenth Amendment also reaches a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.”) (internal quotation marks and citations omitted). Because less onerous avenues to effect political change remain open to those advocating consideration of nonracial factors in admissions decisions, Michigan cannot force those advocating for consideration of racial factors to traverse a more arduous road without violating the Fourteenth Amendment. We thus conclude that Proposal 2 reorders the political process in Michigan to place special burdens on minority interests.
3. Objections to the Applicability of the Hunter/Seattle Doctrine to Proposal 2
The Attorney General and the dissenters make a number of arguments as to why Proposal 2 survives constitutional scrutiny. At the outset, it should be noted that adopting these arguments as to Proposal 2’s constitutionality would be particularly ironic, given that these arguments applied with equal force to Initiative 350 in Seattle. While distinctions obviously exist between the policy at issue here and that in Seattle, the factual differences are not so material as to justify departure from relevant Supreme Court precedent.
a. Hunter/Seattle Doctrine and Preferential Treatment Programs
The Attorney General and the dissenters assert that Hunter and Seattle are inapplicable to Proposal 2 because those cases only govern enactments that burden racial minorities’ ability to obtain protection from discrimination through the political process, whereas Proposal 2 burdens racial minorities’ ability to obtain preferential treatment. At bottom, this is an argument that an enactment violates the Equal Protection Clause under Hunter and Seattle only if the political process is distorted to burden legislation providing constitutionally-mandated protections, such as anti-discrimination laws. Under this theory, a state may require racial minorities to endure a more burdensome process than all other citizens when seeking to enact policies that are in their favor if

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those policies are constitutionally permissible but not constitutionally required. This
effort to drive a wedge between the political-process rights afforded when seeking anti-
discrimination legislation and so-called preferential treatment is fundamentally at odds
with Seattle.
The only way to find the Hunter/Seattle doctrine inapplicable to the enactment
of preferential treatment is to adopt a strained reading that ignores the preferential nature
of the legislation at issue in Seattle, and inaccurately recast it as anti-discrimination
legislation. Initiative 350 prohibited the voluntary busing of students to correct de facto
segregation. 458 U.S. at 460-61. The school board was under no obligation to undertake
this effort because there had been no finding that the District’s segregation was the result
of intentional racial discrimination. Id. at 491-92 (Powell, J., dissenting) (“The Court
has never held that there is an affirmative duty to integrate the schools in the absence of
a finding of unconstitutional segregation. Certainly there is no constitutional duty to
adopt mandatory busing in the absence of such a violation.”) (internal citations omitted).
As such, the District’s plan was an ameliorative measure and not a response to
discrimination. It is therefore inaccurate to suggest that Initiative 350 affected anti-
discrimination legislation by making it more difficult for minorities to obtain protection
from discrimination through the political process. Quite the contrary: as the district
court recognized, “[b]ecause prohibiting integration (when it is not constitutionally
mandated) is not tantamount to discrimination . . . the Court in Seattle did not (and could
not) rely on the notion that the restructuring at issue impeded efforts to secure equal treatment.”8 Coal. VI, 592 F. Supp. 2d at 951. Therefore, in applying the Hunter
8In holding that Proposal 2 nonetheless does not violate the Equal Protection Clause, the district court asserted that the race-conscious admissions policies at issue here should be distinguished from the voluntary busing program at issue in Seattle because, unlike race-conscious admissions policies, “school desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights.” Coal. VI, 592 F. Supp. 2d at 951 (quoting Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 707 n.16 (9th Cir. 1997)). The district court erred in this respect.
Indeed, such a distinction is incompatible with the Supreme Court’s decision in Grutter, and for this reason, we decline to follow Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), as the district court did. In Grutter, the Supreme Court showed how narrowly-tailored race-conscious admissions programs are not inherently invidious, see 539 U.S. at 334-44, and do not work wholly to the benefit of members of one group, see id. at 330. The Court further explained that “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people,

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political-process framework to an obstacle impeding preferential treatment, the Seattle Court drew no distinction between the equal protection rights at stake in seeking antidiscrimination legislation and those at stake in seeking preferential treatment.
It should be unsurprising, then, that the language of Hunter and Seattle encompasses any legislation in the interest of racial minorities, and thus is broader than it would be were the distinction urged by the Attorney General and the dissenters valid. See, e.g., Seattle, 458 U.S. at 467 (noting that the Fourteenth Amendment protects against distortions of the political process that “place special burdens on the ability of minority groups to achieve beneficial legislation”) (emphasis added); id. at 470 (requiring searching judicial scrutiny where state action makes it more difficult for racial minorities “to achieve legislation that is in their interest”) (emphasis added) (internal quotation marks omitted); id. at 474 (finding it “enough that minorities may consider busing for integration to be legislation that is in their interest”) (emphasis added) (internal quotation marks omitted); Hunter, 393 U.S. at 393 (“[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote . . . .”) (emphasis added).
This language makes clear that the Hunter/Seattle doctrine works to prevent the placement of special procedural obstacles on minority objectives, whatever those objectives may be. The distinction urged by the Attorney General and the dissenters thus erroneously imposes an outcome-based limitation on a process-based right. What matters is whether racial minorities are forced to surmount procedural hurdles in reaching their objectives over which other groups do not have to leap. If they are, the disparate procedural treatment violates the Equal Protection Clause, regardless of the objective sought.

cultures, ideas, and viewpoints.” Id. Nor are we swayed by Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. 2012), which offered only conclusory support for the precedential decision in Wilson.

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b. Proposal 2 as a Mere Repeal
Latching on to the Supreme Court’s observation that “the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification,” Crawford v. Bd. of Educ., 458 U.S. 527, 539 (1982); accord Hunter, 393 U.S. at 390 n.5; Seattle 458 U.S. at 483, the Attorney General implores us to classify Proposal 2 as a mere repeal of the universities’ race-conscious admissions policies, rather than the kind of political restructuring that implicates the Hunter/Seattle doctrine. Crawford, a case decided the same day as Seattle, emphasizes the difference between mere repeals and political restructuring; state actors must retain the power to repeal policies without running afoul of the political-process doctrine—certainly not every policy elimination carries with it a political-process violation. See 458 U.S. at 540. Crawford brings this difference into focus, because the Court-approved political action in that case (amendment of the California Constitution) occurred at the same level of government as the original enactment (a prior amendment of the California Constitution), thus leaving the rules of the political game unchanged. Id.
The Supreme Court has twice distinguished the “mere repeal” at issue in Crawford from the political reordering at issue in Hunter and Seattle. The Crawford Court distinguished Hunter by clarifying that the charter amendment in Hunter was “something more than a mere repeal” because it not only repealed an ordinance adopted by the popularly elected City Council, it removed from the Council the power to reinstate it—more than just undoing an unpopular act, the electorate in Hunter had altered the framework of the political process. Crawford, 458 U.S. at 541. The Seattle Court drew the same distinction between the Washington State legislation and the California amendment: it found that Initiative 350 “works something more than the ‘mere repeal’ of a desegregation law by the political entity that created it . . . by lodging decisionmaking authority over the question at a new and remote level of government.” Seattle, 458 U.S. at 483. Just as in Hunter, the electorate in Seattle changed the rules of the political process.

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Here, the rules are not the same after Proposal 2. Rather than undoing an act of popularly elected officials by simply repealing the policies they created, Michigan voters repealed the admissions policies that university officials created and took the additional step of permanently removing the officials’ power to reinstate them. In short, Proposal 2 “works something more than the ‘mere repeal’ of a desegregation law by the political entity that created it.” Id. Had those favoring elimination of all race-conscious admissions policies successfully lobbied the universities’ admissions units, just as racial minorities did to have these policies adopted in the first place, there would be no equal protection concern. Rather, like Initiative 350 did for any future attempt to implement integrative busing (and the Akron city charter amendment did for any future attempt to enact a fair housing ordinance), Proposal 2 “burdens all future attempts” to implement race-conscious admissions policies “by lodging decisionmaking authority over the question at a new and remote level of government.” Id.
This reallocation of decisionmaking authority at a “new and remote level of government” distinguishes the instant case from Crawford. See id. Certainly, should Michigan’s public universities want to abolish these race-conscious admissions policies, the admissions committees, the universities’ presidents and provosts, and the universities’ boards remain free to repeal them, without any infringement on the right to equal protection in the political process. The avenues of change available to Michigan’s public universities parallel those available to the District in Seattle. In ruling the statewide repeal of the voluntary busing plan unconstitutional, the Seattle Court required any appeal to occur through local government, where the plan was originally enacted. Our decision no more entrenches a race-conscious policy than the Supreme Court’s decisions in Seattle or Hunter. Indeed, while the dissenting opinions accuse us of judicially enshrining the presumptively invalid policy of considering race as one factor in holistic admissions determinations, we take no such step.9

9Moreover, by definition, we are only addressing valid, constitutional policies; the university boards have no authority to promulgate invalid, unconstitutional policies.

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More generally, the dissenting opinions criticize our holding today in broad and strident terms. At their core, these opinions express disapproval of the political-process doctrine itself, dissatisfaction that Grutter allowed for even modest race-conscious admissions policies, and incredulity at the possibility that a state constitutional amendment forbidding consideration of race could violate the Equal Protection Clause. But Hunter and Seattle have not been overruled; Grutter continues to permit the same holistic race-conscious admissions policies Proposal 2 seeks to permanently eliminate; and courts must decide equal protection challenges by application of precedent, rather than resort to syllogism. Most importantly, our holding does not place race-conscious admissions policies beyond the political process. Opponents of affirmative action remain free to advocate for their preferred policies in the same manner and at the same level of government as its proponents.
4. Constitutionality of Proposal 2 Under the Political-Process Doctrine
Proposal 2 modifies Michigan’s political process “to place special burdens on the ability of minority groups to achieve beneficial legislation.” See id. at 467. Because Proposal 2 fails the Hunter/Seattle test, it must survive strict scrutiny. See id. at 485 n.28. Under the strict scrutiny standard, the Attorney General must prove that Proposal 2 is “necessary to further a compelling state interest.” Crawford, 458 U.S. at 536. In Seattle, the Court did not consider whether a compelling state interest might justify a state’s enactment of a racially-focused law that restructures the political process, because the government made no such argument. 458 U.S. at 485 n.28. Likewise, because the Attorney General does not assert that Proposal 2 satisfies a compelling state interest, we need not consider this argument. Therefore, those portions of Proposal 2 that affect Michigan’s public institutions of higher education violate the Equal Protection Clause.10

10Because the Plaintiffs’ challenge is limited to public education, we do not decide today whether the portions of Proposal 2 that affect public employment and public contracting also violate the Equal Protection Clause.

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5. Traditional Equal Protection Analysis
Having found that Proposal 2 deprives the Plaintiffs of equal protection of the law under the political-process doctrine, we need not reach the question of whether it also violates the Equal Protection Clause when assessed using the “traditional” analysis.
B. The University Defendants’ Non-Dismissal
The University Defendants appeal the district court’s denial of their motion to be dismissed as misjoined parties under Rule 21 of the Federal Rules of Civil Procedure. We review the district court’s decision for an abuse of discretion and must affirm unless we are “left with a definite and firm conviction that the trial court committed a clear error of judgment.” Letherer v. Alger Group, L.L.C., 328 F.3d 262, 266 (6th Cir. 2003) (internal quotation marks and citation omitted), overruled on other grounds by Powerex Corp. v. Reliant Energy Servs., 551 U.S. 224 (2007).
Rule 21 states in relevant part: “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21. “The Federal Rules of Civil Procedure do not define misjoinder, but the cases make clear that misjoinder of parties occurs when [parties] fail to satisfy the conditions for permissive joinder under Fed. R. Civ. P. 20(a).” Glendora v. Malone, 917 F. Supp. 224, 227 (S.D.N.Y. 1996). Because a motion to be dismissed under Rule 21 tracks Rule 20(a), we must ask whether the Coalition Plaintiffs have satisfied the rules for permissive joinder. Under Rule 20(a), defendants may be joined if “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). “A misjoinder of parties . . . frequently is declared because no relief is demanded from one or more of the parties joined as defendants.” Letherer, 328 F.3d at 267 (quoting 7 Charles Alan Wright et al., Federal Practice and Procedure § 1683, at 475-76 (3d ed. 2001)).

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The district court concluded that the University Defendants were properly joined parties under Rule 20(a) because the Coalition Plaintiffs asserted a request for relief on a claim involving common issues of law and fact. The district court found that “the claims brought against the universities are intertwined with those challenging Proposal 2,” and “[i]f [the court] were to find Proposal 2 unconstitutional, affirmative action would not automatically be reinstated into the admissions process. Rather, the universities would have to choose to do so on their own.” Coal. IV, 539 F. Supp. 2d at 941. Because the Coalition Plaintiffs’ traditional equal protection claim could have required the University Defendants to grant relief by reinstating race-conscious admissions policies, the district court found Rule 20(a) satisfied and concluded that dismissal as a misjoined party was not appropriate. See id.
The discretionary language of Rule 21, coupled with our deferential standard of review, presents a high hurdle for reversal of the district court’s determinations. The Coalition Plaintiffs asserted a right to relief against the University Defendants, and so we are not “left with a definite and firm conviction that the trial court committed a clear error of judgment,” Letherer, 328 F.3d at 266, and affirm the district court’s denial of the University Defendants’ motion.
C. Dismissal of Russell as an Intervenor
Intervening Defendant Russell appeals the district court’s decision granting the Cantrell Plaintiffs’ motion for summary judgment to dismiss him from the case because he no longer satisfied the requirements for intervention. We review de novo a district court’s grant of summary judgment, which “should be granted when the moving party can show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (internal quotation marks omitted). We also review de novo district court decisions on motions to intervene as of right, except for the element of timeliness, which is reviewed for an abuse of discretion. Northland Family Planning Clinic, Inc. v. Cox,

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487 F.3d 323, 344 (6th Cir. 2007). “Because the timeliness element is not in dispute here, we review the entire intervention of right issue de novo.” Id.
At the time Russell originally moved to intervene as of right, he was an applicant to the University of Michigan Law School. With his application pending at the time Proposal 2 passed, Russell was permitted to intervene because he purportedly had an interest in the immediate termination of race-conscious admissions policies, as these policies could theoretically affect his chances of gaining admittance. During the pendency of this litigation, Russell has been denied admission from the University of Michigan Law School, attended and graduated from Wayne State University Law School, and following his graduation, accepted a position as a non-tenured lecturer at Oakland Community College and Oakland University.
Under Federal Rule of Civil Procedure 24(a), an interested party must meet four requirements before being permitted to intervene as of right: (1) his motion to intervene must be timely; (2) he must have a substantial legal interest in the subject matter of the case; (3) he must demonstrate that his interest will be impaired in the absence of intervention; and (4) he must demonstrate that the parties already before the court do not adequately represent his interest. United States v. Michigan, 424 F.3d 438, 443 (6th Cir. 2005). An intervenor also must continue to meet these requirements throughout the duration of the litigation, as courts must be able to ensure that parties have a live interest in the case. See Morgan v. McDonough, 726 F.2d 11, 14 (1st Cir. 1984) (affirming the dismissal of an intervening party whose legal interest had lapsed because “even if [the party’s original intervention were as of right,] it would have gained no absolute entitlement to continue as a party until termination of the suit”).
Although Russell met all four requirements when he was permitted to intervene, it has become apparent during the course of litigation that Russell can no longer demonstrate that the parties already before the court do not adequately represent his interests. Russell’s burden of showing that “representation of his interests ‘may be’ inadequate” is “minimal,” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538

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n.10 (1972), however, he still must overcome “the presumption of adequate representation” that arises if he shares “the same ultimate objective as a party to the suit,” United States v. Michigan, 424 F.3d at 443-44. Although the Attorney General’s and Russell’s interests initially diverged—the Attorney General agreed to stipulate to delay the application of Proposal 2, whereas Russell had an interest in Proposal 2’s immediate enforcement—their interests are now aligned. Both now share the same ultimate objective: the validation of Proposal 2. The Attorney General is unquestionably mounting a firm defense of Proposal 2, including a victory in the district court. Any “mere disagreement over litigation strategy” Russell may have with the Attorney General’s defense “does not, in and of itself, establish inadequacy of representation.” Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987). Therefore, there is no genuine issue of material fact as to whether the Attorney General adequately represents Russell’s interests. Russell’s intervention in this litigation is no longer proper and we affirm the district court’s grant of the Cantrell Plaintiffs’ motion for summary judgment to dismiss him.
III.
Finding those provisions of Proposal 2 affecting Michigan’s public colleges and universities unconstitutional, we REVERSE the district court’s judgment granting the Defendants-Appellees’ motion for summary judgment. We further AFFIRM the district court’s denial of the University Defendants’ motion to be dismissed as parties, and AFFIRM the district court’s grant of the Cantrell Plaintiffs’ motion for summary judgment as to Russell.

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______________
DISSENT ______________
DANNY J. BOGGS, Circuit Judge, dissenting. In 1848, the relevant local authority, the Boston School Board, decided that race should be used in making assignments in the Boston public schools. See Roberts v. City of Boston, 59 Mass. 198, 208–09 (1849). They excluded and segregated black students. However, in 1855 the ultimate political authority, the legislature of Massachusetts, established the general principle against racial discrimination in educational choices.1 The legislature was lauded for that choice. See generally J. Morgan Kousser, “The Supremacy of Equal Rights”: The Struggle against Racial Discrimination in Antebellum Massachusetts and the Foundations of the Fourteenth Amendment, 82 Nw. U. L. Rev. 941, 943 & nn. 8–9 (1988).
Over 100 years later, various Michigan local and subordinate state authorities began to implement policies of racial discrimination in decisions on, inter alia, educational admissions. The Supreme Court of the United States held that such actions were permissible, but certainly not that they were compelled. Grutter v. Bollinger, 539 U.S. 306 (2003). Subsequently, the ultimate state political authority, the People of Michigan, voted to establish the same principle that Massachusetts did in 1855.2 This is the same principle embodied in President Kennedy’s Executive Order 10925 of 1961—that governmental decisions should be undertaken “without regard to race, creed,

1“In determining the qualifications of scholars to be admitted into any public school or any district school in this Commonwealth, no distinction shall be made on account of the race, color or religious opinions, of the applicant or scholar.” 1855 Mass. Acts ch. 256.
2“The Univeristy of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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.” Mich. Const. art. I, § 26.

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color or national origin.” 26 Fed. Reg. 1977, sec. 301(1) (Mar. 8, 1961). Indeed, the very term “affirmative action” comes from that presidential order.3
The majority of the en banc court now holds that this action of the People of Michigan was unconstitutional, relying on an extreme extension of two United States Supreme Court cases ruling on very different circumstances.
To begin with, those two cases each involved a single action that transferred, for the first time, decision making on a single matter, a transfer held to be wholly aimed at one disadvantaged race. In one instance, approval of new anti-discrimination ordinances was moved from the city council to the voters of the city of Akron, and in the other case, power over certain pupil assignment policies was moved from the citizens of one city in the state of Washington to the citizens of the entire state.
In our case, however, we have the citizens of the entire state establishing a principle that would in general have seemed laudable. Even plaintiffs here do not allege, in the context of their political-process argument, that if this constitutional provision had been enacted at some earlier time in Michigan, for example upon its entry into the union, or upon the enactment of its new constitution in 1963, that it would have been unconstitutional. They instead contend that because of current circumstances, and intervening political decisions of racial discrimination, these Supreme Court cases make the principled action of the People of Michigan unconstitutional.
Indeed, the majority seems to concede that some set of decision makers in Michigan would be able to reverse the policies that they claim are immune from actions by the entire body politic. Rather, they demand that any changes in the educational (and perhaps employment) policies here can be enacted only by individual actions of each of the university governing authorities (three of which are chosen by statewide election over eight years, Mich. Const. art. VIII § 5), each regional state university (whose

3“The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” Ibid.

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governing boards are appointed on a staggered basis by the governor over eight years, id. § 6), and each local educational authority for community and technical schools (whose governing authorities are chosen by a variety of methods by each individual county and locality, id. § 7).
Thus, plaintiffs here contend that a citizen or student, whether from the Upper Peninsula or the city of Detroit, or from another state, who wants to pursue educational and employment opportunities in Michigan free from racial discrimination, must contest and succeed, one-by-one, in elections or selections in all of the many individual jurisdictions and methods of selection.
To simply state this proposition is to show how far afield this situation is from even the most generous interpretation of the Hunter and Seattle cases.
In addition, the situation in Michigan, in which the various local authorities are permitted (under Grutter) to engage in varieties of racial discrimination, both for and against variously defined groups, is wholly at odds with the single-instance restructuring of government involved in the Supreme Court precedents relied on by the majority.
Here, it was clear from the evidence in the Grutter case, and in the record in this case, discrimination may be practiced in favor of certain racially or ethnically defined minorities, primarily African-Americans (or perhaps those deemed to be “black,” whether or not actually “American”) or “Hispanics” (although there was some evidence that some groups generally defined as “Hispanic” (especially Cuban) might be discriminated against rather than in favor of, see Deposition of Allan Stillwagon, pp. 358-59, cited in Grutter, 539 U.S. at 293 (Kennedy, J., dissenting)). On the other hand, various groups, sometimes defined as racial minorities, may be discriminated against. See Ho v. S.F. Unified Sch. Dist., 965 F. Supp. 1316 (N.D. Calif 1997) (Chinese); St. Francis Coll. v. Al-Khazraji, 481 U.S. 604 (1987) (Arabs); Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987) (Jews).

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Under these circumstances, holding it to be a violation of equal protection for the ultimate political authority to declare a uniform policy of non-discrimination is vastly far afield from the Supreme Court precedents.
I give the following example which is not fanciful in today’s changing society. A child might be born who would, in today’s conventional terms, be held to be one-half Chinese, one-fourth Eastern-European Jewish, one-eighth Hispanic (Cuban), and oneeighth general North European, mostly Scots-Irish. Under those circumstances, if that child or its parents wished it to compete for educational or employment opportunities in Michigan without discrimination for or against the child, however a bureaucrat might classify the child, the majority’s position is that they could do so only by proceeding in a large number of individual political and election campaigns across the length and breadth of Michigan, rather than by, as was the case here, convincing voters of Michigan to enact a policy that would under most other circumstances have been held to be laudable.
I cannot agree that this decision is correct, either as a matter of general constitutional law or as an accurate interpretation of the Supreme Court precedents. I therefore respectfully DISSENT.

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______________
DISSENT ______________
JULIA SMITH GIBBONS, Circuit Judge, dissenting. Proposal 2 is not unconstitutional under either a political restructuring theory or under traditional equal protection analysis. I therefore respectfully dissent.
I.
Elementary principles of constitutional law tell us that plaintiffs’ challenge to Proposal 2 should have little to no chance of success. Plaintiffs argue that Michigan must retain its racial and other preference policies in higher education and that the state’s voters cannot make the contrary policy choice that factors like race and gender may not be taken into account in admissions. They make this argument in the face of the core equal protection principle of nondiscrimination—a principle consistent with the choice of the people of Michigan. They make the argument despite the absence of any precedent suggesting that states must employ racial preferences in university admissions. Essentially, the argument is one of constitutional protection for racial and gender preference—a concept at odds with the basic meaning of the Equal Protection Clause, as understood and explained through decades of jurisprudence.
Although it has convinced a majority of this court, plaintiffs’ argument must be understood for the marked departure it represents—for the first time, the presumptively invalid policy of racial and gender preference has been judicially entrenched as beyond the political process. In reaching its conclusion, the majority strays from analysis bounded by familiar principles of constitutional law and loses sight of the parameters within which we should operate in deciding this case. To be accurate in characterizing the majority’s approach, it relies on two Supreme Court cases, which it deems highly instructive. Yet, when examined carefully, these cases have no application here, and, in emphasizing them, the majority overlooks recent case law providing more relevant guidance.

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II.
The political restructuring theory on which the majority relies does not invalidate Proposal 2. Racial preference policies in university admissions—presumptively invalid but permissible under limited circumstances and for a finite period of time—do not receive the same structural protections against statewide popular repeal as other laws that inure to the interest of minorities. To understand why this is the case, it is necessary to view the Hunter/Seattle doctrine in the context of the recent decisional law of race-based classification. See Grutter v. Bollinger, 539 U.S. 306, 327 (2003) (“Context matters when reviewing race-based governmental action under the Equal Protection Clause.”).
In holding that student-body diversity is a compelling state interest that can justify the narrowly tailored use of race in university admissions policies, Grutter set forth three principles about race-based admissions policies that bear repeating here. First, Grutter reminded us that “‘[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race’” and that, as a consequence, “race-conscious admissions policies must be limited in time.” Grutter, 539 U.S. at 341, 342 (quoting Palmore v. Sidotti, 466 U.S., 429, 432 (1984)). This principle makes sense because all “racial classifications are presumptively invalid . . . .” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003). Second, Grutter indicated that the decision to end race-conscious admissions policies is primarily one to be made by states and their public universities, not courts. See Grutter, 539 U.S at 342 (noting that “sunset provisions . . . and periodic reviews” could be used to determine the continuing necessity of racial preferences and noting with favor race-neutral alternatives already employed in several states). And third, while racially conscious admissions policies are permitted, they are not constitutionally required. Id. at 325 (“[S]tudent body diversity is a compelling state interest that can justify the use of race in university admissions.”) (emphasis added); see Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 249 (6th Cir. 2006) (“Grutter never said, or even hinted, that state universities must do what they narrowly may do.”).

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A.
With these core principles in mind we examine the applicability of Hunter and Seattle to the passage of Proposal 2 in Michigan. We begin with Hunter v. Erickson, 393 U.S. 385, 386-87, 390 (1969), in which Akron voters repealed a fair housing ordinance that banned discrimination in the sale or lease of real property and created a more burdensome process for minorities to seek such protection. 393 U.S. at 386–87, 390. The underlying law—the repeal of which was effected through section 137 of the City Charter and was found to violate the political restructuring doctrine—protected minorities by mandating their equal right to be free from discrimination. Id. at 390–93. Hunter thus involved the repeal of a presumptively valid law that mandated equal treatment; it did not involve the repeal of a racial preference policy or any other law that was itself presumptively invalid. See Coral Constr., Inc. v. San Francisco, 235 P.3d 947, 959 (Cal. 2010) (“In no sense did [Hunter] concern preferences . . . .”). Because Hunter considered only the political-process implications of repealing a law that required equal treatment, it cannot be read broadly to apply to the repeal of a law requiring preferential treatment. As we have observed, “[t]hese are fundamentally different concepts.” Granholm, 473 F.3d at 251; see Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 708 (9th Cir. 1997) (“It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment.”). Thus, Hunter does not guide us here.
Nor does Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), suggest application of the political restructuring doctrine to Proposal 2. The underlying law in Seattle was a local ordinance that implemented a series of school desegregation measures, which was repealed by a statewide referendum called Initiative 350. Seattle, 458 U.S. at 460–62. In finding that the passage of Initiative 350 violated the political structure doctrine, Seattle explained that “when the political process or the decisionmaking mechanism used to address racially conscious legislation—and only such legislation—is singled out for peculiar and disadvantageous treatment, the

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governmental action plainly rests on distinctions based on race.” 458 U.S. at 485 (second emphasis supplied) (internal quotation marks omitted); see also id. at 474 (“The initiative removes the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body . . . .” (emphasis supplied)). In other words, in order to trigger political-process concerns, Seattle instructs that the challenged enactment must single out racial issues or racially oriented legislation. And indeed, the challenged enactment in Seattle, though facially neutral, was “carefully tailored to interfere only with desegregative busing”—that is, to address “only a racial problem.” Id. at 471 & n.14, 474. That is not the case here. Proposal 2 does not address “only a racial problem:” it prohibits any preference on the basis of race, sex, color, ethnicity, or national origin. Mich. Const. art. I. § 26. Nor was Proposal 2 “carefully tailored” to affect only university admissions: it extends not just to public universities but also to public employment and public contracting. Id. Accordingly, Proposal 2 is quite unlike the narrow anti-busing measure struck down in Seattle; it represents “a sea change in state policy, of a kind not present in Seattle or any other ‘political structure’ case.” See Coral Constr., 235 P.3d at 966 (Corrigan, J., concurring).
The majority is quick to conclude that Proposal 2 and Initiative 350 each target policies—affirmative action and integrative busing, respectively—that “inure[] primarily to the benefit of the minority” and therefore each has a “racial focus.” (Maj. Op. at 15–18.) But in a political-restructuring challenge, it is not enough to observe that some of the policies affected by the challenged enactment primarily benefit minorities. Nor is it enough to observe that, as here, the challenged enactment was passed in response to a high-profile case permitting racially conscious admissions policies under some circumstances. Though relevant, these observations are alone insufficient: in a political restructuring case, it is imperative to consider the scope of the challenged enactment itself.1 The majority fails to account for the broad substantive reach of Proposal 2 when
1It is true that Hunter involved a challenged enactment that thwarted the passage of local ordinances focusing not only on racial but also on religious and ancestral discrimination. Hunter, 393 U.S. at 386. But Hunter’s section 137 was far narrower than Proposal 2 in that it did not extend to sex nor did it apply beyond housing matters. Furthermore, as explained above, Hunter did not even arguably involve the repeal of a law instituting racial preferences and thus does not suggest application of the political

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compared to the narrow focus of Initiative 350 and, in so doing, improperly stretches the political restructuring doctrine that Seattle articulates to the instant case.
There is an additional reason that the political restructuring doctrine should not apply here, a reason that has less to do with Seattle itself than with the evolution of equal protection jurisprudence since it was decided. Today, it is plain that a racially conscious student assignment system—such as the one that the Seattle initiative attempted to make more difficult to enact—would be presumptively invalid and subject to strict scrutiny. See Parents Involved in Cmty. Sch. v. Seattle Schs. Dist. No. 1, 551 U.S. 701, 720 (2007) (“[T]he school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is narrowly tailored to achieve a compelling government interest.” (internal quotation marks omitted)). But that was not always the case. As the California Supreme Court has observed, “at the time Seattle was decided, the high court’s prior decisions indicated that the assignment of pupils by ratios to achieve racial balance fell ‘within the broad discretionary powers of school authorities’ to formulate ‘educational policy’ and to ‘prepare students to live in a pluralistic society . . . .’” Coral Constr., 235 P.3d at 959 (quoting Swann v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971)); see N.C. State Bd. of Educ. v. Swann, 402 U.S. 43, 45 (1971) (“[S]chool authorities have wide discretion in formulating school policy, and that as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements.”); see Deborah N. Archer, Moving Beyond Strict Scrutiny: The Need for A More Nuanced Standard of Equal Protection Analysis for K Through 12 Integration Programs, 9 U. Pa. J. Const. L. 629, 648 & n.118 (2007) (writing, prior to Parents Involved, that “strict scrutiny has never been applied in the context of school desegregation by the Supreme Court”); cf. Parents Involved, 551 U.S. at 737 (plurality) (“[W]hen Swann was decided, this Court had not yet confirmed that strict scrutiny applies to racial classifications like those before us [i.e., a racially conscious student

restructuring doctrine here.

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assignment program].”). Indeed, it was not until 1995 that the Supreme Court made clear in Adarand Contractors, Inc. v. Pena, 515 U.S. 200, 227 (1995), that strict scrutiny applies to all racial classifications. See Parents Involved, 551 U.S. at 720 (majority opinion) (citing Adarand); id. at 739 n.16 (plurality opinion) (citing Adarand); id. at 758 (Thomas, J., concurring) (citing Adarand); Jonathan Fischbach et al., Race at the Pivot Point: The Future of Race-Based Policies to Remedy De Jure Segregation After Parents Involved in Community Schools, 43 Harv. C.R.-C.L. L. Rev. 491, 529–30 (2008) (“Adarand . . . established the uniform application of strict scrutiny to all racial classifications.”); Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 Yale L.J. 1141, 1168 (2002).
Thus, when articulating the reach of the political restructuring doctrine, Seattle did not consider that the underlying policy affected by the challenged enactment was presumptively invalid.2 But we must consider that fact here. And indeed, the circumstance that racially conscious admissions policies are subject to the most exacting judicial scrutiny and limited in time—legal realities that the Seattle Court neither confronted nor factored into its decision—counsels heavily against applying the political restructuring doctrine to the enactment of Proposal 2. See Grutter, 539 U.S. at 341–42. Grutter’s charge that “[u]niversities in other States can and should draw on the most promising aspects of . . . race-neutral alternatives as they develop” only underscores this point. Id. at 342. So while the majority is correct that Seattle employs broad language about protecting the “‘ability of minority groups to achieve beneficial legislation’” (Maj. Op. at 32 (quoting Seattle, 458 U.S. at 467)), it must be remembered that the “beneficial” policy that Proposal 2 purportedly makes more difficult to enact is itself “‘highly

2While the dissent in Seattle suggested that the busing program be subject to strict scrutiny, 458 U.S. at 492 n.6 (Powell, J., dissenting), the majority did “not specifically pass on that issue” because no one had challenged “the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation.” Id. at 472 n.15 (majority opinion); see also Parents Involved, 551 U.S. at 721 n.10 (noting that in Seattle the question of “whether a district’s voluntary adoption of race-based assignments in the absence of a finding of prior de jure segregation was constitutionally permissible” was “an issue . . . expressly reserved”).

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suspect.’”3 Grutter, 539 U.S. at 326 (quoting City of Richmond v. J.A. Cruson Co., 488 U.S. 469, 493 (1989)). This is exactly the type of “[c]ontext [that] matters when reviewing race-based governmental action under the Equal Protection Clause.” Id. at 327. In short, equal protection jurisprudence regarding the use of racial classifications has developed markedly since Seattle was decided, and this development makes clear that applying the political restructuring doctrine to the enactment of Proposal 2 is hardly appropriate.
B.
In concluding that a race-based classification that is presumptively invalid, but permissible under limited circumstances and for a finite period of time, receives the same structural protections against statewide popular repeal as other laws that inure to the interest of minorities, the majority walks alone. The two highest courts to have considered the question have concluded that the political restructuring doctrine of Hunter and Seattle does not prevent the statewide popular elimination of race-based classification policies. The Ninth Circuit concluded that California’s Proposition 209, which eliminated public race-based and gender-based affirmative action programs, did not violate equal protection because “[i]mpediments to preferential treatment do not deny equal protection.” Wilson, 122 F.3d at 708. The court relied on an essential constitutional principle: “While the Constitution protects against obstructions to equal treatment, it erects obstructions to preferential treatment by its own terms . . . . The Equal Protection Clause, parked at our most ‘distant and remote’ level of government, singles out racial preferences for severe political burdens—it prohibits them in all but the most compelling circumstances.” Id. The Ninth Circuit recently affirmed its commitment to the reasoning in Wilson, finding it “easily reconciled” with Grutter. Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1136 (9th Cir. 2012). The California Supreme Court came to the same conclusion, quoting Grutter for the principle that
3For this reason, it is unimportant whether at the challenged enactment in Seattle imposed “an obstacle impeding preferential treatment” (Maj. Op. at 30) or whether the enactment merely made it more difficult to seek protection from discrimination. Whatever the case, Seattle did not involve the rights of minorities to a policy that was presumptively invalid and explicitly limited in time.

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“‘racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.’” Coral Constr., 235 P.3d at 960 (quoting Grutter, 539 U.S. at 342). The court explained that “[i]nstead of burdening the right to equal treatment, [the statewide referendum banning race-based classification] directly serves the principle that ‘all governmental use of race must have a logical end point.’” Id. (quoting Grutter, 539 U.S. at 342). Our own district court agreed: “Proposal 2 does not offend the Equal Protection Clause by distancing racial minority groups from the means of obtaining equal protection.” Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 924, 957 (E.D. Mich. 2008).
The teaching of these cases is that equal treatment is the baseline rule embodied in the Equal Protection Clause, from which racial-preference programs are a departure. See Grutter, 539 U.S. at 342 (“[R]ace-conscious admissions programs . . . [are a] deviation from the norm of equal treatment of all racial and ethnic groups . . . .”). These programs—fundamentally different from the underlying policies in Hunter and Seattle—cannot receive special sanctuary from a decision of the majority of voters to return their law to the equal protection norm of equal treatment.
III.
There is another reason that Hunter and Seattle cannot forbid the amendment of the Michigan Constitution through the passage of Proposal 2. In both cases the relevant lawmaking authority was reallocated from a local legislative body to the “more complex government structure,” id. at 477, of the city- or state-wide general electorate, thereby placing a “comparative structural burden . . . on the political achievement of minority interests,” id. at 475 n.17. A key consideration in analyzing a Hunter political structure challenge, therefore, is whether the challenged law affects the ability of minorities to secure “legislation that is in their interest” as minorities. Id. at 474 (internal quotation marks omitted); see also id. at 475 n.17 (“Thus, in Hunter, the procedures for enacting

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racial legislation were modified in a such a way as to place effective control in the hands of the citywide electorate. Similarly here [in Seattle], the power to enact racial legislation has been reallocated.”). As the record here demonstrates, the people of Michigan have not restructured the state’s lawmaking process in the manner prohibited by Hunter and Seattle. Instead, their vote removed admissions policy from the hands of decisionmakers who were unelected and unaccountable to either minority or majority interests and placed it squarely in an electoral process in which all voters, both minority and majority, have a voice.
A.
Public higher education in Michigan is unique in that “[t]he Michigan Constitution confers a unique constitutional status on [Michigan’s] public universities and their governing boards.” Federated Publ’ns, Inc. v. Bd. of Trs. of Mich. State Univ., 594 N.W.2d 491, 495–96 (Mich. 1999) (citing Mich. Const. art. VIII, §§ 5 and 6). These boards are “the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its functions, is coordinate with and equal to that of the legislature.” Id. at 496 n.8 (quoting Bd. of Regents of the Univ. of Mich. v. Auditor Gen., 132 N.W. 1037, 1040 (Mich. 1911)). Each governing board is vested with the power of “general supervision of its institution and the control and direction of all expenditures from the institution’s funds.” Mich. Const. art. VIII, § 5. The constitution provides for eight-member governing boards, elected to statewide office for eight-year terms, Mich. Const. art. VIII, § 5, and elections are typically staggered, with, for example, an election every two years for regents of the University of Michigan.
Although these universities and their respective boards are created by the Michigan Constitution, the admissions policies are placed within the control of the boards or school authorities only within each board’s bylaws. Thus, the admissions policies are not established by the state constitution, and it is necessary to look to testimony to determine where the power to set admissions policy lies.

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The governing boards have fully delegated the responsibility for establishing admissions standards to several program-specific administrative units within each institution, which set admissions criteria through informal processes that can include a faculty vote. For example, at the University of Michigan Law School the admissions policy is set by the law school faculty admissions committee, with major substantive changes occasionally voted upon by the entire law school faculty. Similarly, as described by its former dean, at the Wayne State University Law School the ultimate decision whether to change admissions standards rests with the faculty alone. Thus, as the Cantrell Plaintiffs readily admitted in their previous briefing, the “faculty are the primary architects of all the admissions criteria and protocols.”
As the deans of both law schools explained, at neither university is there a system in place to review or alter admissions policies at a level above a vote of the faculty. Sarah Zearfoss, the dean of admissions at the University of Michigan Law School, testified that no one could change the school’s admissions policy other than the faculty admissions committee or the faculty itself, because “there’s no higher body” to which someone unhappy with an admissions policy could advocate change. And Frank Wu, then the dean at Wayne State University Law School, agreed that “only the faculty at the law school has the authority to create and approve the admissions policy” at the school. Indeed, Wu testified that the admissions policy is not subject to the approval of the Wayne State University Board of Governors, and, in his view, if the Board of Governors attempted to alter the decision of the law school’s faculty with respect to criteria for admission, “it would precipitate a constitutional crisis.” Each institution’s board may superficially have “plenary authority” over its respective institution (see Maj. Op. at 20), but the real authority to set admissions policy rests with each program-specific faculty within the universities.
The majority ignores the factual testimony of Deans Zearfoss and Wu, which explains how admissions policies are actually crafted. Instead, the majority emphasizes that the boards—although they have fully delegated their decisionmaking power to admissions directors and faculty—can revoke this authority and can revise any bylaw

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in order to effect changes in university admission policies. That the boards can legally revoke a delegation of authority or have occasionally revised their bylaws to effect a change in admissions policy, however, does not change the underlying factual reality that the law school deans describe. Their testimony demonstrates that program-specific faculties do not merely manage the “day-to-day implementation of policy,” (Maj. Op. at 23); these entities also set and change admissions policies—without any significant oversight by the boards.
B.
The decisionmaking structure at the universities is important because these program-specific faculty admissions committees are far afield from the legislative bodies from which lawmaking authority was removed in Hunter and Seattle. To appreciate this critical difference, we need look no further than Seattle itself.
In Seattle, the Court emphasized that the type of action it found objectionable was the creation of comparative burdens “on minority participation in the political process.” 458 U.S. at 480 n.23; see id. at 486 (“[M]inorities are no less powerless with the vote than without it when a racial criterion is used to assign governmental power in such a way as to exclude particular racial groups ‘from effective participation in the political proces[s].’” (quoting City of Mobile v. Bolden, 446 U.S. 55, 94 (1980) (White, J., dissenting))). The Seattle majority, however, did not view state university admissions committees as a part of the “political process” in the manner of an elected school board or city council. A dialogue between the majority and dissent in Seattle is particularly instructive on this point. In dissent, Justice Powell, critiquing the potential breadth of the majority’s holding, argued:
Thus, if the admissions committee of a state law school developed an affirmative-action plan that came under fire, the Court apparently would find it unconstitutional for any higher authority to intervene unless that authority traditionally dictated admissions policies. As a constitutional matter, the dean of the law school, the faculty of the university system as a whole, the university president, the chancellor of the university, and the

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board of regents might be powerless to intervene despite their greater authority under state law.
Id. at 498 n.14 (Powell, J., dissenting). The majority, however, flatly dismissed this concern as a misunderstanding of the court’s decision: “It is evident, then, that the horribles paraded by the dissent, post, at [footnote 14 of the dissent]—which have nothing to do with the ability of minorities to participate in the process of selfgovernment—are entirely unrelated to this case.” Id. at 480 n.23 (emphasis added).
For the Seattle majority, then, an impermissible reordering of the political process meant a reordering of the processes through which the people exercise their right to govern themselves. See id. at 486 (“And when the State’s allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the ‘special condition’ of prejudice, the governmental action seriously ‘curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities’ . . . from the ‘majoritarian political process.’” (emphasis added) (quoting United States v. Carolene Prods. Co. 304 U.S. 144, 153 n.4 (1938); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973))); see id. at 467 (“But the Fourteenth Amendment also reaches a “‘political structure that treats all individuals as equals’ . . . yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” (emphasis added) (quoting Bolden, 446 U.S. at 84)).
Thus, the academic processes at work in state university admissions in Michigan are not “political processes” in the manner contemplated in Seattle. Unlike the Seattle School Board and the Akron City Council, the various Michigan university admissions committees and faculty members are unelected. As at most public universities, tenured faculty members have significant vested rights associated with their employment in order to preserve academic freedom and independence. The faculty members who are permitted to vote on policy matters are therefore significantly insulated from political pressure by virtue of their tenure. These faculty are beholden to no constituency—student, local, or otherwise. And, as demonstrated by the testimony of

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the law school deans in this case, the people of Michigan have no ability to exert electoral pressure on the university decision makers to change their admissions polices. As they currently stand, the faculty admissions committees are islands unto themselves, vested with the full authority to set admissions policy for their respective university programs.
Of course, when an elected body delegates a power, it does not automatically follow that the delegatee’s decisions fall outside the political process. But that is not the point. Rather, the testimony of the law school deans demonstrates that, whatever the formal legal structure, the faculty committees set admissions policies without significant review by the boards—thus insulating them from the political pressures the boards themselves face.4
Furthermore, there is no “local” university constituency as there is a local constituency for a city council or city school board, i.e., the city’s voters. Rather, despite there being a broad student, faculty, and staff community associated with each university, Michigan’s state universities were established as state-wide institutions with a state-wide constituency. The faculty admissions committees therefore do not “represent” any local constituency at all. This is particularly important because the Seattle majority looked closely at the fact that Washington’s lodging of political decisionmaking authority over the busing question at the statewide level directly burdened minority interests by “mak[ing] the enactment of racially beneficial legislation difficult, [because] the particular program might not have inspired opposition had it been promulgated through

4Nyquist v. Lee, 318 F. Supp. 710 (W.D.N.Y. 1970), aff’d Nyquist v. Lee, 402 U.S. 935 (1971), a case from the Western District of New York that was summarily affirmed by the Supreme Court and cited in Seattle, is not to the contrary. In Nyquist, the court found that a New York statute that “prohibit[ed] state education officials and appointed school boards from assigning students, or establishing, reorganizing or maintaining school districts, school zones or attendance units for the purpose of achieving racial equality in attendance” unconstitutionally reordered the political process in violation of the Equal Protection Clause. Nyquist, 318 F. Supp. at 712, 720. The fact that appointed school boards were part of the political process at issue in Nyquist does not mean that the university faculty admissions committees are similarly part of the political process. The decision in Nyquist made note of how the local boards were accountable to the community: “Parties considering themselves aggrieved by local board actions may seek to have the Commissioner enforce those policies. [The New York statute], however, singles out for different treatment all plans which have as their purpose the assignment of students in order to alleviate racial imbalance.” Id. at 719 (internal citations omitted). Thus, even the appointed school boards were accountable to the community in a way in which the faculty admissions committees certainly are not.

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the usual [local] legislative processes used for comparable legislation.” 458 U.S. at 483–84. The Court continued:
That phenomenon is graphically demonstrated by the circumstances of this litigation. The longstanding desegregation programs in Pasco and Tacoma, as well as the Seattle middle school integration plan, have functioned for years without creating undue controversy. Yet they have been swept away, along with the Seattle Plan, by Initiative 350. As a practical matter, it seems most unlikely that proponents of desegregative busing in smaller communities such as Tacoma or Pasco will be able to obtain the statewide support now needed to permit them to desegregate the schools in their communities.
Id. at 484 n.27. The availability of “local” decisionmaking is therefore important when the political power of groups who could succeed at the local level is diluted in the statewide decisionmaking process. The universities here, however, are statewide institutions with a statewide constituency. There is nothing local about them.
Nor are the committees particularly accessible or subject to effective lobbying. While members of the public may attend faculty meetings at which admissions standards are reviewed, there is no formal mechanism by which a member of the public—student or not—can move the committees to amend the admissions standards. And while interested students and members of the public are, with advance notice, permitted to speak at faculty meetings to comment on the admissions policies, the committees are not required to consider these comments seriously, issue written findings addressing these concerns, or do more than provide a forum for interested individuals to speak. Rather, it appears that the main source of divergent views on admissions policies is the faculty members themselves.
The lack of a viable electoral mechanism to change university admissions policies at a sub-constitutional level means that the voters’ use of a constitutional amendment in this instance does not serve to create “comparative structural burden[s] . . . on the political achievement of minority interests.” Seattle, 458 U.S. at 474 n.17. If, as the evidence before this court makes plain, the voters cannot exert electoral pressure on independent faculty committees, then all voters regardless of racial identity

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compete on the same level for the political achievement of their higher-education interests: the constitutional level. This state constitutional amendment does not, then, create an improper comparative structural burden, but rather merely requires proponents of the use of racial preferences in admissions policy to engage the same level of process followed by proponents of Proposal 2. Thus, contrary to what the majority suggests, the burden upon a citizen who advocates for legacy preferences in university admissions is similar to the burden upon a citizen who advocates for racial preferences. Although the former may attempt to lobby a faculty committee or university directly, these entities—according to the clear testimony of the law school deans and the manner in which authority has been delegated—will likely be unresponsive. Likewise, efforts to elect a particular board member, where the evidence demonstrates that the boards do not alter the admissions policies approved by the faculty committees, will similarly have little effect on admission policies.
Although the majority appears to see no reason to distinguish between the unelected and unresponsive program-specific faculty admissions committees here and the legislative bodies from which lawmaking authority was removed in Hunter and Seattle, a consideration of political accountability in the political process is squarely grounded in the Seattle opinion. In Seattle, the Court undertook a close examination of Washington’s system of “establish[ing] the local school board, rather than the State, as the entity charged with making decisions of the type at issue,” 458 U.S. at 477:
But Washington has chosen to meet its educational responsibilities primarily through “state and local officials, boards, and committees,” and the responsibility to devise and tailor educational programs to suit local needs has emphatically been vested in the local school boards.
Thus “each common school district board of directors” is made “accountable for the proper operation of its district to the local community and its electorate.” To this end, each school board is “vested with the final responsibility for the setting of policies ensuring quality in the content and the extent of its educational program.”
Id. at 477–78 (citations omitted) (emphases added); see also id. (noting the “disclosure and reporting provisions specifically designed to ensure the board’s ‘accountability’ to

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the people of the community” (emphasis added)). It was only upon its consideration of the state statutory structure’s vesting of decisionmaking in local and politically accountable school boards that the Court could conclude that “placing power over desgregative busing at the state level . . . restructured the Washington political process.” Id. at 480. Taking this into account, it is difficult to conclude that, in amending their state constitution to prohibit the use of racial preferences in university admissions, the people of Michigan modified “the community’s political mechanisms . . . to place effective decisionmaking authority over a racial issue at another level of government.” Id. at 474 (emphases added). Michigan has not “‘burden[ed] all future attempts’ to implement race-conscious admissions policies ‘by lodging decisionmaking authority over the question at a new and remote level of government.’” (Maj. Op. at 30–31 (quoting Seattle, 458 U.S. at 483).) Having little or no direct or indirect influence on the bodies that actually set admissions standards—the faculty committees—the people of Michigan made a political change at the only level of government actually available to them as voters. The Michigan electorate, therefore, as opposed to choosing a more complex structure for lawmaking, employed the one effective method available to exert electoral pressure on the mechanisms of government.
In short, Michigan has chosen to structure its university system such that politics plays no part in university admissions at all levels within its constitutionally created universities. The Michigan voters have therefore not restructured the political process in their state by amending their state constitution; they have merely employed it.
IV.
Finally, it is plain that Proposal 2 does not violate the Equal Protection Clause under a traditional approach to equal protection. “The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229, 239 (1976). We apply strict scrutiny to laws that (1) include a facial racial classification or (2) have a discriminatory impact and a discriminatory purpose. Adarand, 515 U.S. at 227; Davis,

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426 U.S. at 239–42. Proposal 2, which prohibits racial classifications, a fortiori does not classify facially on the basis of race. See Wilson, 122 F.3d at 702; Coral Constr., 235 P.3d at 957. As to discriminatory impact and purpose, the district court did find “sufficient evidence to establish a fact question on the disparate impact part of the test” but found no discriminatory purpose. Coal. to Defend Affirmative Action, 539 F. Supp. 2d at 951–52. Indeed, it stated that “the demonstration of a discriminatory purpose . . . dooms [the] conventional equal protection argument” because it “cannot [be] sa[id] that the only purpose of Proposal 2 is to discriminate against minorities.” Id. (citing various motivations of Proposal 2’s chief supporters that were not racially discriminatory). The district court’s conclusions are correct. “[A]bsent a referendum that facially discriminates racially, or one where although facially neutral, the only possible rationale is racially motivated, a district court cannot inquire into the electorate’s motivations in an equal protection clause context.” Arthur v. Toledo, 782 F.2d 565, 574 (6th Cir. 1986). Thus, no heightened level of scrutiny need be applied to Proposal 2, and under rational basis review, Proposal 2 is easily justifiable. Proposal 2 does not violate the Equal Protection Clause under the conventional analysis. See Brown, 674 F.3d at 1135; Wilson, 122 F.3d at 701; Coral Constr., 235 P.3d at 957.
V.
As a last matter, I have no disagreement with the majority’s treatment of the procedural issues discussed in Part II.B and C.
VI.
For these reasons, I would conclude that Proposal 2 does not violate the Equal Protection Clause of the United States Constitution under either a political restructuring theory or traditional theory of equal protection. Accordingly, I would affirm the judgment of the district court.

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______________
DISSENT ______________
ROGERS, Circuit Judge, dissenting. I join Judge Gibbons’s compelling dissent.
Under the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law. Doing so would perforce make it harder for one minority or another to obtain a preference at the lower level. That alone can hardly render the no-race-preference act unconstitutional. Whatever Hunter and Seattle hold, the Supreme Court cannot have intended such a ban.

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______________
DISSENT ______________
SUTTON, Circuit Judge, dissenting. I join Judge Gibbons’ dissent and write separately to make a few additional points.
Today’s lawsuit transforms a potential virtue of affirmative action into a vice. If there is one feature of affirmative-action programs that favors their constitutionality, it is that they grow out of the democratic process: the choice of a majority of a State’s residents to create race-conscious admissions preferences at their public universities not to benefit a majority race but to facilitate the educational opportunities of disadvantaged racial minorities. Such democratically enacted programs, like all democratically enacted laws, deserve initial respect in the courts, whether the particulars of a program satisfy the Fourteenth Amendment, see Grutter v. Bollinger, 539 U.S. 306, 343 (2003), or violate it, see Gratz v. Bollinger, 539 U.S. 244, 275–76 (2003).
Yet this lawsuit turns these assumptions on their head. Democracy, it turns out, has nothing to do with it. Plaintiffs insist that the Fourteenth Amendment’s guarantee of “equal protection of the laws” imposes two new rules on the policy debates surrounding affirmative action in higher education. Rule one: States not only may establish race-conscious affirmative-action programs, but they must do so to comply with the Fourteenth Amendment. Rule two: even if the Fourteenth Amendment does not mandate that States establish affirmative-action programs at their public universities, it bars them from eliminating such programs through amendments to their constitutions.
A.
The first theory has little to recommend it, so little that the notion of mandatory affirmative action will come as a surprise to all Justices of the United States Supreme Court, past and present, who have labored to determine whether state universities may ever enact such race-conscious programs under the United States Constitution. No Justice has taken the position that this recurring and vexing debate has all been a

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distraction, one that overlooked the hidden truth that the Fourteenth Amendment necessarily permits affirmative-action programs because it demands them.
Plaintiffs nonetheless insist that, “to the extent that [Proposal 2] . . . bar[s] race or gender conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause.” Coalition First Br. at 39; see also, e.g., Oral Arg. at 7:36–45. Yet the words of the one amendment (prohibiting the State from “discriminat[ing] . . . on the basis of race”) cannot violate the words of the other (“nor shall any State deny to any person . . . the equal protection of the laws”).
That is especially true in the context of classifications based on race, which are presumptively unconstitutional and which must run the gauntlet of strict scrutiny to survive. See Gratz, 539 U.S. at 270. If racial preferences are only occasionally and barely constitutional, it cannot be the case that they are always required. A State that wishes to treat citizens of all races and nationalities equally “is free as a matter of its own law” to do so. Oregon v. Hass, 420 U.S. 714, 719 (1975). A first premise for resolving this case is, and must be, that a State does not deny equal treatment by mandating it.
B.
The claimants’ other theory is of a piece. Having argued that the people of Michigan may not resort to the political process to eliminate racial preferences because the Fourteenth Amendment demands them, the claimants alternatively insist that the “political process doctrine” of the Fourteenth Amendment separately prohibits the State from eliminating such programs already in existence by way of a state constitutional amendment. Coalition First Br. at 27. That is not much of an alternative, as it comes to the same end. More fundamentally, the argument misapprehends what States may do as a matter of “politics” and “process.” Under the realm of politics, as just shown, the people of a State may choose to end rather than continue affirmative-action programs. Under the realm of process, the people of a State are free to use amendments to their constitution—the same charter of state government that delegated power to create affirmative-action programs in the first place—as the vehicle for making the change.

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It is not that easy, plaintiffs insist. Even if States may do all of these things, the political-process doctrine prohibits States from altering their constitutions in a way that places “special burden[s] on racial minorities within the governmental process.” Hunter v. Erickson, 393 U.S. 385, 391 (1969); see Coalition First Br. at 28. Yes, of course. But Michigan did no such thing.
By any reasonable measure, Proposal 2 does not place “special burdens” on racial minorities. It bans “discriminat[ing] against, or grant[ing] 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.” Mich. Const. art. I, § 26. That is not a natural way to impose race-based burdens. The words of the amendment place no burden on anyone, and indeed are designed to prohibit the State from burdening one racial group relative to another. All of this furthers the objectives of the Fourteenth Amendment, the same seed from which the political-process doctrine sprouted.
That the people of Michigan made this change through their Constitution, as opposed to state legislation or a new policy embraced by the governing boards at the three state universities, does not impose a “special burden” on any racial minority. There is nothing unusual about placing an equal-protection guarantee in a constitution. That is where individual-liberty guarantees often go, and that after all is where the national framers placed the federal counterpart. States need not place equal-protection guarantees at the structural location of the plaintiffs’ choosing, be it at the governing boards of each university, the faculty of each university or the admissions office of each university. Instead of neutralizing the political process, that approach would skew it.
What else at any rate could the people of Michigan have done? Keep in mind that Proposal 2 applies not just to “public education” but also to “public employment” and to “public contracting.” Neither the governing boards of the universities nor the universities’ faculties nor for that matter each university’s admissions committee oversees “public employment” or “public contracting” for the entire State. And the

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Michigan Constitution prohibits the legislature from interfering in “the university’s sphere of educational authority.” Federated Publ’ns, Inc. v. Bd. of Trustees of Mich. State Univ., 594 N.W.2d 491, 497 (Mich. 1999). That left the State just one option for addressing racial preferences in all three areas: a statewide constitutional amendment. This time-hallowed option places no special burden on proponents of affirmative action other than the customary burdens placed on anyone seeking to pass a constitutional amendment.
The charge that the Federal Constitution prohibits States from banning racial preferences through amendments to their constitutions also fails to account for one of the most fervent criticisms of state constitutions: They are too easy to change. The referendum option facilitates change, as it makes altering the constitution as easy as (if not easier than) altering legislation. After obtaining the requisite number of signatures (10% of the votes cast in the last gubernatorial election, see Mich. Const. art. XII, § 2), the proponents of change need to obtain just 51% of a popular vote and are spared the need to obtain the consent of the Governor and each house of the legislature. That is why the former Chief Justice of the California Supreme Court, faced with an equally variable state constitution, decries the “perpetual instability of California’s state constitutional law.” See Ronald M. George, Keynote Address, 62 Stan. L. Rev. 1515, 1516 (2010).
Nothing prevents proponents of affirmative action from borrowing a page from the same playbook in a future state referendum—unless, that is, 51% of Michigan voters do not support the change. But if the caveat applies, the answer is not to resort to the political-process doctrine, the goal of which is to promote neutral democratic means and ends, not to ban them. The short of it is that a bare requirement of a 51% popular vote as a vehicle for constitutional change is as good as it gets—at least from the perspective of proponents of future change. States may create higher, super-majority impediments to change. But they cannot create super-minority facilitations of it.

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Of the 51 constitutions in this country, moreover, the most difficult to change is the Federal Constitution, which requires three-quarters of the States to ratify an amendment. Now that is a difficult charter to change. Is it really possible that the same Federal Constitution that is nearly impervious to change precludes a State from housing its elimination of racial preferences in a constitution that requires just a 51% popular vote for passage? Doubtful.
Odder still, the United States Constitution generally does not meddle in the way the States structure their governments. Sailors v. Bd. of Educ. of Kent Cnty., 387 U.S. 105, 109 (1967). If they want a unicameral legislature, they can have it. See Neb. Const. art. III, § 1. And if they want direct democracy through constitutional and legislative referenda, they can have it. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 151 (1912). If even the “republican form of government” guarantee is unenforceable, see U.S. Const. art. IV, § 4; Luther v. Borden, 48 U.S. (7 How.) 1, 42 (1849), it is surely the case that the Fourteenth Amendment does not dictate the level of government at which a State must enact a statewide ban on race discrimination.
It is worth considering plaintiffs’ alternative to this straightforward interpretation of the Fourteenth Amendment, the one every other court to face this issue has embraced, including our own when the plaintiffs sought to prevent Proposal 2 from going into effect in 2007. See Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 250 (6th Cir. 2006); Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 707 (9th Cir. 1997); Coral Constr., Inc. v. City & Cnty. of San Francisco, 235 P.3d 947, 960 (Cal. 2010). Instead of allowing the people of Michigan to end racial preferences through a statewide popular vote that amends the State Constitution, they insist the Fourteenth Amendment permits this change in one, and only one, way: multiple elections over multiple years. Their theory contains several premises and several steps. One: any change may not come through legislation because the Michigan Constitution puts the governing boards at each of the three public universities (Michigan, Michigan State and Wayne State) in charge of educational policy, including apparently admissions policies, at each university. Two: there are eight members of the Board at each university, and two of

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them stand for election every two years in statewide elections. Three: these statewide elections are the only neutral way to permit opponents of racial preferences to establish such an admissions policy. Four: after eight years, the opponents of racial preferences will have had a chance to replace all members of the three Boards and presumably by then, if not a few years before, would have the votes to end racial preferences at each university. And all of this explains only the rules for Michigan’s three public universities. Anyone wishing to change admissions policies at Michigan’s other institutions of higher education faces an equally elaborate process. See Mich. Const. art. VIII, § 6 (authorizing the elected governor to appoint members of regional university boards to staggered eight-year terms); id. § 7 (authorizing locally elected boards to regulate community and junior colleges).
Whatever else one might say about the path on which this interpretation of the Fourteenth Amendment takes us, it does not follow Occam’s razor in getting there. Yet needless complexity is the least of the problems raised by this theory. How would the supporters of Proposal 2 end racial preferences in public contracting and public employment, which the university boards do not oversee? Does plaintiffs’ theory mean opponents of racial preferences must do both—win a statewide referendum and win twenty-four statewide individual elections? Must proponents of affirmative action do the same to reverse a contrary policy? Even if we ignore public contracting and employment, who says a single 10% petition drive and a single 51% popular vote make life more difficult for proponents of change than twenty-four statewide elections (among others) for twenty-four individuals over an eight-year period? Where are the empirical studies to prove the point? Should not the proponents of invalidating a state constitutional amendment be expected to prove the premise before the court accepts this invitation? Could the supporters of Proposal 2 amend the Michigan Constitution to remove control of the universities from their governing boards and place it in the hands of the legislature? What then? Would statewide legislation banning (or reinstating) racial preferences be permissible? There are many questions here, and all of them counsel against adopting this disfiguring interpretation of the Fourteenth Amendment.

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I do not doubt that Proposal 2 places a burden on proponents of affirmative action: They no longer have access to it, and they must amend the constitution to get it back. But the Fourteenth Amendment insists only that all participants in the debate have an equal shot. It does not ensure victory for one side or the other in this or that policy debate. It would be paradoxical if something called the “political process doctrine” insulated one side of a vigorous policy debate from a timeless rule of politics: win some, lose some. Winning some and losing some, as it happens, is just what has occurred across the country with statewide ballots seeking to eliminate racial preferences. While some initiatives have prevailed (California, Michigan, Nebraska and Washington), others have failed (Colorado, Missouri and Oklahoma). See Tim Hoover, Amendment 46 Fizzling Out, Denver Post, Nov. 7, 2008 at B4.
Another oddity of this theory is that it would apply even if the Michigan Constitution eliminated affirmative-action programs in another way. In 1963, the people of Michigan passed an earlier amendment to their Constitution, one that prohibited race discrimination by governmental entities. See Mich. Const. art. I, § 2. In view of this prohibition, a Michigan resident surely would have the right to bring a claim that the State Constitution’s existing prohibition on race-based classifications bars a system of racial preferences in admissions, contracting and employment. If there is one thing that the closely divided decisions in Bakke, Gratz and Grutter illustrate, it is that the Michigan Supreme Court could reasonably invalidate, or reasonably uphold, racial preferences under the State Constitution’s existing equal-protection guarantee. A decision invalidating racial preferences, however, would have precisely the same effect as Proposal 2, establishing that the Constitution bars racial preferences and placing the onus on proponents of racial preferences to alter the Constitution. The claimants have no answer to this point. If Proposal 2 violates the political-process doctrine, so too would a decision by the Michigan Supreme Court that comes to the same end through a permissible interpretation of the 1963 equal-protection guarantee.
The same is true of a state court’s decision to apply strict scrutiny to racial preferences. Most state constitutions, including all of the ones in our circuit, mirror this

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aspect of the Federal Constitution: They require strict scrutiny of governmental classifications based on race. See, e.g., D.F. v. Codell, 127 S.W.3d 571, 575 (Ky. 2003); Harvey v. State, Dep’t of Mgmt. & Budget, Bureau of Retirement Servs., 664 N.W.2d 767, 770 (Mich. 2003); State v. Thompson, 767 N.E.2d 251, 255–56 (Ohio 2002); State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994). One might think these constitutional safeguards would be secure from second-guessing by federal courts, but they are not under plaintiffs’ theory. For they impose special burdens on some policies that might benefit racial minorities in the admissions process without imposing the same burdens on policies that benefit groups categorized along non-suspect lines, such as children of alumni, athletes or band members. Under each of these state constitutions, a member of a racial minority who wants a governmental privilege must identify a compelling state interest that supports its provision. If plaintiffs are correct, that reality dooms the States’ equal protection clauses, even though the federal Equal Protection Clause requires no less. That cannot be right.
The Court’s decision in Romer v. Evans, 517 U.S. 620 (1996), which did not concern racial classifications, holds nothing to the contrary. Colorado enacted a constitutional amendment prohibiting the State and its municipalities from enacting laws banning discrimination on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Id. at 624. In invalidating the amendment, the Court noted that the amendment “impos[es] a broad and undifferentiated disability” (the inability to seek protection from discrimination at the state or local level) “on a single named group” (gays and lesbians). Id. at 632. The amendment “was inexplicable by anything but animus toward the class it affects” and therefore “lack[ed] a rational relationship to legitimate state interests.” Id. By contrast, Proposal 2 serves a rational interest, indeed a compelling one: eliminating racial classifications in admissions, public employment and public contracting.
The Court’s decisions in Hunter and Seattle, which did concern racial classifications, also hold nothing to the contrary. The laws invalidated in both cases were designed to disadvantage one minority group—African-Americans—and no other.

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In Hunter, the City of Akron in 1964 amended its charter to require that any housing ordinance forbidding discrimination “on the basis of race, color, religion, national origin or ancestry” be approved in a city-wide referendum before going into effect, an amendment designed to hinder only the political goals of the African-American community. See 393 U.S. at 391; id. at 394, 395 (Harlan, J., concurring). In Seattle, the State of Washington in 1978 enacted a law forbidding school districts from requiring children to be bused to schools distant from their homes, but made exceptions for busing designed for virtually every purpose except racial integration. 458 U.S. at 462–63. It thus “remove[d] the authority to address a racial problem—and only a racial problem—from [school boards].” Id. at 474.
The same cannot be said of Proposal 2. In the first place, Proposal 2 removes racial preferences, not anti-discrimination measures. To the extent Proposal 2 has any effect on the political structures through which a group may acquire special treatment in university admissions, it is a leveling one. The law imposes no “special burden[s]” on anyone, Hunter, 393 U.S. at 391, but instead eliminates “pernicious” “racial classifications,” Gratz, 539 U.S. at 270. If ever there were a neutral, non-special burden, that is it. The Equal Protection Clause freely permits governments to ban racial discrimination, as here, but it does not freely permit them to ban all bans on racial discrimination, as in Hunter and Seattle.
In the second place, Proposal 2 prohibits discrimination not just on the basis of race but also on the basis of sex, ethnicity and national origin. To the extent it disadvantages anyone, it disadvantages groups that together account for a majority of Michigan’s population, not this or that racial minority. It “make[s] little sense to apply ‘political structure’ equal protection principles where the group alleged to face special political burdens itself constitutes a majority of the electorate.” Coal. for Econ. Equity, 122 F.3d at 704.
Nor is it even clear which groups—men or women, this racial group or that one—Proposal 2 helps and hurts, or when each group will be affected. Perhaps there

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was a time when a ban on gender-based preferences favored men. Perhaps the opposite is true today, as female high school students increasingly outperform their male classmates. See, e.g., Rob Mank, Men Far More Likely to Benefit from Affirmative Action in College Admissions, CBS News, Sept. 26, 2011, http://www.cbsnews.com/8301-503544_162-20111646-503544.html. A ban on racial preferences likewise may favor some racial groups today and others tomorrow. The one thing we know for sure is that race-based programs need not, indeed may not, last into perpetuity, as the Court assumed that all such programs would come to an end within 25 years—namely by 2028. See Grutter, 539 U.S. at 343. It is the essence of democracy to allow the people to use their own judgment in deciding when a complicated policy has outlived its usefulness, and nothing in Grutter required the States to wait until 2028 to make that choice.
It is no answer to say that Michigan may adopt a statewide policy regarding racial preferences if, and only if, they adopt statewide policies on other admissions policies—from how much weight to give Advanced Placement courses to how many zoology students to admit to how to treat children of alumni to how to treat football players, oboists or thespians. The Equal Protection Clause reflects our collective judgment that generalizations based on race are dubious in the near term and destructive in the long term, making it appropriate to treat racial proxies, which are presumptively unconstitutional, differently from other more-pedestrian distinctions, which are presumptively constitutional. Gratz, 539 U.S. at 270. It does not bar Michigan from recognizing the same.
Any doubt that Hunter and Seattle support rather than undermine the constitutionality of Proposal 2 is removed by Seattle, the last of the two decisions. In Seattle, Justice Powell, no stranger to affirmative-action debates, raised the concern that the majority’s reasoning meant that, “if the admissions committee of a state law school developed an affirmative-action plan that came under fire, the Court apparently would find it unconstitutional for any higher authority to intervene unless that authority traditionally dictated admissions policies.” 458 U.S. at 499 n.14 (Powell, J., dissenting).

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No worries, the majority responded: The problem with Washington’s anti-busing initiative was “the burden it impose[d] on minority participation in the political process,” id. at 480 n.23, a consideration that made Justice Powell’s hypothetical “entirely unrelated to this case” because it had “nothing to do with the ability of minorities to participate in the process of self-government.” Id. If the Court thought that the removal of an affirmative-action policy was “entirely unrelated” to the concerns in Seattle, then I am hard-pressed to understand why the same is not true in this instance—and just as hard-pressed to understand how anyone can insist our hands are tied in today’s case. The companion political-process case to Seattle, handed down the same day, confirmed the point. The “Equal Protection Clause,” it made clear, “is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place.” Crawford v. Bd. of Educ. of Los Angeles, 458 U.S. 527, 538–39 (1982). That is all that happened here. The majority seeing it differently, I respectfully dissent.

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______________
DISSENT ______________
GRIFFIN, Circuit Judge, dissenting. Today’s decision is the antithesis of the Equal Protection Clause of the Fourteenth Amendment. The post-Civil War amendment that guarantees equal protection to persons of all races has now been construed as barring a state from prohibiting discrimination on the basis of race. As the United States Supreme Court has observed, “[i]t would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.” Crawford v. Bd. of Educ., 458 U.S. 527, 535 (1982). Yet the majority has effectively so concluded in striking down a portion of Michigan’s Proposal 2 (MICH. CONST. art. I, § 26 ). I join Judge Gibbons’ dissent, except for Section III, and write separately to emphasize that the “political structure” doctrine is an anomaly incompatible with the Equal Protection Clause. I urge the Supreme Court to consign this misguided doctrine to the annals of judicial history.
The Equal Protection Clause provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. 14, § 1. Under its application, a state law is subject to strict scrutiny when it explicitly distinguishes between individuals on the basis of race. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 279–80 (1986) (plurality opinion); Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979); McLaughlin v. Florida, 379 U.S. 184, 191–92 (1964). Such express racial classifications are suspect because, “[a]bsent searching judicial inquiry[,] . . . there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion); see also id. at 520 (Scalia, J., concurring in judgment).
Facially neutral laws, on the other hand, warrant strict scrutiny only if they are “motivated by a racial purpose or object,” Miller v. Johnson, 515 U.S. 900, 913 (1995),

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or are “‘unexplainable on grounds other than race.’” Shaw v. Reno, 509 U.S. 630, 643 (1993) (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)); see also Washington v. Davis, 426 U.S. 229, 242 (1976) (“Standing alone, . . . [disproportionate impact on a racial minority] does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.”) (internal citation omitted).
The ill-advised “political structure” doctrine employed by the majority in this case was crafted by the Supreme Court more than one hundred years after the ratification of the Fourteenth Amendment. Before today, the cases fitting its mold numbered three: Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); and Lee v. Nyquist, 318 F. Supp. 710 (W.D. N.Y. 1970) (three-judge court), summarily aff’d, 402 U.S. 935 (1971). The infrequent use of the doctrine is not surprising given its lack of a constitutional basis. It replaces actual evidence of racial motivation with a judicial presumption and, hence, is an aberration inconsistent with the Fourteenth Amendment.
The laws at issue in Hunter and Seattle were both facially neutral. See Hunter, 393 U.S. at 391 (noting that “the law on its face treats Negro and white, Jew and gentile in an identical manner”); Seattle, 458 U.S. at 471 (referring to the “facial neutrality” of the state legislation). Yet, in each case, the Supreme Court held that strict scrutiny applied without any need for the respective plaintiffs to show that the laws were enacted as a result of discriminatory intent or were inexplicable on grounds other than race. It simply declared that there was an “‘explicitly racial classification’” where the prior law inured to the benefit of racial minorities, and the newly enacted law moved the applicable decisionmaking process to a more remote level of government. Seattle, 458 U.S. at 468 (quoting Hunter, 393 U.S. at 389).
These decisions are justifiably characterized as “jurisprudential enigmas that seem to lack any coherent relationship to constitutional doctrine as a whole.” David J. Baron, The Promise of Cooley’s Cities: Traces of Local Constitutionalism, 147 U. Pa.

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L. Rev. 487, 561 (1999); see also Daniel P. Tokaji, First Amendment Equal Protection: On Discretion, Inequality, and Participation, 101 Mich. L. Rev. 2409, 2476 (2003) (“It is therefore easy to view these cases as constitutional oddballs, difficult or impossible to explain in light of accepted equal protection principles.”). “In the absence of a federal constitutional violation requiring race-specific remedies, a policy of strict racial neutrality by a State . . . violate[s] no federal constitutional principle.” Seattle, 458 U.S. at 491 (Powell, J., dissenting).
Moreover, as first noted by Justice Powell, the political structure doctrine unconstitutionally suspends our normal and necessary democratic process by prohibiting change when a lower level of state government has acted in a way that arguably benefits racial minorities. Id. at 494–96 (Powell, J., dissenting) (“The political process in Washington, as in other States, permits persons who are dissatisfied at a local level to appeal to the state legislature or the people of the State for redress,” but “[u]nder today’s decision this heretofore undoubted supreme authority of a State’s electorate is to be curtailed whenever a school board—or indeed any other state board or local instrumentality—adopts a race-specific program that arguably benefits racial minorities.”).
In addition, the majority in the present case eschews a “traditional” Equal Protection Clause analysis by deeming its well-established principles unnecessary to the legal equation. I respectfully disagree and would hold that by conventional equal protection standards, Proposal 2 passes constitutional muster. “A law that prohibits the State from classifying individuals by race or gender a fortiori does not classify individuals by race or gender.” Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 702 (9th Cir. 1997). In my view, racial discrimination and racial preference are synonymous. In the realm of a finite number of classroom seats, the preference given one person based upon his race is the discrimination inflicted upon another based upon his. Discrimination on the basis of race is racial discrimination, whether it is euphemistically called a “preference” or something else. In affirming California’s substantially similar

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Proposition 209, which banned race and gender preferences, the Ninth Circuit in Wilson eloquently stated:
When the government prefers individuals on account of their race or gender, it correspondingly disadvantages individuals who fortuitously belong to another race or to the other gender. “Consistency does recognize that any individual suffers an injury when he or she is disadvantaged by the government because of his or her race.” Adarand, 515 U.S. at 230, 115 S. Ct. at 2114. Proposition 209 amends the California Constitution simply to prohibit state discrimination against or preferential treatment to any person on account of race or gender. Plaintiffs charge that this ban on unequal treatment denies members of certain races and one gender equal protection of the laws. If merely stating this alleged equal protection violation does not suffice to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence.
Wilson, 122 F.3d at 702; cf. Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 250 (6th Cir. 2006) (“If the Equal Protection Clause gives heightened scrutiny to [gender-based classifications], a State acts well within the letter and spirit of the Clause when it eliminates the risk of any such scrutiny by removing gender classifications altogether in its admissions programs.”) (internal quotation marks omitted).
In a footnote, the majority superficially acknowledges, but does not discuss, the circuit split it creates in declining to follow the Ninth Circuit decisions upholding the constitutionality of analogous Proposition 209. See Wilson and Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. 2012). I would adopt the persuasive reasoning of Wilson and hold that, in amending their state constitution to prohibit racial discrimination and “preferential treatment,” the citizens of Michigan did not violate the Equal Protection Clause of the Fourteenth Amendment, but rather enshrined its principles into the Michigan Constitution. Like Proposition 209, Michigan’s proscription of racial preference, “as a matter of law and logic, does not violate the Equal Protection Clause in any conventional sense.” Wilson, 122 F.3d at 702.

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Finally, in an effort to avoid confusion and aid further review, I note the limits of the majority’s holding. My colleagues do not declare MICH. CONST. art. I, § 26 unconstitutional in its entirety. Rather, their holding is limited to “racial minorities” and our court’s declaration “[f]inding those provisions of Proposal 2 affecting Michigan’s public colleges and universities unconstitutional . . . .” Thus, the other provisions of MICH. CONST. art. I, § 26 that prohibit discrimination and preferential treatment on the basis of sex, ethnicity, or national origin in the operation of public employment, public education, and public contracting, survive this court’s ruling. Further, the Michigan constitutional prohibitions against discrimination or preferential treatment based on race, except in the operation of public colleges and universities regarding “racial minorities,” remain in effect. In this regard, art I, § 26(7) contains a severability clause: “Any provision held invalid shall be severable from the remaining portions of this section.”
I caution that because the term “racial minorities” is not defined by the majority opinion, the class of persons benefitting from it is unclear and will be a potent source of litigation were it allowed to stand. Under today’s en banc decision, not all persons are entitled to the equal protection of the laws.
For these reasons, I would affirm the district court and therefore respectfully dissent.

 
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Case No. 08-1387/08-1389/08-1534/09-1111 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ORDER
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), et al.,,
Plaintiff - Appellant - Cross Appellees v. REGENTS OF THE UNIVERSITY OF MICHIGAN, et al.,
Defendants - Appellees - Cross Appellants and BILL SCHUETTE, Michigan Attorney General,
Intervenor - Defendant - Appellee BEFORE: DAUGHTREY, COLE, and GIBBONS, Circuit Judges,
Upon consideration of motion to stay mandate, It is ORDERED that the mandate be stayed to allow Intervenor-Appellee Bill Schuette, Michigan Attorney General, time to file a petition for a writ of certiorari, and thereafter until the Supreme Court disposes of the case, but shall promptly issue if the petition is not filed within ninety days from the date of final judgment by this court.

Issued: November 30, 2012

ENTERED BY ORDER OF THE COURT Deborah S. Hunt, Clerk
___________________________________

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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: November 30, 2012

Mr. John J. Bursch Office of the Michigan Attorney General 525 W. Ottawa Street 7th Floor Law Building Lansing, MI 48909

Re:

Case No. 08-1387/08-1389/08-1534/09-1111, Coalition Affirmativ, et al v. Regents of the University of M, et al

to

Defend

Originating Case No. : 06-15024

Dear Sir or Madam, The Court issued the enclosed Order today in this case.

Sincerely yours,

cc: Ms. Sharon Louise Browne Mr. Joshua Ian Civin Mr. Charles J. Cooper Ms. Karin A. DeMasi Mr. Eugene Driker Ms. Shanta Driver Ms. Allison S. Elgart Mr. G. Scott Emblidge Mr. Mark P. Fancher Mr. Derek T. Ho Mr. Wilson Ray Huhn Ms. Sherri Sokeland Kaiser

s/Robin Duncan Case Manager Direct Dial No. 513-564-7027

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Ms. Winifred V. Kao Mr. Barry Levenstam Mr. Daniel M. Levy Ms. Heather S. Meingast Ms. Catherine M. Mish Ms. Kary Leslie Moss Ms. Margaret A Nelson Mr. Leonard M. Niehoff Mr. Doyle G. O'Connor Mr. Jesse M. Panuccio Mr. Joseph Edward Potchen Ms. Kristen Lee Rewa Mr. Mark D. Rosenbaum Mr. Michael E. Rosman Ms. Stephanie R. Setterington Mr. Michael Francis Smith Mr. Michael Jay Steinberg Mr. John David Taliaferro Mr. George Boyer Washington Mr. David J. Weaver Mr. William F. Young
Enclosure

 
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Case No. 08-1387/08-1389/08-1534/09-1111 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ORDER
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), et al.,,
Plaintiff - Appellant - Cross Appellees v. REGENTS OF THE UNIVERSITY OF MICHIGAN, et al.,
Defendants - Appellees - Cross Appellants and BILL SCHUETTE, Michigan Attorney General,
Intervenor - Defendant - Appellee

BEFORE: DAUGHTREY, COLE, and GIBBONS, Circuit Judges. Upon consideration of the motion filed by Plaintiff-Appellants/Cross-Appellees’ to
dissolve the stay of this Court’s mandate, It is ORDERED that the motion is DENIED.
ENTERED BY ORDER OF THE COURT Deborah S. Hunt, Clerk

Issued: December 11, 2012

___________________________________

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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: December 11, 2012

Mr. George Boyer Washington Scheff, Washington & Driver 645 Griswold Suite 1817 Detroit, MI 48226-0000

Re:

Case No. 08-1387/08-1389/08-1534/09-1111, Coalition Affirmativ, et al v. Regents of the University of M, et al

to

Defend

Originating Case No. : 06-15024

Dear Sir or Madam, The Court issued the enclosed Order today in this case.

Sincerely yours,

cc: Ms. Sharon Louise Browne Mr. John J. Bursch Mr. Joshua Ian Civin Mr. Charles J. Cooper Ms. Karin A. DeMasi Mr. Eugene Driker Ms. Shanta Driver Ms. Allison S. Elgart Mr. G. Scott Emblidge Mr. Mark P. Fancher Mr. Derek T. Ho Mr. Wilson Ray Huhn

s/Robin Duncan Case Manager Direct Dial No. 513-564-7027

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Ms. Sherri Sokeland Kaiser Ms. Winifred V. Kao Mr. Barry Levenstam Mr. Daniel M. Levy Ms. Heather S. Meingast Ms. Catherine M. Mish Mr. Kerry Lee Morgan Ms. Kary Leslie Moss Ms. Margaret A Nelson Mr. Leonard M. Niehoff Mr. Doyle G. O'Connor Mr. Jesse M. Panuccio Mr. Joseph Edward Potchen Ms. Kristen Lee Rewa Mr. Mark D. Rosenbaum Mr. Michael E. Rosman Ms. Stephanie R. Setterington Mr. Michael Francis Smith Mr. Michael Jay Steinberg Mr. John David Taliaferro Mr. David H. Thompson Mr. David J. Weaver Mr. William F. Young
Enclosure

 
 Coalition to Defend Affirmative Action, Integration and..., 240 F.R.D. 368 (2006)

240 F.R.D. 368 United States District Court,
E.D. Michigan, Southern Division.
COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRATION RIGHTS AND FIGHT FOR EQUALITY BY ANY
MEANS NECESSARY (BAMN), United for Equality and Affirmative Action Legal Defense Fund, Rainbow Push Coalition, Calvin Jevon Cochran, Lashelle Benjamin, Beautie Mitchell, Denesha Richey, Stasia Brown, Michael Gibson, Christopher Sutton, Laquay Johnson, Turqoise Wise-King, Brandon Flannigan, Josie Human, Issamar Camacho, Kahleif Henry, Shanae Tatum, Maricruz Lopez, Alejandra Cruz, Adarene Hoag, Candice Young, Tristan Taylor, Williams Frazier, Jerell Erves, Matthew Griffith, Lacrissa Beverly, D’Shawnm Featherstone, Danielle Nelson, Julius Carter, Kevin Smith, Kyle Smith, Paris Butler,
Touissant King, Aiana Scott, Allen Vonou, Randiah Green, Brittany Jones, Courtney Drake, Dante Dixon, Joseph Henry Reed, AFSCME Local
207, AFSCME Local 214, AFSCME Local 312, AFSCME Local 836, AFSCME Local 1642,
AFSCME Local 2920, and the Defend Affirmative Action Party, Plaintiffs, v.
Jennifer GRANHOLM, in her official capacity as Governor of the State of Michigan, the Regents of the University of Michigan, the Board of Trustees
of Michigan State University, the Board of Governors of Wayne State University, and the Trustees of any other public college or university, community college, or school district, Defendants,
and Regents of the University of Michigan, The Board of Trustees of Michigan State University and the
Board of Governors of Wayne State University, Cross-Plaintiffs, v.
Jennifer Granholm, in her official capacity as Governor of the State of Michigan, CrossDefendant.
No. 06-15024. | Dec. 27, 2006.
Attorneys and Law Firms
*370 George B. Washington, Shanta Driver, Scheff & Washington, Detroit, MI, for Plaintiffs.
Opinion

OPINION AND ORDER GRANTING MOTIONS TO EXPEDITE, GRANTING IN PART AND DENYING
IN PART MOTIONS TO INTERVENE, AND STRIKING MOTION TO DISMISS
LAWSON, District Judge.
OPINION AND ORDER GRANTING MOTIONS TO EXPEDITE, GRANTING MOTION TO INTERVENE
BY ERIC RUSSELL, DENYING REMAINING MOTIONS TO INTERVENE, AND STRIKING MOTION TO DISMISS FILED BY THE AMERICAN
CIVIL RIGHTS FOUNDATION AND THE MICHIGAN CIVIL RIGHTS INITIATIVE
COMMITTEE
Before the Court are three motions by various parties to intervene in this action *371 either as plaintiffs or defendants. This case was commenced on November 8, 2006 by several plaintiffs as a challenge to a recentlyapproved state constitutional amendment, Proposal 06-2, now known as Article 1, section 26 of the Michigan Constitution of 1963, that purports to bar the use of race, sex, color, ethnicity, or national origin to promote diversity in public hiring, contracting, and university admission decisions. The plaintiffs allege that the amendment violates the United States Constitution. The Court has reviewed the submissions of the parties and finds that the relevant law and facts have been set forth in the motion papers and that oral argument will not aid in the disposition of the motion. Further, the parties have sought expedited treatment of their motions, and oral argument is impractical in light of that request. Accordingly, it is ORDERED that the motion be decided on the papers submitted. See E.D. Mich. LR 7.1(e)(2). The Court finds that the interests of the proposed intervenors, save those of Eric Russell, are represented adequately by the parties presently before the Court, allowing intervention would interfere with the expeditious disposition of the present action, and therefore intervention is not in the interest of justice. Proposed intervenor Russell, however, has identified an individual interest that may not be represented adequately by the institutional parties now before the Court, and therefore his motion to intervene will be granted.
I.
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A.
Although the lawsuit’s filing the day after the election received some press coverage, there was little activity in the case for over a month after it was filed. Then on December 11, 2006, the three University defendants filed a cross-claim against co-defendant Governor Jennifer Granholm seeking declaratory relief, together with a motion for a preliminary injunction to delay the implementation of the state constitutional amendment until the current enrollment season is completed, and a motion for expedited consideration. The Court ordered responses to the motion for injunction by December 18, 2006. Thereafter, the Michigan Attorney General sought permission to intervene as a defendant in the matter, together with a motion to expedite consideration of the motion to intervene. The parties to the case either took no position or consented to the relief, and the Court granted the motion to intervene on December 14, 2006.
On December 18, 2006, the Court received a stipulation [dkt # 26] from all parties to the case, including intervening defendant Michigan Attorney General, consenting to the temporary injunctive relief sought by the cross-claimants (the University defendants), and agreeing to dismiss with prejudice the portion of the cross-claim seeking a temporary injunction, and the balance of the cross-claim without prejudice. The Court approved the stipulation and entered an appropriate order on December 19, 2006.
Also on December 14, 2006, a motion to intervene was filed by the American Civil Rights Foundation and the Michigan Civil Rights Initiative Committee. The American Civil Rights Foundation appears to be a California-based organization and represents that it is a coalition of individuals who are opposed to the use of racial, gender, and ethnic factors by government in making decisions about letting contracts, education, and employment. The Michigan Civil Rights Initiative Committee is the ballot question committee that sponsored the challenged ballot proposal. These two groups seek to intervene as defendants in the action. Along with their motion to intervene, they filed a motion to dismiss the complaint, but the plaintiffs filed an amended complaint on December 17, 2006. They filed no motion for immediate consideration at that time.
On December 18, 2006, a motion to intervene as defendants was filed by a group called Toward a Fair Michigan, and an individual named Eric Russell. The mission of Toward a Fair Michigan, according to the affidavit of its chairperson, is to “promot[e] and foster[ ] balanced debate” on the ballot proposal, and “insure that the deliberate will of the people” is enforced. Aff. of William Allen at ¶ 1. Eric Russell states that he is a Michigan citizen who intends to apply to law *372 school at the University of Michigan next year.

Also on December 18, 2006, the City of Lansing filed a motion to intervene as plaintiff in the action. The City seeks a delay in the effective date of the constitutional amendment as to it because, it contends, it must work within the framework of certain municipal ordinances that mandate the use of racial and gender preferences in employment and letting contracts. The next day, Lansing filed a supplemental emergency motion to intervene in which it asks that it be allowed the benefit of the stipulation reached by the parties to the case with respect to the delay of the effective date of the constitutional amendment as to the University defendants’ admission programs.
The American Civil Rights Foundation and Toward a Fair Michigan filed their motions to expedite the hearings on their intervention motions on December 19, 2006. They both make reference to the (now dismissed) cross-claim filed by the University defendants and the “additional filings” in the case as grounds for expedited consideration.
B.
The main thrust of the motions to intervene filed by the American Civil Rights Foundation, the Michigan Civil Rights Initiative Committee, Toward a Fair Michigan, and Eric Russell is that some of the named defendants have evidenced through public statements their opposition to Proposal 2 or have otherwise demonstrated they will not vigorously defend its constitutionality. These contentions are focused on the Michigan Governor and the University defendants, since the motions were filed presumably without the benefit of learning that the Michigan Attorney General, who publicly supported the proposal during the election, was allowed to intervene in the case. The City of Lansing seeks intervention as a plaintiff based on its “substantial interest in preserving its legislatively mandated purchasing and hiring ordinances and civil rights policies and procedures.” Br. in Supp. of Mot. to Intervene at 7. Lansing’s main goal is obtaining additional time to comply with the amendment’s provisions.
The American Civil Rights Foundation and the Michigan Civil Rights Initiative Committee argue that their request is timely even though it comes after the cross-claim by the University defendants was resolved and dismissed, they have a substantial interest in the subject matter of the lawsuit because of their activity in promoting passage of the proposal, their interest in ending affirmative action would be impaired if Proposal 2 were invalidated or narrowly interpreted, and the other parties could not represent their interests because those interests are inconsistent with the defendants’ pre-election
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pronouncements about the ballot proposal.
The University defendants and the Governor respond with the arguments that the intervention request is untimely because the cross-claim has been resolved and the proposed intervenors failed to ask for expedited treatment of their motion despite the time-sensitive nature of the cross-claim. They also argue that the proposed intervenors failed to demonstrate a substantial interest in the litigation that is different than any voter who supported the proposal. They next contend that with the entree of the Michigan Attorney General into the case, a full range of arguments addressing all the relevant issues will be presented to the Court, particularly in light of the attorney general’s pledge to vigorously defend the amendment. Finally, the Governor asserts that the Court should view with skepticism the Michigan Civil Rights Initiative Committee’s request to intervene because of the misconduct its members were found to have committed by the deception of Michigan citizens in obtaining the requisite number of signatures in support of Proposal 2 as described in Operation King’s Dream v. Connerly, 2006 WL 2514115 (E.D.Mich.2006). The Michigan Attorney General did not respond to the intervention motion by the American Civil Rights Foundation and the Michigan Civil Rights Initiative Committee.
In their motion to intervene, Toward a Fair Michigan and Eric Russell likewise contend that their request is timely. Russell says that he has an interest in the subject matter of the litigation because he is a white male seeking admission to the University of *373 Michigan Law School next fall. The interest of Toward a Fair Michigan is less concrete; it asserts that it did not take a position concerning whether Proposal 2 should be passed, and its objective was to educate the public and see that the will of the electorate, whatever its decision, was implemented. Russell also argues that his interest in achieving admission to the University of Michigan would be impaired if Proposal 2 is struck down or narrowly construed, and Toward a Fair Michigan argues that its interests will be impaired if the will of the people is not upheld. These proposed intervenors also contend that their interests will not be represented adequately by the present parties based on the Governor’s preelection statements in opposition to the proposal.
The University defendants and the Governor have repeated their responses in opposition to the intervention motions filed by Toward a Fair Michigan and Russell. The Michigan Attorney General did not respond to the intervention motion filed by these proposed intervenors.
The City of Lansing argues that its motion for intervention is timely because it filed the present motion promptly after discovery of its interest in the litigation. In identifying its interest in the subject matter of the present lawsuit, Lansing asserts that like the plaintiffs who seek to

overturn Proposal 2, Lansing “has a similar interest not necessarily in overturning Proposal 2, but at least in delaying its implementation.” Br. in Supp. of Mot. to Intervene at 7. Lansing also contends that disposition of the case may, as a practical matter, impair Lansing’s interest because an adverse decision would defeat Lansing’s efforts to achieve race and gender equality through local legislation. Finally, Lansing asserts that its interests are not adequately represented because none of the current parties will represent the interests and concerns of local governments effected by Proposal 2.
The Michigan Attorney General opposes Lansing’s request to intervene primarily on the ground that Lansing has failed to establish that its interests will be inadequately represented by the current parties to the case. The attorney general insists that the movant has the burden of establishing inadequacy of representation, and this burden includes overcoming the presumption of adequacy of representation when the proposed intervenor and a party to the suit share the same ultimate objective. The University defendants and the Governor did not respond to the intervention motion filed by the City of Lansing.
All movants also have sought permissive intervention as an alternative form of relief.
II.
Motions to intervene are governed by Federal Rule of Civil Procedure 24. Rule 24 allows two types of intervention: intervention by right and permissive intervention. With respect to both types of intervention, the Sixth Circuit has held that although “Rule 24 should be ‘broadly construed in favor of potential intervenors,’ ” the court has cautioned that “this does not mean that Rule 24 poses no barrier to intervention at all.” Stupak-Thrall v. Glickman, 226 F.3d 467, 472 (6th Cir.2000) (quoting Purnell v. Akron, 925 F.2d 941, 950 (6th Cir.1991)). The court has affirmed the denial of motions to intervene by right and permissively for a variety of reasons. See, e.g., Jordan v. Michigan Conf. of Teamsters Welfare Fund, 207 F.3d 854, 863 (6th Cir.2000) (affirming denial of a motion to intervene as of right, because the motion was untimely and the proposed intervenor’s interests were adequately represented); Bradley v. Milliken, 828 F.2d 1186, 1194 (6th Cir.1987) (affirming denial of motions to intervene permissively and as of right, in part because “the district court has already taken steps to protect the proposed intervenors’ interests by inviting [their counsel] to appear as amicus curiae in the case”).
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A.
Rule 24(a), dealing with intervention of right, states:
Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the *374 action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
[1] Fed.R.Civ.P. 24(a). “[T]o intervene as of right under Rule 24(a)(2), a proposed intervenor must establish the following four elements: (1) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed intervenor’s ability to protect that interest may be impaired in the absence of intervention; and (4) the parties already before the court may not adequately represent the proposed intervenor’s interest.” United States v. Michigan, 424 F.3d 438, 443 (6th Cir.2005). “Failure to meet [any] one of the [four] criteria will require that the motion to intervene be denied.” Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.1989).
[2] [3] The first element-timeliness-“should be evaluated in the context of all relevant circumstances.” Stupak-Thrall, 226 F.3d at 472 (internal quotation marks omitted). A variety of factors are usually considered, including the developments in the case, the purpose for intervention, and how long the proposed intervenors knew of their interest in the property or transaction at issue before they sought permission to intervene. Id. at 473-74. In this case, the lawsuit challenges the implementation of a state constitutional amendment that was to go into effect on December 23, 2006. None of the parties save Russell has offered an explanation why they waited for over a month to join the suit. Russell’s individual interest became apparent when the University defendants sought a delay in the effective date of the state constitutional amendment and reached an agreement to that effect with others in the lawsuit. Since Russell’s own admission prospects may be affected by that agreement, it was sensible for him to seek intervention when that information came to light. The other proposed intervening defendants, however, have interests that are no different than any Michigan citizen who voted in favor of the ballot proposal, and there was no obstacle to their taking action shortly after the lawsuit was filed and well in advance of the effective date of the amendment. Similarly, the City of Lansing no doubt was

aware of the pending litigation and the effective date of the amendment, but it chose to wait for over a month before seeking an entree into the case. The Court believes that the citizens of the State are best served by a prompt resolution of the issues framed by the pleadings as to the constitutionality of their new state constitutional provision, and the delay in reaching that objective occasioned by the tardy requests to intervene, in light of all the circumstances of the case, renders the requests (save Russell’s) untimely.
The second element-that the proposed intervenor proves a substantial legal interest in the property or transaction involved in the lawsuit-was addressed by the Sixth Circuit in Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir.1997), which the court denominated a “close case.” There, the court of appeals wrote:
This circuit has opted for a rather expansive notion of the interest sufficient to invoke intervention of right. See Purnell, 925 F.2d at 948; Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir.1987) (“[T]his court has acknowledged that ‘interest’ is to be construed liberally.”). We have, for example, noted that an intervenor need not have the same standing necessary to initiate a lawsuit, Purnell, 925 F.2d at 948, and cited with approval decisions of other courts “reject[ing] the notion that Rule 24(a)(2) requires a specific legal or equitable interest.” Id. .... The inquiry into the substantiality of the claimed interest is necessarily factspecific. Id. at 1245. The court in Miller held that the Michigan Chamber of Commerce had a sufficient legal interest in a suit challenging an amendment to Michigan’s Campaign Finance Act not only due to its role in the political process that resulted in the adoption of the disputed amendment, but also by the fact that it was also specifically regulated by the legislation. See id. at 1247. Further guidance is provided by Grutter v. Bollinger, 188 F.3d 394 (6th Cir.1999), where the court held that proaffirmative action groups and minority applicants to the University of *375 Michigan’s undergraduate and law programs had a sufficient interest to justify intervention in a suit challenging the university’s race-conscious admission programs because, if the lawsuit was successful and the affirmative-action programs eliminated, they would have a lesser chance of gaining admission. See id. at 400.
[4] [5] In this case, the American Civil Rights Foundation and the Michigan Civil Rights Initiative Committee argue that they were integrally involved in the drafting and promotion of Proposal 2. It would not be unreasonable to posit that the amendment would not have reached the ballot without their efforts. Therefore, although under Miller, the question of whether these organizations have a sufficient interest in the outcome of this litigation is perhaps a close one. However, involvement in the pre-
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election activity does not automatically establish a substantial interest in this litigation, as these proposed intervenors contend. Miller does not stand for the proposition that an organization that supports legislation ipso facto has a substantial legal interest in the outcome of a suit challenging such legislation. Rather, the court found a substantial interest where the Chamber of Commerce in that case was not a mere supporter of the legislation; it was also directly “regulated by at least three of the four statutory provisions challenged by the plaintiffs.” 103 F.3d at 1247. There is no suggestion that either of these organizations will be affected by rulings concerning the amendment at issue in this case. They have not asserted that whatever ruling this Court hands down will have an impact on the vitality of the organizations, subject them to regulation, or expand or curtail their rights as organizations. They have not proved, therefore, that they have an “interest relating to the property or transaction which is the subject of the action.” Fed.R.Civ.P. 24(a).
The interest of Toward a Fair Michigan is even more tenuous. It has represented that it took no pre-election position of whether the proposal should pass, but it only sponsored debates about the merits of the ballot initiative. It states that its present mission is to ensure that public officials carry out the will of the electorate and advise people of their rights under the new amendment. Toward a Fair Michigan has not identified any interest in its brief that would be impacted by a ruling of the Court.
[6] The City of Lansing primarily seeks a delay in the application of the constitutional amendment to itself. It has argued that it is subject to regulation by the new law, and its impact will materially affect the operations of the City in its hiring and contract-letting decisions. Lansing has established a substantial interest in the litigation under Miller.
Likewise, Eric Russell is situated similarly to the intervenors in Grutter v. Bollinger, in that if the present plaintiffs are successful in obtaining a ruling that the constitutional amendment is invalid, Russell’s chances of gaining admission to the University of Michigan law school may be diminished. See Grutter, 188 F.3d at 400.
Proof of the third element-that the proposed intervenor’s ability to protect its interest may be impaired in the absence of intervention-is not an onerous task. “ ‘To satisfy this element of the intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal.’ ” Grutter, 188 F.3d at 399 (quoting Miller, 103 F.3d at 1247). Of course, the inability to protect one’s interest posits the existence of an interest to begin with. The American Civil Rights Foundation, the Michigan Civil Rights Initiative Committee, and Toward a Fair Michigan have failed in that proof. Eric Russell and the City of Lansing have not.

[7] The fourth element requires the proposed intervenor to prove the inadequacy of representation by others who are in the case, and it appears to be the most critical issue with respect to the present motions to intervene. In Michigan, the Sixth Circuit explained that
[a]pplicants for intervention bear the burden of proving that they are inadequately represented by a party to the suit. Meyer Goldberg, Inc. v. Goldberg, 717 F.2d 290, 293 (6th Cir.1983). This burden has been *376 described as minimal because it need only be shown ‘that there is a potential for inadequate representation.’ Grutter, 188 F.3d at 400. Nevertheless, applicants for intervention must overcome the presumption of adequate representation that arises when they share the same ultimate objective as a party to the suit. Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir.1987).
United States v. Michigan, 424 F.3d at 443-44. In Grutter, the courts of appeals held that the burden of proof concerning inadequacy of representation remains the same when the existing party (the putative representative of the proposed intervenor’s interests) is a governmental entity. Grutter, 188 F.3d at 400. To meet this burden, “[i]t may be enough to show that the existing party who purports to seek the same outcome may not make all of the prospective intervenor’s arguments.” Ibid. (internal quotation marks omitted).
The main argument by the proposed intervening defendants on the adequacy of representation is that the original parties to the lawsuit all had been opposed to the ballot proposal before the election. That argument certainly had some force before the Michigan Attorney General was allowed to intervene in the case. There is evidence showing that Governor Granholm made public statements calling for the rejection of Proposal 2 prior to election day and lamenting its subsequent passage. The University defendants plainly oppose Proposal 2 as evidenced by their cross-claim in this action contesting the constitutionality of the amendment and seeking the delay of its implementation. However, the Michigan Attorney General took a pre-election position in support of Proposal 2 and urged its passage. The Attorney General’s office has taken pains to divide its sections representing the Governor and its own interests and has isolated the two divisions. For his own part, the assistant attorneys general assigned to represent the General’s own interests have averred that the Michigan Attorney General will “ensure that the Court is presented with a full range of arguments ... so that a vigorous defense of the constitutionality of [Proposal 2] may be had.” Mot. to Expedite Mot. to Intervene by Attorney General at ¶ 9.
The proposed intervening defendants have challenged the attorney general’s ability to represent their interests by arguing that, no matter how well the attorney general may
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represent the electorate, it is doubtful that he will be able to represent the specific interests of the sponsors and drafters of Proposal 2. This argument is as imprecise as it sounds, but the theory essentially appears to be that the attorney general will not defend Proposal 2 with as much fervor as the proposed intervenors would. However, the “interest” of the proposed intervenors in seeing the constitutional amendment upheld is no different than the majority of Michigan citizens who voted for its passage. There is no proof in this record that the proposed intervenors or their lawyers would be more capable than the elected attorney general of mounting a defense to the amendment, or that their arguments would be more compelling or credible or better founded. Since the interests of proposed intervenors the American Civil Rights Foundation, the Michigan Civil Rights Initiative Committee, and Toward a Fair Michigan are precisely aligned with those of the Michigan Attorney General, and because there is little likelihood that their participation would shed any new light on the issues presented, they have not shown that the present parties, as they are now aligned, would be inadequate to advance their interests.
Similarly, the City of Lansing has not made a convincing argument that its interests are not well-represented. The named plaintiffs oppose Proposal 2, the Universities largely oppose Proposal 2, and Governor Granholm has publicly displayed her disagreement with the amendment. The current parties to the suit-private organizations, a variety of individuals, and labor unions-seem to be interested in the amendment’s impact on education, employment, and public contracts. Under these circumstances, the Court finds that Lansing’s interests appear to be adequately represented.
The circumstances of Eric Russell are different. Russell is the only intervenor who *377 has alleged an individual interest that may not be taken into account by the present parties. He has alleged a personal stake in seeing that his law school admission chances are not diminished by a narrow construction or invalidation of the amendment. His interest extends beyond those of the citizens and election groups that promoted or opposed the ballot proposal. He seeks the implementation of Proposal 2 now, while his application is being processed. The other parties do not represent that position. Russell, therefore, has established the fourth element for intervention by right.
The Court finds that none of the proposed intervenors except Eric Russell have made the proper showing to establish a right to intervene in this case under Rule 24(a).

intervention. It states:
Upon timely application anyone may be permitted to intervene in an action ... when an applicant’s claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
[8] Fed.R.Civ.P. 24(b). An applicant for permissive intervention, therefore, must prove that the motion for intervention is timely, there is at least one common question of law or fact, and the balancing of undue delay, prejudice to the original parties, and any other relevant factors favors intervention. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir.1997).
[9] The Court has found that the motions to intervene by the American Civil Rights Foundation, the Michigan Civil Rights Initiative Committee, Toward a Fair Michigan, and the City of Lansing are not timely. Moreover, it is paramount that the issues in this case are resolved promptly. Michigan’s public institutions will serve its citizens best when they have a clear understanding of the requirements and limitations of the State’s new constitutional amendment. That clear understanding will not be achieved until the conclusion of the judicial process. This Court has no delusion that its pronouncement will be the last word on the subject. History has confirmed that the district courts, in cases of this importance, are mere way stations on the judicial road to a final resolution by courts beyond. Nonetheless, the case must pass through this stage-and promptly-before the goal of finality can be realized.
Allowing additional parties into the lawsuit at this stage of the proceedings will inhibit, not promote, a prompt resolution by this Court. Additional parties no doubt could seek to file more claims, amend pleadings even further, and inject issues that may not lead directly to a resolution of the issues circumscribed by the present pleadings. The rules of civil procedure, including Rule 24(b), must be “construed and administered to secure the just, speedy, and inexpensive determination of every action.” Fed.R.Civ.P. 1. After balancing the relevant factors, the Court determines that allowing discretionary intervention will not advance that objective.

B. Rule 24 also sets out the standard for permissive

III. 6

Coalition to Defend Affirmative Action, Integration and..., 240 F.R.D. 368 (2006)

The Court has found that proposed intervenor Eric Russell has established a right to intervene. The Court is not persuaded that the remaining proposed intervenors ought to intervene in the present action. One of the proposed intervenors has filed a motion to dismiss, which will be stricken because it was not filed by a proper party to the case.
Accordingly, it is ORDERED that the motions to expedite the motion to intervene by Eric Russell and Toward a Fair Michigan [dkt # 43], the American Civil Rights Foundation and Michigan Civil Rights Initiative Committee [dkt # 41], and the City of Lansing [dkt # 38] are GRANTED.
It is further ORDERED that the motion to intervene by Eric Russell [dkt # 27] is GRANTED.
It is further ORDERED that the motion to intervene by Toward a Fair Michigan [dkt # 27] is DENIED.

It is further ORDERED that the motion to intervene by American Civil Rights Foundation *378 and Michigan Civil Rights Initiative Committee [dkt # 16] is DENIED.
It is further ORDERED that the motion to intervene by City of Lansing [dkt # 31] is DENIED.
It is further ORDERED that the motion to dismiss by American Civil Rights Foundation and Michigan Civil Rights Initiative Committee [dkt # 21] is STRICKEN.
Parallel Citations
99 Fair Empl.Prac.Cas. (BNA) 846, 89 Empl. Prac. Dec. P 42,668, 217 Ed. Law Rep. 839
	  

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Case No. 08-1387/08-1389/08-1534/09-1111 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ORDER
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), et al.,,
Plaintiff - Appellant - Cross Appellees v. REGENTS OF THE UNIVERSITY OF MICHIGAN, et al.,
Defendants - Appellees - Cross Appellants and BILL SCHUETTE, Michigan Attorney General,
Intervenor - Defendant - Appellee BEFORE: DAUGHTREY, COLE, and GIBBONS, Circuit Judges,
Upon consideration of motion to stay mandate, It is ORDERED that the mandate be stayed to allow Intervenor-Appellee Bill Schuette, Michigan Attorney General, time to file a petition for a writ of certiorari, and thereafter until the Supreme Court disposes of the case, but shall promptly issue if the petition is not filed within ninety days from the date of final judgment by this court.

Issued: November 30, 2012

ENTERED BY ORDER OF THE COURT Deborah S. Hunt, Clerk
___________________________________

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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: November 30, 2012

Mr. John J. Bursch Office of the Michigan Attorney General 525 W. Ottawa Street 7th Floor Law Building Lansing, MI 48909

Re:

Case No. 08-1387/08-1389/08-1534/09-1111, Coalition Affirmativ, et al v. Regents of the University of M, et al

to

Defend

Originating Case No. : 06-15024

Dear Sir or Madam, The Court issued the enclosed Order today in this case.

Sincerely yours,

cc: Ms. Sharon Louise Browne Mr. Joshua Ian Civin Mr. Charles J. Cooper Ms. Karin A. DeMasi Mr. Eugene Driker Ms. Shanta Driver Ms. Allison S. Elgart Mr. G. Scott Emblidge Mr. Mark P. Fancher Mr. Derek T. Ho Mr. Wilson Ray Huhn Ms. Sherri Sokeland Kaiser

s/Robin Duncan Case Manager Direct Dial No. 513-564-7027

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Ms. Winifred V. Kao Mr. Barry Levenstam Mr. Daniel M. Levy Ms. Heather S. Meingast Ms. Catherine M. Mish Ms. Kary Leslie Moss Ms. Margaret A Nelson Mr. Leonard M. Niehoff Mr. Doyle G. O'Connor Mr. Jesse M. Panuccio Mr. Joseph Edward Potchen Ms. Kristen Lee Rewa Mr. Mark D. Rosenbaum Mr. Michael E. Rosman Ms. Stephanie R. Setterington Mr. Michael Francis Smith Mr. Michael Jay Steinberg Mr. John David Taliaferro Mr. George Boyer Washington Mr. David J. Weaver Mr. William F. Young
Enclosure

 
 2:06-cv-15024-DML-RSW Doc # 246 Filed 03/18/08 Pg 1 of 55 Pg ID 5335

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COALITION TO DEFEND AFFIRMATIVE ACTION,

INTEGRATION AND IMMIGRATION RIGHTS AND

FIGHT FOR EQUALITY BY ANY MEANS NECESSARY

Case No. 06-15024

(BAMN), UNITED FOR EQUALITY AND AFFIRMATIVE Hon. David M. Lawson

ACTION LEGAL DEFENSE FUND, RAINBOW PUSH

COALITION, CALVIN JEVON COCHRAN, LASHELLE

BENJAMIN, BEAUTIE MITCHELL, DENESHA RICHEY,

STASIA BROWN, MICHAEL GIBSON, CHRISTOPHER

SUTTON, LAQUAY JOHNSON, TURQOISE WISE- OPINION AND ORDER

KING, BRANDON FLANNIGAN, JOSIE HUMAN,

GRANTING IN PART AND

ISSAMAR CAMACHO, KAHLEIF HENRY,

DENYING IN PART

SHANAE TATUM, MARICRUZ LOPEZ,

UNIVERSITY DEFENDANTS’

ALEJANDRA CRUZ, ADARENE HOAG, CANDICE MOTION TO DISMISS,

YOUNG, TRISTAN TAYLOR, WILLIAMS FRAZIER, DENYING CANTRELL

JERELL ERVES, MATTHEW GRIFFITH,

PLAINTIFFS’ MOTION FOR

LACRISSA BEVERLY, D’SHAWNM

SUMMARY JUDGMENT,

FEATHERSTONE, DANIELLE NELSON,

GRANTING ATTORNEY

JULIUS CARTER, KEVIN SMITH, KYLE

GENERAL’S MOTION FOR

SMITH, PARIS BUTLER, TOUISSANT KING,

SUMMARY JUDGMENT, AND

AIANA SCOTT, ALLEN VONOU, RANDIAH

DISMISSING CASES

GREEN, BRITTANY JONES, COURTNEY DRAKE,

DANTE DIXON, JOSEPH HENRY REED,

AFSCME LOCAL 207, AFSCME LOCAL 214,

AFSCME LOCAL 312, AFSCME LOCAL 836,

AFSCME LOCAL 1642, AFSCME LOCAL 2920,

and the DEFEND AFFIRMATIVE ACTION PARTY,

Plaintiffs,

v.

THE REGENTS OF THE UNIVERSITY OF MICHIGAN, the BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, the BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, the TRUSTEES of any other public college or university, community college, or school district, ATTORNEY GENERAL MICHAEL COX, and ERIC RUSSELL,

Defendants,

2:06-cv-15024-DML-RSW Doc # 246 Filed 03/18/08 Pg 2 of 55 Pg ID 5336

-and-

CHASE CANTRELL, M.N., a minor child, by Karen Nestor, CONSOLIDATED CASES

Mother and Next Friend, KAREN NESTOR, Mother and

Next Friend of M.N., a minor child, C.U., a minor child, by

Paula Uche, Mother and Next Friend, PAULA UCHE,

Case No. 06-15637

Mother and Next Friend to C.U., a minor child, JOSHUA

Hon. David M. Lawson

KAY, SHELDON JOHNSON, MATTHEW COUNTRYMAN,

M.R., a minor child, by Brenda Foster, Mother and Next Friend,

BRENDA FOSTER, Mother and Next Friend of M.R., a minor

child, BRYON MAXEY, RACHEL QUINN, KEVIN GAINES,

DANA CHRISTENSEN, T.J., a minor child, by Cathy Alfaro,

Guardian and Next Friend, CATHY ALFARO, Guardian and

Next Friend of T. J., a minor child, S. W., a minor child, by

Michael Weisberg, Father and Next Friend, MICHAEL

WEISBERG, Father and Next Friend of S. W., a minor child,

CASEY KASPER, SERGIO EDUARDO MUNOZ, ROSARIO

CEBALLO, KATHLEEN CANNING, EDWARD KIM, M.C.C. II,

a minor child, by Carolyn Carter, Mother and Next Friend,

CAROLYN CARTER, Mother and Next Friend of M.C.C., II,

a minor child, J.R., a minor child, by Matthew Robinson,

Father and Next Friend, MATTHEW ROBINSON,

Father and Next Friend of J.R., a minor child,

Plaintiffs,

v.

ATTORNEY GENERAL MICHAEL COX and ERIC RUSSELL,
Defendants,
_____________________________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART UNIVERSITY DEFENDANTS’ MOTION TO DISMISS, DENYING CANTRELL
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, GRANTING ATTORNEY GENERAL’S MOTION FOR SUMMARY JUDGMENT,
AND DISMISSING CONSOLIDATED CASES

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The plaintiffs in these consolidated actionschallenge the constitutionality ofan amendment to Michigan’s state constitution that was adopted by a m ajority vote of the elec torate at the November 2006 election. The am endment, referred to throughout this opinion as Proposal 2, prohibits the State and its political subdivisions from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the ope ration of public em ployment, public education, or public contracting.” Mich. Const. art. I, § 26(1). Before the Court are several dispositive motions filed by the parties, which were fully briefe d and presented at oral argum ent held on February 6, 2008. For reasons discussed in detail below, the Court determines that there are no material fact issues that require a trial on any of the claims, and the Court must find that Proposal 2 does notviolate the United States Constitution. Therefore, the Court will grant in part and deny in part the university defendants’ motion to dismiss, deny the Cantrell plaintiffs’ motion for summary judgment, grant the attorney general’s motion for summary judgment, and dismiss these consolidated cases.
I. Facts and Proceedings A. Background
In the 1960s, minority racial groups in Michigan began lobbying the University of Michigan Board of Regents to consider an applicant’s race in making admissions determinations, thereby treating minority status as a positive factor. In1992, the University of Michigan law school crafted an admission policy that used an applicant’s race as one of m any factors in assem bling classes consisting of “a mix of students with varying backgrounds and experie nces who will respect and learn from each other.” Grutter v. Bollinger, 539 U.S. 306, 314 (2003) (internal quotes omitted).
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The undergraduate school considered race in its admissions decisions since at least 1995. Gratz v. Bollinger, 539 U.S. 244, 254-55 (2003).
In 1997, white applicants who were rejected under those system s challenged the state schools’ admission policies in federal court, arguingthat they violated the Equal Protection Clause of the Fourteenth Amendment because race was considered as a factor in deciding whomto admit. However, the Supreme Court eventually held th at “student body diversity is a com pelling state interest that can justify the use of race in university admissions.” Grutter, 539 U.S. at 325. In the case of the law school, the Court held that its admissions system “bears the hallmarks of a narrowly tailored plan,” id. at 334, and upheld it against the constitutional challenge. The Court invalidated the undergraduate school’s program because it resembled a quota system bereft of the necessary individualized consideration found in the law school’s program, and therefore the system was not narrowly tailored to achieve the compelling state interest. Gratz, 539 U.S. at 275-76.
Not satisfied with that result, the plaintif in Gratz joined forces with Ward Connerly and the Michigan Civil Rights Initiative (MCRI) to placeon the November 2006 statewide ballot a proposal to amend Michigan’s constitution to bar programs for state school admission, public employment, and public contracting that grant preferential treatment on the basis of race or gender. The petition drive eventually was designated officially as Proposal 06-2, although throughoutthe process and this litigation it is known as Proposal 2, and it has beencharacterized by the Michigan Attorney General at oral argument in this case as an anti-affirmative action measure.
The signature-gathering phase of the initiative process generated considerable controversy. The Sixth Circuit found that “the solicitation and procurement of signatures in support of placing Proposal 2 on the general election ballot was rife with fraud and deception. . . . By all accounts,
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Proposal 2 found its way on the ballot through methods that undermine the integrity and fairness of
our democratic processes.” Operation King’s Dream v. Connerly, 501 F.3d 584, 591 (6th Cir.
2007). Nevertheless, Proposal 2 was allowed to rem ain on the ballot, and the Mi chigan voters
approved the constitutional amendment with approximately 57.9% of the voters in favor and 43.1%
disapproving. See State Proposal-06-2: Constitutional Am endment: Ban Affirm ative Action
Programs, at http://miboecfr. nictusa.com/election/results/06GEN/90000002.html (last visited Feb.
10, 2008). Only three of Michigan’s 83 counties rejected the measure; the rest approved it.
Proposal 2 amended the state constitution by adding the following provisions:
(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or universityc, ommunity college, or school district shall 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.
(2) The state shall not discrim inate against, or grant preferenti al treatment to, any individual or group on the basisof race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
(3) For the purposes ofthis section “state” includes, but is not necessarily limited to, the state itself , any city, county, any public college, university, or com munity college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.
(4) This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.
(5) Nothing in this section shall be intrepreted as prohibiting bona fide qualifications based on sex that are rea sonably necessary to the norm al operation of public employment, public education, or public contracting.
(6) The remedies available for violations ofthis section shall be the same, regardless of the injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Michigan anti-discrimination law.
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(7) This section shall be self-executing. Ifany part or parts of this section are found to be in conflict with the United States Constitution or federal law, the section shall be implemented to the m aximum extent that the United States Constitution and federal law permit. Any provision held invalid shall be severable from the remaining portions of this section. (8) This section applies only to action taken after the effective date of this section. (9) This section does not invalidate any court order or consent decree that is in force as of the effective date of this section. Mich. Const. art. I, § 26. Although an exit poll conducted by Edison Media Research f ound that 86% of black voters voted “No” on Proposal 2, thereliability of that poll has been questioned. See Eric Russell Resp. to Cantrell Mot. for Summ. J., Ex. 1, W ilson Dec. at ¶ 4 (explaining that the reliability of this figure cannot be determined without knowing the sam ple size and how m any people refused to respond). The day after the election, a collection of interest groups and individuals (the Coalition plaintiffs) brought suit alleging that the state constitutional amendment violated the United States Constitution and federal law. They filed t heir complaint in this Court on Novem ber 8, 2006. Another group (theCantrell plaintiffs) brought suit on December 19, 2006, contending that Proposal 2 was unconstitutional as it is applied to public colleges and universities. This Court consolidated these cases on January 5, 2007. Proposal 2 took effect on December 23, 2006. Although the Court granted the plaintiffs and the University defendants a measure of relief by entering a stipulated order temporarily enjoining Proposal 2’s im plementation at Michigan’s universities, that injunction was shor t-lived. On December 29, 2006, the Sixth Circuit issued a stay ofthe injunction pending a full appeal as to the injunction only. See Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 253 (6th Cir. 2006). That appeal subsequently was dism issed as moot, since the injunction merely put off the
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effective date of Proposal 2 until July 1, 2007. The universities thereaf ter implemented Proposal 2 and applied its requirements to the 2006-2007 admissions cycle. TheCoalition plaintiffs amended their complaint on December 17, 2006, and again on March 28, 2007. The Cantrell plaintiffs amended their complaint on January 17, 2007.
Thereafter, the Court instructed the parties to attempt a stipulation of facts that would have permitted the issues to be adjudicated promptly by dispositive motion, but the attempt failed and the parties proceeded with discovery. On May 15 and 16, 2007, the plaintiffs filed motions to certify the matter as a class action. Those motions were argued and taken under advisement, and they will be adjudicated in a separate order. On October 5, 2007, the Cantrell plaintiffs filed a motion for summary judgment as to intervening defendant Eric Russell. The University defendants filed their motion to dismiss on October 17, 2007. On November 30, 2007, the Michigan attorney general filed a motion to dismiss or for sum mary judgment, intervening defendant Russell filed a m otion for summary judgment, and the Cantrell plaintiffs fled a motion for summary judgment. These motions were submitted for decision after oral argument on February 6, 2008.
These motions raise issues of standing, the propriety of joining the Michigan universities as defendants, and challenges to the plaintiffs’ arguments that Proposal 2 violates the Equal Protection Clause, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Am endments of 1972. A discussion of the allegations in the complaints and the facts elicited through discovery, therefore, is necessary.
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B. The Amended Complaints 1. The Cantrell Plaintiffs
The thrust of the Cantrell plaintiffs’ com plaint is that Proposal 2 violates the Equa l Protection Clause of the Fourte enth Amendment, but not in the traditional sense. Unlike the Coalition plaintiffs, whose complaint is discussed below, the Cantrell plaintiffs do not base their challenge on the argument that denying preferential treatment to minority students is unlawful per se, but rather on the idea that Proposal 2 places an undue burden on the ability of minority groups to effect changes in policy by altering the political structure. Their theory is tied to language in Hunter v. Erickson, 393 U.S. 385 (1969), Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982), and Romer v. Evans, 517 U.S. 620 (1996).
The Cantrell plaintiffs exclusively challenge Proposal 2 as it is applied to Michigan’s public universities, and the University of Michigan in particular. T he named plaintiffs are eighteen individuals who all bear some connection to the University of Michigan and believe Proposal 2 is bad for that institution’s future. Three of the named plaintiffs are students at the law school; four are undergraduate students; six are high school students who plan to apply to the university; one is a Ph.D. candidate; and four are professors. The majority of the named plaintiffs are members of a minority racial group, although a handful are Caucasians who believe that racial diversity is important to their educational experience. The plaintiffs purport to “represent a class of all present and future students and faculty at the University of Michigan who applied to, m atriculated at, or continue to be enrolled at or em ployed by the Unive rsity of M ichigan in reliance upon the University’s representation that it would continue to admit and enroll a diverse group of students
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at the school consistent with its former policies, which took race into account among other factors.” Cantrell Amend. Compl. at ¶ 31.
These plaintiffs claim that Proposal 2 pl aces an undue political burden on individuals or groups who would seek to alter public university polices regarding the consideration of race in the admissions process, because the only way to alter the policy is a state-wide ballot initiative rather than a petition to the governing body of the university, to which they would have had access before Proposal 2’s passage. According to the Cantrell plaintiffs, persons seeking to alter adm issions policies with respect to other factors, such as legacy status or geographic origin, can simply appeal to the individual colleges or schools. On the other hand, “[t]his avenue is foreclosed . . . to those seeking beneficial admissions policies that includeconsideration of race . . . in the decision-making process.” Id. at ¶ 51. These plaintiffs support their claim that obtaining a voter-appr oved constitutional amendment is m ore difficult than successf ully petitioning individual university governing bodies to alter admissions policies by alleging, inter alia, the fact that access to the state ballot requires gathering signatures totaling “‘not less than eight percent . . . of the total vote cast for all candidates for governor at the last preceding general election.’” Id. at ¶ 53 (quoting Mich. Const. art. 2, § 9).
Citing Hunter and Seattle for the proposition that “a state law violates the Equal Protection Clause when it ‘disadvantage(s) any particulargroup by making it more difficult to enact legislation in its behalf,’” Cantrell Amend. Compl. at ¶ 57 (quotingHunter, 393 U.S. at 393, and citingSeattle, 458 U.S. at 468), the Cantrell plaintiffs argue that “[b]y creating a political process that sets aside race, among other categories, for consideration ‘at a new and remote level of government,’ Proposal 2 imposes a ‘substantial and unique burden on racial minorities.’” Id. at ¶ 58 (quoting Seattle, 458
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U.S. at 470, 483). Based on this theory, t he plaintiffs seek to permanently enjoin application of Proposal 2 at the University of Michigan and other public universities.
2. The Coalition Plaintiffs Like the Cantrell plaintiffs, the Coalition plaintiffs focus principally, if not exclusively, on Proposal 2’s impact on public universities. In contrast to the Cantrell plaintiffs, howe ver, the Coalition plaintiffs include persons and entities that bear a connection to schools other than the University of Michigan. The named plaintiffs include the following organizations and individuals: (1) the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN); (2) the United ofr Equality and Affirmative Action Legal Defense Fund (UEAALDF), a non-profit corporation founded by BAMN; (3) the Rainbow PUSH coalition; (4) the Defend Affirmative Action Party (DAAP), a studnet organization at the University of Michigan; (5) some twenty-seven minority high school students who plan to attend either the University of Michigan, Michigan State University, or Wayne State University; (6) three recent graduates from the University of California at Berkeley who pl an to attend graduate school at one of either Michigan, Michigan State, or Wayne State; (7) two minority community college students who plan to apply to either Michigan, Michigan State, or W ayne State; (8) three other individuals with “substantial college credits” who plan to apply toeither Michigan, Michigan State, or Wayne State; (9) one minority student currently attending Michigan; (10) an individual who helped circulate the petition for Proposal 2; and (11) six local unions with large minority memberships. The named plaintiffs purport to represent three classes of individuals: the first class is comprised of all African American, Latino, and Native American applicants to or students at Michigan, Michigan State, and
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Wayne State; the second class is made up of all women applicants to or students at those schools; and the third includes all African Am erican, Latino, and Native Am erican citizens who want to lobby for or vote for changes in the adm ission and other policies at the University of Michigan, Michigan State University, and Wayne State University that benefit African American, Latino, and Native American citizens.
These plaintiffs present a political-burden argument that is similar to the one made by the Cantrell plaintiffs, except that it extends to gender. TheCoalition plaintiffs also claimthat Proposal 2 directly discriminates against university applicants on the basis of their race and gender because “Proposal 2 has as its primary aim reducing the admission of black, Latino, and Native American students and of wom en students into some programs,” Coalition Sec. Am. Compl. at ¶ 107, by eliminating the “desegregation plans that haveresulted in the admission of significant numbers” of such students, id. at ¶ 106. Paradoxically, the Coalition plaintiffs contend that elimination of socalled preferential treatment actually amounts to discrimination, explaining:
In its history, in its evident purpose, in its defiance of the state tradition of control of the universities by the governing boards, and in its adoption of explicit race and gender classifications, Proposal 2 violat es the Equal Protection Clause of the Fourteenth Amendment by intentionally discrim inating against black, Latino/a, Native American and women students. Id. at ¶ 111. In addition, the Coalition plaintiffs contend that Proposal 2 violates the First Amendment and is preempted by Title VI of the Civil Ri ghts Act of 1964 and Title IX of the Educat ion Amendments of 1972. T he Coalition plaintiffs’ First Am endment argument is premised on the Supreme Court’s pronouncement in Grutter v. Bollinger that institutions of higher learning have a right to academic freedom rooted in that Amendment. According to the Coalition plaintiffs,
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universities have a First Amendment right to considerrace and gender in the selection of faculty and students in order to prom ote diversity and fruitf ul education; and students, in t urn, are the beneficiaries of that right, which Proposal 2 violates.
The Coalition plaintiffs also argue that Proposal 2 conflicts with Title VI of the Civil Rights Act of 1964 and is therefore preem pted by that Act. They contend that Title VI, specifically 42 U.S.C. § 2000d, prohibits race- and national origin-based discrimination in programs that receive federal funding. Pursuant to Title VI, the Departm ent of Education promulgated regulations that prohibit universities receiving federal funds from using admission criteria that either discriminate on the basis of race or im pede the goal of elim inating racial discrimination. See 34 C.F.R. 100.3(b)(2). In light of Californai ’s experience with Proposition 209, theCoalition plaintiffs allege that Proposal 2 will “result in a devastating decline in the num ber of black, Latino/a and Native American students, in direct violation of the purpose of Title VI and of the specific prohibitions of the regulations that im plement Title VI.” Coalition Sec. Amend. Compl. at ¶ 127. Finally, the Coalition plaintiffs claim that Proposal 2 is preempted by Title IX of the Education Amendments of 1972, the gender-based analog to Title VI. See 20 U.S.C. § 1681; 34 C.F.R. § 106.23).
Based on these claim s, the Coalition plaintiffs ask the Court to enjoin permanently the implementation of Proposal 2 at the University ofMichigan, Michigan State University, and Wayne State University.
C. Facts Presented From Discovery The information gathered by the parties thr ough discovery falls into two categories: the prospect for minority enrollment after Proposal 2’s implementation compared with beforehand; and the difficulty involved in amending the state constitution.
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1. Minority Admissions Before and After Proposal 2 Pursuant to the state constitution, the University of Michigan, Michigan State University, and Wayne State University are controlled by boards ofregents. Mich. Const. art. VIII, § 5. These boards are endowed with a high degree of autonomy; each enjoys the power of “general supervision of its institution and the control and direction ofall expenditures fromthe institution’s funds.” Ibid. These governing bodies have delegated the responsibility to establish adm issions policies to departments within the respective institutions . These “adm itting units” have “establish[ ed] admissions systems that allow for the consideration of a variety of factors.” Cantrell Mot. for Summ. J as to Russell [dkt # 172], Ex. I, Univ. RFA Resp. at ¶ 5. Over time and partly as a result of lobbying feforts, the universities’ admissions systems and standards have evolved. Students and other indi viduals have always been “free to lobby the Universities for or against the adoptionof particular admissions policies.” Id. at ¶ 7. Beginning in the 1960s, African Americans and other groups of minorities lobbied for the consideration of race in admissions, and it appears that the universities embraced the concept. As noted above, in 2003 the United States Supreme Court weighed in on the legitimacy of the admissions policies at Michigan and Michigan Law in Gratz v. Bollinger and Grutter v. Bolinger, invalidating the undergraduate adm ission plan and sustaining the law school’s plan. Following these decisions, Michigan amended its undergraduate admissions policy to comply with the Supreme Court’s instruction. According to Theodore Spencer, associate vice-provost and director of undergraduate admissions, the Grutter decision provided a “great road m ap of what a holistic [and permissible] review process should look like.” Cantrell Mot. for Summ. J., Ex. D, Spencer Dep. at 38. The ke y to this “holistic” process was that no single factor was dispositive.
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“[H]olistic means that the decisions are not just based on grades and test scores, it means that it’s not just based on perhaps being an alumor any oneparticular factor, race or anything else, but rather on the composite review of al l the information that the student provides.” Ibid. Race was still considered, but admissions officers would consider “50 to 80 different categories” in conducting their review. Id. at 35.
Frank H. Wu, dean at Wayne State University Law School, testified similarly that prior to Proposal 2, the a dmissions committee considered a wide variety of non-academ ic factors that “contribute to a diverse and engaged law student body.” Cantrell Mot. for Summ. J., Ex. F, Wu Dep. at 32. Therefore, if a minority applicant failed to possess an LSAT score and GPA that would on their own qualify her for admission, the admissions committee would consider race, in addition to other factors that might “reduce[] the reliabilityof GPA as an index of academic achievement and promise.” Ibid.
In response to Proposal 2’s passage, the universities eliminated race from their admissions criteria but continued to consider various other non-academic factors, such as geography, alumni connections, socioeconomic status, and athletic ability. At Michigan Law, for instance, “the meat of th[e] [pre-Proposal 2] policy is the same [as the post-Proposal 2 policy] . . . with the exception of race.” Cantrell Mot. for Summ. J., Ex. E, Zearfoss Dep. at 192. It is the undisputed testimony of university officials that Proposal 2 prohibits them from considering race to any degree.
Based on the information offered by the parties, the most that can be said is that it is not clear exactly how Proposal 2 will affect m inority admissions in the long run. W hat evidence there is suggests that minority admissions will fall at the state’s more selective schools, but the degree to which this will occur is subject to debate. Two diferent types of evidence have been submitted on
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the matter: (1) testimony by admissions officials; and (2) testimony by outside experts. Both draw heavily on California’s experience under Proposition 209.
Theodore Spencer, Sarah Zearfoss (dean of admissions at Michigan Law), and Frank Wu all testified that Proposal 2 will depress minority enrollment. Spencer expressed doubts over the ability to maintain minority enrollment through the use ofa proxy, like socioeconomic status. He explained that university officials in California, Washington, Texas, and Georgia (states with laws similar to Proposal 2) “cannot achieve the same sort of racial and ethnic diversity that they had prior to such measures . . . without considering race.” SpencerDep. at 100-01. Similarly, Zearfoss testified that she excepts a decline in minority admissions because, in her view, it is impossible “to get a critical mass of underrepresented minorities . . . without considering race.” Zearfoss Dep. at 56-57, 193. Wu stated that although some creative approaches might mitigate the effects of Proposal 2, he “did not think that any one of these proposals or a ny combination of these proposals was reasonably likely to result in the admission of a class that hadthe same or similar or higher numbers of African Americans, Latinos and Native Am ericans as the prior policy.” W u Dep. at 78. Even W ard Connerly, the architect of Proposal 2, admitted that, following the amendment, “the University of Michigan would be virtually resegregate d as the University of California Berkeley and UCLA have,” Cantrell Mot. for Summ. J., Ex. K, Connerly Dep. at 120, although he stated that this was not his intent.
In terms of expert testimony, the Cantrell plaintiffs offer the declarations of two purported experts in the field of race and adm issions, William Bowen and Jeannie Oakes. Mr. Bowen is a former president of Princeton University and the author of two books on race-conscious admissions policies. In addition to highlighting the salutary effects of affirmative action, Bowen states that
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“[t]he available evidence indicates that race-neutral alternatives are unlikely to be as effective as
race-conscious admissions in enrolling a diverse student body.” Cantrell Mot. for Summ. J., Ex. L,
Bowen Decl. at ¶ 11. In particular, “income-based strategies are unlikely to be good substitutes”
because, although African Ame ricans and Latinos are “overrepresented in the country’s poor
population, the great majority of that population is still white.” Id. at ¶ 12.
Jeannie Oakes, Presidential Professor in Educational Equity at UCLA, is ofa similar mind.
In her study, Oakes “dr[ew] fromthe experiences ofTexas and California and contrast[ed] relevant
circumstances in these states with those in Michigan.” Cantrell Mot. for Summ. J., Ex. M, Oaks
Decl., Ex. 1, The Viability of Race-Neutral Approaches for Achieving Diversity at the University
of Michigan, at 2. In 2005 and 2006, Oakes found that blacks at the University of Michigan were
underrepresented by almost 300% when compared with K-12 enrollment figures at public schools
in the state. She used these and other pre-Propos al 2 figures to calibrate a baseline; she di d not
assume that these numbers constituted sufficient diversity, but simply inquired whether these levels
(whether adequate or not) could be maintained. She stated her findings as follows:
A. Race-neutral admissions strategies (e.g., Percent Plans) have not been effective as replacem ents for race-conscious strategies in m aintaining or increasing diversity in the public universities in Texas and Calif ornia, two states with restrictions on race-conscious practices in university admissions similar to those required under Michigan’s Proposal 2.
Race-neutral Percent Pl ans that guarantee adm ission to the top ranked graduates of eac h public high school have not been successful in either California or Texas in maintaining levels of racial diversity comparable to those achieved with race-conscious policies prior to the Hopwood case in Texas or the passa ge of Proposition 209 in California that m ade raceconscious policies impermissible.
B. Michigan differs from California and Texas in ways that make it even more unlikely that race-neutral approaches would result in the diversity required at the University of Michigan. In fact, such strategies would likely exclude
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Id. at 3-4.

from admission in-state African American and Latino high school graduates with academic preparation sufficient to succeed at the university.
B.1. Whereas the top-tier universities in California and Texas draw their freshman classes almost exclusively from graduates of California [and Texas] high schools, a m ajority of those offered adm ission as first-time freshmen at the University of Michigan (including a majority of those from underrepresented minority groups) are not Michigan residents. Race-neutral admissions criteria (e.g., Percent Plans) and outreach strategies focused on Michigan high school s would not benefit the large percentage of underrepresented minority students who a re drawn from other states. Moreover, given the substantially lower scores on academ ic admissions criteria of nonresident underrepresented adm its, in com parison to nonunderrepresented admits, few of these underrepresented out-of-state admits would likely be admitted were race not a consideration in the admissions processes.
B.2. The high degree of racial segregation in Michigan high schools means that students from underrepresented m inority groups are concentrated in a very small percentage of the state’s high schools. As a result, a plan guaranteeing admission to high ranking students at each of the state’s high schools would have its greatest benefit to students in schools with predominantly white populations and yield a relatively small number of underrepresented minority students.
B.3. The small number of Michigan high schools with predom inantly URM populations produces relatively few graduates with the academic records that would make them competitive for admission at the University of Michigan. This, in part, results f rom the relationship between the hi gh concentration of poverty at racially isolated minority schools and the low level of opportunity associated with these schools. Lower levels of opportunity, in turn, affect the academic performance of students, specifically their ability to meet state standards on assessment tests, qualifying for state merit aid for college. These l ow levels of achievem ent are related to the racial and/or poverty com position of a student’s high school. Consequently, race-neutral “Percent Plans” would likely result in the admission of underrepresented m inority students with academ ic preparedness far below that required to succeed in an “elite” university.

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Although the defendants have not produced evidence directly c

ontradicting these

conclusions, they have taken the position that they are mere speculation. See Cox Resp. Br. at 20-

21. I n addition, defendant Eric Russell challe nges the underlying assum ption that preferential

treatment is good for racial minorities. In support of this argument, he submits the declaration of

Richard H. Sander, a law professor at UCLA whohas garnered much attention for his development

of the “mismatch effect” theory, first introduced in an article appearing in theStanford Law Review.

See A Systemic Analysis of Affirmative Action in American Law Schools , 57 Stan. L. Rev. 367

(2004). The driving principle of that theory is that affirmative action harms minorities in the long

run by pl acing them in institutions where they cannot com pete or keep up with the pace of

instruction. According to Sander, this theory finds support in the case of the Univers ity of

Michigan’s law school: data from2004, 2005, and 2006“show very large disparities in bar passage

rates across racial lines,” with black graduates ofMichigan Law “about eight times as likely to fail

on their first attempt as were white graduates.” Russell Reply [dkt # 181], Ex. 1, Sander Decl. at

¶ 6.

In addition, the Coalition plaintiffs offer evidence and argum ent that the conditions that

necessitated resort to af firmative action programs to achieve parity in opportunity f or minority

students still exist after the passage of Proposal 2. The y cite as exam ples de facto residential

segregation, unequal resources for K through 12 schools for minorities, limited minority access to

resources and programs, and racial stereotyping. According to Dr. Gary Orfield, who testified at

the Grutter trial in this Court, even with affirmative action programs in effect, minority students’

SAT scores typically are significantly lower that white students’ scores regardless of income levels,

and minority students do not have the same access to honors or advanced placement classes that can

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boost grade point average. Coalition Resp. Br., Ex. M, Orfield testimony, at 11, 92, 103-104. In 2005, the University of Michigan undergraduate program offered no admission to students from fourteen different Detroit high schools which are intensely segregated. Coalition Resp. Br., Ex. J, Miller Decl. at 9.
The attorney general did not reply to the Coalition plaintiffs’ brief. Intervening defendant Russell replies to the Coalition plaintiffs’ arguments primarily by referring to W ard Connerly’s deposition testimony that he believes eliminating racial preferences favoring minorities will benefit minority students in the long run by eliminating artificial equalizers and forcing them to compete in the larger society on the basis of merit.
2. Difficulty Amending the State Constitution There is also som e ambiguity concerning j ust how onerous it would be to secure an amendment repealing Proposal 2. Kristina Wilfore, executive director of Ballot Initiative Strategy Center, Inc., a non-profit organization that re searches and trains people in the ballot initiative process, has submitted a declaration on behalf of the Cantrell plaintiffs positing that state-wide ballot initiatives are typically expensive and time-consuming and often unsuccessful. She has also suggested that repealing Proposal 2 would be particularly dif ficult due to unique f eatures in Michigan’s ballot initiative process and specific factors inherent in the subject matter of affirmative action. According to Wilfore, Michigan poses obstacles because (1) it is a “politically competitive state . . . with a large number of initiatives vying for voters’ attention on any given ballot”; (2) its media market is expensive when com pared with other states; (3) the state constitution requires signatures from 8% of the total vote cast for all c andidates for governor in the preceding general election; and (4) “Michigan has an unusually short time frame for the gathering of signatures and
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filing of petitions.” Cantrell Mot. for Summ. J, Ex. C, Wilfore Decl. at ¶¶ 29-32. In addition, she says that Proposal 2 would be particularly challenging to repeal due to the fact that (1) polling data regarding affirmative action is unreliable, i.e., individuals often behave differently when they get to the voting booth; (2) affirm ative action is a tough cause to m arket because it is com plex and elicits emotional responses; and (3) “[t]here is no single obvious financial benefactor who would support the pro-affirmative action policy.” Id. at ¶¶ 36-37.
Intervening defendant Russell counters this evidence with the testimony of Jennifer Gratz, director of the Michigan Civil Rights Initiative Com mittee, who believes that “Ms. W ilfore exaggerates both the effort and expense associated with putting an initiative or referendum on the ballot in Michigan.” Russell Resp. Br., Ex. 3, GratzDecl. at ¶ 4. According to Gratz, polling is not necessary; a popular initiative can be passed with less than $5 million; and Michigan does not have a particularly short signature-gathering period (California, Oklahom a, and Massachusetts ha ve shorter periods). Moreover, the funding marshaled in opposition to Proposal 2 shows that monetary support would not be a m ajor obstacle. “O ne United Michigan (‘O UM’), the ballot initiative committee that was the chief opponent of Proposal 2 in the 2006 election, received and spent just a little less than $4.8 million,” including contributions from General Motors Corporation, Chrysler Corporation, and Ford Motor Company. Id. at ¶¶ 10, 12.
II. The University Defendants’ Motion The Coalition plaintiffs (but not the Cantrell plaintiffs) sued the university defendants seeking mandatory injunctive relief with respect to Proposal 2’s effect on admissions policies that include consideration of race. The university defendants now ask this Court to dismiss them from the action pursuant to Federal Rule of Civil Procedure 21 on the grounds that they are not proper
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parties to the case. They also contend that Count 6 of theCoalition plaintiffs’ amended complaint – alleging a violation of the First Amendment – should be dismissed for lack of standing.
As to the Rule 21 argum ent, the university defendants point out that although they m ust follow Proposal 2, they did not draft or enact it; they cannot repeal it, amend it, or ignore it; and they have no responsibility to enforce it against anyone ordefend it in court. Therefore, they argue, they are not proper parties fromwhom relief can be obtained. The university defendants contend that the Coalition plaintiffs have no standing to assert a First Am endment claim because the right to academic freedom does not belong to any of the plaintiffs, but rather to the universities. Because of Supreme Court aut hority generally stating that there is a prohibition against asserting the constitutional rights of others, these defendants argue that the Coalition plaintiffs cannot establish standing.
Federal Rule of Civil Procedure 21 states: Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party. Fed. R. Civ. P. 21. The Rule allows dismissal of misjoined parties; “[t]he cases make it clear that parties are misjoined when they fail to satisfy either of the preconditions for permissive joinder of parties set forth in Rule 20(a).” Wright, Miller & Kane, Federal Practice and Procedure § 1683 (3d ed. 2001) (citing Michaels Bldg. Co. v. Ameritrust Co., 848 F.2d 674 (6th Cir. 1988)). According to Rule 20, defendants are properly joined when th e claims asserted against them arise from a common transaction or occurrence and those claims present some common question of law or fact. Fed. R. Civ. P. 20(a).
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With these criteria in mind, the Sixth Circuit has held that dismissal for misjoinder is proper where the party is not responsible for the allegedharm and does not have the power to accord relief. See Sutherland v. Mich. Dep’t of Treas,. 344 F.3d 603, 612-13 (6th Cir.2003) (approving dismissal of the State of Michigan where the only clai m brought against the State was for em ployment discrimination and the State was notthe plaintiff’s employer). The one instance where a court may dismiss a party under Rule 21 notwithstanding her satisfaction of the Rule 20(a) requirements lies in the context of diversity jurisdiction.See Soberay Mach. & Equip. Co. v. MRF Ltd,.181 F.3d 759, 763 (6th Cir. 1999) (noting that “[it] is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dr opped at any time, even after judgment has been rendered,” to preserve complete diversity).
The Court believes that the university defendantsare properly joined as parties to this case, and dismissal for misjoinder is not appropriate, because the claims brought against the universities are intertwined with those challenging Proposal 2 in general. TheCoalition plaintiffs allege that it is discriminatory (in a conventional sense) to abolish preferential treatment in admissions policies, and both groups of plaintiffs claim that Pr oposal 2’s im pact on a dmissions amounts to a discriminatory restructuring of the political pro cess. Because the claims agai nst the university defendants and the attorney general share com mon questions of law and fact and arise out of the same occurrence, the preconditions of joinder unde r Rule 20(a) have been m et, and dismissal is unwarranted. Although it is true that the universities are not responsible for the alleged harm resulting from the passage of Proposal 2, and they have no auht ority to repeal it, striking down that amendment would not grant the plaintiffs the re lief they ultimately seek without action on the universities’ part. If this Court were to find Proposal 2 unconstitutional, affirmative action would
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not automatically be reinstated into the admissions process. Rather, the universities would have to choose to do so on their own. Andgiven the undeniable stake that the universities have in all these issues, it would simply be inappropriate to cast themaside, even if they desire the ultimate result the plaintiffs seek to achieve.
The standing issue requires a different ana lysis. A plaintiff who establishes Article III standing requirements faces the additional “rule that a party ‘generally m ust assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). There is an “exception” to this rule when “the party asserting the right has a ‘close’ relationship with the person who possesses the right,”and “there is a ‘hindrance’ to the possessor’s ability to protect hi s own interests.” Id. at 130. The “close relationship” elem ent requires consideration of whether “‘the relationship betweenthe litigant and the third party [is] such that the former is fully, or very nearly, as effective a proponent of the right as the latter.’” Powers v. Ohio, 499 U.S. 400, 413 (1991) (quoting Singleton v. Wulff, 428 U.S. 106, 115 (1976)). This prudential barrier is also “‘lessen[ed]’” in cases involvi ng a First Am endment attack, but only when the challenge is premised on vagueness or overbreadth. Kowalski, 543 U.S. at 130; Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007) (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); Brandywine, Inc. v. City of Richmond, Kentucky , 359 F.3d 830, 835 (6th Cir. 2004) (“[P]laintiffs may not assert third party standing in every First Amendment facial challenge; rather plaintiffs may only do so in vagueness and overbreadth challenges.”).
Proposal 2 is not challenged here on grounds ofvagueness or overbreadth. Rather, the right upon which the Coalition plaintiffs focus is the First Amendment right to academic freedom, which
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began to take shape in the concurring opi nion of Justice Felix Frankfurter in Sweezy v. New Hampshire, 354 U.S. 234 (1957), where he stated:
It is the business of a university to providethat atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university – to determ ine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. Id. at 263 (Frankfurter , J., c oncurring) (internal quotes om itted). In Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985), the Court noted that academic freedom embodies both a freedom among professors and students to express ideas and “som ewhat inconsistently, on autonomous decisionmaking by the academy itself.” Id. at 226 n.12 (citingUniversity of California Regents v. Bakke, 438 U.S. 265, 312 (1978) (opinion of Powell, J.) and Sweezy v. New Hampshire, 354 U.S. at 263 (Frankfurter, J., concurring in r esult)). “Discretion to determ ine, on academic grounds, who may be admitted to study, has been described as one of ‘the four essential freedoms’ of a university.” Ibid. Justice Powell, in providing the fifth voteto uphold the affirmative action programin Bakke, implied that the university’s academic freedom had a constitutional dimension by emphasizing that “[a]cademic freedom, though not a specifically enum erated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.” Bakke, 438 U.S. at 312 (Powell, J.). Yet Justice Powell noted that “[a]lthough a university m ust have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded.” Id. at 314. The idea of academic autonomy in the area of admissions provided an important foundational element for the majority in Grutter v. Bollinger
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in upholding Michigan Law’s affirm ative action program . The Court determ ined that the
university’s interest in obtaining a diverse student body was a compelling state interest, choosing
to “defer” to the “Law School’s educational judgment.” Grutter, 539 U.S. at 328.
It is plain that the First Amendment right to academic freedom in the area of adm issions
belongs to the universities. Yet theCoalition plaintiffs insist that they have standing to assert their
own First Am endment right to a racially diverse education be cause students are the prim ary
beneficiaries of the right to academic freedom. They argue in the alternative that to the extent that
academic freedom rights are the exclusive province of universities, they have third-party standing
to assert the right. Both of these positions, however, are fundamentally at odds with the academy’s
right to determine who may be admitted to study. In m aking their argument that Proposal 2 is
unconstitutional because it denies students the right to a racially diverse educational environment,
the Coalition plaintiffs necessarily must claim a right untothemselves to select – or at least influence
– who may be admitted to the universities. However, under the First Amendment, that right does
not belong to them, but to the academy. The Grutter Court explained:
We have long recognized that, given theimportant purpose of public education and the expansive freedom s of speech and thought a ssociated with the university environment, universities occupy a specialniche in our constitutional tradition.See, e.g., Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Keyishian v. Board of Regents of Univ. of State of New York, 385 U.S. at 603. In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Am endment, of educational autonom y: “The freedom of a university to m ake its own judgments as to education includes the selection of its student body.” Bakke, supra, at 312. From this premise, Justice Powell reasoned that by claim ing “the ri ght to select those students who will contribute the m ost to the ‘robust excha nge of ideas,’” a university “seek[ s] to achieve a goal that is of paramount importance in the fulfillment of its mission.” 438 U.S., at 313 (quoting Keyishian v. Board of Regents of Univ. of State of New York, supra, at 603).
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Grutter, 539 U.S. at 329. Consistent with this vie w, Justice Powell in Bakke and the Court in Grutter invoked this right as a shield for the universities against the claim s of students seeking admission on equal protection grounds.
These precedents convince the Court that theCoalition plaintiffs do not have a personal right to a diverse student body grounded in the First Amendment. Their third-party standing argument likewise does not find support in the jurisprudence. Schools routinely are granted standing to seek redress for injuries to their students. Runyon v. McCrary, 427 U.S. 160, 175 n.13 (1976) (“It is clear that the schools have standing to assert these arguments [involving the student’s right to privacy and free association and the parent’s right to direct the child’s education] on behalf of their patrons.”); Ohio Ass'n of Independent Schools v. Goff, 92 F.3d 419, 422 (6th Cir. 1994) (holding that “schools . . . have standing to assert the constitutional right of parents to direct their children’s education”). Other business enterprises may assert the rights of their costumers. Craig v. Borden, 429 U.S. 190, 195 (1976) (holding that vendor of alcoholic beverages may assert equal protection claims of male patrons and stating “vendors and those in like positions have been uniform ly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function”); Connection Distributing Co. v. Reno, 154 F.3d 281, 295 (6th Cir. 1998) (holding that newsletter may assert rights of readers in first amendment challenge because readers value anonymity and may be unwilling to come forward). However, the courts have not been as willing to permit students to assert the rights of their schools. See, e.g., Eulitt ex rel. Eulitt v. Maine, 386 F.3d 344, 352 (1st Cir. 2004) (holding that sutdents could not assert Equal Protection Clause rights of school because there was no showing that the school lacked the ability to assert its
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own rights, and because the student may not share the interest of the school). In fact, it would be ironic if the plaintiffs here are permitted to sue the universities to assert the universities’ rights.
The Coalition plaintiffs cannot establish the grounds for third-party standing to assert a First Amendment claim for two more reasons. First, th e students lack a “close relationship” with t he universities within the framework of academic freedom. See Powers, 499 U.S. at 413. As noted above, it is the universities that enjoy the right to chose which stude nts to adm it, a right that inherently is in tension with the interests of students and prospective students seeking to influence the admissions system. Second, the students havenot established that the universities are burdened by some hindrance to the assertion of their First Amendment rights. The universities have mounted a rigorous defense of their adm issions policies in the past. Eve n in the present case, although nominal defendants, the universities supported the initial injunction to postpone the effective date of Proposal 2 and pressed an academic freedom argument before the Sixth Circuit on appeal of that injunction. See Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 247 (6th Cir. 2006).
Because the Coalition plaintiffs lack standing to assert their First Am endment claim, the Court will grant the universities’ m otion to dismiss Count 6 of the Coalition plaintiffs’ amended complaint.
III. The Attorney General’s Motion and the Cantrell Plainitffs’ Motion Attorney General Cox has moved in the alternative to dismiss under Rule 12(b)(6) or for summary judgment under Rule 56(c). Although a party may file a motion for summary judgment that is contingent upon the court’s denial of its motion for dismissal, if matters outside the pleadings are submitted, the motion more properly should be considered under Rule 56, and courts will treat
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the motion as one for summary judgment. Fed. R. Civ. P. 12(b) (stating that “if, on a motion . . . to dismiss for failure of the pleading to state a calim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56”);Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 533 (6th Cir. 2002) (quotingSoper v. Hoben, 195 F.3d 845, 850 (6th Cir. 1999)). The parties have filed a number of exhibits with their motions. These documents plainly are relevant to the defendant’s motion and should be examined by the Court. Therefore, the Court will treat the motion as one for summary judgment and apply the standards required by Rule 56.
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,if any, show that there is no genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). TheCantrell plaintiffs and the defendants have filed cross motions for summary judgment, which might imply that there are no facts in dispute. Nonetheless, the Court must apply the well-recognized standards when deciding such cross motions; “[t]he fact that the parties have filed cross-m otions for summary judgment does not m ean, of course, tha t summary judgment for one side or theother is necessarily appropriate.” Parks v. LaFace Records, 329 F.3d 437, 444 (6th Cir. 2003). Therefore, whenthis Court considers cross motions for summary judgment, it “must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the nonmoving party.” Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 506 (6th Cir. 2003).
A motion for summary judgment under Fed. R. Civ. P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-m oving party and determ ine “whether the evidence presents a sufficient
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disagreement to require submission to a jury or whether it is so one-sided that one partyumst prevail as a matter of law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52 (1986). W hen the “record taken as a whole could not lead a rationatlrier of fact to find for the nonmoving party,” there is no genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The attorney general contends that both sets of plaintiffs lack standing to sue, and, failing that, they have failed to state a clai m upon which relief can be granted. T he Cantrell plaintiffs, seeking summary judgment, argue that Proposal 2 is unconstitutional as a m atter of law: first, because it singles out race while leaving various other elem ents of diversity untouched, thereby creating a classification that triggers Fourteenth Amendment scrutiny; and second, because Proposal 2 makes achieving race-conscious admissions policies more difficult than securing other types of beneficial legislation, thereby imposing an unequal and impermissible burden on people of color.
A. Standing The attorney general divides his attack on the Coalition plaintiffs’ standing to challenge Proposal 2 on equal protection and preem ption grounds by categorizing these plaintiffs i nto two groups: organizational plaintiffs and individual plai ntiffs. He contends that the organizational plaintiffs cannot satisfy the requirements that the organization’s members would have standing to sue in their own right, the interesst at stake are central to the organization’s purpose, and neither the claim asserted nor the relief requested dictates theparticipation of individual members. He says that the individual plaintiffs cannot show actual or im minent harm because the individual Coalition plaintiffs do not have a legally protected right toattend college or receive preferential treatment in the admissions process. And even if this were not the case, the attorney general contends, none of
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the plaintiffs have shown that they would be admitted in the absence of Proposal 2. With respect to the petition circulator, it is unclear what legal interest he has in the matter at all.
The attorney general also divides the Cantrell plaintiffs into two groups, facult y and students, and divides the latter into the subgroups of students currently attending the University of Michigan, high school students who have applied to the University of Michigan, and high school students who intend to apply there. He then positsthat all of these students have failed to establish a legally cognizable injury in fact. This point overlaps the merits argument, since the attorney general reasons that the plaintiffs lack standing to pursue their political-restructuring claimbecause they are not and cannot be injured by an am endment that prohibits discriminatory treatment. He says that the faculty plaintiffs, while grounding their claim on a right to academic freedom under the First Amendment (since they are third-party beneficiaries of the universities’ affirmative action programs), have failed to satisfy the requirements for third-party standing.
Standing, of course, is “the threshold question in every federal case.” Warth v. Seldin, 422 U.S. 490, 498 (1975). There are “three constitutional requirements for standing, see McConnell v. Fed. Election Comm’n, 540 U.S. 93, 225-26 (2003) (reiterating that ‘the irreducible constitutional minimum of standing’ consists of ‘an injury in f act, which is concrete, distinct and palpable, and actual or imminent,’ ‘a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of some third party not before the court,’ and a ‘substantial likelihood that the requested relief will remedy the alleged injury in fact’) (internal quotes and citations om itted), as well as [three] prudential requirements, see Coyne v. American Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) (reviewing the three elements that ‘a plaintiff must assert his own legal rights and interests,’ the claim‘must be
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more than a generalized grievance,’ and ‘in statutoyr cases, the plaintiff’s claim must fall within the “zone of interests” regulated by the statute in question’) (internal quotes and citations omitted).” City of Cleveland v. Ohio, 508 F.3d 827, 835 (6th Cir. 2007).
In addition, “[a]n association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the clai m asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977)).
Applying these well-established rules, it is easy to conclude that all of the parties have standing to bring their respective claim s (save the First Am endment claim) except the petition circulator and the labor unions. The Coalition and Cantrell plaintiffs both contend that they have suffered harm in that they have been hinderedunconstitutionally in advancing their legal objectives through the political process. The Coalition plaintiffs also allege that Proposal 2 direct ly discriminates against them by making it more difficult for minorities and females to gain admission to Michigan’s public universities. In conducting the standing analysis, the Court m ust take the claims as they are fairly pleaded. The claims as pleaded plainly identify injuries recognized in the law.
Similarly, the professors who call themselves plaintiffs in this case have standing because of the lim ited nature of their cl aims. There are four professor-plaintiffs who signed on to the Cantrell complaint. Because the Cantrell plaintiffs have only asserted an e qual protection claim based on Hunter v. Erickson, the professors do not face the problem that they would if they were
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also asserting a conventional equal protection claim (i.e., the issue of third-party standing). Since all of the professors have asserted that they support affirm ative action in the admissions process, their allegations include facts that gvi e rise to the injury recognized byHunter: heightened difficulty in securing legislation or policies, such as affirmative action, that inure primarily to the benefit of minorities. Likewise, the professor- and student-plaintiffs also have shown that there is a causal connection between their alleged injuries and th e enforcement of Proposal 2 as enacted, and the requested remedy – a declaration of unconstitutionality and an injunction against its enforcement – will bring them relief. These plaintiffs are asserting their own rights under the Equal Protection Clause, their grievances are specific, and their claims fall within the Clause’s zone ofinterests. The challenge to their standing is not well taken.
On the other hand, it is difficult to see how thepetition circulator has a stake in any of this. The sole allegation concerning this plaintif f is: “The plaintiff Joseph Henry Reed was a petition circulator for Proposal 2.” Coalition Sec. Am . Compl. at ¶ 29 (em phasis added). Ther e is no explanation in the complaint why a supporter of Proposal 2 would now seek to attack it. Without an allegation that Mr. Reed has had a change of heart and a protectable interest, there is no basis to conclude that he has standing to attack the measure. Mr. Reed will be dismissed as a plaintiff.
A closer question is presented as to the standing of the organizational plaintiffs. To show that they have standing, these plaintiffs, all of which are parties to thCeoalition case, must show that their members would otherwise have standing to sue, the interests at stake are germ ane to the organizations’ purposes, and neither the claim s asserted nor the relief requested require the participation of individual m embers. Friends of the Earth, Inc. , 528 U.S. at 181. Most of the organizations satisfy these requirements. Apart from the labor unions, all of the organizations have
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the achievement of racial equality as their statedmission, and the majority of them have the defense of affirmative action as their m ore specific goal. The Coalition to Def end Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), the United for Equality and Affirmative Action Legal Defense Fund (UEAALDF), the Rainbow PUSH coalition, and the Defend Affirm ative Action Party (DAAP), all m eet the requirem ent that the subject matter of the lawsuit be germane to their purposes. In addition, they satisfy the requirement that their members otherwise would have standing to sue in their own right. Although some of the members of these organizations are not prospective students, and therefore it is unlikely that they have a stake in the conventional equal protection calim, they all appear to support affirmative action and have an interest in pursuing legislation and policies incorporating such programs. Therefore, they all have standing to pur sue the Hunter claim. Finally, the last elem ent for associational standing is met because the nature of the claims (constitutional) and the relief sought (declaratory and injunctive) do not necessarily require the partiicpation of their individual members in the action.
The Court does not find that the s ix labor unions have standing to pursue these claim s, however. They fail the test for associational standing because their fundam ental purpose – the advancement of their workers’ rights – bears a tenuous connection to the rights claimed in this lawsuit. The only connection the unions can claim is that they have large minority memberships. Although this feature might possibly satisfy the standing requirements if the Coalition plaintiffs were challenging Proposal 2 as it relates to preferetnial treatment in public contracting, they are not. The labor unions will be dismissed as plaintiffs.
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B. “Conventional” Equal Protection Argument The Coalition plaintiffs (but not the Cantrell plaintiffs) allege that Proposal 2 violates the Equal Protection Clause by discriminating against them on account of race. The attorney general, relying heavily on the Proposition 209 case,Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), asserts that it is simply ludicrous to contend that Proposal 2 discriminates against racial minorities and women because the terms of the provision explicitly outlaw disparate treatment on account of race and gender. As noted earlier, the attorney general acknowledges that the clear effect – if not the purpose – ofProposal 2 is to ban affirmative action programs in public university admissions, public employment, and public contracting. Although in that regard the pr ovision implicates race, the attorney general insists that it does so in a constitutionally permissible way. To understand the Coalition plaintiffs’ response, the Court finds it necessary to review the ideological premise that undergirds their position.Unlike many defenders of affirmative action, who acknowledge that such programs accord unequal treatment but who justify this inequity on utilitarian grounds, the Coalition plaintiffs do not view affirmative action as preferential treatment. Instead, they see affirmative action as fundam entally necessary to desegregation and as a system that embodies equality by offsetting systemic handicaps (e.g., having grown up poor and having attended an underfunded school); and therefore affirmative action is a “benign” race-conscious policy. As a corollary, they deem Proposal 2 discrim inatory because it e liminates affirmative action as an “equalizer.” Therefore, they implore the Court to look at the “reality of the situation” – including evidence of de facto segregation – and not just focus on “verbal formulas.” Following that line of thinking, the Coalition plaintiffs insist that a trial is required to demonstrate the need to use race-conscious admission policies in order to allow minority students
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to compete on an equal footing and overcome past disadvantages, which presumably result frompast discrimination and social and economic privation. They contend that facts at a trial will show that affirmative action programs are the only way that universities in Michigan will remain desegregated, and university admissions policies that do not consider race areper se discriminatory against blacks, Latinos, and Native Americans.
Unfortunately, however, college admission at elite universities is a zero-sumenterprise, and programs that prefer some students on the basis of race must do so necessarily at the expense of other applicants not of the pref erred race. That stark reality led Justice Powell to reject the proposition that race-based governm ental action de signed to benefit historically disadvantaged groups should be subject to a less exacting exam ination than “strict scrutiny,” when he wrote in Bakke that “[t]he guarantee of equal prot ection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” 438 U.S. at 289- 90 (opinion of Powell, J.).
Although some opinions by members of the Supreme Court have advanced the idea that racebased state action designed to “remed[y] the present effects of past racial discrimination” should be allowed if it is “substantially related” to an “im portant governmental objective,” Fullilove v. Klutznick, 448 U.S. 448, 518-19 (1980) (Marshall, J., concurring); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 359 (1978) (Brennan, J., concurring) – that is, under the less dem anding review standard of intermediate scrutiny – that view never has commanded a majority of the Court except once, i n Metro Broadcasting, Inc. v. FCC , 497 U.S. 547 (1990), where the Court went slightly farther. In that case, the Court held that “benign race-conscious m easures mandated by Congress – even if those measures are not ‘remedial’ in the sense of being designed to compensate
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victims of past governm ental or societal discrim ination – are constitutionally perm issible to the extent that they serve im portant governmental objectives within the power of Congress and are substantially related to achievement of those objectives.” Id. at 564-65. The life span of that rule was relatively short, however, since Metro Broadcasting was overruled five years later. Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 227 (1995) (holding that “all racial clas sifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. To the extent thaMt etro Broadcasting is inconsistent with that holding, it is ovreruled”). Under a traditional equal protection analysis, therefore, it does not appear that the issues upon which theCoalition plaintiffs seek a trial will materially impact the result in this case; and therefore they cannot forestall summary judgment on the ground of the existence of a “genuine issue as to a[] material fact.” Fed. R. Civ. P. 56(c).
The Equal Protection Clause commands that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. am end. XIV, § 1. This language prohibits “official conduct discriminating on the basis of race,”Washington v. Davis, 426 U.S. 229, 229 (1976), and its ultimate goal is to extinguish such discrimination, Palmore v. Sidoti, 466 U.S. 429, 432 (1984). Therefore, “whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” Adarand, 515 U.S. at 230.
Because official discrimination can be imposed either expressly on the face of legislation or under the guise of a facially-neutral enactm ent, the first step in a conventional equal protection analysis is to determine whether the challenged legislation draws any classification. Coalition for
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Economic Equity v. Wilson, 122 F.3d 692, 702 (9th Cir. 1997);United Black Firefighters v. City of Akron, 976 F.2d 999, 1007 (6th Cir. 1992). The determining factor is not whether the enactment has race as its subject matter, but whether it facially purports to accord unequal treatment across racial lines. See Crawford v. Bd. of Education of City of Los Angeles , 458 U.S. 527, 538 (1982) (distinguishing “between state action that discri minates on the basis of race and state action tha t addresses, in neutral fashion, race-related matters”).
Proposal 2 is facially neutral. Although it cert ainly deals with racial classifications, it declares in essence that when public bodies m ake official decisions to adm it students, offer employment, or let contracts, no race may be burdened and no race m ay be benefitted. The law, therefore, points the Court to a different standard by which it must assess the Coalition plaintiffs’ challenge: “Where facially neutral legislation is challenged on the grounds that it discriminates on the basis of race, the enactment will be required to withstand strict scrutiny only if the plaintiff can prove that it ‘was motivated by a racial purpose or object,’ or ‘is unexplainable on grounds other than race.’” Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 368 (6th Cir. 2002) (quoting Hunt v. Cromartie, 526 U.S. 541, 546 (1999)). Mere awareness of discrim inatory consequences is inadequate. Personnel Administrator of Massachusetts v. Feeny, 442 U.S. 256, 279 (1979). The requirement of discriminatory purpose “implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘becauseof,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Ibid. In addition, a plaintiff c hallenging facially neutral legislation must show disparate impact. To show disparate impact, a plaintiff must demonstrate that a facially neutral law has the effect of discrimination. Graoch Assoc. # 33, L.P., v. Louisville/Jefferson County Metro Human Relations Comm., 508 F.3d 366, 371 (6th Cir. 2007). However, proving that a law
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has a racially disparate impact, without more, is insufficient to establish a violation of the Fourteenth Amendment. Village of Arlington Heights v. Metro. Housing Dev. Corp. , 429 U.S. 252, 264-65 (1977).
“In Village of Arlington Heights, the Supreme Court identified five factors that are relevant for determining whether facially neut ral state action was m otivated by a racially discrim inatory purpose: (1) the im pact of the official action on particular racial groups, (2) the historical background of the challenged decision, especially if it reveals numerous actions being taken for discriminatory purposes, (3) the sequence of eventsthat preceded the state action, (4) procedural or substantive departures from the government’s normal procedural process, and (5) the legislative or administrative history.” Moore, 293 F.3d at 369 (citing Village of Arlington Heights, 429 U.S. at 266-68).
Examining intent in the context of a ballot initiative presents a unique problem due to the sheer number of individuals whose intent is relevant. The Sixth Circuit took a hard line in Arthur v. Toledo, 782 F.2d 565 (6th Cir. 1986), holdnig that “absent a referendumthat facially discriminates racially, or one where although facially neutral, the only possible rationale is racially motivated, a district court cannot inquire into the electorate’s motivations in an equal protection clause context.” Id. at 574. Although this standard remains good law, the Sixth Circuit has since expressed doubts about its legitimacy. Buckeye Comm. Hope Foundation v. City of Cuyahoga Falls, 263 F.3d 627, 638 n.2 (2001), rev’d on other grounds 538 U.S. 188 (2003). As the Buckeye panel noted, the Supreme Court’s decision in Seattle casts doubt on the Arthur standard and shows that, whatever its legitimacy in other cases, it cannot be right in the case of a Hunter challenge to a referendum. Buckeye Comm. Hope Foundation, 263 F.3d at 638 n.2 (citing Seattle, 458 U.S. at 465). But the
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parties have cited no authority that undercutsArthur’s precedential application to a traditional equal protection challenge.
When a plaintiff has triggered stri ct scrutiny, either by showing an express racial classification or disparate im pact and disc riminatory purpose, the law will be deem ed unconstitutional unless the State can justify it by establishing that it is narrowly tailored to serve a compelling state interest. Johnson v. California, 543 U.S. 499, 509 (2005).
In the Proposition 209 case, the Ninth Circuit made short work of the plaintiffs’ conventional equal protection argument, observing that the measure did not classify individuals by race or gender, and therefore it could not run afoul of the Equal Protection Clause.Coalition for Economic Equity, 122 F.3d at 702 (“Rather than classifying individuals by race or gender, Proposition 209 prohibits the State from classifying individuals by race or gender. A law that prohibits the State from classifying individuals by race or gendera fortiori does not classify individuals by race or gender.”). That court held: “Proposition 209’s ban on race and gneder preferences, as a matter of law and logic, does not violate the Equal Protection Clause in any conventional sense.” Ibid. In staying this Court’s preliminary injunction, the Sixth Circuit noted that “the color-blind goal of the Equal Protection Clause is to do away with all govermn entally imposed discrimination based on race,” 473 F.3d at 249 (internal quotes and c itations omitted), and held that “[i]n the end, a law eliminating presumptively invalid racial classifications is notitself a presumptively invalid racial classification.” Id. at 250. Neither of these cases discussed the idea that at least one purpose of the respective proposals was to elim inate affirmative action programs, which benef it minorities exclusively. Therefore, they did not consider the prospect that the facially neutral legislation might violate the Clause under the rationale of Village of Arlington Heights, Graoch Assoc., and Moore. Neither of
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these cases is binding precedent, Cross Mountain Coal v. Ward, 93 F.3d 211, 217 (6th Cir. 1996) (holding that although “decisions of other circuitsare entitled to respect, they are not binding upon us”); Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (noting that “a party is not required to prove his case in full at a preliminary injunction hearing and the findings of fact and c onclusions of law made by a court granting the preliminary injunction are not binding at trial on the merits”) (internal quotes omitted), and they do not obviate this Court’s obligation to give the issues a fresh look.
The Coalition plaintiffs have offered sufficient evidence to establish a fact question on the disparate impact part of the test. The depos ition testimony and affidavits of Theodore Spencer, Sarah Zearfoss, Frank Wu, William Bowen, Jeannie Oakes, Gary Orfield, and even Ward Connerly plainly show that Proposal 2’s elimination of affirmative action programs will fall the heaviest on minorities while having little effect on white stude nts. This conclusion is supported by som e of these witnesses’ statistics, but it also is intuitive: ifaffirmative action programs have had a positive effect on university admissions of minority students, eliminating them likely will have a negative effect. It is difficult to see how Proposal 2 could not have a disparate impact on minorities.
It is the demonstration of a discriminatory purpose that vexes the Coalition plaintiffs and dooms their conventional equal protection argument, since the plaintiffs must show that Proposal 2 was enacted “because of, not merely in spite of, its adverse effects upon an identifiable group.” Feeny, 442 U.S. at 279 (quotations om itted). First, there is the hurdle presented by the Arthur standard, which bars “a district court [from] inquir[ing] into the electorate’s motivations in an equal protection clause context” when reviewing a facilaly neutral law (unless “the only possible rationale [for a referendum ] is racially m otivated”). Arthur, 782 F.2d at 574. Based on the evidence
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presented, the Court cannot say that the only purpo se of Proposal 2 is to discrim inate against minorities. For instance, Ward Connerly testified that he was motivated to eliminate affirmative action programs because he thinks they are harmful to minorities, who would be better served by being forced to compete without official help with more advantaged white and Asian students. See Cantrell Mot. for Summ. J., Ex. K, Connerly Dep. at 120 (expressing the view “that the only way we’re going to close this academic gap between black and Latino on the one hand and Asian and white on the other, is not to keep papering over iwt ith preferences, but toapply the tough love that’s necessary to get black and Latino students up to th e bar”). Jennifer Gratz appears to have been motivated by the desire to gain admission to the University of Michigan herself without having to yield to a m inority candidate who woul d take her place with the benefit of a racial preference. Whether one accepts or rejects Connerly’s view thatthere is virtue in tossing minority students into the deep end and letting them sink or swim on their own (regardless that some might drown in the meantime), or the more craven approach of Gratz that affirmative action deprives her of her own slice of the pie, both ofthese viewpoints illustratethat racial discrimination is not the only rationale behind Proposal 2.
Second, even if the Coalition plaintiffs could overcom e Arthur’s strict rule, they cannot satisfy the test f or discriminatory intent using t he traditional factors from Village of Arlington Heights. The first factor courts normally consider in determining whether facially neutral legislation was motivated by a racially discriminatory purpose is the impact of the legislation on particular racial groups. Moore, 293 F.3d at 369 (citing Village of Arlington Heights, 429 U.S. at 266-68). For the reasons discussed above, thatfactor favors the plaintiffs. Most of the other factors, however, cut in the opposite direction. The historical background of Proposal 2 and sequence of events that
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preceded its passage do not suggest discriminatory intent. The public arguments made in support of Proposal 2 did not appeal to racismor amount to a call for segregation; rather, they attempted to appeal to the public’s belief in fairness and justtreatment. Although Ward Connerly and other major supporters of the amendment knew that Proposal 2 might lead to fewer minority admissions, there is no evidence that they intended this. On the other hand, the fact that fraud was committed in the process of securing Proposal 2’s place on the ballot does lend some credence to the idea that ulterior motives were at work. Nevertheless, the factor of “procedural or substantive departures from the government’s normal procedural process,” Moore, 293 F.3d a t 369, clearly m ilitates against a finding of discriminatory intent when one considers the most salient departure of all: Proposal 2 was a ballot initia tive. To im pugn the motives of 58% of Michigan’s electorate, in the absence of extraordinary circumstances which do not exist here, simply is not warranted on this record.
To the extent that the Coalition plaintiffs’ conventional equal protection argument is based on gender discrimination, it is even less compelling. Laws challenged under the Equal Protection Clause based on gender are subject to the lessrigorous standard of “intermediate scrutiny,” Tuscon Woman’s Clinic v. Eden , 379 F.3d 531, 543 (2004), which requi res “showing an ‘exceedingly persuasive justification’ for the classification.” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982). There is little evidence in this recordshowing that Proposal 2 will have a disparate impact on the adm ission of women at Michigan ’s colleges and universities, and virtually no evidence of an intent to discriminate against women in the historical background or procedures that led to the passage of the measure.
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Because Proposal 2 is facially neutral, and the Coalition plaintiffs cannot show that the measure was enacted with a discriminatory intent, their conventional equal protection challenge must fail as a matter of law.
C. Hunter/Seattle Equal Protection Challenge Both the Coalition and the Cantrell plaintiffs argue that Proposal 2 unlawfully restructures the political process to disadvantage minorities in achieving equal opportunity in higher education. They reason that before Proposal 2, minority groups could petition university officials to implement affirmative action progr ams, or at least consider race am ong a host of non-academ ic factors in making admissions decisions. However, after Proposal 2, the only way racial minorities can secure programs that account for race in the assembly of a student body is to seek and obtain passage of another constitutional amendment. That daunting process, they contend, i mposes a unique and heavy burden upon themas a class and unconstitutionally distances themfrom the political process when they seek what the law allows, even if what they seek can be characterized as an advantage.
The attorney general advances five argum ents against the plaintiffs’ challenge. First, he contends that women and racial minorities together constitute a majority of Michigan’s population, and therefore Proposal 2, no m atter how it is read, cannot constitute discrim ination against a minority group. Second, the attorney general notes that unli ke the laws in Hunter v. Erickson, Washington v. Seattle Sch. Dist. No. 1, and Romer v. Evans, Proposal 2 does nothing to facilitate discrimination; it prohibits discrimination. Third, the attorney general submits that the political restructuring argument requires proof of purposeful racial discrimination, which is absent here. Fourth, the attorney general statesthat women and racial minorities remain free to advocate practices
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promoting diversity as long as they do not am ount to discrimination. Fifth, the attorney general posits that the university admissions process is not a political process as contemplated in the Hunter line of cases, since at Wayne State University the admissions criteria are formulated exclusively by a committee and students are not allowed to vote on tehse criteria, and at the University of Michigan the faculty are the prim ary architects of the adm issions policy and there is no form al process by which members of the public or prospective students can even comment on the policy.
The Equal Protection Clause affords protection against laws that grant benefits or im pose burdens on the basis of racial classifications, which have been acknowledged to be inherently suspect. See, e.g. McLaughlin v. Florida , 379 U.S. 184, 191-92 (1964). The lesson of the Hunter/Seattle line of cases is that the Clause also protects equal access to the political process against different sorts of discrimination. See Romer v. Evans, 517 U.S. 620, 633 (1996) (observing that “[a] law declaring that in general it shall bemore difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense”).
In Hunter v. Erickson, 393 U.S. 385 (1969), the citizens of Akron, Ohio amended the city charter at a referendum election to require that c ity ordinances regulating the use or sale of real property on the basis of race be approved by a majority of voters at a general election before such ordinances could become effective. The plaintiff unsuccessfully sought to enforce an open housing ordinance that had been adopted by the city council but not submitted to the voters. The Supreme Court held the charter amendment unconstitutional because, although the amendment “declare[d] no right to discrim inate in housing” and “pl ace[d] no ban on the enactm ent of fair housing ordinances,” it “was an explicitlyracial classification treating racial housing matters differently from
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other racial and housing matters.” Id. at 389. More importantly, the charter amendment imposed more burdensome rules on those who would seekto win legislation combating race-based housing discrimination. Id. at 390 (“Those who sought, or would benefit from, most ordinances regulating the real property market remained subject to the general rule [of council approval only]. . . . But for those who sought protection against racial bias,the approval of the CityCouncil was not enough.”). This constituted a classification based on race because, although the amendment applied equally to all races, it “nevertheless disadvantage[d] those w ho would benefit from laws barring racial . . . discriminations as against t hose who would bar other discriminations or who would otherwise regulate the real estate market in their favor.” Id. at 391. Further, despite the amendment’s facial neutrality, there was no doubt that it discriminated against minority interests:
[A]lthough the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law’s impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendummight be bothersome but no more than that. Like the law requriing specification of candidates’ race on the ballot, Anderson v. Martin, 375 U.S. 399 (1964), § 137 places special burden on racial minorities within the governmental process. This is no more permissible than denying them the vote, on an equal basis with others. Id. at 391. To be sure, the C ourt did not hold unconstitutional the m ere act of conditioning legislation on the approval of the people them selves. Rather, it was the way in which this wa s selectively done that denied equal protection: Even though Akron might have proceeded by majority vote at town meeting on all its municipal legislation, it has instead chosen a more complex system. Having done so, the State m ay no more disadvantage any particular group by m aking it more difficult to enact legislation in its behalfthan it may dilute any person’s vote or give any group a smaller representation than another of comparable size. Id. at 392-93.
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In Washington v. Seattle Sch. Dist. No. 1 , 458 U.S. 457 (1982), the Court invalidated a
statewide voter initiative that prohibited schoolboards from assigning students beyond the schools
in their neighborhoods. The initiative contained so many exceptions that it effectively prevented
desegregative busing only. In mos t areas c oncerning assignment of pupils, the school boards
retained their authority, but this was not the case when it came to efforts at desegregation. As in
Hunter, the Supreme Court held that the initiative drew a racial classif ication by “remov[ing] the
authority to address a racial problem– and only aracial problem – fromthe existing decisionmaking
body, in such a way as to burden minority interests.” Id. at 474. That selective restructuring of
school board authority burdened future attem pts to integrate (and hence m inority interests) “by
lodging decision-making authority over the questionat a new and remote level of government.” Id.
at 483. The Court noted that this was not “‘the simple repeal or modification of desegregation or
antidiscrimination laws[, which], without m ore, never has been viewed a s embodying a
presumptively invalid racial classification.’” Ibid. (quoting Crawford, 458 U.S. at 539). Rather, it
stacked the deck against m inority interests by subjecting them “to a debilitating and of ten
insurmountable disadvantage.” Id. at 484.
These cases yield a sim ple but central principle. As Justice Harlan noted while concurring i n the Court’s opinion in Hunter, laws structuring political institutions or allocating political power according to “neutral principles”– such as the executive veto, or the typically burdensom e requirements for amending state constitutions – are not subject to equal protection attack, though they may “make it more difficult for minorities to achieve favorable legislation.” 393 U.S., at 394. Because such laws make it more difficult for every group in the community to enact comparable laws, they “provid[e] a justframework within which the diverse political groups in our society may fairly compete.” Id., at 393. Thus, the political majority may generally restructure the political proc ess to place obstacl es in the path of everyone seeking to secure the benefits of governmental action. But a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determ ine the decisionm aking process. State action of this kind, the Court said, “places special burdens on racial
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minorities within the governmental process,” id., at 391 (emphasis added), thereby “making it more difficult for certain racial and religious minorities [than for other members of the community] to achieve legislation that is in their interest.” Id., at 395 (emphasis added) (Harlan, J., concurri ng). Such a structuring of t he political process, the Court said, was “no more permissible than [is] denying [members of a racial minority] the vote, on an equal basis with others.” Id. at 391. Id. at 469 (alterations in original). Drawing heavily upon this passage, the Cantrell plaintiffs reason that in order to make out an equal protection violation under ths line of authority, they must establish only that Proposal 2 has a racial focus, and it places an unequal impediment to achieving official action that racial minorities perceive to be in their interest. They insist thatthey have satisfied both those elements. First, they argue that Proposal 2 singles out race while leaving various other elements of diversity untouched, thereby creating a classification that triggers Fourteenth Amendment scrutiny. Second, they contend that Proposal 2 makes it more difficult to achieve race-conscious adm issions policies than ot her types of beneficial legislation, thereby imposing an unequal and impermissible burden on people of color. The Court cannot accept entirely the arguments of either the attorney general or the plaintiffs. First, contrary to the attorney general’ s assertion, there can be no question that Proposal 2 has a racial focus. As noted above, Proposal 2’s ban against “grant[ing] preferential treatment to[] any individual or group on the basis of race” can m ean nothing less than barring affirm ative action programs. Although it is true that no racial group – m inority or m ajority – can benef it from affirmative action programs under the plain languageof Proposal 2, to suppose that races other than minority races would feel the im pact of such a restriction defies logic and contem porary reality. “[T]he reality is that the law’s im pact falls on the m inority.” Hunter, 393 U.S. at 391. To t hat extent, the related argum ent that racial m inorities plus wom en constitute a m ajority of the
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population, and therefore Proposal 2 does not discriminate against minorities, likewise borders on nonsense. The attempt to cobble together an artificial coalition of women and racial minorities in an effort to construct a num erical majority of citizens ignores t he fact that affirmative action programs generally are targeted t o benefit insu lar groups that separately have suffered from discriminatory practices in the past because of preceived traits unique to that group alone. Lumping minority groups into a contrived category does not allow any greater political influence over the process of advocating for affirmative action programs to achieve racial parity or otherwise render the process of changing the state constitution “bothersome but no more than that.” Ibid. The Ninth Circuit accepted this premise in the Proposition 209 case. Coalition for Economic Equity, 122 F.3d at 705.
Second, the idea that a political restruc turing claim must be based on purposeful discrimination finds no support in the cases. Ra ther, the Supreme Court requires only that “an inquiry into intent is necessary to determine whether the legislation in some sense was designed to accord disparate treatment on the basis of racial considerations.” Seattle School Dist., 458 U.S. at 485 (emphasis added). Proposal 2 plainly deals w ith racial considerations, and it was designed, among other purposes, to prohibit programs that granted racial preferences, that is, affirmative action programs, at least according to Ward Connerly, its principal drafter. Citation toCrawford v. Board of Educ. of City of Los Angeles , 458 U.S. 527 (1982), provides no he lp to the attorney general’s position. In that case, the Court upheld an amendment to the state constitution that limited school districts’ authority to reassign and bus students to those instances necessary to remedy a violation of the Equal Protection Clause, tha t is, when a school district had to respond to prior de jure segregation. In holding “that the Equal Protection Clause is not violated by the mere repeal of race-
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related legislation or policies that were not required by the Federal Constitution in the first place,” id. at 538, the Court made a point to distinguish that case from both Hunter and Seattle School District because the constitutional am endment in the California case did not involve political restructuring.
Third, the governance of a university, including the regulation of admissions criteria, is part of the political process. As the plaintiffs observe, the universities derive their authority f rom the state constitution. See Mich. Const. art VIII, § 5. Although the admissions criteria are not subject to a vote, pr ospective students have a right to as k university officials to take into consideration certain factors when they decide how to constitutean admissions class. That, after all, is how raceconscious admissions programs developed in the first place.
The clear effect of Proposal 2 is to prohibitthe State and its political subdivisions – including university admissions departments – from adopting affirmative action programs; groups that would like to see such programs implemented now must seek a constitutional amendment that allows them. There is no question, theref ore, that Proposal 2 makes it more difficult for minorities to obtain official action that is in their interest. However, the distinction drawn by the Ninth Circuit in the Proposition 209 case between laws that protect against unequal treatment on the basis of race and those that seek advantageous treatment on the basis of race is one yielded by precedent. A s that court put it:
Plaintiffs challenge Proposition 209 not as an im pediment to protection aga inst unequal treatment but as an im pediment to receiving pr eferential treatment. The controlling words, we must remember, are “equal” and “protection.” Impediments to preferential treatment do not deny equal protection. It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that i ndividuals have equal protection rights against political obstructions to pref erential treatment. W hile the Constitution
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protects against obstructions to equal treatment, it erects obstructions to preferential treatment by its own terms. Coalition for Economic Equity, 122 F.3d at 708 (footnote omitted). Since Coalition for Economic Equity was decided, the Supreme Court has stated that it is permissible for universities to consider race among several criteria for admission, since such schools have “a compelling interest in attaining a diverse student body.” Grutter, 539 U.S. at 328. The Supreme Court has also since reaffirmed that states have a “compelling interest [in] remedying the effects of past intentional discrim ination” with race-conscious program s. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S. Ct. 2738, 2752 (2007). It also appears that a majority of the j ustices agree that school s may employ race-based program s to address “the problem of de facto resegregation in schooling.” Id. at 2791-92 (Opinion of Kennedy, J.) (declaring that “[i]n the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition”). But these decisions donot change the fact that affirmative action program s not m andated by the obligation to cure past discrimination are fundamentally different than laws intended to protect against discrimination. According to the Ninth Circuit, “[e]ven a state law that does restructure the political process can only deny equal protection if it burdens anindividual’s right to equal treatment.” Coalition for Economic Equity, 122 F.3d at 707. If the plaintiffs wereto demonstrate that an admissions program that included racial preferences were required to com bat racial discrim ination or pre vent resegregation, then perhaps Proposal 2’s prohib ition against racial preferences m ight become unconstitutional as applied, although the measure would then be at odds with itself, since it also bars “discriminat[ion] against . . . any individual or group on the basis of race.” Mich. Const. art. I, §
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26(1). However, theHunter/Seattle line of cases does not prohibithe State from banning programs that give an advantage on the basis of race as a remedy to combating other social disadvantages.
The Court believes that Michigan m ay limit the ability of discrete groups to secure an advantage based upon a racial classification without offending the Fourteenth Amendment. Neither Hunter, Seattle, nor Romer v. Evansholds otherwise. Because thepolitical restructuring effectuated by Proposal 2 does not offend the Equal ProtectionClause by distancing racial minority groups from the means of obtainingequal protection, the plaintiffs’ challengeto the measure based on these cases cannot prevail.
D. Preemption Arguments The Coalition plaintiffs’ final claims allege that Proposal 2 is preempted by Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. Title VI amounts to a blanket prohibition agai nst racial discrimination in the context of federally-funded programs, stating as follows: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be de nied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. § 2000d. By its terms, Title VI recognizes conflict preemption only. 42 U.S.C. § 2000h-4 (“Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter . . . [or] as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof”). The Supreme Court has explained that conflict preem ption “arises when com pliance with both federal and state regulations is a physical im possibility, or when state law stands as an obstacle to the
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accomplishment and execution of the full purposes and objectives of Congress.”Fidelity Fed. Sav. and Loan Assoc. v. de la Cuesta , 458 U.S. 141, 153 (1982) (internal quotations and citations omitted).
Title IX is the gender-based analog to TitleVI, although it is limited to educational programs that receive federal funds. 20 U.S.C. § 1681( a). Although Title IX does not conta in a clause defining the scope of its preemptive effect, the plaintiffs have not argued that it occupies the entire field of legislation to which it relates. Howeve r, Title IX expressly provides that it shall not be construed to mandate preferential treatment:
Nothing contained in subsection (a) of thissection shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total num ber or percentage of persons of that sex in any com munity, State, section, or other area: Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex. 20 U.S.C. § 1681(b). Proposal 2 contains a failsafe provision that avoids conflicts with federal law insofar as federally funded programs (such as those ordained by Title VI and Title IX) are involved, which states that the m easure “does not prohibit action t hat must be taken to establish or m aintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.” Mich. Const. art. I, § 26(4). The language in the federal statutes and Proposal 2 therefore creates a cross-ruff of sorts that deftly avoids conflicts nad at once resolves conflicts in favor of federal law. If either Title VI or Title IX require certain action as a condition of federal funding, then Proposal
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2 will allow that action by its ownterms. And Proposal 2 is not subject to field preemption because neither federal Act purports to occupy the field.
However, the Coalition plaintiffs contend that Proposal2 is nevertheless preempted because it conflicts with federal regulations promulgated pursuant to Titles VI and IX. In the case of Title VI, the Coalition plaintiffs point to 34 C.F.R. § 100.3(b)(2), which states:
A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program , may not, directly or through contractual or other arrangem ents, utilize criteria or m ethods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national or igin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin. 34 C.F.R. § 100.3(b)(2) (emphasis added). The validity of this regulation has been questioned to the extent it purports to condemn acts that would be permissible under Title VI. See Alexander v. Sandoval, 532 U.S. 275, 282 (2001). But even if the Court assumes section 100.3(b)(2) is wholly valid, it still does not conf lict with Proposal 2. Proposal 2 does not have the effect of racial discrimination any more than does a law or policy whose use of neutral criteria leads to a disparate impact. Disparate im pact alone does not equate to racial discrim ination; rather, illegal discrimination results in the case of neutral criteria only when the actors are motivated by a desire to discriminate. Proposal 2 allows universities to use neutral criteria – grades, test scores, schools of origin, com munity geographics, econom ic factors, and a host of others – in t he admissions process. If these factors are not suitable proxiesthat generate racially diverse student populations, the universities will be all the poorer, but not because of conscious discrimination.
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The plaintiffs’ case is even w eaker in terms of T itle IX. W ith respect to that act, the plaintiffs rely on 34 C.F.R. § 106.23(a). The regulation reads as follows:
Nondiscriminatory recruitment. A recipient to which this subpart applies shall not discriminate on the basis of sex in the recruitment and admission of students. A recipient may be required to undertake additional recruitment efforts for one sex as remedial action pursuant to § 106.3(a), andmay choose to undertake such efforts as affirmative action pursuant to § 106.3(b). 34 C.F.R. § 106.23(a). To t he extent this regulation requires preferential treatment, it may be inconsistent with Title IX itself. See 20 U.S.C. § 1681(b) (providing thatit shall not be “interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex” over another). If affirmative action recruitment programs are required by this section to become eligible for or maintain federal fundi ng, Proposal 2 expressly would allow such action. There is no conflict, therefore, between Proposal 2 and federal law.
IV. Conclusion The Court finds that all plaintiffs excetpJoseph Henry Reed, AFSCME Local 207, AFSCME Local 214, AFSCME Local 312, AFSCME Local836, AFSCME Local 1642, and AFSCME Local 2920 have standing to bring this action. The Coalition plaintiffs’ claims against the universi ty defendants are all properly brought in this case, except the alleged violation of First Amendment rights alleged in Count 6 of the am ended complaint. The Court finds no m erit in the Coalition plaintiffs’ conventional equal protection argument, and is constrained to conclude that the plaintiffs’ allegations that Proposal 2 violates the Equal Protection Clause under the theory based on Hunter v. Erickson and progeny must fail as well. There is no conflict between Proposal 2 and the federal funding provisions discussed above.
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Accordingly, it is ORDERED that the motion to dismiss by the university defendants [dkt #179] is GRANTED IN PART AND DE NIED IN PART. Count 6 of the Coalition plaintiffs’ second amended complaint is DISMISSED WITH PREJUDICE.
It is further ORDERED that the claims of plaintiffs Joseph Henry Reed, AFSCME Local 207, AFSCME Local 214, AFSCME Local 312, AFSCME Local 836, AFSCME Local 1642, and AFSCME Local 2920 are DISMISSED for lack of standing.
It is furtherORDERED that the attorney general’s motion for summary judgment [dkt #201] is GRANTED.
It is furtherORDERED that the motion for summary judgment by theCantrell plaintiffs [dkt #203] is DENIED.
It is further ORDERED that the amended complaints and these consolidated actions ar e DISMISSED WITH PREJUDICE.
s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: March 18, 2008
PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on March 18, 2008.
s/Felicia M. Moses FELICIA M. MOSES
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 Coalition To Defend Affirmative Action v. Granholm, Not Reported in F.Supp.2d (2006)
2006 WL 3953321 Only the Westlaw citation is currently available.
United States District Court, E.D. Michigan,
Southern Division.
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigration Rights and Fight for Equality by Any Means Necessary (BAMN), United for Equality and Affirmative Action Legal Defense Fund, Rainbow Push Coalition, Calvin Jevon Cochran, Lashelle Benjamin, Beautie Mitchell, Denesha Richey, Stasia Brown,
Michael Gibson, Christopher Sutton, Laquay Johnson, Turqoise Wise-King, Brandon Flannigan, Josie Human, Issamar Camacho, Kahleif Henry, Shanae Tatum, Maricruz Lopez, Alejandra Cruz, Adarene Hoag, Candice Young, Tristan Taylor, Williams Frazier, Jerell Erves, Matthew Griffith, Lacrissa Beverly, D’Shawnm Featherstone, Danielle Nelson, Julius Carter, Kevin Smith, Kyle Smith, Paris Butler, Touissant King, Aiana Scott, Allen Vonou, Randiah Green, Brittany Jones, Courtney Drake, Dante Dixon, Joseph Henry Reed, AFSCME Local 207, AFSCME Local 214, AFSCME Local 312, AFSCME Local 836, AFSCME Local 1642, AFSCME Local 2920, and the Defend Affirmative Action Party, Plaintiffs, v. Jennifer GRANHOLM, in her official capacity as Governor of the State of Michigan, the Regents of the
University of Michigan, the Board of Trustees of Michigan State University, the Board of Governors of Wayne State University, and the Trustees of any other public college or university, community college, or school district, Defendants, and
Regents of the University of Michigan, the Board of Trustees of Michigan State University and the Board of Governors of Wayne State University, Cross-Plaintiffs, v.
Jennifer Granholm, in her official capacity as Governor of the State of Michigan, Cross-Defendant.
No. 06-15024. | Dec. 19, 2006.
Attorneys and Law Firms
George B. Washington, Shanta Driver, Scheff & Washington, Detroit, MI, Erwin S. Chemerinsky, Duke University Law School, Durham, NC, Jerome R. Watson, Miller, Canfield, Kary L. Moss, Mark P. Fancher, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Melvin J. Hollowell, Jr., Allen Brothers, Reginald M. Turner, Jr., Clark Hill, Detroit, MI, Laurence H. Tribe, Cambridge, MA, Theodore M. Shaw, Naacp Legal Defense and Educational Fund, New York, NY, for Plaintiffs.
Brigham C. Smith, Lansing City Attorney’s Office, Lansing, MI, for Intervenor Plaintiffs.
City of Lansing, Lansing City Attorney, Lansing, MI, Pro Se.
James E. Long, Brian O. Neill, Michigan Department of Attorney General, Lansing, MI, Laurie J. Michelson, Butzel Long, Detroit, MI, Leonard M. Niehoff, Ann Arbor, MI, for Defendants.
Heather S. Meingast, Joseph E. Potchen, Margaret A. Nelson, Michigan Department of Attorney General, Lansing, MI, Alan W. Foutz, Sharon L. Browne, Pacific Legal Foundation, Sacramento, CA, Michael E. Rosman, Washington, DC, Kerry L. Morgan, Pentiuk, Couvreur, Wyandotte, MI, for Intervenor Defendants.
Laurie J. Michelson, Butzel Long, Detroit, MI, Leonard M. Niehoff, Ann Arbor, MI, for Cross Claimants.
James E. Long, Brian O. Neill, Michigan Department Of Attorney General, Lansing, MI, for Cross Defendant.
Opinion
ORDER GRANTING TEMPORARY INJUNCTION AND DISMISSING CROSS-CLAIM IN PART 1

Coalition To Defend Affirmative Action v. Granholm, Not Reported in F.Supp.2d (2006) DAVID M. LAWSON, United States District Judge. *1 This case was commenced on November 8, 2006 by several plaintiffs who claim that a recently-approved state constitutional amendment, Proposal 06-2, now known as Article 1, section 26 of the Michigan Constitution of 1963, that purports to bar the use of race, sex, color, ethnicity, or national origin to promote diversity in public hiring, contracting, and university admission decisions, violates the United States Constitution. On December 11, 2006, defendants Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University filed a cross-claim against co-defendant Governor Jennifer Granholm seeking declaratory relief. The University parties also requested a preliminary injunction to delay the implementation of the state constitutional amendment until the current enrollment season is completed. Thereafter, the Michigan Attorney General sought permission to intervene as a defendant in the matter, together with a motion to expedite consideration of the motion to intervene, citing his “duty to defendant the constitutionality” of the ballot initiative. Mot. to Intervene ¶ 13. The parties to the case either took no position or consented to the relief, and the Court granted the motion to intervene on December 14, 2006. On December 18, 2006, the Court received a stipulation from all parties to the case, including intervening defendant Michigan Attorney General, consenting to the temporary injunctive relief sought by the cross-claimants (the University defendants), and agreeing to dismiss the portion of the cross-claim seeking a temporary injunction [dkt # 26]. The Court finds that the interests of all parties and the public are represented adequately through the state defendants and their various elected representatives, and the Court, therefore, will approve the stipulation. Accordingly, it is ORDERED that the application of Article 1, section 26 of the Michigan Constitution of 1963 to the current admissions and financial aid policies of defendants Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University is enjoined from this date through the end of the current admissions and financial aid cycles or until further order of the Court. This injunction shall expire at 12:01 a.m. on July 1, 2007, unless it is vacated by the Court before that date. It is further ORDERED that the portion of the cross-claim by defendants Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University seeking temporary injunctive relief is DISMISSED WITH PREJUDICE. The cross-claimants may proceed on the remaining part of their cross-claim. It is further ORDERED that each party shall bear its own fees and costs. It is further ORDERED that the motion for preliminary injunction [dkt # 5] is DISMISSED as moot.
2

 
 Coalition to Defend Affirmative Action v. Granholm, Not Reported in F.Supp.2d (2007)
2007 WL 38122 Only the Westlaw citation is currently available.
United States District Court, E.D. Michigan,
Southern Division.
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigration Rights and Fight for Equality by Any Means Necessary (BAMN), United for Equality and Affirmative Action Legal Defense Fund, Rainbow Push Coalition, Calvin Jevon Cochran, Lashelle Benjamin, Beautie Mitchell, Denesha Richey, Stasia Brown, Michael Gibson, Christopher Sutton, Laquay Johnson, Turqoise Wiseking, Brandon Flannigan, Josie Human, Issamar Camacho, Kahleif Henry, Shanae Tatum, Maricruz Lopez, Alejandra Cruz, Adarene Hoag, Candice Young, Tristan Taylor, Williams Frazier, Jerell Erves, Matthew Griffith, Lacrissa Beverly, D’Shawnm Featherstone, Danielle Nelson, Julius Carter, Kevin Smith, Kyle Smith, Paris Butler, Touissant King, Aiana Scott, Allen Vonou, Randiah Green, Brittany Jones, Courtney Drake, Dante Dixon, Joseph Henry Reed, AFSCME Local 207, AFSCME Local 214, AFSCME Local 312, AFSCME Local 836, AFSCME Local 1642, AFSCME Local 2920, and the Defend Affirmative Action Party, Plaintiffs, v. Jennifer GRANHOLM, in her official capacity as Governor of the State of Michigan, the Regents of the University of Michigan, the Board of Trustees of Michigan State University, the Board of Governors of Wayne State University, and the Trustees of any other public college or university, community college, or school district, Defendants, and Regents of the University of Michigan, the Board of Trustees of Michigan State University and the Board of Governors of Wayne State University, Cross-Plaintiffs, v. Jennifer Granholm, in her official capacity as Governor of the State of Michigan, Cross-Defendant.
No. 06-15024. | Jan. 4, 2007.
Attorneys and Law Firms
George B. Washington, Shanta Driver, Scheff & Washington, Detroit, MI, for Plaintiffs.
James E. Long, Brian O. Neill, Michigan Department of Attorney General, Lansing, MI, Laurie J. Michelson, Butzel Long, Detroit, MI, Leonard M. Niehoff, Ann Arbor, MI, for Defendants.
Opinion
ORDER DENYING AS MOOT MOTION FOR STAY OF TEMPORARY INJUNCTION PENDING APPEAL
DAVID M. LAWSON, United States District Judge.
*1 This matter is before the Court on a motion for stay pending appeal filed by Eric Russell and Toward a Fair Michigan (“TAFM”). For the reasons set forth below, the Court will deny this motion as moot.
On December 19, 2006, Eric RusselL and TAFM filed a motion to expedite their prior motion to intervene as defendants in this matter, and they also moved for a stay of the temporary injunction issued by this Court on December 19, 2006 pending an appeal of that order. On December 20, 2006, the Universities filed a response in opposition to both the motion to intervene and the motion for a stay. On December 22, 2006, Governor Granholm filed a similar response. On December 27, 2006, the Court granted the motion to expedite the parties’ motions to intervene, granted Eric Russell’s motion to intervene, and denied that of TAFM. The Court did not address the motion for a stay of the temporary injunction pending appeal at the time. On December 28, 2006, Eric Russell and TAFM filed a notice of appeal, challenging, among other things, this Court’s December 19 order entering the temporary injunction. Apparently, Eric Russell also filed with the Sixth Circuit an “Emergency Motion
1

Coalition to Defend Affirmative Action v. Granholm, Not Reported in F.Supp.2d (2007) for a Stay Pending Appeal” of the temporary injunction. Coalition to Defend Affirmative Action v. Granholm, --- F.3d ----, ----, 2006 WL 3831217, *4 (6th Cir.2006). That motion was filed with the Sixth Circuit on December 22, 2006, ibid., only three days after Russell and TAFM filed with this Court their motion to expedite their motion to intervene and for a stay pending appeal. On December 29, 2006, the Sixth Circuit issued an opinion granting Eric Russell’s motion for a stay of this Court’s preliminary injunction pending appeal. Id. at *15. The Sixth Circuit has held that “a stay pending appeal ordinarily should be sought in the first instance in the district court.” Southern Ohio Coal Co. v. Dep’t of Interior, 1993 WL 642401, *1 (6th Cir. Aug.30, 1993). Indeed, Federal Rule of Appellate Procedure 8(a) embodies this principle and provides that such a motion may be brought in a court of appeals only in exceptional circumstances. Nevertheless, the court of appeals in this case was apparently satisfied that such circumstances existed, as it ruled on Russell’s motion for stay pending appeal even though he and TAFM had filed a similar motion with this Court only ten days earlier. The court of appeals granted the motion to stay, and the Court therefore has no choice but to deny as moot the previous motion filed with this Court. Accordingly, it is ORDERED that the motion for a stay pending appeal [dkt # 43] is DENIED AS MOOT.
2

 
 Coalition to Defend Affirmative Action v. Granholm, Not Reported in F.Supp.2d (2007)
2007 WL 120259 Only the Westlaw citation is currently available.
United States District Court, E.D. Michigan,
Southern Division.
COALITION TO DEFEND AFFIRMATIVE ACTION, et al., Plaintiffs, v.
Jennifer GRANHOLM, Regents of the University of Michigan, Board of Trustees of Michigan State University, Board of Governors of Wayne State University, Michael Cox, Eric Russell, and the Trustees of any other public
college or university, community college or school district, Defendants, and
Chase Cantrell, et al., Plaintiffs, v.
Jennifer Granholm and Michael Cox, Defendants.
Nos. 06-15024, 06-15637. | Jan. 5, 2007.
Attorneys and Law Firms
George B. Washington, Shanta Driver, Scheff & Washington, Jerome R. Watson, Miller, Canfield, Kary L. Moss, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Mark P. Fancher, American Civil Liberties Union of Michigan, Melvin J. Hollowell, Jr., Allen Brothers, Reginald M. Turner, Jr., Clark Hill, Detroit, MI, Erwin S. Chemerinsky, Duke University Law School, Durham, NC, Theodore M. Shaw, NAACP Legal Defense and Educational Fund, New York, NY, Laurence H. Tribe, Cambridge, MA, for Plaintiffs.
James E. Long, Brian O. Neill, Michigan Department of Attorney General, Lansing, MI, Laurie J. Michelson, Butzel Long, Detroit, MI, Leonard M. Niehoff, Ann Arbor, MI, for Defendants.
Opinion
ORDER CONSOLIDATING CASES, GRANTING ATTORNEY GENERAL’S MOTION TO INTERVENE, AND SETTING DATES
DAVID M. LAWSON, United States District Judge.
*1 On January 5, 2007, the Court held a joint conference with lead counsel for all of the parties in the above named cases. All parties agreed at the conference that the two cases should be consolidated, and the Court is convinced that judicial economy would be served by the consolidation of these matters for all purposes. The cases both come before the Court with common defendants and the plaintiffs in both challenge recently-approved state constitutional amendment, Proposal 06-2, now known as Article 1, section 26 of the Michigan Constitution of 1963, that purports to bar the use of race, sex, color, ethnicity, or national origin to promote diversity in public hiring, contracting, and university admission decisions. The Court has further determined, and all parties agree, that the Michigan Attorney General, who is an intervening defendant in case number 06-15024, ought to intervene as a defendant in case number 06-15637. However, all parties who have now appeared in one of the cases shall be deemed to be participating in the consolidated cases.
Accordingly, it is ORDERED that the above-captioned cases are CONSOLIDATED for all purposes, up to and including trial and judgment.
It is further ORDERED that all further filings in these cases shall be docketed by the Clerk under Case Number 06-15024. The parties are instructed to use a double caption and include the designation “CONSOLIDATED CASES” in the caption.
It is further ORDERED that the Michigan Attorney General’s motion to intervene in Cantrell, Case Number 06-15637 [dkt #
1

Coalition to Defend Affirmative Action v. Granholm, Not Reported in F.Supp.2d (2007) 9], is GRANTED. It is further ORDERED that the plaintiffs in the Cantrell case may file an amended complaint on or before January 12, 2007. It is further ORDERED that answers to the complaints in both cases shall be filed on or before January 26, 2007. It is further ORDERED that disclosure required by Federal Rule of Civil Procedure 26(a)(1)(A), (B) and (C) shall be served on opposing counsel, but not filed with the Clerk, on or before January 30, 2007. It is further ORDERED that the plaintiffs in both cases shall serve on opposing counsel, but not file with the Clerk, a joint proposed stipulation of facts on or before February 9, 2007. The proposed stipulation shall be styled in separate, numbered paragraphs each containing a discrete fact per paragraph in simple, concise and direct language. The purpose of the proposed stipulation is to determine the extent to which discovery can be foreshortened or eliminated, and to provide a possible basis for a record for dispositive motions or a trial on stipulated facts. A courtesy copy shall be delivered to the Court’s chambers. It is further ORDERED that responses to the joint proposed stipulation of facts shall be served on opposing counsel, but not filed with the Clerk, on or before February 28, 2007. The responses shall identify which paragraphs in the proposed stipulation of facts will (1) be accepted, (2) be accepted with proposed modifications, (3) require discovery, or (4) be contested or challenged. A courtesy copy shall be delivered to the Court’s chambers. *2 It is further ORDERED that the parties shall conduct a conference and submit a discovery plan to the Court’s chambers pursuant to Federal Rule of Civil Procedure 26(f) on or before March 14, 2007. It is further ORDERED that a status and scheduling conference will be held on March 21, 2007 at 10:00 a.m. Lead counsel for the parties are directed to attend. The appearance of co-counsel for the parties is not necessary for this conference. It is the Court’s intention to conduct the conference for the purpose of reviewing the proposed stipulation of fact and responses, evaluating the parties’ discovery plan, expediting discovery (if any is needed), and establishing deadlines for either filing dispositive motions or conducting a trial on stipulated facts.
2

 
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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 11a0174p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

Nos. 08-1387/1534 COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT

X -

RIGHTS AND FIGHT FOR EQUALITY BY ANY

-

MEANS NECESSARY (BAMN), et al.,

,>

Plaintiffs-Appellants (08-1387)/ -

v.

Cross-Appellees,

-

-

REGENTS OF THE UNIVERSITY OF MICHIGAN, -

BOARD OF TRUSTEES OF MICHIGAN STATE

-

UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE

-

COLEMAN; IRVIN D. REID; LOU ANNA K.

-

SIMON,

-

Defendants-Appellees/Cross-Appellants (08-1534),

-

MICHAEL COX, Michigan Attorney General, -

Intervenor-Defendant-Appellee. -

-

No. 08-1389 COALITION TO DEFEND AFFIRMATION

-

ACTION, INTEGRATION AND IMMIGRANT

-

RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,
Plaintiffs,

-

CHASE CANTRELL, et al.,

-

Plaintiffs-Appellees, -

v. REGENTS OF THE UNIVERSITY OF MICHIGAN,

-

BOARD OF TRUSTEES OF MICHIGAN STATE

-

UNIVERSITY; BOARD OF GOVERNORS OF

-

WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K.

-

SIMON,

-

Defendants, -

ERIC RUSSELL, Intervenor-Defendant-Appellant,

-

JENNIFER GRATZ,

-

Proposed Intervenor-Appellant. -

-

Nos. 08-1387/1389/1534; 09-1111

1

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No. 09-1111 COALITION TO DEFEND AFFIRMATION ACTION, INTEGRATION AND IMMIGRANT

-

RIGHTS AND FIGHT FOR EQUALITY BY ANY

-

MEANS NECESSARY (BAMN), et al., Plaintiffs,
CHASE CANTRELL, et al.,

-

Plaintiffs-Appellants, -

v.

-

REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE

-

UNIVERSITY; BOARD OF GOVERNORS OF

-

WAYNE STATE UNIVERSITY; MARY SUE

-

COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,

-

Defendants, -

MICHAEL COX, Michigan Attorney General, -

Intervenor-Defendant-Appellee.

-

N

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-15024—David M. Lawson, District Judge.

Argued: November 17, 2009

Decided and Filed: July 1, 2011

Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

_________________

COUNSEL
ARGUED: George Boyer Washington, Shanta Driver, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, Karni A. DeMasi, CRAVATH, SWAINE & MOORE LLP, New York, New York, Mark D. Rosenbaum , ACLU FOUNDATION OF SOUTHERN CALIFORNIA, Los Angeles, Calif ornia, for Plaintiffs. Margaret A. Nelson, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Leonard M. Ni ehoff, LEN NIEHOFF & ASSOCIATES, Chelsea, Michigan, Jesse Panuccio, COOPER & KIRK, PLLC, Washington, D.C., for Defendants. ON BRIEF: George Boyer Washington, Shanta Driver, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, Karin A. DeMasi , CRAVATH, SW AINE & MOORE LLP, New York, New York, Mark D. Rosenba um, ACLU F OUNDATION OF SOUTHERN CALIFORNIA, Los Angeles, California, Kary L. Moss, Michael J. Steinberg, Mark P.

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Fancher, ACLU FUND OF MICHIGAN, Detroit, Michigan, Joshua I. Civin, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., Washington, D.C., for Plaintiffs. Margaret A. Nelson, Heather S. Meingast, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Leonard M. Niehoff, LEN NIEHOFF & ASSOCIATES, Chelsea, Michigan, Jesse Panuccio, Charles J. Cooper, David H. Thompson, COOPER & KIRK, PLLC, W ashington, D.C., Kerry L. Morgan, PENTIUK, COUVEREUR & KOBILJAK, Wyandotte, Michigan, MichaelE. Rosman, CENTER FOR INDIVIDUAL RIGHTS, W ashington, D.C., for De fendants. Daniel M. Levy, MICHIGAN DEPARTMENT OF CIVIL RIGHTS, Detroit, Michigan, for Am icus Curiae. Sharon L. Browne, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Am icus Curiae.
COLE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. GIBBONS, J. (pp. 41–59), delivered a separate opinion concurring in part and dissenting in part.
_________________
OPINION _________________
COLE, Circuit Judge. Proposal 2 is a successful voter-initiated amendment to
the Michigan Constitution. In relevant par,t it prohibits Michigan’s public colleges and
universities from granting “preferential treatm ent to[] a ny individual or group on the
basis of race, sex, color, ethnicity,or national origin.” Mich. Consta. rt. I, § 26. Our task
is to determine whether Proposal 2 is constitutional under the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution. Fortunately, the slate
is not blank. The Supreme Court has twice held that equal protection does not permit
the kind of political restructuring that Proposal 2 effected. See Washington v. Seattle
Sch. Dist. No. 1 , 458 U.S. 457 (1982); Hunter v. Erickson , 393 U.S. 385 (1969).
Applying Hunter and Seattle, we find that Proposal 2 unconstitutionally alters
Michigan’s political structure by im permissibly burdening racial m inorities.
Accordingly, we REVERSE the district court’s grant of sum mary judgment for the
Defendants-Appellees and order the court to e nter summary judgment in favor of the
Plaintiffs-Appellants. Also, we AFFIRM the district court’s decision gr anting the
Cantrell Plaintiffs’ motion for summary judgment as to Eric Russell, andAFFIRM the

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district court’s decision denying the University Defendants’ motion to be dismissed as parties.
I. BACKGROUND
A. Factual Background
These appeals are the latest chapter in the battle over the use of race-conscious admissions policies at Michigan’s public colleges and universities. This saga began during the 1960s and 1970s, when African-American and other minority students and citizens f irst successf ully lobbied f or the adoption of these policies. The policies remained largely in place until challenges to them in the late 1990s, culminating in the Supreme Court’s decisions in Gratz v. Bollinger, 539 U.S. 244 (2003), and Grutter v. Bollinger, 539 U.S. 306 (2003), which held thatu“niversities cannot establish quotas for members of certain racial groups” ortreat their applications uniquely.Grutter, 539 U.S. at 334. But the universities m ay “consider race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration,” along with other relevant factors. Id.
Following these decisions, W ard Connerly, a form er University of Califor nia Regent who had championed a proposition in California similar to the one at issue here, and Jennifer Gratz, the lead plaintiff in Gratz, m obilized to place on Michigan’s November 2006 statewide ballot a proposal to am end the Michigan Constitution “to prohibit all sex- and race-based preferences in public education, public epmloyment, and public contracting.” Operation King’s Dream v. Connerly, 501 F.3d 584, 586 (6th Cir. 2007). The initiative—officially designated Proposal 06-2 but com monly known as “Proposal 2”—was characterized as a proposal “to amend the State Constitution to ban affirmative action program s.” See Notice of State Proposals for Novem ber 7, 2006 General Election, http://www.m ichigan.gov/documents/sos/ED-138_State_Prop_1106_174276_7.pdf, at 5 (last visited June 24, 2011). Though Proposal 2 “found its way on the ballot through m ethods that underm ine[d] the integrity and fai rness of our democratic processes,”Operation King’s Dream, 501 F.3d at 591, once there it garnered

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enough support among Michigan voters to pass, on November 7, 2006, by a margin of 58% to 42%,see Mich. Dep’t of State, 2006 OfficiaMl ichigan General Election Results, http://miboecfr.nicusa.com/election/results/06GEN/90000002.html (last visited June 24, 2011).
Proposal 2 amended the Michigan Constitution by adding the following pertinent provisions to Article I—titled “Affirmative action”:
(1) The University of Michigan, Michigan State University, Wayne State University, and any other publi c college or university, com munity college, or school district shall not discrim inate against, or grant preferential treatment to, any indivi dual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.
(2) The state shall not discrim inate against, or grant preferent ial treatment to, a ny individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public em ployment, public education, or public contracting.
(3) For the purposes of this section “tsate” includes, but is not necessarily limited to, the state itself, any cyit, county, any public college, university, or community college, school district, or other political subdivision or governmental instrum entality of or within the State of Michigan not included in sub-section 1.
Mich. Const. art. I, § 26. It took effect in December 2006 and wrought two significant changes to the admissions policies at Michigan’s public colleges and universities. First, it for ced them to m odify the policies they had in place for nearly a half-cent ury t o remove consideration of “race, sex, col or, ethnicity, or national origin” in adm issions decisions. No other admissions criteria—for example, grades, athletic ability, or af mily alumni connections—suffer ed t he sam e fate. Second, Proposal 2 entrenched this prohibition a t t he state constitutional level, thus preventing the public colleges and universities or their boards from revisiting this issue without repeal or modification of Proposal 2. W e review these changes later in greater detail, and there discuss their significance.

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B. Procedural Background
The litigation surrounding Proposal 2 has been lengthy and c omplicated. On November 8, 2006, the day after Proposal 2’s approval, a collection of interest groups and individuals, including the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessar y ( “Coalition Plaintiffs”), filed suit i n t he Uni ted States District Court for the Eastern District of Michigan. They named as defendants then-Governor Jennifer Granholm, the Regents of the University of Michigan, the Board ofTrustees of Michigan State University, and the Board of Governors of W ayne State Un iversity (“University Def endants”) and alleged that the provisions of Proposal 2 af fecting public co lleges and universities violated the United States Constitution and fedreal statutory law. About one month later, the Michigan Attorney General ( “Attorney General”) filed a motion to intervene as a defendant; the court granted his motion the same day.
On December 19, 2006, a group of faculty members and prospective and current students at the University of Michigan (“the Cantrell Plaintiffs”) filed a similar suit in the United States District Court for the Eastern District of Michigan against then Governor Granholm. Eric Russell, then an applicant to the University of Michigan Law School, and Toward A Fair Michigan (“TAFM ”), a non-profit corporation form ed to ensure implementation of Proposal 2, intervened in the litigation as defendants soon thereafter. The district cour t consolidated the two cases on January 5, 2007, and the Attorney General was perm itted to intervene in the Cantrell lawsuit as part of the consolidation order. Because the AttorneyGeneral effectively replaced then-Governor Granholm as the representative of Michigan i n this litigation, both Plaintiffs’ groups later stipulated to her dismissal as a party.
On Decem ber 19, 2006, the district court issued what was, i n e ffect, a preliminary injunction, postponing applica tion of Proposa l 2 to the universities’ admissions and financial-aid policies until July 1, 2007, the conclusion of the 2006-2007 admissions and financial-aid cycle. The distrcit court’s order stemmed from astipulation

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among the University Defendants, Coalition Plaintiffs, Granholm , and the Attorney General consenting to the injunction. (Amended Order Granting Temporary Injunction and Dismissing Cross-Claim, Dist. Ct. Docket No. 39 (“Coal. I”).) Russell and TAFM, while awaiting approval as intervenors, opposedthe Attorney General’s stipulation and sought a stay of the injunction from the district court. W hen two days ha d passed without a ruling on their m otions, Russell and TAFM filed with us an “Em ergency Motion for a Stay Pending Appeal.” W e granted their m otion. Coal. to Defend Affirmative Action v. Granholm (Coal. II ), 473 F.3d 237, 252 (6th Cir. 2006), application to vacate stay denied, 549 U.S. 1176 (2007). Meanwhile, we approved the district court’s decision to allow solely Russell and TAFM to intervene in the Proposal 2 litigation. Coal. to Defend Affirmative Action v. Granholm (Coal. III), 501 F.3d 775 (6th Cir. 2007).
On October 5, 2007, the Cantrell Plainftfis filed a motion for summary judgment as to intervening defe ndant Russell, arguing that he should be dism issed from the litigation because he no longer represented an interest distinct from that of the Attorney General. On October 17, 2007, the University Defendants filed a motion asking to be dismissed as parties. On Novembe r 30, 2007, the Attorney General filed a m otion to dismiss for lack of standing or, in the altrenative, a motion for summary judgment on the merits as to all Plaintiffs. Russell and the Cantrell Plaintiffs likewise filed motions for summary judgment the sam e day. On March 18, 2008, the distr ict court issued two orders addressing these motions.
In the first order, the court denied the University Defendants’ reque st t o be dismissed as parties and the Cantrell Plai ntiffs’ m otion for sum mary judgme nt and granted the Attorney General’s motion for summary judgment, rejecting the Plaintiffs’ arguments that Proposal 2 violated the E qual Protection Clause of the Fourteenth Amendment to the United States Constitution. Coal. to Defend Affirmative Action v. Regents of t he Univ. of Mich. (Coal. IV), 539 F. Supp. 2d 924, 950-58 (E.D. Mich. 2008). In the second order, the court grandtethe Cantrell Plaintiffs’ motion for summary judgment, dismissing Russell as an intervenor. Coal. to Defend Affirmative Action v.

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Regents of the Univ. of Mich. (Coal. V), 539 F. Supp. 2d 960 (E.D. Mich. 2008). The Cantrell Plaintiffs subsequently moved the court to reconsider the first order, but the court denied the motion. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VI), 592 F. Supp. 2d 948 (E.D. Mich. 2008).
These appeals followed. The UniversityDefendants appeal the court’s denial of their motion to be dismissed as parties. Russell appeals the court’s grant ofthe Cantrell Plaintiffs’ motion for summary judgment dismissing him as a party to the action. The Cantrell Plaintif fs appeal the court’s grant of the Attorney General’s m otion f or summary judgment and its denial of their motion for reconsideration. Sim ilarly, the Coalition Plaintif fs appeal the court’s grant of the Attorney General’s m otion for summary judgment.
II. ANALYSIS
A. Proposal 2’s Constitutionality
The Equal Protection Clause provides thatno state shall “deny to any person . . . the equal protection of the laws.” U.S. Const. amend. XIV. The Plaintiffs argue that Proposal 2 violates this provision in two distinct ways. Both Plaintiffs groups argue that Proposal 2 violates the Equa l Protection Clause by im permissibly restructuring the political process along racial lines (the “political process” argument), and the Coalition Plaintiffs contend that Proposal 2 violat es the Equal Prote ction Clause also by impermissibly classifying individuals on the basis of race (the “traditional” argument).
We review de novo a district court’s grant of summary judgment and denial of a motion for reconsideration of that decision. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1047 (6th Cir. 2001). Whether a state’s constitution violat es the federal constitution is a question of law, which we also review de novo. Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir. 2008).

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1. “Political Process” Equal Protection Analysis
The Equal Protection Clause “guarantees racial m inorities t he right to full participation in the political life of the community. It is beyond dispute . . . that given racial or ethnic groups may not be denied the franchise, or precluded fromentering into the political process in a reliable and m eaningful manner.”1 Seattle, 458 U.S. at 467. But the Equal Protection Clause reaches evenfurther, and prohibits “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on t he a bility of m inority groups to achieve beneficial legislation.” Id. (internal quotation marks and citation omitted). “[T]he State may no m ore disadvantage any particular group by m aking it m ore difficult to e nact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” Hunter, 393 U.S. at 393.
The Supr eme Court’s statem ents in Hunter and Seattle clarify that equal protection of the laws is m ore tha n a gua rantee of equal treatm ent under the law substantively. It is also an assurance thatthe majority may not manipulate the channels of change in a m anner that places u nique burdens on issues of importance to racial minorities. In effect, the political process theory hews to the unremarkable belief that, when two competitors are running a race, one may not require the other to run twice as far, or to scale obstacles not present in the first runner’s course. Ensuring the fairness

1For this reason, the Supreme Court has repeatedly held that legislative enactments that burden racial minorities’ ability to participate in thepolitical process may violate theConstitution. See, e.g., White v. Regester, 412 U.S. 755 (1973)(invalidating “multimember” electoral districts that minimized the voting strength of resident Mexican-Am ericans); Harman v. Forssenius , 380 U.S. 528 (1965) (holding unconstitutional a statute that required voters either to file an annual certificate of residence or pay a poll tax “born of a desire to disenfranchise the Negro”);Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that political redistricting that redefined municipal borders to exclude black residents would violate the Equal Protection Clause); Smith v. Allwright, 321 U.S. 649 (1944) (requiring the state Democratic party to admit black members in order that they be allowed to vote in the party priamry election); Lane v. Wilson, 307 U.S. 268 (1939) (holdingunconstitutional a statute having the effect of requiring all blackcitizens to apply for voting registration within a ten-day period or be forever barred from registering, but subjecting virtually no white citizens to the sam e requirement); Nixon v. Herendon, 273 U.S. 536 (1927) (holding unconstitutional a statute prohibiting black citizens from participating in primary elections for the state Democratic Party); Guinn v. UnitedStates, 238 U.S. 347 (1915) (holdingunconstitutional a statute having the effect of subjecting all black citizens, but virtuallyno white citizens, to a literacy test in order to vote in state elections). In all these cases, the Court invalidated procedural hurdles that im peded racial minorities’ political participation by either making it more difficult for theseminorities to vote or diluting their voting power.

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of political processes, in particular, is essential, because an electoral m inority is by definition disadvantaged in its attem pts to pass legislation; and “discrete and insular minorities” are especially so given the unique hurdles they face. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
Ensuring a fair political process is nowhere more important than in education. Education is the bedrock of equal oppor tunity and “the very foundation of good citizenship.” Brown v. Bd. of Educ. , 347 U.S. 483, 493 (1954). Safeguarding the guarantee “that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paraomunt government objective.” Grutter, 539 U.S. at 331-32 (quoting Br. foUr nited States as Amicus Curiae 13). “Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders.. . . [T]o cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified indviiduals of every race and ethnicity.”Id. at 332 (citation omitted). Therefore, in the context of education, we must apply the “political process” protection with the utmost rigor given the high stakes.
Of course, the Constitution does not protect m inorities from political def eat: Politics necessarily produces winners and losers. We must therefore have some way to differentiate between the constitutional and the impermissible. And Hunter and Seattle do just that. They provide the benchmark for when the majority has not only won, but also rigged the game to reproduce its success indefinitely.
i. Hunter and Seattle
a. Hunter
The Supreme Court inHunter addressed a situation where the citizens of Akron, Ohio overturned a fair housing ordinance enacted by the City Council. 393 U.S. at 386. The citizenry did more than merely repeal the ordinance, however. It amended the city charter through a referendum to require the approval of a m ajority of the electorate

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before any ordinance regulating real estate “on the basis of race, color, religion, national origin or ancestry”—past or future—could becom e effective. Id. at 387, 390 n.6. In other words, only ordinances based on t he identified factors required approval of the majority; ordinances based on any other afctor required only a vote by the City Council:
In essence, the amendment changed the requirements for the adoption of one type of local legislation: to enact an ordinance barring housing discrimination on the basis of race or religion, proponents had to obtain the approval of the City Counciland of a majority of the voters citywide. To enact an ordinance preventing housing discrim ination on other grounds, or to enact any other type of housing ordinance, proponents needed the support of only the City Council.
Seattle, 458 U.S. at 468 (describing Hunter). The effect was not only to halt operation of the existing fair housing ordinance, but alsoto erect a barrier to any similar ordinance in the future. Hunter, 393 U.S. at 389.
The Court found that the disparity between the process for enacting a future fair housing ordinance and that for enacting any other housing ordinance “place[d] special burden[s] on racial m inorities within the governm ental process” by m aking it “substantially more difficult to secure enactment” only of legislation that would be to their benefit. Id. at 390-91. While the enactment treated “Negro and white, Jew and gentile” in an identical manner, the Court foundthat “the reality is that the law’s impact falls on the m inority.” Id. at 391. That t he l aw ha d been enacted via a popular referendum did not save it from implementing “a real, substantial, and invidious denial of the equal protection of the laws.” Id. at 392-93.
b. Seattle
In Seattle, a case ide ntical in many respects to the one we confront here, the Supreme Court applied Hunter to strike down a state stat ute, also enacted via a referendum, that prohibited racially integrative busing. Seattle, 458 U.S. at 487. Prior to the referendum, Seattle School District No. 1 (“District”) had implemented a school desegregation plan—making extensive use of mandatory reassignments—to accelerate

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its program of desegregation. Id. at 460-61. The District was under no obligation to adopt this plan: FollowingBrown v. Board of Education, 347 U.S. 483 (1954), and 349 U.S. 294 (1955), school boards had been “charged with the affirm ative duty to take whatever steps m ight be necessary” to integrate schools that were unconstitutionally segregated because of racial discrimination, Green v. Cnty. Sch. Bd,. 391 U.S. 430, 43738 (1968), but there had been no finding that thdee factosegregation in Seattle’s schools was the product of discrimination. Nonetheless, the school board implemented the plan to accelerate its existing program of voluntary busing, which some constituencies saw as insufficiently alleviating racial imbalances. Seattle, 458 U.S. at 460.
In response, Seattle residents drafted a statewide m easure, Initiative 350, providing in relevant part that “no school board . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student’s place of residence.”Id. at 462 (alteration in original) (internal quotation mark omitted). Though the initiative was worded as a general ban on all forsm of m andatory busing, its m yriad exceptions made its real ef fect to elim inate school reassignments for racial purposes only, except where a court ordered such reassignments to remedy unconstitutional segregation. Id. at 462-63 (noting that Initiative 350 was phrased so as not to “prevent any court of com petent jurisdiction from adjudicating constitutional issues relating to the public schools”). Initiative 350 m ade it on the Washington ballot and passed by a substantial m argin, attrac ting ove r 65% of the statewide vote. Id. at 463.
The Court found that Initiative 350, like the Akron city charte r a mendment, violated the Equal Protection Clause. Id. at 487. Relying on Hunter and the Court’s summary affirmance of Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970) (three-judge panel), aff’d, 402 U.S. 935 (1971), the Court stated that these two c ases yi elded a “simple but central principle”: While “lawsstructuring political institutions or allocating political power according to neutral principles” are not subject to challenges under the Fourteenth Am endment, “a different analys is i s required when the State allocates governmental power nonneutrally, by explicitly using theracial nature of a decision to

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determine the decisionmaking process.” Seattle, 458 U.S. at 469-70 (internal quotation marks om itted). Echoing Hunter, the Cour t e xplained that this distinct analysis is necessary because such non-neutral allocations of power “place[] special burdens on racial minorities within the governmental process, thereby making it more difficult for certain racial and religious m inorities than f or other m embers of the com munity to achieve legislation that is in their interest.I”d. at 470(internal quotation marks, citations, and brackets omitted).
The Court dismissed the argument that Initiative 350 was not intended to prevent busing for racially-integrative purposes, and explained why Initiative 350 violated the “simple but central” principle animating Hunter and Nyquist. Seattle, 458 U.S. at 471.
First, as a threshold matter, the Court concluded that desegregation of the public schools, like the fair housing ordinance in Hunter, “at bottom inures pr imarily to the benefit of the m inority, and i s designed for that purpose.” Id. at 472. The Court reasoned that, while “white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom,” desegregation is of primary benefit to minority children because these children “can achieve their full measure of success only if they learn to function in—and are fully accepted by—the larger community. Attending an ethnically diverse school may help accomplish this goal by preparing minority children for citizenship in our pluralistic society.” Id. at 472- 73 ( internal quotation m arks omitted). B ecause racial m inorities theref ore had reason to “consider busing f or integration to be ‘legislation that is in their interest,’” the “racial of cus of Initiative 350 . . . suffices to trigger application of the Hunter doctrine.” Id. at 474 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).
Second, havi ng concluded that Initiative 350 targeted a busing program that “inures primarily to the benefit of the minority,” the Court held that “the practical effect of Initiative 350 is to work a reallocation of power of the kind condemned in Hunter.” Id. A s the C ourt explained, Initiative 350, lik e the am endment to the city charter in Hunter, did more than repeal the school board’s busing program:

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The initiative rem oves the authority to address a racial problem —and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests. Those favoring the elimination of de facto school se gregation now m ust seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignm ent decisions, as well as over m ost other areas of educational policy, remains vested in the local school board. . . . As in Hunter, then, the com munity’s political m echanisms are m odified to place effective decisionmaking authority over a racial issue at a different level of government.
Id. By removing authority over busing for racial purpos es from the school board and placing this authority at a m ore remote level of government, Initiative 350 required “those championing school integration to surmount a considerably higher hurdle tha n persons seeking comparable legislative action,” and disadvantaged “those who would benefit from laws barringde factodesegregation.” Id. at 474-75 (internal quotation mark omitted). Accordingly, the Court held that Initiative 350, in placing “special burdens on racial minorities,” violated the Equal Protection Clause. Id. at 470.
In sum, Hunter and Seattle require us to apply strict scrutiny to enactments that change the governmental decisionmaking process for determinations with a racial focus. Seattle, 458 U.S. at 470; Hunter, 393 U.S. at 391; cf. Carolene Prods., 304 U.S. at 153 n.4 (arguing that more exacting judicial scrutiny is required when the majority curtails “the operation of those political processes ordinari ly to be relied upon to protect minorities”).
ii. Application of the Hunter/Seattle Test
Hunter and Seattle thus expounded the rule that an enactment deprives minority groups of equal protection of the laws whenit: (1) has a racial focus, targeting a goal or program that “inures prim arily to the benefit of the m inority”; a nd (2) works a reallocation of political power or reordering of the decisionmaking process that places “special burdens” on a minority group’s ability to achieve its goals through that process. Seattle, 458 U.S. at 470; Hunter, 393 U.S. at 391.

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Applying t his rule here, we conclude that Proposal 2 targets a program that “inures primarily to the benefit of the m inority” and reorders the political process in Michigan in such a way as to place “special burdens” on racial minorities.
a. Racial Focus
The first prong of the Hunter/Seattle test requires us t o de termine whether Proposal 2 has a “racial focus.” See Seattle, 458 U.S. at 473. The Court explained that the question is not whether “members of the racial majority both favored and benefited from” the program or policy at iss ue, but whether the policy targeted by the law “at bottom inures primarily to the benefit of the minority, and is designed for that purpose.” Id. at 472.
In Seattle, the Court observed that program s—in t hat c ontext, the busing of children to increase the num ber of i ntegrated schools—furthering the education of minority children enable them “to function in—and . . . [be] fully accepted by—the larger community.” Id. at 473. Such program s do s o, the Court explained, through “preparing minority children for citizenship inour pluralistic society, while . . . teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.” Id. (internal quotation marks and citation omitted); see also Grutter, 539 U.S. at 330-32 ( “[T]he [University of Michigan] Law School’s [race-conscious] admissions policy prom otes cross-racial unde rstanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races. . . . [T]he diffusion of knowledge and oppor tunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity.” (fourth alteration in original) (internal quotation ma rks om itted)). The Seattle Court then concluded that Initiative 350 had a racial focus, because “it is enough that m inorities may consider busing for integration to be ‘legislation that is in their interest.’” Seattle, 458 U.S. at 474 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).
Proposal 2, like Initiative 350, has a “racial focus,” because the Michigan universities’ af firmative-action program s “inure[ ] prim arily to the benef it of the

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minority, and [are] designed for that purpose,” for the reasons articulated by the Court in Seattle. See id. at 472. Just as the desegregative busing programs at issue in Seattle were designed to improve racial minorities’ representation at many public schools, see id. at 460, race-conscious admissions policies increase racial minorities’ representation at institutions of higher education,see, e.g., Grutter, 539 U.S. at 316, 328-33 (describing the University of Michigan Law Schoo’ls minority-student-enrollment aims); Gratz, 539 U.S. at 253-56 (describing admissions policies at the University of Michigan regarding underrepresented minority groups). Indeed, underrepresented minorities lobbied for the adoption of such policies at Michigan’s unviersities in the first place for this reason,s(ee Anderson Report, Dist. Ct. Docket No. 222 ExL. , at 16-23), and, further, the unrebutted evidence in the record indicates that Proposal 2 will likely negatively impact minority representation at Michigan’s institutions of higher education, (see Connerly Dep., Dist. Ct. Docket No. 222 Ex. A, at 119-21; SpencerDep., Dist. Ct. Docket No. 203 Ex. D, at 100-01; Wu Dep., Dist. Ct. Docket No. 203 Ex.F, at 78; Zearfoss Dep., Dist. Ct. Docket No. 205 Ex. 3, at 56-57). Am ple evidence thus grounds our conclusion that raceconscious admissions policies “inure[] prim arily to the benefit of the m inority.” See Seattle, 458 U.S. at 472.
Yet the Attorney Ge neral argues, and we previously suggested, that the nowdefunct Michigan admissions policies benefitted women as well, and that saves them. See Coal. II, 473 F.3d at 250-51. Our prior suggestion does not bind us, see Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007), and we now reject it. The Supr eme Court m ade it clear that even policies benefitting the majority—let alone another minority—may have a “racial focus,” so that lens does not clarify anything. See Seattle, 458 U.S. at 472. In fact, it serves only to blur what is in reality a clear test: The question is not whether the challenged law “burdens minority interests and minority interests alone,” Coal. II, 473 F.3d at 250, but whether the law targets policies that minorities may consider in their interest, Seattle, 458 U.S. at 472. Even a cursory examination of the cases confirms this understanding. InHunter, the ordinance likewise burdened non-racial minorities, including Catholics, Hispanics

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and numerous other groups (which, grouped together, would constitute a majority of the electorate), but the Court held that the law hda a racial focus. 393 U.S. at 387. The saem was true of the policy at issue in Nyquist, and the Court again agreed that it had a racial focus. 318 F. Supp. at 716-17. Likewise , as explained above, the race-conscious admissions policies stym ied by Proposal 2 are in the interest of racial m inorities and inure primarily to their benefit, so the polices have a racial focus as well.
This conclusion is not impacted by the fact that increased representation of racial minorities in higher education also benefits students of other groups and our nation as a whole. Cf. Grutter, 539 U.S. at 327-33 (describing the varied be nefits supporting Michigan’s compelling interest in increasing racial diversity at public institutions of higher e ducation). Sim ilar benefits accrued to children at integrated public schools under Seattle’s desegregative busing plan, which t he Suprem e Court explicitly recognized: “[I]t should be . . . clear that white as well as Negro children benefit from exposure to ethnic and racial diversity in theclassroom . . . [by] etaching members of the racial majority to live in harmony and mutual respect with children ofminority heritage.” Seattle, 458 U.S. at 472-73. Nonetheless, theSeattle Court found that the wider benefits of the busing plan did not serve to distinguish Hunter, “for we may fairly assume that members of the racial m ajority both favored and benefited from Akron’s fair housing ordinance.” Id. at 472. By the same token, race-conscious admissions policies’ wider benefits do not underm ine the conclusion t hat their prim ary beneficiaries are racial minorities.
We therefore find that the race-conscious adm issions policies now bar red by Proposal 2 inure primarily to the benefit ofracial minorities and that Proposal 2, insofar as it prohibits consideration of applicants’ race in adm issions decisions, has a “racial focus.”

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b. Reordering the Political Process to Place Special Burdens on Racial Minorities
The s econd prong of the Hunter/Seattle test asks us to determ ine whethe r Proposal 2 works a reallocation of political power or reordering of the political process that places “special burdens” on racial minorities. See Seattle, 458 U.S. at 470;Hunter, 393 U.S. at 391.
1. Does Proposal 2 Reorder a “Political” Process?
The first issue within this prong is wehther the Michigan admissions committees are “political,” as that term is used in the Hunter/Seattle test. We begin by examining the word itself. “Political” has two possiblemeanings relevant to our discussion: “ofor relating to governm ent,” Merriam -Webster, W ebster’s Third New International Dictionary: Unabridged 1755 (1993) (first definition), or “of, relating to, or involved in party politics,” id. (third definition). Examining the Court’s language, we conclude that the “political” requirem ent seeks to ensure that the process at issue relates to government.
The political processes relevant in Hunter and Seattle were the Akron publichousing structure and the W ashington public schools’ student-assignme nt system , respectively. See Seattle, 458 U.S. at 474;Hunter, 393 U.S. at 390, 393. Clarifying the “political” nature of the latter, the Court ref erred to the “political process” interchangeably as a “decisionm aking process” and a “governm ental process,” and explained that the political power allocation in question is of “governm ental power.” Seattle, 458 U.S. at 470. The Court elsewhere idetnified the relevant characteristics that made the school boards “political”: They were “creatures of the State” and had to “give effect to policies announced by the state legislature.” Id. at 476. In other words, the boards w ere “political” because they w ere governmental entities, not necessarily electoral or partisan ones.Id. Even more explicitly, theCourt found that Initiative 350’s flaw was “us[ing] the racial natu re of a n issue to define the governmental decisionmaking structure.” Id. at 470 (em phasis added); see also id. at 474 (“As in

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Hunter, then, the com munity’s political mechanisms are m odified to pl ace effective decisionmaking authority over a racial issue at a different level of government.” (emphasis added)). Indeed, the Court noted that the political “reallocation of power of the kind condem ned in Hunter” is the rem oval of “authority . . . f rom the existing decisionmaking body.” Id. (emphasis added); see also id. at 477 (“[I]t is irrelevant that the State might have vested alldecisionmaking authority in itself, so long as thepolitical structure it in fact ere cted imposes comparative burdens on m inority interests . . . .” (emphasis added)). Thus, a process is “political” underHunter and Seattle if it involves governmental decisionmaking.
The dissent disagrees. It defines a “political process” narrowly, as one “through which the people exercise their right to govern themselves,” Slip Op. at 13, or one that is “electoral,” 2 id. at 18-19 & n.6, and suggests that a process is political only if it involves direct elections. In so doing, the dissent misapprehends the “political” nexus required in theHunter/Seattle test. The electoral nature of a state systemis relevant not to the political nature of a process, but to the reordering at issue. The Court’s point in requiring that there be reordering of a “political process” was merely to ensure that the process was state-directed (“governmental”) and mattered (“decisionmaking”), the same way Title VII cases require the alleged discriminatory act to relate to a company agent with relevant authority. No link to the el ectoral process is required to find a given process “political.”
The dissent latches on to a lone mention of an “electorate” inSeattle to argue that the Hunter/Seattle political process m ust be an electoral, or voting-centered, political process. The s tatement at issue, however , was sim ply the Court’s quotation of the language setting forth the school board’s authority under Washington law. See Seattle, 458 U.S. at 478 (quoting Wash. Rev. Code §28A.58.758(1)). And that quotation sits in
2By “ electoral,” the dissent m ust m ean “ of or rela ting to election.” See Merriam-Webster, Webster’s Third New International Dictionary: Unabridged 731 (1993). Nothing in either definition of “political,” however, relates m ore than tangentially to an election or voting: Yes, in a dem ocracy, government exists because of elections, but the Court did not require there to be a “political process” for the purpose of elucidating first principles. Thesecond meaning of government—in effect, “partisan”—is more related to elections, but the cases do not support (and the dissent does not advocate) such a reading.

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a section explaining the structure of Washington’s educational system generally and the

power of the school boards specifically. See id. To argue that the key insight to the

entire Hunter/Seattle test lies in this solitary quotation is unsupportable, especially given

the abundance of language to the contrary inthose cases. Moreover, there is no language

in this section of Seattle sugge sting that the Court was defining what it m eant by a

“political process.” A process thus is “political” i

f it involves governm ental

decisionmaking. Nothing more is required.

This point is ha mmered hom e by the Court’s affirm ance of, and subsequent

reliance (in Seattle) on, Nyquist. InNyquist, the Court agreed with the three-judge panel

that an enactment to New York’s laws unconstitutionally reordered the political process

when the enactment “prohibit[ed] state education officials andappointed school boards”

from performing various education-related functions “for the purpose of achieving racial

equality in attendance.” 318 F. Supp. at 712 (me phasis added). The fact that the school boards at issue were not elected ddi not affect the Court’s decision3. The Hunter/Seattle

test therefore re quires sim ply that the process at issue involve governm

ental

decisionmaking.

Yet even using the dissent’s erroneous deifnition of “political” as “electoral,” the admissions committees here still qualify as “political.” For in addition to possessing the same character as th e school boards in Seattle and Nyquist and the Akron housing institutions in Hunter, they fall squarely within Michigan’s electoral system.

The Michigan Constitution, the founda tion of Michigan’s governm ent, establishes three public universities—the University of Michigan, Michigan State University, and W ayne State University—and grants the governing board of each university control of its respective institution. Mich. Const. art. VIII, § 5; see also id. art. VIII, § 6 (allowing the establishment of other institutions of higher learning, such as

3Likewise, the dissent’s dwelling on the term“legislation,”see Slip Op. at 13-14, misapprehends that term’s usage in the Hunter/Seattle test, for the Court considered the school board policies in Seattle and Nyquist to constitute such “legislation,” see Seattle, 458 U.S. at 470, 474-75 & n.17; Nyquist, 318 F. Supp. at 718-19, and the ad missions policies at Michigan’s colleges and universities are of an identical character.

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Michigan’s other public colleges and universities, and according their governing boards similar control). At each institution, these boards and their m embers have sl ightly differing names—“Board of Trustees,” “Boardof Governors,” “Board of Regents,” and so on—but the same role: to run, with plenary authority, their respective institution. Id. art. VIII, §§ 5-6; Glass v. Dudley Paper Co. , 112 N.W .2d 489, 490 (Mich. 1961). Michigan law has confirmed this absolute authority again and again. See, e.g., Glass, 112 N.W.2d at 490; Attorney Gen. ex rel. Cook v. Burhans, 7 N.W.2d 370, 371 (Mich. 1942); Bd. of Regents of Univ. of Mich. v. Attorney Gen., 132 N.W. 1037, 1040 (Mich. 1911); 1979-80 Mich. Op. Atty Gen. 578, 1980 WL 114008, at *1-2 (Mich. A.G. Jan. 31, 1980).

Eight elected individuals populate each ofthese boards, and they hold office for

eight years. Mich. Const. art. VIII, § 5;see also id. art. VIII, § 6. The boards govern the

universities, including enacting the regulations that direct the university’s government

and determining when to retain or rem ove the president or facul ty. See Mich. Comp. Laws §§ 390.3-.6 (Uni versity of Michigan).4 The m eetings at which the board takes

such action are generally public. See id. § 390.20. Meanwhile, the bylaws, over which the boards have com plete authority, detail the adm issions procedures.5 See Univ. of

Mich., Bylaws of the

Bd. of Regents § 8.01,

available at

4Though the statutes and bylaws cited in this paragraph govern only the University of Michigan, the boards of the other public colleges and universities in Michigan are sim ilarly empowered. See, e.g., Mich. Comp. Laws §§ 390.102-.107 (Michigan State Uinversity), 390.641-.645 (Wayne State University).
5At Michigan State University, the Provost of the University “shall be appointed by the Board [of Trustees],” “shall serve at the pleasure of the Board,” and “[s]hall be re sponsible for supervising procedures and policies relating to theadmission of students.” Mich. State Univ., Bd. of Trs. Bylaws, art. 4, available at http://www.trustees.msu.edu/bylaws (last visited June 24, 2011). The Board retains the authority to “determine and establish the qualifications of students for admission at any level” upon the recommendation of the President, whom the Board elects and who also serves at its pleasure, id. arts. 1, 4, as well as the more general authority to reallocate responsibility for admissions to other officers or to itself, see id. art. 17.
At Wayne State University, the President, elected by the Board, is authorized to establish specific admissions standards for undergraduate and graduate degree programs after (s)he has consulted with the relevant college or school and the Graduate Council, see Mich. Const. art. VIII § 5; Wayne State Univ. Statutes §§ 2.34.09.090, 2.34.12.350, available at http://www.bog.wayne.edu/code (last visited June 24, 2011), and the Board may amend its regulations to alter, remove, or shift this authority as it sees fit, see Wayne State Univ., Bd. of Governor Bylaws 10,available athttp://www.bog.wayne.edu/files/bylaws.pdf (last visited June 24, 2011) (describing the Board’s authority to enact bylaws and regu lations for the governance of the University).

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http://www.regents.umich.edu/bylaws (last visited June 24, 2011). Nothing prevents the boards from altering this framework for admissions decisions if they are so inclined.See Mich. Const. art. VIII, § 5; Mich. Comp. Laws §§ 390.3-.6; Univ. of Mich., Bylaws of the Bd. of Regents § 8.01, available at http://www.regents.umich.edu/bylaws (last visited June 24, 2011).
Attempting to argue to the contrary, the dissent claim s that the adm issions committees a re not connected to Michigan’s electoral political system because the governing boards of the universiti es “ have fully delegated the responsibility for establishing admissions standards.” Slip Op.at 11 (emphasis added). The dissent rests this argument on “the testimony of the law school deans in this case.” Id. at 14. But the dissent’s argument fails for two reasons. Firts, the testimony the dissent references does not support the dissent’s claim of “full delegation” or the idea that the boards could not theoretically change the policies; it merely describes the current admissions structures. There is one exception to this observation, however: former-Dean Wu’s personal opinion that modification of the admissions structure might “precipitate a constitutional crisis.” (Wu Dep., Dist. Ct. Docket No. 203 Ex. F, at191-92). But this opinion is inadmissible as both speculation and a legal conclusion (notably, with no basis in Michigan law)S.ee Torres v. Cnty. of Oakland, 758 F.2d 147, 149-51 (6th Cir. 1985).
Second, and much more to the point, the structure of Michigan’s colleges and universities is a question of law, for it iset by constitution, statutes and regulations.See United States v. Dedman , 527 F.3d 577, 584-85 (6th Cir. 2008). And we would be remiss to rely on witness testim ony to decide suc h questions, see Fed. R. Evid. 701; Torres v. Cnty. of Oakland, 758 F.2d 147, 149-51 (6th Cir. 1985); cf. Becht v. Owens Corning Fiberglas Corp., 196 F.3d 650, 654 (6th Cir. 1999),particularly where as here a clear statutory structure is weighed against unfounded supposition. Still, the dissent protests: “As they currently stand, the faculty admissions committees are islands unto themselves, vested with the full and unreviewed authority to set admissions policy for their respective university program s.” Slip Op. at 14. The curre nt boards’ policies, however, are besides the point. The key question is whether the boards ’ c urrent

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policies—in the form of bylaws and regulations—could be altered, for exam ple if the people of Michigan elected dif ferent boards dedicated to changing the universities’ admissions policies. Michigan law provides a resounding “yes,” see Mich. Const. art. VIII, §§ 5-6; cf. Mich. State Univ., Bd. of Trs. Bylaws , art. 5 (stipulating that “[t]he delegation of any authority by the Board to any committee shall not operate to relieve the Board or any m ember thereof of any responsibility im posed by law or the St ate Constitution”), and the dissent points us to no law indicating otherwise.
Moreover, because the dissent does not qusetion the boards’ electoral nature, the dissent’s argument implies another untenable proposition: that delegation of admittedly electoral powe r to an unelected body renders the power ultim ately exercised nonelectoral. As an initial m atter, the appointed boards in Nyquist soundly rebuff this argument. Yet the argument cannot hold water even aside from Nyquist. Let us begin by dissecting the dissent’s contention in a more familiar electoral framework: the federal system. In parallel to Michigan’s univers ity structure, the m embers of the National Security Council (“NSC”) a re l ikewise unelected individuals receiving delegated electoral political power, though from the Pr esident of the United States. Do we consider the power they wield to be electoral? Of course. That they are a step removed from the electoral process does not mean that they are not exercising electoral political power. See Carter v. Carter Coal Co,. 298 U.S. 238, 296 (1936) (“And the Constitution itself is in every real sense a law—the lawmakers being the people themselves, in whom under our system all political power and sovereignty primarily resides . . . . It is by that law, and not otherwise, that the legislative, executive, and j udiciary agencies which it created exercise such p olitical auth ority as they have been perm itted to possess.” (emphasis added) ); see also Mistretta v. United States , 488 U.S. 361, 393 (1989) (referring to the United States Sentencing Com mission’s work as of a “significantly political nature”); cf. Walsh v. Heilmann , 472 F.3d 504, 506 (7th Cir. 2006) (“Many units of government delegate important decisions to middle management, and when they do this they may insist that the holders ofthe delegated power be reliable implementers of the elected officials’ platforms.” (emphasis added)). If American voters do not like

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what the NSC does, they may exact anelectoral price against the person fromwhom the NSC receives its power: the President.6 The same is true of the admissions committees

here, which wield the

electoral power bestowed on them

—through the

boards—ultimately by the Michigan Constitution. See Part II.A.1.ii.b.2, infra.

In sum, we find apt the Court’s rejoinderto claims similar to those the Attorney General and the dissent m ake: “[T]hat a Sta te may distribute legislative power as it desires . . . furnish[es] no justification for a legislative structure which otherwise would violate the Fourteenth Amendment.” Seattle, 458 U.S. at 476 (quotingHunter, 393 U.S. at 392) (first alteration added). Michigan, like “Washington[,] . . . has chosen to make use of a m ore com plex governm ental structure” than direct adm inistration by the legislature, or even the university boards, of adm issions decisions in university and college affairs. See id. at 476-77. However, as we have explained, the fact that the admissions committees received the political power they exercise through delegation rather than direct election is irrelevant to the nature of that power and thus the applicability of the Hunter/Seattle test.

Therefore, the adm issions com mittees are “political” because they are governmental decisionmaking bodies. And even if they had to be tied to the electoral system, they are, because the individuals delegated with principal responsibility for admissions policies at Michigan’s public colleges and universities are appointed by the institutions’ governing boards—which are either elected by the citizens of Michigan or appointed by elected officials—and the boards are free to reassign this responsibility as

6Put more pointedly, it is the electoralstructure that renders the powerwielded electoral, not the nature of the person’s position. No matter how many times this power is delegated, or to whom, an elected official is ultimately responsible for it. For example, though two State Department employees may reach their posts by different paths, one hired and one appointed, both individuals’ power stem s from the President, and they performthe same function: the work of the President. And a buildingmanager working for the General Services Adm inistration (“GSA” ), like a faculty m ember on a public university’s admissions committee, is hired and performs a function existing equally in the privatseector. The building manager’s private counterpart does not exercise electoral power, yet the GSA em ployee and Michigan faculty member do. The difference lies in the ultimate source of these latter two individuals’ authority: the government. The fact remains that an elected official—be it the President of the United States, the Governor of Michigan, or a member of one of the university boards—is accountable to the electorate for the power that he delegated to the GSA, State Department, or university admissions committees, and he could equally choose to delegate that power to someone else or exercise it himself. This is what it means for power to be electoral.

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they see fit. Thus, there is little doubt thatProposal 2 affects a “political process” under Hunter and Seattle.
2. Does Proposal 2 Effect a “Reordering” of the Political Process so as to Place Special Burdens on Racial Minorities? The next issue is whether Proposal 2 reordered the political proce ss to place special burdens on racial minorities. We find that Proposal 2 burdensracial minorities for the reasons articulated in Part II.A.1.ii.a, supra. As to whether there was a reordering, the Court has found that both im plicit and explicit reordering violates the Fourteenth Amendment. See Seattle, 458 U.S. at 474; Hunter, 393 U.S. at 387, 390. In Hunter, the express language of the charter am endment required any ordinance regulating real estate “on the basis of race, color, religion, national origin or ancestry” to be approved by a majority of the electorate and the City Council, as opposed to solely the City Council for other real-estate ordinances. 393 U.S. 387, 390.
In Seattle, however, the reordering was im plicit: On its f ace, Initiative 350 simply prohibited school boards from using mandatory busing, but its practical effect was that “[t]hose favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate” through overturning Initiative 350. 458 U.S. at 474. Nonetheless, “authority over all other student assignment decisions . . . rem ains vested in the local school board.” Id. The Seattle Court then clarified what sort of reordering contravenes the “political process” theory: “The evil condemned by the Hunter Court was not the particular political obstacle of mandatory referenda im posed by the Akron charter am endment; it was, rather, the comparative structural burden placedon the achievement of minority interests.”7 Id. at 474 n.17 (emphasis added). Thus, any “comparative structural burden,” be it local or state-wide or national, satisfies the reallocation prong of the Hunter/Seattle test. Id.

7The Court’s statement here rebuffs the dissent’s attempt to argue that the “relevant lawmaking authority” also m ust be reallocated from a “local legislative body” to a “m ore complex governm ent structure” with a broader constituency. See Slip Op. at 7.

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We face here an enactment even more troubling than those at issue inHunter and Seattle, as the hurdle Proposal 2 creates is of the highest possible order. An interested Michigan citizen may use any number of avenues to change the admissions policies on an issue unrelated to race. He may lobby the admissions committees directly, through written or in-person com munication if the latter is available, or petition higher administrative authorities at the university: the dean of admissions, the president or dean of the university, or the university’s board. See Part II.A.1.ii.b.1, supra; see also, e.g., Univ. Defs. Admis., Dist. Ct. Docket No. 172 Ex. I, at11, 14-15, 17-20; Wu Dep., Dist. Ct. Docket No. 203 Ex. F, at 190; ZearfossDep., Dist. Ct. Docket No. 205 Ex. 3, at 20910. And there is no question that the admissions committees are very much accountable to the universities’ boards, which retain ultim ate—and polit ically accountable— responsibility over admissions policies. See Mich. Const. art. VIII, §§ 5-6.
The individual seeking this non-race-related change may also seek to affect the election—through voting, cam paigning, or other wise—of any one of the eight board members whom the individual believes will champion his cause and revise the review of admissions determinations accordingly. These elections, though state-wide in scope, would likely be m uch mor e m anageable than those surrounding constitutional amendments, which can be expensive, lengthy, and complex, (see Wilfore Decl., Dist. Ct. Docket No. 203 Ex. C ¶¶ 10, 29-30). Only as a last resort woul d the effort and expense of cam paigning f or an amendm ent to the Michigan Constitution be required—the only option that remains open for proponents of race -based admissions criteria.
Meanwhile, a Michigan citizen see king that Michigan universities adopt racebased admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution. Plac ing a proposed constitutional am endment abrogating Proposal 2 on the ballot would requireither the support of two-thirds of both the Michigan House of Representatives and Senate,see Mich. Const. art. XII, § 1, or the signatures of a number of voters equivalent toat least ten percent of the number of votes cast for all candidates for governorin the preceding general election,see id. art XII, § 2.

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A majority of the voting electorate wouldthen have to approve the amendment. See id. art. XII, §§ 1-2.
Only after traversing this difficult and costly process, (see Wilfore Decl., Dist. Ct. Docket No. 203 Ex. C ¶¶ 10, 29-30), would the now-exhausted Michigan cit izen reach the starting point of his opponent who sought a non-race-related admissions policy change. By amending Michigan’s Constitution to prohibit university admissions units from utilizing race-conscious adm issions policies, proponents of Proposal 2 thus removed the authority to institute racially-ofcused policies from Michigan’s universities and lodged it at the most remote level of Michigan’s government, the state constitution.
In other words, as with the unconstitutional enactment in Hunter, proponents of race-conscious admissions policies now have to obtain the approval of the Michigan electorate and (if they are successful) the admissions units or other university powers, whereas proponents of other admissions policies need only the support of the latter.See Seattle, 458 U.S. at 468, 474 (describing Hunter).
The stark contrast between the avenues ofr political change available to diferent admissions proponents following Proposal 2 illustrates why the amendment cannot be construed as a m ere repeal of an exi sting race-related policy. Had those favoring abolition of race-conscious admissions successfully lobbied the universities’ admissions units, just as underrepresented minorities did to have these policies adopted in the first place, there would be no equal protection problem. As the Suprem e Court has made clear, “‘the simple repeal or modification of desegregation or antidiscrimination laws, without m ore, never has been viewed as em bodying a presum ptively invalid racial classification.’” Seattle, 458 U.S. at 483 (quoting Crawford v. Bd. of Educ., 458 U.S. 527, 539 (1982)); accord Hunter, 393 U.S. at 390 n.5. Crawford brings this distinction into focus, because the Court-approved political action in that case (amendment of the California constitution) occurred at the sam e level of governm ent as the original enactment (a prior amendment of the California constitution), thus leaving the rules of the political game unchanged. 458 U.S. at 532, 540.

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As illustrated above, however, Proposal 2 “works something more than the ‘mere repeal’ of a desegregation law by the political entity that created it.” Seattle, 458 U.S. at 483. Rather, like Initiative 350 did for any future attempt to implement race-based busing (and the Akron city charter amendment did for any future attempt to enact a fair housing ordinance), “by lodging decisionmaking authority over the question at a new and remote level of government,” Proposal 2 “burdens all future attempts” to implement race-conscious admissions policies. Id.
By the sam e token, precisely because Proposal 2 plac es special burdens on a political program of particular im portance to racial m inorities, it is not a suf ficient response to point out that these m inorities remain free to repeal it. The “sim ple but central principle” of Hunter and Seattle is that the Equal Protection Clause prohibits requiring racial m inorities to surm ount more form idable obstacles to achieve their political objectives than other groups face.See id. at 469-70. As the Supreme Court has recognized, such special procedural barriers to m inority interests discriminate against racial minorities just as surely as—and more insidiously than—substantive legal bariers challenged under the traditional equal protection rubric. See id. at 467 (“[T]he Fourteenth Amendment also reaches a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on t he ability of m inority groups to achieve beneficial legislation.” (internal quotation marks and citation omitted)). Because less onerous avenues to effect political change rem ain open to those advoc ating consideration of non-racial factors in admissions decisions, Michigan cannot forcehtose advocating for consideration ofracial factors to go down a m ore arduous road than others without violating the Fourteenth Amendment.
We thus conclude that Proposal 2 reorders the political process in Michigan to place special burdens on minority interests.

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iii. Proposed Permutations of the Hunter/Seattle Test
a. Is Prohibiting “Preferential Treatment” Different From Prohibiting “Discrimination”? The Attorney General asserts thatHunter and Seattle are inapplicable to Proposal 2 because the c ases govern only enactm ents that burden racial m inorities’ ability to obtain protection from discrimination through the political process, whereas Proposal 2 burdens racial minorities’ ability to obtain preferential treatment. In support of this distinction, the Attorney General point s to our prelim inary injunction ruling, and decisions of the Ninth Circuit and the district court. See Coal. II, 473 F.3d at 251;Coal. for Econ. Equity, 122 F.3d at 708; Coal. IV, 539 F. Supp. 2d at 956-57. None of these decisions is binding on us. See Tenke Corp., 511 F.3d at 542 (“[C]onclusions of law made by a court granting [a] pr eliminary injunction are not binding at trial on the merits.” (internal quotation mark omitted)); Cross Mountain Coal. v. Ward, 93 F.3d 211, 217 (6th Cir. 1996) (“[T]he decisions of other circuits are entitled to our respect, [but] they are not binding upon us.”). And we do not find them persuasive.
We turn firs t to the distinction at issue and its true m eaning. Differentiation between “discrimination” and “preference” in this context finds its origin in the Ninth Circuit. See Coal. for Econ. Equity, 122 F.3d at 707-09. The Coalition for Economic Equity court began by stating that “[e]ven a state law that does restructure the political process can only deny equa l pr otection if it burden’s an individual’s right to equal treatment.” Id. at 707 (emphasis added). The court then continued: “It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to pref erential treatment.” Id. at 708. In so positing, the Ninth Circuit added another element to the Hunter/Seattle test. That element, stripped of the controversial and obfuscating distinction between “discrim ination” and “preference,” boils down to a beli ef that an enactm ent violates the Equal Protection Clause under Hunter and Seattle only if it undermines state action that is constitutionally m andated

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(“discrimination”), as opposed to constitutionally perm issible ( “preference”).8 Put differently: An enactm ent is unconstitu tional if it transgresses a constitutionallymandated action, i.e., an enactm ent i s unc onstitutional under the “political process” framework only if the enactm ent is already unconstitutional under the “tradi tional” rubric. But this reasoning defies logic. Using this rationale, the political process theory would be superfluous, for an aggrieved citizen could sue to enjoin the unconstitutional law under the traditional equal protection analysis. For that very reason, the Court created the “political process” theory in the context of cases addressing state action that is constitutionally permissible (or “preferential” to use the Attorney General and Ninth Circuit’s terminology). The facts of those very cases thus prohibit this distinction.
The Court in Hunter rejected the argument that the Akron amendment’s effect was moot because the am endment was invalid under the 1968 Civil Rights Act, see Hunter, 393 U.S. at 388-89, or that traditional equal protection resolved the case, id. at 389. Seattle even m ore clearly involved constitutionally-perm issible state action, as Initiative 350 responded to a voluntary school board effort to reduce the im pact of de facto segregation. 458 U.S. at 460-61. The school board was under no obl igation to undertake this effort because there had been no findi ng t hat the segregation was motivated by racial discrimination—a fact that theSeattle dissent repeatedly pointed out. See, e.g., id. at 491-92 (Powell, J., dissenting) (“The Court has never held that there is an affirmative duty to integrate the schoolsin the absence of a finding of unconstitutional segregation. . . . Certainly there is no constitutional duty to adopt mandatory busing in the absence of such a violation.”). Rather, the Board’s plan was an aemliorative measure designed to combat the effects of Seattle’ssegregated housing patterns and “alleviate the isolation of minority students.” Id. at 460. It is inaccurate, therefore, to suggest that Initiative 350 m ade it “m ore difficult for m inorities to obtain protection from
8This must be so because there is no free-floating“right” to be free of discrimination. That right must therefore find its basis in either the Un ited States Constitution—pr imarily through the E qual Protection Clause—or a federal statute. The latter was not at issue in Coalition for Economic Equity, so the Equal Protection Clause m ust ground the right disc ussed by the Ninth Circuit. Therefore, the only possible reading of the Ninth Circuit’s decision isthat the Equal Protection Clause,through the “political process” theory, only protects action which the EqualProtection Clause, through the “traditional” theory, already protects.

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discrimination through the political process.” Coal. II, 473 F.3d at 251. Quite the contrary: As the district court recognized,“[b]ecause prohibiting integration (when it is not constitutionally m andated) is not tantam ount to discrim ination, . . . the Court in Seattle did not (and could not) rely on the notion that the restructuring at issue impeded efforts to secure equal treatment.”9 Coal. VI, 592 F. Supp. 2d at 951.
Similarly, inNyquist, the New York Legislature rseponded to attempts to remedy de facto segregation “generated in large part by local housing patterns and econom ic conditions,” 318 F. Supp. at 717, by passing a law prohibiting “state education officials and appointed school boards from assigning students, or establishing, reorganizing or maintaining school districts . . . for th e purpose of achieving racial equality i n attendance,” id. at 712. Applying Hunter, the court concluded that “by prohibiting the implementation of plans designed to alleviate racial im balance in the schools,” the statute “creates a clearly racial classification, treating educational m atters involving racial criteria differently from other educational matters and making it more difficult to deal with racial im balance in the public schools.” Id. at 718-19. In reaching this conclusion, the court rejected the defendants’ argument that this classification did not violate the Equal Protection Clause because “in the absence of de jure segregation, the state is under no obligation to take affirm ative action to reduce de facto s egregation.” Id. at 719. The court reasoned that the process-based nature of t he Hunter inquiry precluded this distinction:

9In holding that Proposal 2 nonetheless does not voi late the Equal Protection Clause, the district court asserted that the race-conscious admissions policies at issue here should be distinguished from the voluntary desegregative busing program at issue in Seattle because, unlike race-conscious adm issions policies, “school desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights.” Coal. VI, 592 F. Supp. 2d at 951 (quoting Coal. for Econ. Equity, 122 F.3d at 708 n.16).
This purported distinction is erroneous and flies in the face of the Supreme Court’s decisions in Grutter and Parents Involved in CommunitySchools v. Seattle School District No. 1, 551 U.S. 701 (2007). In Grutter, the Supreme Court showed hownarrowly-tailored race-conscious admissions programs are not “inherently invidious,” see 539 U.S. at 334-44, and do not work “wholly to the benefiot f members of one group,” see id. at 330. The Court explained: “[T]he sk ills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Id. In Parents Involved, the Court held that voluntary school desegregation programs can impose injury, depriving citizens of rights. 551 U.S. at 719.

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[T]he argument that the state has not discriminated because it has no constitutional obligation to end de afcto racial imbalance fails to meet the issue under Hunter v. Erickson. The statute places burdens on the implementation of educational policies designed to deal with race on the local level. . . . The discrimination is clearly based on race alone, and the distinction created in the political process, based on craial considerations, operates in practice as a racial classification.
Id. Accordingly, the court held the law unconstitutional, a decision that the Suprem e Court summarily affirmed, 402 U.S. 935 (1971), and then subsequently relied on in Seattle.
It should be unsurprising, then, that the language of these decisions encopmasses any legislation in the racial minorities’ interest , and thus is broader tha n it would be were the Attorney General’s distinction valid.See, e.g., Seattle, 458 U.S. at 467 (noting the Fourteenth Amendm ent protects against distortions of the political process that “place special burdens on the ability of minority groups toachieve beneficial legislation” (emphasis added)); id. at 470 (requiring searching judicial scrutiny whe re state action makes it m ore dif ficult f or racial m inorities “to achieve legislation that is in their interest” (emphasis added) (internal quotation m ark omitted)); id. at 474 (finding it “enough that minorities may consider busing for integration to be legislation that is in their interest” (emphasis added) (internal quotation mark omitted)); Hunter, 393 U.S. at 393 (“[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it m ay dilute any pers on’s vote . . . .” (emphasis added)); cf. Nyquist, 318 F. Supp. at 720 (holding that the state “has acted to make it more difficult for racial minorities to achieve goals that are in their interest” (emphasis added)).
The cases’ context and reasoning, discussed above, crystallize the point of the Hunter/Seattle doctrine. The political process th eory does not serve as a duplicative backstop against already unconstitutional action. Instead, it prevents the placement of special procedural obstacles on minority objectives, whatever those objectives may be. The distinction urged by the Attorney General thus erroneously imposes an outcome-

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based limitation on aprocess-based right. Again, what matters is if racial minorities are forced to surmount procedural hurdles in reaching this goal over which other groups do not have to leap. If racial minorities do, the disparate procedural treatment violates the Equal Protection Clause, regardless of the goal sought. Accordingly, whether “all governmental use of race must have a logical end point,” as the dissent asserts, Slip Op. at 21 (quotingGrutter, 539 U.S. at 342), is irrelevanto the constitutionality of Proposal 2 under Hunter and Seattle. The equal protection injury imposed by Proposal 2 is not the Michigan electorate’s attempt to end affirmative action, but the method by which it sought to do so.
b. Does a Law Place Special Burdens onMinorities Even When Multiple Minorities Af fected by the Enactment, Cobbled-Together, W ould Constitute a Num erical Majority?
As to the issue of burdening minorities, the Attorney General argues that Proposal 2 places no special burden on racial minorities because they, together with women, constitute a num erical majority of voters and thus could theoretically repeal Proposal 2.10 In so arguing, he points to theHunter Court’s statement in dicta that “[t]he majority needs no protection against discrimination and if it did, a referendummight be bothersome but no more than that.” 393 U.S. at 391.
The Attorney General’s argument is without merit. Examination of the context of that statement from Hunter reveals that the quotation referred to the racial majority at issue in that case, not the ad-hoc and theoretical num erical majority posited by the Attorney General. See id. And as the district court cogently stated:
The argument that racial minorities plus women constitute a majority of the population, a nd therefore Proposal 2 does not discrim inate against minorities . . . borders on nonsense. The attempt to cobble together an artificial coalition ofwomen and racial minorities in an efort to construct a numerical majority of citizens ignores the fact that affirmative action programs generally are targeted to benefit insular groups that separately
10We address this argument separately because our “racial focus” analysis does not encompass it fully. See Part II.A.1.ii.a, supra.

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have s uffered from discrim inatory practices in the past because of perceived traits unique to that group a lone. Lumping minority groups into a contrived category does not allow any greater political influence over the process of advocating for fafirmative action programs to achieve racial parity or otherwise render the process of changing the sta te constitution “bothersome but no more than that.”
Coal. IV, 539 F. Supp. 2d at 956 (quotingHunter, 393 U.S. at 391);cf. Growe v. Emison, 507 U.S. 25, 41 (1989) (noting that, under the Voting Rights Act, “a court m ay not presume bloc voting within even a single minority group,” and so “it ma[kes] no sense for . . . [a court to] indulge that presumption as to bloc voting within an agglomeration of distinct minority groups”).
Finally, as the Supreme Court has l ong recognized, minority groups may face political disadvantages independent oftheir numerical strength. See San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 28 (1973) (noting that m inority groups m ay be “saddled with such disabilitie s, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to com mand extraordinary protection f rom the m ajoritarian political process”); cf. F rontiero v . Richardson, 411 U.S. 677, 686 n.17 (1973) (observing that woemn are underrepresented politically even though “[i]t is true, of course, that when viewed in the abstract, women do not constitute a sm all and powerless m inority”). Theref ore, it is a considerable oversimplification—and simply inaccurate—to conflate a sim ple numerical majority comprised of members of different minority groups with a political majority for which “a referendum might be bothersome but no more than that.” Hunter, 393 U.S. at 391.
c. Does the Hunter/Seattle Test Contain an I ntent Requirement?
Drawing on the language fromSeattle that Initiative 350 “was effectively drawn for racial purposes,” and “enacted because of,not merely in spite of, its adverse effects upon busing for integration,” 458 U.S. at 471 (int ernal quotation marks omitted), the Attorney General also argues that a reallocation of political decisionmaking violates the

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Equal Protection Clause only if the Plain tiffs can dem onstrate it was motivated by purposeful racial discrimination.
However, “the idea that a political restructuring claim m ust be based on [ a finding of] purposeful discrimination finds no support in the [Supreme Court’s] cases.” Coal. IV, 539 F. Supp. 2d a t 956. Indeed, in Seattle, the Court expressly rejected this argument. Acknowledging that “‘purposeful dsicrimination is the condition that offends the Constitution,’” 458 U.S. at 484 (quoting Pers. Adm’r v. Feeney, 442 U.S. 256, 274 (1979)), the Court nonetheless em phasized that “[w]e ha ve not insisted on a particularized inquiry into motivation in all equal protection cases.” Id. at 485. Rather, “‘[a] racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.’” Id. (quoting Feeney, 442 U.S. at 272). Legislation like that in Hunter, Seattle, and here, which restructures the political process along racial lines and places special burdens on racial minorities, thus “falls into an inherently suspect category,” r egardless of whether purposeful racial discrimination is its demonstrated motivation. Id.
iv. “Political Process” Conclusion
Proposal 2 thus modifies Michigan’s political process “to place special burdens on the ability of minority groups to achieve beneficial legislation.”See Seattle, 458 U.S. at 467.
v. Strict Scrutiny
Because Proposal 2 fails theHunter/Seattle test, it must survive strict scrutiny to stand. See Seattle, 458 U.S. at 485. Under strict scrutiny, the Attorney General must prove that Proposal 2 is “necessary to further a com pelling state interest.” Crawford, 458 U.S. at 536. In Seattle, the Court did not consider whether a com pelling state interest might justify a state’s enactment of a racially-focused law that restructures the political process, because the government did not make the argument. Seattle, 458 U.S.

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at 485 n.28. Because the Attorney General likewise does not assert that Proposal 2 satisfies a compelling state interest, we need not consider this argument either.11
We therefore hold that those portions ofProposal 2 that affect Michigan’s public institutions of higher education violate the Equal Protection Clause.12
2. “Traditional” Equal Protection Analysis
Having found that Proposal 2 deprives the Plaintiffs of equal protection of the law under a “political process” theory, we do not reach the question of whether it also violates the Equal Protection Clause when assessed under the traditional framework.
B. Ancillary Matters
We now turn brief ly to the ancillary que stions of whether the district court properly dismissed Russell and refused to dismiss the University Defendants.
1. The University Defendants’ Non-Dismissal
The University Defendants appeal the district court’s denial of the ir motion to be dismissed as misjoined parties under Rule21 of the Federal Rules of Civil Procedure. We review the district court’s decision forabuse of discretion and must affirm unless we are “left with a definite and firm conviction that the trial court committed a clear error of judgment.” Letherer v. Alger Group , 328 F.3d 262, 266 (6th Cir. 2003) (internal quotation m arks omi tted), overruled on other grounds by Powerex Corp. v. Reliant Energy Servs., 551 U.S. 224 (2007).
11Further, the two “compelling interests” advanced by amicus Russell are not actually compelling interests, as their ra tionale presumes that Propos al 2 does not suffer from any constitutional infirm ity. Moreover, Russell doesnot show that Proposal 2 isnecessary to further these “compelling” state interests.
12The dissent also m akes m uch ado o f the Seattle m ajority’s response to Justice Powell’s dissenting argument that the majority’s decision would require finding unconstiutional a situation in which a higher authority within a universityattempted to alter an admissions committee’s decision to develop an affirmative-action plan. See Seattle, 458 U.S. at 480 n.23 (responding to id. at 498 n.14 (Powell, J., dissenting)). However, the hypothetical situation Jutsice Powell described is entirelydistinguishable from that at issue here, in which decisonm aking authority has been rem oved to the highest level of st ate government, not to a higher level of authority within the university. The fact that some reorderings of political processes may be de minimis does not mean that all are. Accordingly, Justice Powell’s argument and the Seattle m ajority’s Delphic response—m ade in dicta in a footnote wit h no supporting explanation—are inapposite.

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The district court concluded that the Uinversity Defendants were properly joined parties under Federal Rule of Civil Procedure 20(a) because “[i]f this Court were to find Proposal 2 unconstitutional, affirmative action would not automatically be reinstated into the admissions process. Rather, the universities would have to choose to do so on their own.” Coal. IV, 539 F. Supp. 2d at 941. The court therefore found that dismissal under Rule 21 was inappropriate. The UniversityDefendants contend, however, that they lack the authority to provide Plaintif fs with the requested re lief, a n injunction against Proposal 2’s enforcem ent, and therefore should be dism issed. In support of their argument, the University Defendants point us to an unpublished district court opinion. See Brooks v. Glenn Cnty,. No. CV288-146, 1989 U.S. Dis.t LEXIS 4776 (S.D. Ga. Apr. 25, 1989). We are not persuaded.
Rule 21 states in relevant part: “On motion or on its own, the court may at any time, on just terms, add or drop a party.” Fde. R. Civ. P. 21. “TheFederal Rules of Civil Procedure do not define misjoinder, but the cases make clear that misjoinder of parties occurs when [parties] fail to satisfy the conditions for permissive joinder under Fed. R. Civ. P. 20(a).” Glendora v. Malone, 917 F. Supp. 224, 227 (S.D.N.Y. 1996). Rule 20(a) requires t hat a right to relief be asserted against joined defendants. Therefore, “[a] misjoinder of parties . . . frequently is declared because no relief is demanded from one or more of the parties joined as defendants.” Letherer, 328 F.3d a t 267 (quoting 7 Charles Alan Wright et al., Federal Practice and Procedure § 1683, at 475-76 (3d ed. 2001)).
The discretionary language of Rule 21, coupled with our deferential standard of review, presents a high hurdle for reversal of the district court’s determ ination. Here, because Proposal 2 is unconstitutional and univresity action is necessary to re-implement affirmative-action policies, we AFFIRM the district court’s denial of the University Defendants’ motion.

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2. Russell’s Dismissal
Intervening defendant Russell, a law student at W ayne State University at the time of oral argument, challenges the district court’s decision to dismiss him from the case because he no longer satisfied the requirem ents for intervention. W e review de novo a district court’s grant of summary judgment. Chen, 580 F.3d at 400. “Summary judgment should be granted when the moving party can ‘show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56(c)). We also review de novo districtcourt decisions on motions to intervene as of right, except for the elem ent of timeliness, which is reviewed for abuse of discretion. Northland Family Planning Clinic v. Cox, 487 F.3d 323, 344 (6th Cir. 2007).
Under Federal Rule of Civil Procedure 24(a), an int erested party m ust m eet several requirements before being permitted to intervene as of right: (1) his motion to intervene must be tim ely; (2) he m ust have a substantial legal in terest in the subject matter of the case; (3) he must demonstrate that his ability to protectthat interest will be impaired in the absence of i ntervention; and (4) he m ust demonstrate that the parties already before the court do not adequately represent his interest. See Coal. III, 501 F.3d at 779. An intervenor also mus t continue to meet these requirements throughout the duration of the litigation, as courts must be able to ensure that parties maintain a live interest in a case. Accord Morgan v. McDonough, 726 F.2d 11, 14-15 (1st Cir. 1984) (affirming the dismissal of an intervening party whose legal interest had lapsed because “even if [the party’s original] intervention . .. were of right, . . .it would have gained no absolute entitlement to continue as a party until the termination of the suit”); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 758 A.2d 916, 927 n.15 (Conn. App. Ct. 2000) (“A court also has the authority to dismiss intervenors once their interest in the matter has expired. Federal cases illustrate that intervention as of right does not grant absolute entitlement to continue as a party until termination of the suit.”); see also Fed. R. Civ. P. 24 advisory committee’s note (“An intervention of right . . . may be subject to appropriate conditi ons or restrictions responsive am ong other things to the

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requirements of efficient conduct of the proceedings.”)c;f. Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955, 963 n.1 (6th Cir. 2009) (delcining to consider the defendantintervenors’ arguments regarding plaintiff’s standing because the intervenors’ ability to protect their interests was impaired only at later stages of litigation).

Here, there is no genuine issue of m aterial fact as to whether t he Attorney

General adequately represents Russell’s interests. While Russell’s burden in showing

that “representation of his i nterest ‘m ay be’ inadequate” is “m inimal,” Trbovich v.

United Mine Workers of Am,. 404 U.S. 528, 538 n.10 (1972), he still must overcome “the

presumption of adequate representation” that arises if he shares “the sam e ultim ate

objective as a party to the suit,” United States v. Michigan, 424 F.3d 438, 443-44 (6th

Cir. 2005). Although the Attorney General’s and Russell’s interest

s initially

diverged—the Attorney General agreed to a stipulation t o delay the application of

Proposal 2, whereas Russ ell had an interest in Proposal 2’s im

mediate

enforcement—their interests are now ali gned. Both now share the sam e ultim ate

objective: the validation of Proposal 2. The At torney General has m ounted a firm

defense of Proposal 2 and succeeded in convincing the district court to grant summary

judgment in his favor. See Coal. IV, 539 F. Supp. 2d at 924. Asthe district court noted,

the Attorney General’s and Russell’s summary judgment motions “duplicate each other.”

Coal. V, 539 F. Supp. 2d at 971. Thus, we agree with the district court’s conclusion that

“Russell’s presence in the litigation is a mere makeweight that adds nothing ofsubstance

to the debate over Proposal 2’s constitutionality.” Id. Russell’s intervention in this

litigation is therefore no longer proper.

Accordingly, we AFFIRM the district court’s grant of the Cantrell Plaintif fs’ motion for summary judgment regarding Russell. While Russell is hereby dismissed as a party to this case, we nonet heless have considered his filings as we would those of amicus curiae.

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III. CONCLUSION
For the reasons above, we AFFIRM the district court’s decision gr anting the Cantrell Plaintiffs’ m otion for summa ry j udgment as to Eric Russell, AFFIRM the district court’s decision denying the University Defendants’ motion to be dismissed as parties, and, because those provisions of Proposal 2 affecting Michigan’s public colleges and universities are unconstitutional as a matter of law, REVERSE the district court’s decision granting the Defendants-Appellees’ motion for summary judgment and order the court to enter summary judgment in favor of the Plaintiffs-Appellants.

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__________________________________________________________

CONCURRING IN PART AND DISSENTING IN PART __________________________________________________________
JULIA SMITH GIBBONS, Circuit Judge, concurring in part and dissenting in part. I join the majority’s opinion with respect to the procedural issues discussed in part II.B. I di sagree, however , with the m ajority’s conclusion that Proposal 2 is unconstitutional under a political restructuring theory of the Equal Protection Clause. In my view, Proposal 2 does not im permissibly restructure the political process in the state of Michigan to burden the ability of m inorities to enact benef icial legislation. Moreover, Proposal 2 is not unconstitutionalunder traditional equal protection analysis. I therefore respectfully dissent.

I.

In November 2006, the people of Michigan amended the Michigan Constitution to prohibit the state, including its public colleges and universities, from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public em ployment, public education, and public contracting. Mich. Const. art. I, § 26. A prim ary purpose and effect of this amendment was to remove the ability of state colleges and universities to employ then-existing race- and gender-preference admissions policies. Accordingly, the plaintiffs challenge the amendment as it relates to the state’s colleges and universities.

Because “[c]ontext m atters when reviewing race-based governm ental action

under the Equal Protection Clause,” Grutter v. Bollinger, 539 U.S. 306, 327 (2003), it

is important to consider the legal backdropfrom which the effort to amend the Michigan

Constitution unfolded. See Hunter v. Erickson, 393 U.S. 385, 391–92 (1969) (assessing

the challenged referendum provision against the relevant legislative and l

egal

background). The race-based admissions polices used by state universities in Michigan

are familiar to the courts and the people of Michigan. See Coal. to Defend Affirmative

Action v. Granholm, 473 F.3d 237, 240 (6th Cir. 2006). The policies employed by the

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University of Michigan formed the basis of the significant and highly publicized Equal

Protection challenges in Grutter and Gratz v. Bollinger, 539 U.S. 244 (2003). And, as

noted by the majority, the effort by Ward Connerly and Jennifer Gratz to mobilize for

a statewide ballot initiative occurred in direct response to the result in

Grutter.

Granholm, 473 F.3d at 240.

In Grutter, the Suprem e Court concluded that diversity is a com pelling state interest that can justif y the narrowly tailored use of race in selecting applicants f or admission to public universities. 539 U. S. at 325, 328. Analyzing the highly individualized, holistic approach taken by the University of Michigan Law School, which considered “all pertinent elem ents of diversity,” id. at 341 (quoting Regents of Univ. of Cal. v. Bakke , 438 U.S. 265, 317 (1978) (opinion of Powell, J.)), the Court found that the university had narrowly tailored its approach to the purpose of diversity in higher education. Id. at 333–41. In Grutter’s companion case the Court, however, reaffirmed that the use of racial cla ssifications are a “highly suspect tool,” id. at 326 (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion)), subject to strict scrutiny because “‘[r]acial classifications are simply too pernicious to permit any but the m ost exact connection between justification and classification.’” Gratz, 539 U.S. at 270 (quoting Fullilove v. Klutznick , 448 U.S. 448, 537 (1980) (Stevens, J., dissenting)). The Court reiterated that “remedial race-based governmental action generally ‘remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.’” Grutter, 539 U.S. at 341 (quoting Bakke, 438 U.S. at 308 (opinion of Powell, J.)). Finally, the Court was mindful that because “‘[a] core purpose of the Fourteenth Am endment was to do away with all governmentally imposed discrimination based on race’ . . . race-conscious admissions policies must be limited in time.” Id. at 341–42 (quoting Palmore v. Sidoti, 466 U.S. 429, 432 (1984)).

The Court also indicated that the abilityto fashion a time limit on the use of raceconscious admissions policies is not a tool placed primarily in the hands of the courts. Rather, it is first and foremost in the hands of states and their public universities. See

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Grutter, 539 U.S. at 342 (“[T]he durational requriement can be met by sunset provisions in race-conscious academic polices and per iodic reviews to determ ine whether racial preferences are still necessa ry t o achieve student body diversity.”); see also id. (describing state- law prohibitions on the use of racial preferences in adm issions in California, Florida, and Washington). Indeed, the Court has repeatedly confirmed that the repeal or modification of race-related polices does not necessarily run afoul of the Equal Protection Clause. See Hunter, 393 U.S. at 390 n.5; Washington v. Seattle Sch. Dist. No. 1 , 458 U.S. 457, 483 (1982) (“[T]he sim ple repeal or m odification of desegregation or antidiscrim ination laws, without m ore, has never been viewed as embodying a presumptively invalid racial classification.” (quoting Crawford v. Bd. of Educ., 458 U.S. 527, 539 (1982))). A state or univrseity may conclude, for example, that the use of racial pref erences m ay no longer be necessary to f urther the interest in diversity, that the burdens associated with those preferences are too heavy, or that the means employed no longer enjoy legitimacy in the eyes of the people. And, as was the case with the California prohibition mentioned by the Court, it follows that a state or its electorate may act to impose a time limit, or end the use of racial preferences outright, when its public universities have not. See Coal. for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).
It is fr om t his l egal backdrop that the popular effort to am end the Michigan Constitution to prevent the use of affirmative action in admissions developed. Taking it into account, we m ust turn to whe ther Michigan’s repeal of this type of racial classification by constitutional amendment violates the Equal Protection Clause.
II.
As an initial matter, a broad view ofplaintiff’s contentions provides context and a bit of common sense about the requirements of the Constitution. Plaintiffs’ argument is that the Equal Protection Clause prohibits Michigan from prohibiting discrimination in admissions to public co lleges and universities through the passage of Proposal 2. Calling an adm issions pr actice a preference does not transform the practice into a

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nondiscriminatory one; preferences do indeedpermit discrimination. Yet, we know that the Equal Protection Clause pr events “official conduct discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229 (1976).
Grutter and Gratz represent the Supreme Court’s response to a university’s use of racial preferences in admissions and together develop the circumstances under which policies that take race into account m ay be used. The burden on the university is a difficult one; it may use race as a factor only wehn there is a compelling interest in doing so and when the use is narrowly tailored. Racial preferences are not favored under the law but must be exactingly justified. No constitutional jurisprudence exists that requires their use. And, as the Supreme Court has told us, “the Equal Protection Clause is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place.” Crawford, 458 U.S. at 538–39.
Within this broad constitutional landscape, plaintif fs contend that passage of Proposal 2 violated the Equal Protection Clause. They base their argument on Hunter and Seattle. These cases, without a doubt, secure racial minorities the right to equal process within the political arena. Seattle, 458 U.S. at 467; Hunter, 393 U.S. at 391. They prohibit a “distortion ofthe political process,”Crawford, 458 U.S. at 538 n.14, by which a state “disadvantage[s] [a] particular group by making it more difficult to enact legislation in its behalf,”Seattle, 458 U.S. at 476 (quotation marks and citation omitted), by “mak[ing] use of a m ore complex governmental structure,” id. at 477, or “lodging decisionmaking authority over the question at a new and remote level of government,” id. at 483. But they do not guarantee thatarcial minorities will win every political battle. Id. at 484 (“If a governm ental institution is to be fair, one group cannot always be expected to win . . . .” (quotingHunter, 393 U.S. at 394 (Harlan, J., concurring))). Nor do they hold that the repe al of t hose policies is impermissible, although they m ay be preferred by significant num bers of racial m inorities. Rather, Hunter, Seattle, and Crawford outline the constitutional limits on a particular type of political restructuring: the enactment of comparative structural burdens on “the ability of minority groups to achieve beneficial legislation.” Seattle, 458 U.S. at 467. Because these cases do not

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prohibit “every attempt to address a racial issue, ” id. at 485, it is important to consider the limiting bounds of this type of political restructuring challenge.
A.
In reviewing a Hunter political process challenge, we must, of course, consider whether the particular legislation or popular referendumat issue serves to impermissibly “distort” the state’s political processes. Crawford, 458 U.S. at 541. Seattle makes clear that “the vot ers of the polity m ay express their displeasure through an established legislative or referendum procedure when particular legislation arouses passionate opposition.” 458 U.S. at 483 (internal quotatoi n marks and citation omitted). The state or its voters, however, may not “make[] the enactment of racially beneficial legislation difficult” by “lodging decisionmaking authority over the question at a new and remote level of government.” Id. And they may “no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than [they] may dilute any person’s vote.” Id. at 476 (quoting Hunter, 393 U.S. at 392–93). Seattle and Hunter therefore protect “the ability of m inorities to participate in the process of self government.” Id. at 480 n.23.
In Hunter, the im permissible political restructuring took the form of a m ore burdensome extra step in the City of Akron’s legislative process. The people of Akron had amended their city charter by popular referendumto require that any city ordinance regulating real property “on the absis of race, color, religion, national origin, or ancestry” be subject to approval by a mandatory popular referendum, while all other ordinances regulating real estate only required the approval of the City Council. Hunter, 393 U.S. at 387, 390. The Hunter Court concluded that this am ounted to an unconstitutiona l political restructuring because the charter amendment “obviously made it substantially more difficult to secure enactment of ordinances” barring discrimination in real estate. Id. at 390. Indeed, those minority voters supporting property-related anti-discrimination ordinances would not only have to win a legsilative battle in the Akron City Council, but they would then have to win a public-referendumbattle as well.Id. The default political

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structure entrenched in the m echanisms of a city council, which ma y a llow for particularized and localized electoral pressure on individual council m embers, was therefore supplem ented with the far m ore diffuse, and potentially onerous, political structure inherent in winningpopular approval of a law witha discrete set of immediate beneficiaries.
In Seattle, the voters of the state effectuateda more implicit restructuring of the legislative process. In the 1970s, the locally elected Seattle school board passed and implemented a series of school desegregationprograms aimed at alleviating the isolation of minority students caused by segregated housing patterns.Seattle, 458 U.S. at 459–60. In 1977, local opponents of these measures, having previously failed in their attempt to recall School Board members who hadvoted for desegregation programs, id. at 460 n.1, organized to e nd Seattle’s use of th e programs at the statewide level, id. at 461–62. Their statewide initiative provided that local school boards could not epmloy mandatory desegregative busing except possibly when required as part of a judicial decree. Id. at 462–63. In enacting this initiative, the people of Washington thus moved the locus of political authority over this particular issu e f rom the local to the statewide level, “requir[ing] those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action.” Id. at 474.
In both cases where the Court found an impermissible political restructuring, the relevant lawmaking authority was reallocatedfrom a local legislative body to the “more complex government structure,” id. at 477, of the city- or state-wide general electorate1, thereby placing a “com parative structural burden . . . on the political achievem ent of minority interests,” id. at 475 n.17. A key consideration in analyzing a Hunter political structure challenge, therefore, is whether the challenged law im pacts the abi lity of minorities to secure “legislation that is their interest” as minorities. Id. at 474; see also id. at 475 n.17 (“Thus, in Hunter, the procedures for enacting racial legislation were modified in a such a way as to place eff ective control in the hands of the citywide
1In Seattle, Initiative 350 could also have been repealed by the state legislature after a period of two years. See 458 U.S. at 463 n.4.

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electorate. Sim ilarly here [in Seattle], the power to enact raci al legislation has been reallocated.”). Given the structural cons iderations inherent in this type of Equal Protection challenge, it is important to fully examine the particular political structures at work in this case to determine whether the people of Michigan have restructured the state’s lawmaking process in the manner prohibited by Hunter and Seattle.
i.
“The Michigan Constitution confers a unique constitutional status on [its] public universities and their governing boards.” Federated Publ’ns, Inc. v. Bd. of Trustees of Mich. State Univ., 594 N.W.2d 491, 495–96 (Mich. 1999) (citing Mich. Const. art. VIII, §§ 5 and 6). The status of these boards has been described by t he Michigan Supreme Court as “the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its funct ions, is coordinate with and equal to that of the legislature.”Id. at 496 n.8 (quotingBd. of Regents of the Univ. of Mich. v. Auditor Gen. , 132 N.W . 1037, 1039 (Mich. 1911)). Each governing board is vested with the power of“general supervision of its institutions and the control and direction of all expenditures fromthe institution’s funds.”2 Mich. Const. art. VIII, § 5. With this power comes significant independence, as the state constitution “limit[s] the Legislature’s power” over the universities such that it “m ay not interfere with the management and control of” the universities. Federated Publ’ns, 594 N.W.2d at 497 (quotation marks and citation omitted). Therefore, the “constitutional autonomy of these institutions is plenary as to its educational programs, but does not insulate them from the health and safety laws of the state.” 1979-1980 Mich. Op. Att’y Gen. 578, 1980 WL 114008 (1980); see also Federated Publ’ns, 594 N.W.2d at 497.
2The Michigan Constitution divides its state public universities into two categories. The first category, detailed in Mich. Const. art. VIII, § 5, consists of the University of Michigan, Michigan State University, and W ayne State University. The sec ond category includes “other institutions of higher education established by law having authority togrant baccalaureate degrees.” Mich. Const. art. VIII§, 6. This category includes, for exam ple, Eastern Michig an University, Central Michigan University, and Grand Valley State University. See Mich. Const. art. VIII, § 4 (listing universities for which the state legislature shall appropriate moneys). Because the Plaintiffs focus on the universities described in section five, and because it is unclear from the record whether the universitie s described in section six employ race-conscious admissions policies, the following discussion will primarily pertain to the University of Michigan, Michigan State University, and Wayne State University.

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The constitution provides for eight-m ember governing boards, elected to statewide office for eight-year term s.3 Mich. Const. art. VIII, § 5. Elect ions are

typically staggered, with, for exam ple, an election every two years for regents of the

University of Michigan.

See About the Board of Re

gents,

http://www.regents.umich.edu/about/ (last visited May 4, 2011); M SU Board of

Trustees, http://www.trust ees.msu.edu/about/establishment.html (last visited May 4,

2011); About the Board of Governors, thtp://bog.wayne.edu/about.php (last visited May

4, 2011).

As a prelim inary m atter, the m ajority suggests that our exam ination of the pertinent political structures m ust end with the Michigan Constitution. The m ajority opinion concludes that we may not rely on the testimony of university officials because the structure of the colleges and universities is a “question of law, f or it is set by constitution, statutes and regula tions.” (Maj. Op. at 22.) Here, the nature of the decision-making process for admissions is one of both law and fact, and the witnesses gave instructive testimony that was within their personal knowledge.4 Examination of the record is appropriate to ascertain how the decisions at issue are in fact made.

Although these univers ities and their respective boards are created by the Michigan Constitution, the adm issions policies are placed w ithin the control of the boards or school authorities only within each board’s bylaws. See University of Michigan Board of Regents, Bylaws Chapter VIII: Adm ission and Registration of Students, http://www.regents.um ich.edu/bylaws/bylaws08.html (last visited May 4, 2011) (vesting responsibility for the admission of students in the associate vice provost and executive director of undergraduate adm issions at the Ann Arbor cam pus, in the director of admissions and orientation at the Dearborn cam pus, and in the director of

3By contrast, the governing boards of the other state universities are appointed by the governor by and with the advice and consent of the state senate. Mich. Const. art. VIII, § 6.
4Oddly, the majority characterizes this testimony as opinion testimony inadmissible under Federal Rule of Evidence 701. To the extent the witnesses offered opinions, which were hardly the thrustof their testimony, their lay opinion s were perfectly adm issible. Any opinions were rationally based on the witnesses’ perceptions, helpful to an understanding of the testimony or a fact in issue, and not based on the specialized knowledge of experts.

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undergraduate admissions at the Fl int campus); Michigan State University Board of

Trustees, Bylaws, http://www.trustees.m su.edu/bylaws/#article8 (last visited May 4,

2011) (“The [MSU] Board encourages and supports the faculty in the developm ent of

educational and other programs . . . . Upon the recom mendation of the President the

Board may determine and establish the qualifications of students for admission at any

level . . . .”); W

ayne State University Board of Gove

rnors, St atutes,

http://bog.wayne.edu/code/2_34_09.php (last visited May 4, 2011) (“After consultation

with the College or School, the [Board-ele cted] President or his/her designee is

authorized to establish specific admissions standards for degree programs.”). Thus, the

admissions policies are not set forth by the state constitution, and it is necessary to look

to testimony to determine where the power to set admissions policy lies.

The governing boards have fully delegated the responsibility for establishing admissions standards to several program -specific adm inistrative units within e ach institution, which set admissions criteria through informal processes that can include a faculty vote. (DE 172, Pls.’ Russ. Mot., Ex. I (Univ. Defs.’ Resp.) Nos. 4, 7; DE 203, Pls.’ SJ Mot., Ex. E. (Zearfoss Dep.) at 64, 213–14, Ex. F. (Wu Dep.) at 190–91.) For example, as noted by the majority, the University of Michigan Law School admissions policy is set e xclusively by the law school faculty adm issions committee, with major substantive changes occasionally voted upon bythe entire law school faculty. (Maj. Op. at 25 (referring to the admissions committees as“the individuals delegated with principle responsibility for admissions policy”); Zearfoss Dep. at 213.) Similarly, as described by its former dean, at the Wayne State University Law School the ultimate decision whether to change adm issions standa rds rests with the faculty alone. (W u Dep. at 190–91.) Thus, as the Cantrell Plaintiffs readily admit, the “faculty are the primary architects of all the admissions criteria and protocols.” (Reply Br. at 20 n.11.)

At neither university, however, is there a system in place to review or alter admissions policies at a level above a vote of the faculty. Sarah Zearfoss, the dean of admissions at the University of MichiganLaw School, testified that no one could change the school’s admissions policy other than the faculty admissions committee or the faculty

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itself, because “there’s no higher body” towhich someone unhappy with an admissions policy could advocate change. (Zearfoss Dep. at 214.) And Frank Wu, then the dean at Wayne State University Law School, agreed that “only the faculty at the law school has the authority to create and approve the admissions policy” at the school. (Wu Dep. at 191.) Indeed, Wu testified that the admissions policy is not subject to the approval of the W ayne State University Board of Gove rnors, and, in his view, i f the Board of Governors attempted to alter the decision of the law school’s faculty wit h respect to criteria for admission, “it would precipitate a constitutional crisis.” (Wu Dep. at 192.) Each institution’s board may superficially have “plenary authority” over its respective institution (see Maj. Op. at 21), but the ultimate authority to set admissions policy rests exclusively with each program-specific faculty within the universities.
ii.
The majority characterizes the dissent as readingHunter andSeattle too narrowly by defining the political processes with whichthey deal as “electoral” processes. While the political processes in Hunter and Seattle are electoral in the sense that they relate to what electoral m ethods are em ployed to m ake policy, the m ajority opinion, not the dissent, draws the line between political and el ectoral. The point is sim ply that the situation here differs greatly fromthat ofHunter andSeattle in the ways described in this opinion; these program-specific faculty admissions committees are far afield from the legislative bodies from which lawmaking authority was removed in Hunter and Seattle. The most crucial and overarching di fference, of course, is that the faculty adm issions committees and individual faculty members are not politically accountable to the people of Michigan.
In Seattle, the court emphasized that the typeof action it found objectionable was the creation of comparative burdens “on minority participation in the political process.” 458 U.S. at 480 n.23; see id. at 486 (“[M]inorities are no less powerless with the vote than without it when a racial criterion i s used to assign governmental power in such a way as to exclude particular racial groups ‘from effective participation in the political

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proces[s].’” (quoting Mobile v. Bolden, 446 U.S. 55, 94 (1980) (White, J., dissenting))). The Seattle majority, however, did not view state university admissions committees as a part of the “political process” in the manner of an elected school board or city council. A dialogue between the majority and dissent inSeattle is particularly instructive on this point. In dissent, Justice Powell, critiquing the potential breadth of the m ajority’s holding, argued:
Thus, if the adm issions committee of a state law school developed an affirmative-action plan that came under fire, the Court apparently would find it unconstitutional for any higher authority to intervene unless that authority traditionally dictated admissions policies. As a constitutional matter, the dean of the law school, the facul ty of the university as a whole, the university president, the chancellor of the university, and the board of regents m ight be powerless to intervene despite their greater authority under state law.
Id. at 498 n.14 (Powell, J., dissenting). The majority, however, flatly dism issed this concern as a m isunderstanding of the court’s decision: “It is evident, then, that the horribles paraded by the dissent, post, at [footnote 14 of t he dissent]— which have nothing to do with the ability of minorities to participate in the process of selfgovernment—are entirely unrelated to this case.” Id. at 480 n.23 (emphasis added).
For the Seattle m ajority, th en, a n im permissible r eordering o f th e p olitical process meant a reordering of the processesthrough which the people exercise their right to govern themselves. See id. at 486 (“And when the State’s allocation of power places unusual burdens on the ability of racial groups toenact legislation specifically designed to overcom e the ‘special condition’ of pr ejudice, t he governm ental action seriously ‘curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities’ . . . f rom the ‘m ajoritarian political process.’” (em phasis added) (citing United States v. Carolene Prods. Co. 304 U.S. 144, 153 n.4 (1938) and San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 28 (1973))); id. at 467 (“But the Fourteenth Amendment also reaches a “political structure that treats all individuals as equals . . . yet more subtly distorts governmental processes in such a way as to place special burdens

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on the ability of m inority groups to achieve beneficial legislation.” (emphasis added) (quoting Bolden, 446 U.S. at 84)).
The evidence reveals that the academ ic processes at work in state university admissions in Michigan are not “poli tical processes” in the m anner contemplated in Seattle. Unlike the Seattle School Boar d a nd the Akron City Council, the various university admissions committees in Michigan and their faculty members are unelected. As at most public universities, tenured faculty members have significant vested rights associated with their em ployment in order to preserve academ ic fr eedom and independence. The f aculty members who are permitted to vote on policy m atters are therefore significantly insulated from political pressure by virtue of their tenure. Such faculty are beholden to no constituency—s tudent, local, or otherw ise. And, as demonstrated by the testim ony of the law school deans i n t his c ase, the people of Michigan have no ability to exert electoral pressure on the university decision m akers to change their adm issions polices. As they c urrently stand, the faculty adm issions committees are islands unto themselves, vested with the full and unreviewed authority to set admissions policy for their respective university programs.
The majority opinion discounts the differences between facts here and those of Hunter and Seattle by arguing that processes are considered “political” as long as there is “governmental decisionmaking.” In this argument it relies on Nyquist v. Lee, 318 F. Supp. 710 (W.D.N.Y. 1970), aff’d Nyquist v. Lee, 402 U.S. 935 (1971), a case fromthe Western District of New York that was summarily affirmed by the Supreme Court and cited in Seattle. In Nyquist, the court found that a New York statute that “prohibit[ed] state education officials and appointed school boards from assigning stude nts, or establishing, reorganizing or m aintaining school districts, school zones or attendance units for the purpose of achieving racial equality in attendance” unconstitutionally reordered the political process in violation ofthe Equal Protection Clause. Nyquist, 318 F. Supp. at 712, 720. The majority suggests that becauseappointed school boards were part of the political process at issue in Nyquist, the university faculty adm issions committees are similarly part of the politicalprocess. (Maj. Op. at 20.) The decision in

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Nyquist, howe ver, m ade note of how the local boards were accountable to the community: “Parties considering themselves aggrieved by local board actions may seek to have the Com missioner enforce those policies. [The New York statute], however, singles out for different treatment all plans which have as their purpose the assignment of students in order to alleviate racial imbalance.” Id. at 719 (internal citations omitted). Thus, even the appointed school boards were accountable to the community in a way in which the faculty adm issions com mittees cer tainly are not. Again, the point is not selecting a label for the processes, but examining the factual similarities or dissimilarities of the situations.
There is no “local” university constituency as there is a local constituency for a city council or city school board, i.e., the city’s voters. Rather, despite there being a broad student, faculty, and staffcommunity associated with each university, Michigan’s state universities were established as st ate-wide institutions with a state-wide constituency.5 The faculty admissions committees therefore do not “represent” any loacl constituency at all. This is particularly important because the Seattle majority looked closely at the fact that Washington’s lodging of political decisionmaking authority over the busing question at the statewide level directly burdened m inority interests by “making the enactment of racially beneficiallegislation difficult, [because] the particular program might not have inspired opposition had it been promulgated through the usual [local] legislative processes used for comparable legislation.” 458 U.S. at 483–84. The court continued:
That phenomenon is graphically demonstrated by the circumstances of this litigation. The longstanding desegr egation programs in Pasco and Tacoma, as well as the Seattle m iddle school integration pl an, have functioned for years without creating undue controversy. Yet they have been swept away, along with the Seattle Plan, by Initiative 350. As a practical matter, it seems most unlikely that proponents of desegregative busing in small communities such as Tacoma or P asco will be able to

5Indeed, some students, prospective students, alumni, and faculty members at eachuniversity are not members of that state-wide constituency, comprised of citizens and voters of the state of Michigan.

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obtain the statewide support now needed to permit them to desegregate the schools in their communities.
Id. at 484 n.27. The availability of “local” decisionmaking is therefore important when the political power of gr oups who could succeed at the local level is “diluted” in the statewide decisionm aking process. The universities here, however, are statewide institutions with a statewide constituency. There is nothing local about them.
The committees are also hardly the model of accessibility and locus of effective lobbying assumed by the m ajority. While members of the public m ay attend faculty meetings at which admissions standards are reviewed, there is no mechanism by which a m ember o f th e p ublic—student o r n ot—can m ove th e c ommittees to a mend th e admissions standards. (Wu Dep. at 190; Zearfoss Dep. at 209.) And, while interested students and m embers of the public are, with advance notice, permitted to speak at faculty meetings to comment on the admissions policies, the committees are not required to consider these comments seriously, issue written findings addressing these concerns, or do more than provide a forum for interested individuals to speak. (Zearfoss Dep. at 209–10; Wu Dep. at 190.) Rather, it appears that the main source of divergent views on admissions policies is the faculty members themselves. (Zearfoss Dep. at 210.)
While the m ajority a ppears to see no reason to distinguish between these unelected and unresponsive program -specific faculty adm issions committees and the legislative bodies from which lawmaking authority was removed in Hunter and Seattle, a consideration of political accountability in the political process is squarely grounded in the Seattle opinion. In Seattle, the Court undertook a close exam ination of Washington’s system of “establish[ing] the local school board, rather than the State, as the entity charged with making decisions of the type at issue,” 458 U.S. at 477:
But W ashington ha s chosen to m eet its educational responsibilities primarily through “state and local officials, boards, and comittees,” and the responsibility to devise and tailor educational programs to suit local needs has emphatically been vested in the local school boards. . . . Thus “each common school district board of directors” is made “accountable for the proper operation of [its] district to the local community and its

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electorate.” To this end, each school board is “vested with the final responsibility for the setting of policies ensuring quality in the content and the extent of its educational program.”
Id. at 478 (citations omitted) (emphasis added); see also id. (noting the “disclosure and reporting provisions specifically designed to ensure the board’s ‘accountability’ to the people of the community” (emphasis added)). It was only upon its consideration of the state statutory structure’s vesting of decsiionmaking in local and politically accountable school boards that the Court could conclude t hat “placing power over desgregative busing at the state level . . . restructured the Washington political process.” Id. at 480.
Taking this into account, it is difficult to conclude that, in amending their state constitution to prohibit the use ofracial preferences in university admissions, the people of Michigan m odified “the com munity’s political mechanisms . . . to place effective decisionmaking authority over a racial issue at another level ofgovernment.” Id. at 474 (emphasis added). Michigan has not “‘burdend[] all future attempts’ to implement raceconscious admissions policies” “‘by lodgingdecisionmaking authority over the question at a new and remote level of government.’” (Maj. Op. at 28 (quoting Seattle, 458 U.S. at 483).) Having no direct or indirect influence on the bodies vested with authority to set adm issions standards—the faculty com mittees—the people of Michigan m ade a political change at theonly level of government actually available to themas voters. The Michigan electorate, therefore, as opposed to choosing a m ore complex structure for lawmaking, em ployed the one method available to exert electoral pr essure on the mechanisms of government.
The lack of a viable electoral m echanism to change university adm issions policies at a sub-constitutional level also means that the voters’ use of a constitutional amendment in this instance also does not serve to create “com parative structural burden[s] on the political achievement of minority interests.” Seattle, 458 U.S. at 474 n.17. If, as is the evidence before this court, the voters cannot exert electoral pressure on the fully independent faculty committees, then all voters regardless ofracial identity compete on the sam e level f or the political achievem ent of th eir higher-education

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interests: the constitutional level. That some academic decisionmaking remains at the faculty-committee level after the implementation of Proposal 2 is of no moment, because that decisionmaking is affirmatively not part of the state’s electoral political process. The same policies that fully insulate faculty members from political opprobrium in their academic pursuits also protect them fr om political influence on their adm issions policymaking. Michigan has chosen to structure its university system such that politics plays no part in university adm issions at all levels within its constitutionally created universities. The Michigan voters have therefore not restructured the political process in their state by amending their state constitution; they have merely employed it.6
III.
If Proposal 2 does not effectuate an invalid restructuring of Michigan’s political process, it is not necessary to reach broader questions relating to the substantive reach of the political restructuring doctrine. But again returning to the broader context, it is useful to highlight the tension between the doctrine and recent decisional law on the constitutionality of racial preferences.
Several courts have grappled with the question of whe ther racial preferences, those policies “potentially so dangerous” that they must be subject to strict scrutiny and “limited in time,” Grutter, 539 U.S. at 342, may be eliminated when the people of a state amend their constitution to do away wi th all classifications based on race. The core

6Even if—contrary to the eviden ce before the court—the people of Michigan could exercise effective electoral control over the board of governors at each respective state institution such that they could repeal the use of racial preferences, it is not clear that a choice to make use of a constitutional amendment in that instance would am ount to the creation of a com parative politic al burden on the achievement of m inority interests. Indeed, it would m ake use of neither a m ore complex or on erous structure of government nor remove the locus of political power from the local to statewide level. Seattle, 458 U.S. at 477, 480. Given the eight-year terms and staggered elections for board members, and the fact that electoral change must happen at the governing board of each individual state university, the process of effectuating political change through the boa rd of governors appears to be argua bly a more complex process than the comparative burden of a statewide referendum. And both types of elections—the board member elections and the constitutional referendum —occur at the statewide level with an electorat e composed of the at -large statewide voting pool. Ther e are therefore no inherent structural benefits or protections for minority voters in one system over the other. As opposed to the multi-district Akron city council in Hunter, for example, there is no mechanism by which minority voters could exercise bloc or regional voting in the board of governors system in a way that they could not in the state’s constitutional referendum process. The use of the constitutional amendment mechanism, therefore, would not work to create a comparative political burden of the kind found in Hunter and Seattle.

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constitutional question in each of these decisions is clear: should a race-base

d

classification that is presumptively invalid, but permissible under limited circumstances

and for a finite period of time, receive the same structural protections against statewide

popular repeal as other laws that inure to the interest of minorities?

The Ninth Circuit in Wilson answered in the negative, concluding that California’s Proposition 209 did notviolate equal protection because “[i]mpediments to preferential treatment do not deny equal protection.” 122 F.3d at 708. The court relied on an essential constitutional principle: “W hile the Constitution protects against obstructions to equal treatment, it erects obstructions to preferential treatment by its own terms. . . . The Equal Protection Clause, parked at our most ‘distant and remote’ level of government, singles out racial preferences for severe political burdens—it prohibits them in all but the most compelling circumstances.” Id. The California Supreme Court recently agreed w ith this conclusion, holding that “ Seattle cannot fairly be read as holding that the political structure doctrineprotects presumptively unconstitutional racial preferences, as opposed to programs intended tobring about immediate equal treatment.” Coral Constr., Inc. v. San Francisco, 235 P.3d 947, 960 (Cal. 2010). This logic has been further cem ented by the Norther n District of California, reinforcing the holding in Wilson in light of Grutter. In Coalition to Defend Affirmative Action, Integration and Immigrant Rights v. Schwarz enneger, No. 10-641 SC, 2010 W L 5094278 (N.D. Cal. Dec. 8, 2010), the federal district court stated, “ Grutter does not hold that the Constitution requires the use of race in student admission decision; rather, it holds that the Constitution tolerates the use of race as one of many admission factors.” Id. at *6. The court went on to note, G“ rutter held that racial preferences, while not presumptively unconstitutional, must be limited in time. In so holding, the Supre me Court cited the ‘race neutral alter natives’ to racial preferences used by ‘[universities], where racial preferences are prohibited by state law.’” Id. (citing Grutter, 539 U.S. at 342) (internal citations omitted).

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These cases take the same approach as the district court in this case,7 and their teaching is that equal treatm ent is the baseline rule em bodied in the Equal Protection Clause, from which racial-preference program s are a departure. W e therefore m ust review them with utm ost care. Governi ng precedent is clear on this point: “‘ A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race,’”Grutter, 539 U.S. at 341–42 (quotingPalmore, 466 U.S. at 432), and “all governm ental use of race m ust have a logical end point,” id. at 342. Because racial preference program s are exceptional, it is not altogether clear that the political structure doctrine would invalidate Proposal 2 even if it worked a restructuring of the political process in Michigan. See Coral , 235 P.3d at 966 (Corrigan, J., concurring) (noting that the United States Supreme Court has “approvingly referred to [California’s Proposition 209] as a step in [the] direction” of ending the “governmental use of race” (citing Grutter, 538 U.S. at 342)). Howe ver, because Proposal 2 itself works no improper political restructuring under the circumstances before us, we need not address that issue today.
IV.
It should also be noted that Proposal2 is constitutional under a traditional equal protection analysis. Because the majority’s holding turns on the political restructuring analysis, it declines to address this issue.
“The cent ral pur pose of the Equal Pr otection Clause of the Fourteenth Amendment is the prevention of official conduct discrim inating on the basis of race.” Washington v. Davis, 426 U.S. 229, 239 (1976). We apply strict scrutiny to those laws that racially classify individuals,Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995), and intermediate scrutiny to those lawsthat classify individuals based on gender, United States v. Virginia, 518 U.S. 515, 531 (1996). Racial classifications are subject to strict scrutiny if (1) the law classifies on its face or (2) the law has a discriminatory
7“[A]ffirmative action programs not mandated by the obligation to cure past discrimination are fundamentally different than laws intended to protect against discrimination.” Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich., 539 F. Supp. 2d 924, 957 (E.D. Mich. 2008).

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impact and a discri minatory purpose. See Davis, 426 U.S. at 241. The district court concluded that Proposal 2, which prohibits racial classifications, a fortiori does not classify facially on the basis of race. Coal. to Defend Affirmative Action, 539 F. Supp. 2d at 951. Although the district court did find “sufficient evidence to establish a fact question on the disparate im pact pa rt of the test,” it did not find a discrim inatory purpose. Id. Indeed, it stated that “the demonstration of a discriminatory purpose . . . dooms [the] conventional equal protection argum ent.” Id. Furtherm ore, the district court found the equal protection argument based on gender “even less compelling” due to the less exacting level of scrutiny. Id. at 952. I agree with the conclusions of the district court.

Proposal 2 does not establish a facial racial classification because its text does

not draw di stinctions on the basis of race; in fact, it prohibits them . Additionally,

Proposal 2 does not classify racially on

an im pact theory because it lacks a

discriminatory purpose. “[A]bsent a referendum that facially discriminates racially, or

one where although facially neutral, the only possible rationale is racially motivated, a

district court cannot inquire into the electorate’s m otivations in an equal protection

clause context.” Arthur v. Toledo , 782 F.2d 565, 574 ( 6th Cir. 1986). Thus, no

heightened level of scrutiny need be applied to Proposal 2, and under rational basis

review, Proposal 2 is easily justifiable. Porposal 2 does not violate the Equal Protection

Clause under the conventional analysis.

V.

For the foregoing reasons, I would concludethat Proposal 2 does not violate the Equal Protection Clause of the United States Constitution under either a politica l restructuring theory or traditional theory of Equal Protection. Accordingly, I woul d affirm the judgment of the district court.

2:0C6a-csve-:10580-2143-8D9ML-DRoScWumeDnotc: 0#026813110F0il2e5d6017/01F/1ile1d: P0g7/6001/o2f06141 PPgaIgDe:51852 (60 of 64) FILED

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 08-1387/1389/1534; 09-1111

Jul 01, 2011
LEONARD GREEN, Clerk

Nos. 08-1387/1534 COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,
Plaintiffs-Appellants (08-1387)/Cross-Appellees, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,
Defendants-Appellees/Cross-Appellants (08-1534), MICHAEL COX, Michigan Attorney General,
Intervenor-Defendant-Appellee.

No. 08-1389 COALITION TO DEFEND AFFIRMATION ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,
Plaintiffs, CHASE CANTRELL, et al.,
Plaintiffs-Appellees, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,
Defendants, ERIC RUSSELL,
Intervenor-Defendant-Appellant, JENNIFER GRATZ,
Proposed Intervenor-Appellant.

No. 09-1111 COALITION TO DEFEND AFFIRMATION ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,
Plaintiffs, CHASE CANTRELL, et al.,
Plaintiffs-Appellants, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,
Defendants, MICHAEL COX, Michigan Attorney General,
Intervenor-Defendant-Appellee.

Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

THIS CAUSE was heard on the record from the district court and was argued by counsel. IN CONSIDERATION WHEREOF, it is ORDERED that the decision of the district court is AFFIRMED IN PART. IT IS FURTHER ORDERED that the district court’s grant of summary judgment for the Defendants-Appellees is REVERSED and this court orders the district court to enter summary judgment in favor of the Plaintiffs-Appellants.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

2:0C6a-csve-:10580-2143-8D9ML-DRoScWumeDnotc: 0#026813110F0il2e5d6037/01F/1ile1d: P0g7/601/o2f06141 PPgaIgDe:51853 (61 of 64)

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Filed: July 01, 2011

Tel. (513) 564-7000 www.ca6.uscourts.gov

Ms. Sharon Louise Browne Pacific Legal Foundation 3900 Lennane Drive Suite 200 Sacramento, CA 95834-0000
Mr. Joshua Ian Civin N.A.A.C.P. Legal Defense & Educational Fund 1444 Eye Street, N.W. 10th Floor Washington, DC 20005
Mr. Charles J. Cooper Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036
Ms. Karin A. DeMasi Cravath, Swaine & Moore 825 Eighth Avenue 4070 New York, NY 10019
Mr. Mark P. Fancher ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Melvin Hollowell 400 Monroe Street Suite 220 Detroit, MI 48226-0000
Mr. Daniel M. Levy Michigan Department of Civil Rights 3054 W. Grand Boulevard

2:0C6a-csve-:10580-2143-8D9ML-DRoScWumeDnotc: 0#026813110F0il2e5d6037/01F/1ile1d: P0g7/6021/o2f06141 PPgaIgDe:52854 (62 of 64)
Suite 3-600 Detroit, MI 48202
Ms. Heather S. Meingast Office of the Michigan Attorney General P.O. Box 30736 Lansing, MI 48909
Mr. Kerry L. Morgan Pentiuk, Couvreur & Kobiljak 2915 Biddle Avenue Suite 200 Edelson Building Wyandotte, MI 48192
Ms. Kary Leslie Moss ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Margaret A Nelson Office of the Michigan Attorney General Public Employment & Elections Division P.O. Box 30736 Lansing, MI 48909
Mr. Alan K. Palmer Kaye Scholer 901 Fifteenth Street, N.W. Suite 1100 McPherson Building Washington, DC 20005
Mr. Jesse M. Panuccio Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036
Mr. Joseph E. Potchen Public Employment Elections & Tort Division P.O. Box 30736 Lansing, MI 48909-0000
Mr. Mark D. Rosenbaum ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017

2:0C6a-csve-:10580-2143-8D9ML-DRoScWumeDnotc: 0#026813110F0il2e5d6037/01F/1ile1d: P0g7/6031/o2f06141 PPgaIgDe:53855 (63 of 64)

Mr. Michael E. Rosman Center for Individual Rights 1233 20th Street, N.W. Suite 300 Washington, DC 20036-0000

Mr. Michael Jay Steinberg ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201

Mr. John David Taliaferro Kaye Scholer 901 Fifteenth Street, N.W. Suite 1100 McPherson Building Washington, DC 20005

Mr. David H. Thompson Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036

Mr. Laurence H. Tribe 1575 Massachusetts Avenue Suite 420 Hauser Hall Cambridge, MA 02138-0000

Mr. George Boyer Washington Scheff, Washington & Driver 645 Griswold Suite 1817 Detroit, MI 48226-0000

Re:

Case No. 08-1389/09-1111, Coalition to Defend Affirmativ, et al v. Regents of the University of M, et al

Originating Case No. : 06-15024 : 06-15637

Dear Counsel,

The court today announced its decision in the above-styled case.

Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

Yours very truly,

2:0C6a-csve-:10580-2143-8D9ML-DRoScWumeDnotc: 0#026813110F0il2e5d6037/01F/1ile1d: P0g7/6041/o2f06141 PPgaIgDe:54856 (64 of 64)

Enclosures Mandate to issue.

Leonard Green, Clerk
Linda K. Martin Deputy Clerk

 
 2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621817104F5il0e8d008/1F7il/e1d1: 0P8g/117/o2f0311 PgPIaDge5:8166
Nos. 08-1387/1389/1534/09-1111

(1 of 3)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED

) COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND )

Aug 17, 2011

IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS ) LEONARD GREEN, Clerk

NECESSARY (BAMN), ET AL.,

)

)

Plaintiffs-Appellants 08-1387)/Cross-Appellees,

)

Plaintiffs (08-1389/09-1111)

)

)

CHASE CANTRELL, ET AL.,

)

)

Plaintiffs-Appellees (08-1389),

)

Plaintiffs-Appellants (09-1111),

)

O R D E R

)

v.

)

)

)

REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF )

MICHIGAN STATE UNIVERSITY, ET AL.,

)

)

Defendants-Appellees/Cross-Appellants 08-1534),

)

Defendants (08-1389-09-1111)

)

)

MICHAEL COX, MICHIGAN ATTORNEY GENERAL,

)

)

Intervenor-Defendant-Appellee (08-1387-09-1111)

)

)

ERIC RUSSELL,

)

)

Intervenor-Defendant-Appellant (08-1389),

)

)

JENNIFER GRATZ,

Proposed Intevenor-Appellant (08-1389).

Upon consideration of the m otion from Hans von Spakovsky, J. Christian Adam s, Karl S. “Butch” Bowers, Jr., and H. Christopher Coates for leave to file a brief as amici curiae in support of the petition for rehearing en banc,
It is ORDERED that the motion be and it hereby is DENIED.
ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621817104F5il0e8d208/1F7il/e1d1: 0P8g/127/o2f0311 PgPIaDge5:8167

(2 of 3)

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: August 17, 2011

Mr. Michael Francis Smith Law Firm 1747 Pennsylvania Avenue, N.W. Suite 300 Washington, DC 20006

Re:

Case No. 08-1387/08-1389/09-1111/08-1534, Coalition to Defend Affirmative, et al v. Regents of the University of Michigan, et al

Originating Case No. : 06-15024

Dear Mr. Smith, The Court issued the enclosed Order today in this case.

Sincerely yours,

cc: Ms. Sharon Louise Browne Mr. John J. Bursch Mr. Joshua Ian Civin Mr. Charles J. Cooper Ms. Karin A. DeMasi Ms. Shanta Driver Mr. Mark P. Fancher Melvin Hollowell Ms. Sherri Sokeland Kaiser Ms. Winifred V. Kao Mr. Daniel M. Levy Ms. Heather S. Meingast

s/Beverly L. Harris En Banc Coordinator Direct Dial No. 513-564-7077

2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621817104F5il0e8d208/1F7il/e1d1: 0P8g/137/o2f0311 PgPIaDge5:8268

(3 of 3)

Mr. Kerry L. Morgan Ms. Kary Leslie Moss Ms. Margaret A Nelson Mr. Leonard M. Niehoff Mr. Alan K. Palmer Mr. Jesse M. Panuccio Mr. Joseph E. Potchen Mr. Mark D. Rosenbaum Mr. Michael E. Rosman Mr. Michael Jay Steinberg Mr. John David Taliaferro Mr. David H. Thompson Mr. Laurence H. Tribe Mr. George Boyer Washington Mr. David J. Weaver Mr. William F. Young
Enclosure

 
 2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621818106F8il5e9d009/0F9il/e1d1: 0P9g/019/o2f0411 PgPIaDge5:8169
Nos. 08-1387/1389/1534/09-1111

(1 of 4)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED

) COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND )

Sep 09, 2011

IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS ) LEONARD GREEN, Clerk

NECESSARY (BAMN), ET AL.,

)

)

Plaintiffs-Appellants 08-1387)/Cross-Appellees,

)

Plaintiffs (08-1389/09-1111)

)

)

CHASE CANTRELL, ET AL.,

)

)

Plaintiffs-Appellees (08-1389),

)

Plaintiffs-Appellants (09-1111),

)

O R D E R

)

v.

)

)

)

REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF )

MICHIGAN STATE UNIVERSITY, ET AL.,

)

)

Defendants-Appellees/Cross-Appellants 08-1534),

)

Defendants (08-1389-09-1111)

)

)

MICHAEL COX, MICHIGAN ATTORNEY GENERAL,

)

)

Intervenor-Defendant-Appellee (08-1387-09-1111)

)

)

ERIC RUSSELL,

)

)

Intervenor-Defendant-Appellant (08-1389),

)

)

JENNIFER GRATZ,

Proposed Intevenor-Appellant (08-1389).

BEFORE:

BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN, WHITE, and STRANCH, Circuit Judges.

*
A majority of the Judges of this Court in regular active service and who are not disqualified have
voted for rehearing of this case en banc. Sixth Circuit Rule 35(a) provides as follows:

*
Judges McKeague and Kethledge recused themselves from participation in this ruling.

2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621818106F8il5e9d009/0F9il/e1d1: 0P9g/029/o2f0411 PgPIaDge5:8270
Nos. 08-1387/1389/1534/09-1111 - 2 -

(2 of 4)

“The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgm ent of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal.”
Accordingly, it is ORDERED, that the previous decision and judgm ent of this court is vacated, the m andate is stayed and this case is restored to the docket as a pending appeal.
ENTERED BY ORDER OF THE COURT
Leonard Green, Clerk

2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621818106F8il5e9d409/0F9il/e1d1: 0P9g/039/o2f0411 PgPIaDge5:8171

(3 of 4)

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: September 09, 2011

Mr. John J. Bursch Mr. Charles J. Cooper Ms. Karin A. DeMasi Mr. Leonard M. Niehoff Mr. Mark D. Rosenbaum Mr. George Boyer Washington

Re:

Case No. 08-1387/08-1389/09-1111/08-1534, Coalition to Defend Affirmative, et al v. Regents of the University of M, et al

Originating Case No. : 06-15024

Dear Counsel, The Court issued the enclosed Order today in these cases.

Sincerely yours,

cc: Ms. Sharon Louise Browne Mr. Joshua Ian Civin Ms. Shanta Driver Mr. Mark P. Fancher Melvin Hollowell Ms. Sherri Sokeland Kaiser Ms. Winifred V. Kao Mr. Daniel M. Levy Ms. Heather S. Meingast Ms. Kary Leslie Moss

s/Beverly L. Harris En Banc Coordinator Direct Dial No. 513-564-7077

2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621818106F8il5e9d409/0F9il/e1d1: 0P9g/049/o2f0411 PgPIaDge5:8272

(4 of 4)

Ms. Margaret A Nelson Mr. Jesse M. Panuccio Mr. Joseph E. Potchen Mr. Michael Francis Smith Mr. Michael Jay Steinberg Mr. John David Taliaferro Mr. Laurence H. Tribe Mr. David J. Weaver Mr. William F. Young
Enclosure

 
 2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621819106F8il5e9d009/0F9il/e1d1: 0P9g/019/o2f0411 PgPIaDge5:8173
Nos. 08-1387/1389/1534/09-1111

(1 of 4)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED

) COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND )

Sep 09, 2011

IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS ) LEONARD GREEN, Clerk

NECESSARY (BAMN), ET AL.,

)

)

Plaintiffs-Appellants 08-1387)/Cross-Appellees,

)

Plaintiffs (08-1389/09-1111)

)

)

CHASE CANTRELL, ET AL.,

)

)

Plaintiffs-Appellees (08-1389),

)

Plaintiffs-Appellants (09-1111),

)

O R D E R

)

v.

)

)

)

REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF )

MICHIGAN STATE UNIVERSITY, ET AL.,

)

)

Defendants-Appellees/Cross-Appellants 08-1534),

)

Defendants (08-1389-09-1111)

)

)

MICHAEL COX, MICHIGAN ATTORNEY GENERAL,

)

)

Intervenor-Defendant-Appellee (08-1387-09-1111)

)

)

ERIC RUSSELL,

)

)

Intervenor-Defendant-Appellant (08-1389),

)

)

JENNIFER GRATZ,

Proposed Intevenor-Appellant (08-1389).

BEFORE:

BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN, WHITE, and STRANCH, Circuit Judges.

*
A majority of the Judges of this Court in regular active service and who are not disqualified have
voted for rehearing of this case en banc. Sixth Circuit Rule 35(a) provides as follows:

*
Judges McKeague and Kethledge recused themselves from participation in this ruling.

2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621819106F8il5e9d009/0F9il/e1d1: 0P9g/029/o2f0411 PgPIaDge5:8274
Nos. 08-1387/1389/1534/09-1111 - 2 -

(2 of 4)

“The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgm ent of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal.”
Accordingly, it is ORDERED, that the previous decision and judgm ent of this court is vacated, the m andate is stayed and this case is restored to the docket as a pending appeal.
ENTERED BY ORDER OF THE COURT
Leonard Green, Clerk

2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621819106F8il5e9d409/0F9il/e1d1: 0P9g/039/o2f0411 PgPIaDge5:8175

(3 of 4)

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: September 09, 2011

Mr. John J. Bursch Mr. Charles J. Cooper Ms. Karin A. DeMasi Mr. Leonard M. Niehoff Mr. Mark D. Rosenbaum Mr. George Boyer Washington

Re:

Case No. 08-1387/08-1389/09-1111/08-1534, Coalition to Defend Affirmative, et al v. Regents of the University of M, et al

Originating Case No. : 06-15024

Dear Counsel, The Court issued the enclosed Order today in these cases.

Sincerely yours,

cc: Ms. Sharon Louise Browne Mr. Joshua Ian Civin Ms. Shanta Driver Mr. Mark P. Fancher Melvin Hollowell Ms. Sherri Sokeland Kaiser Ms. Winifred V. Kao Mr. Daniel M. Levy Ms. Heather S. Meingast Ms. Kary Leslie Moss

s/Beverly L. Harris En Banc Coordinator Direct Dial No. 513-564-7077

2:C0a6s-cev:-0185-012348-7DMLD-RocSuWmenDto: c00#621819106F8il5e9d409/0F9il/e1d1: 0P9g/049/o2f0411 PgPIaDge5:8276

(4 of 4)

Ms. Margaret A Nelson Mr. Jesse M. Panuccio Mr. Joseph E. Potchen Mr. Michael Francis Smith Mr. Michael Jay Steinberg Mr. John David Taliaferro Mr. Laurence H. Tribe Mr. David J. Weaver Mr. William F. Young
Enclosure

 
 2:06C-acsve-1:50082-143-D8M7 L-RDSoWcumDeonct: #002691411F5i0le1d20191/15F/1il2ed:P1g11/1o5f/27012Pg IPDa5g8e9: 01 (1 of 81)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: November 15, 2012

Ms. Sharon Louise Browne Pacific Legal Foundation 930 G Street Sacramento, CA 95814
Mr. John J. Bursch Office of the Michigan Attorney General 525 W. Ottawa Street 7th Floor Law Building Lansing, MI 48909
Mr. Joshua Ian Civin N.A.A.C.P. Legal Defense & Educational Fund 1444 Eye Street, N.W., 10th Floor Washington, DC 20005
Mr. Charles J. Cooper Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036
Ms. Karin A. DeMasi Cravath, Swaine & Moore 825 Eighth Avenue, 4070 New York, NY 10019
Mr. Eugene Driker Barris, Sott, Denn & Driker 211 W. Fort Street, Suite 1500 Detroit, MI 48226
Ms. Shanta Driver Scheff, Washington & Driver 645 Griswold, Suite 1817 Detroit, MI 48226-0000

2:06C-acsve-1:50082-143-D8M7 L-RDSoWcumDeonct: #002691411F5i0le1d20191/15F/1il2ed:P1g12/1o5f/27012Pg IPDa5g8e9: 12 (2 of 81)
Ms. Allison S. Elgart Equal Justice Society 260 California Street, Suite 700 San Francisco, CA 94111
Mr. G. Scott Emblidge Moscone, Emblidge & Sater 220 Montgomery Street, Suite 2100 San Francisco, CA 94104
Mr. Mark P. Fancher ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Mr. Derek T. Ho Kellogg, Huber, Hansen, Todd, Evans & Figel 1615 M Street, N.W., Suite 400 Washington, DC 20036
Melvin Hollowell Allen Brothers 400 Monroe Street, Suite 220 Detroit, MI 48226-0000
Mr. Wilson Ray Huhn University of Akron 150 University Avenue Akron, OH 44325
Ms. Sherri Sokeland Kaiser Office of the City Attorney One Dr. Carlton B. Goodlett Place, Room 234 San Francisco, CA 94102
Ms. Winifred V. Kao Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111
Mr. Barry Levenstam Jenner & Block 353 N. Clark Street, Suite 4400 Chicago, IL 60654

2:06C-acsve-1:50082-143-D8M7 L-RDSoWcumDeonct: #002691411F5i0le1d20191/15F/1il2ed:P1g13/1o5f/27012Pg IPDa5g8e9: 23 (3 of 81)
Mr. Daniel M. Levy Michigan Department of Civil Rights 3054 W. Grand Boulevard, Suite 3-600 Detroit, MI 48202
Ms. Heather S. Meingast Office of the Michigan Attorney General P.O. Box 30736 Lansing, MI 48909
Ms. Catherine M. Mish Grand Rapids City Attorney's Office 300 Monroe Avenue, N.W., Suite 620 Grand Rapids, MI 49503
Mr. Kerry Lee Morgan Pentiuk, Couvreur & Kobiljak 2915 Biddle Avenue, Suite 200 Wyandotte, MI 48192
Ms. Kary Leslie Moss ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Margaret A Nelson Office of the Michigan Attorney General Public Employment & Elections Division P.O. Box 30736 Lansing, MI 48909
Mr. Leonard M. Niehoff Honigman, Miller, Schwartz & Cohn 130 S. First Street, Fourth Floor Ann Arbor, MI 48104-1386
Mr. Doyle G. O'Connor P.O. Box 11226 Detroit, MI 48211
Mr. Alan K. Palmer Kaye Scholer 901 Fifteenth Street, N.W. Suite 1100 McPherson Building Washington, DC 20005

2:06C-acsve-1:50082-143-D8M7 L-RDSoWcumDeonct: #002691411F5i0le1d20191/15F/1il2ed:P1g14/1o5f/27012Pg IPDa5g8e9: 34 (4 of 81)
Mr. Jesse M. Panuccio Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036
Mr. Joseph Edward Potchen Michigan Department of Attorney General P.O. Box 30212 Lansing, MI 48909-0000
Ms. Kristen Lee Rewa City of Grand Rapids 300 Monroe Avenue, N.W., Suite 620 Grand Rapids, MI 49503
Mr. Mark D. Rosenbaum ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017
Mr. Michael E. Rosman Center for Individual Rights 1233 20th Street, N.W. Suite 300 Washington, DC 20036-0000
Ms. Stephanie R. Setterington Varnum 333 Bridge Street, N.W. Grand Rapids, MI 49504
Mr. Michael Francis Smith Law Firm 1747 Pennsylvania Avenue, N.W., Suite 300 Washington, DC 20006
Mr. Michael Jay Steinberg ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Mr. John David Taliaferro Kaye Scholer 901 Fifteenth Street, N.W. Suite 1100 McPherson Building Washington, DC 20005

2:06C-acsve-1:50082-143-D8M7 L-RDSoWcumDeonct: #002691411F5i0le1d20191/15F/1il2ed:P1g15/1o5f/27012Pg IPDa5g8e9: 45 (5 of 81)

Mr. David H. Thompson Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036
Mr. Laurence H. Tribe 1575 Massachusetts Avenue Suite 420 Hauser Hall Cambridge, MA 02138-0000
Mr. George Boyer Washington Scheff, Washington & Driver 645 Griswold Suite 1817 Detroit, MI 48226-0000
Mr. William F. Young White, Schneider, Young & Chiodini 2300 Jolly Oak Road Okemos, MI 48864

Re:

Case No. 08-1387/1389/1534/09-1111, Coal. to Defend Affirmative et al v. Regents of the Univ. of Mich., et al

Originating Case No. : 06-15024

Dear Counsel,

The court today announced its decision in the above-styled cases.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

Yours very truly,

Deborah S. Hunt, Clerk

cc: Mr. Carl Willams Mr. Hassan Aleem Mr. David J. Weaver

Cathryn Lovely Deputy Clerk

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Enclosures Mandate to issue.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 08-1387/1389/1534; 09-1111

Nos. 08-1387/1534 COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,
Plaintiffs-Appellants (08-1387)/Cross-Appellees, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,
Defendants-Appellees/Cross-Appellants (08-1534),

FILED
Nov 15, 2012
DEBORAH S. HUNT, Clerk

BILL SCHUETTE, Michigan Attorney General, Intervenor-Defendant-Appellee.

No. 08-1389 COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,
Plaintiffs, CHASE CANTRELL, et al.,
Plaintiffs-Appellees, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,
Defendants, ERIC RUSSELL,
Intervenor-Defendant-Appellant, JENNIFER GRATZ,
Proposed Intervenor-Appellant.

No. 09-1111 COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.,
Plaintiffs, CHASE CANTRELL, et al.,
Plaintiffs-Appellants, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY; BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY; MARY SUE COLEMAN; IRVIN D. REID; LOU ANNA K. SIMON,
Defendants, BILL SCHUETTE, Michigan Attorney General,
Intervenor-Defendant-Appellee.

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, DAUGHTREY, MOORE, COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN, WHITE, STRANCH, and DONALD, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

UPON CONSIDERATION of the petition for rehearing en banc, the supplemental briefs, and arguments of counsel,

IT IS ORDERED that the district court’s grant of the Defendants-Appellees’ motion for summary judgment is REVERSED. IT IS FURTHER ORDERED that the district court’s denial of the University Defendants’ motion to be dismissed as parties and its grant of the Cantrell Plaintiffs’ motion for summary judgment as to Russell are AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
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Case No. 08-1387/08-1389/08-1534/09-1111 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ORDER
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), et al.,,
Plaintiff - Appellant - Cross Appellees v. REGENTS OF THE UNIVERSITY OF MICHIGAN, et al.,
Defendants - Appellees - Cross Appellants and BILL SCHUETTE, Michigan Attorney General,
Intervenor - Defendant - Appellee

BEFORE: DAUGHTREY, COLE, and GIBBONS, Circuit Judges. Upon consideration of the motion filed by Plaintiff-Appellants/Cross-Appellees’ to
dissolve the stay of this Court’s mandate, It is ORDERED that the motion is DENIED.
ENTERED BY ORDER OF THE COURT Deborah S. Hunt, Clerk

Issued: December 11, 2012

___________________________________

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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: December 11, 2012

Mr. George Boyer Washington Scheff, Washington & Driver 645 Griswold Suite 1817 Detroit, MI 48226-0000

Re:

Case No. 08-1387/08-1389/08-1534/09-1111, Coalition Affirmativ, et al v. Regents of the University of M, et al

to

Defend

Originating Case No. : 06-15024

Dear Sir or Madam, The Court issued the enclosed Order today in this case.

Sincerely yours,

cc: Ms. Sharon Louise Browne Mr. John J. Bursch Mr. Joshua Ian Civin Mr. Charles J. Cooper Ms. Karin A. DeMasi Mr. Eugene Driker Ms. Shanta Driver Ms. Allison S. Elgart Mr. G. Scott Emblidge Mr. Mark P. Fancher Mr. Derek T. Ho Mr. Wilson Ray Huhn

s/Robin Duncan Case Manager Direct Dial No. 513-564-7027

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Ms. Sherri Sokeland Kaiser Ms. Winifred V. Kao Mr. Barry Levenstam Mr. Daniel M. Levy Ms. Heather S. Meingast Ms. Catherine M. Mish Mr. Kerry Lee Morgan Ms. Kary Leslie Moss Ms. Margaret A Nelson Mr. Leonard M. Niehoff Mr. Doyle G. O'Connor Mr. Jesse M. Panuccio Mr. Joseph Edward Potchen Ms. Kristen Lee Rewa Mr. Mark D. Rosenbaum Mr. Michael E. Rosman Ms. Stephanie R. Setterington Mr. Michael Francis Smith Mr. Michael Jay Steinberg Mr. John David Taliaferro Mr. David H. Thompson Mr. David J. Weaver Mr. William F. Young
Enclosure

 
 (Slip Opinion)

OCTOBER TERM, 2013

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
SCHUETTE, ATTORNEY GENERAL OF MICHIGAN v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRATION RIGHTS AND
FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN) ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 12–682. Argued October 15, 2013—Decided April 22, 2014
After this Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the Equal Protection Clause, Gratz v. Bollinger, 539 U. S. 244, 270, but that the law school admission plan’s more limited use did not, Grutter v. Bollinger, 539 U. S. 306, 343, Michigan voters adopted Proposal 2, now Art. I, §26, of the State Constitution, which, as relevant here, prohibits the use of race-based preferences as part of the admissions process for state universities. In consolidated challenges, the District Court granted summary judgment to Michigan, thus upholding Proposal 2, but the Sixth Circuit reversed, concluding that the proposal violated the principles of Washington v. Seattle School Dist. No. 1, 458 U. S. 457.
Held: The judgment is reversed. 701 F. 3d 466, reversed.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE ALITO, concluded that there is no authority in the Federal Constitution or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions. Pp. 4–18.
(a) This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible

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Syllabus
when certain conditions are met is not being challenged. Rather, the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences. Where States have prohibited race-conscious admissions policies, universities have responded by experimenting “with a wide variety of alternative approaches.” Grutter, supra, at 342. The decision by Michigan voters reflects the ongoing national dialogue about such practices. Pp. 4–5.
(b) The Sixth Circuit’s determination that Seattle controlled here extends Seattle’s holding in a case presenting quite different issues to reach a mistaken conclusion. Pp. 5–18.
(1) It is necessary to consider first the relevant cases preceding Seattle and the background against which Seattle arose. Both Reit­ man v. Mulkey, 387 U. S. 369, and Hunter v. Erickson, 393 U. S. 385, involved demonstrated injuries on the basis of race that, by reasons of state encouragement or participation, became more aggravated. In Mulkey, a voter-enacted amendment to the California Constitution prohibiting state legislative interference with an owner’s prerogative to decline to sell or rent residential property on any basis barred the challenging parties, on account of race, from invoking the protection of California’s statutes, thus preventing them from leasing residential property. In Hunter, voters overturned an Akron ordinance that was enacted to address widespread racial discrimination in housing sales and rentals had forced many to live in “ ‘unhealthful, unsafe, unsanitary and overcrowded’ ” segregated housing, 393 U. S., at 391. In Seattle, after the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools, voters passed a state initiative that barred busing to desegregate. This Court found that the state initiative had the “practical effect” of removing “the authority to address a racial problem . . . from the existing decisionmaking body, in such a way as to burden minority interests” of busing advocates who must now “seek relief from the state legislature, or from the statewide electorate.” 458 U. S., at 474. Pp. 5–8.
(2) Seattle is best understood as a case in which the state action had the serious risk, if not purpose, of causing specific injuries on account of race as had been the case in Mulkey and Hunter. While there had been no judicial finding of de jure segregation with respect to Seattle’s school district, a finding that would be required today, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720–721, Seattle must be understood as Seattle understood itself, as a case in which neither the State nor the United States “challenge[d] the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding

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3

Syllabus
of prior de jure segregation.” 458 U. S. at 472, n. 15. Seattle’s broad language, however, went well beyond the analysis
needed to resolve the case. Seizing upon the statement in Justice Harlan’s concurrence in Hunter that the procedural change in that case had “the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest,” 385 U. S., at 395, the Seattle Court established a new and farreaching rationale: Where a government policy “inures primarily to the benefit of the minority” and “minorities . . . consider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” is subject to strict scrutiny. 458 U. S., at 472, 474. Pp. 8–11.
(3) To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious equal protection concerns. In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that all individuals of the same race think alike, see Shaw v. Reno, 509 U. S. 630, 647, but that proposition would be a necessary beginning point were the Seattle formulation to control. And if it were deemed necessary to probe how some races define their own interest in political matters, still another beginning point would be to define individuals according to race. Such a venture would be undertaken with no clear legal standards or accepted sources to guide judicial decision. It would also result in, or impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms. Assuming these steps could be taken, the court would next be required to determine the policy realms in which groups defined by race had a political interest. That undertaking, again without guidance from accepted legal standards, would risk the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Adoption of the Seattle formulation could affect any number of laws or decisions, involving, e.g., tax policy or housing subsidies. And racial division would be validated, not discouraged.
It can be argued that objections to the larger consequences of the Seattle formulation need not be confronted here, for race was an undoubted subject of the ballot issue. But other problems raised by Se­ attle, such as racial definitions, still apply. And the principal flaw in the Sixth Circuit’s decision remains: Here there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools, and there is no precedent for extending

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Syllabus
these cases to restrict the right of Michigan voters to determine that race-based preferences granted by state entities should be ended. The Sixth Circuit’s judgment also calls into question other States’ long-settled rulings on policies similar to Michigan’s.
Unlike the injuries in Mulkey, Hunter, and Seattle, the question here is not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of race-based preferences should be continued. By approving Proposal 2 and thereby adding §26 to their State Constitution, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences. The mandate for segregated schools, Brown v. Board of Education, 347 U. S. 483, and scores of other examples teach that individual liberty has constitutional protection. But this Nation’s constitutional system also embraces the right of citizens to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process, as Michigan voters have done here. These precepts are not inconsistent with the well-established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts. Such circumstances were present in Mulkey, Hunter, and Seattle, but they are not present here. Pp. 11–18.
JUSTICE SCALIA, joined by JUSTICE THOMAS, agreed that §26 rightly stands, though not because it passes muster under the politicalprocess doctrine. It likely does not, but the cases establishing that doctrine should be overruled. They are patently atextual, unadministrable, and contrary to this Court’s traditional equal protection jurisprudence. The question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. It plainly does not. Pp. 1–18.
(a) The Court of Appeals for the Sixth Circuit held §26 unconstitutional under the so-called political-process doctrine, derived from Washington v. Seattle School Dist. No. 1, 458 U. S. 457, and Hunter v. Erickson, 393 U. S. 385. In those cases, one level of government exercised borrowed authority over an apparently “racial issue” until a higher level of government called the loan. This Court deemed each revocation an equal-protection violation, without regard to whether there was evidence of an invidious purpose to discriminate. The relentless, radical logic of Hunter and Seattle would point to a similar conclusion here, as in so many other cases. Pp. 3–7.
(b) The problems with the political-process doctrine begin with its triggering prong, which assigns to a court the task of determining

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5

Syllabus
whether a law that reallocates policymaking authority concerns a “racial issue,” Seattle, 458 U. S., at 473, i.e., whether adopting one position on the question would “at bottom inur[e] primarily to the benefit of the minority, and is designed for that purpose,” id., at 472. Such freeform judicial musing into ethnic and racial “interests” involves judges in the dirty business of dividing the Nation “into racial blocs,” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 603, 610 (O’Connor, J., dissenting), and promotes racial stereotyping, see Shaw v. Reno, 509 U. S. 630, 647. More fundamentally, the analysis misreads the Equal Protection Clause to protect particular groups, a construction that has been repudiated in a “long line of cases understanding equal protection as a personal right.” Adarand Construc­ tors, Inc. v. Peña, 515 U. S. 200, 224, 230. Pp. 7–12.
(c) The second part of the Hunter-Seattle analysis directs a court to determine whether the challenged act “place[s] effective decisionmaking authority over [the] racial issue at a different level of government,” Seattle, supra, at 474; but, in another line of cases, the Court has emphasized the near-limitless sovereignty of each State to design its governing structure as it sees fit, see, e.g., Holt Civic Club v. Tus­ caloosa, 439 U. S. 60, 71. Taken to the limits of its logic, HunterSeattle is the gaping exception that nearly swallows the rule of structural state sovereignty, which would seem to permit a State to give certain powers to cities, later assign the same powers to counties, and even reclaim them for itself. Pp. 12–15.
(d) Hunter and Seattle also endorse a version of the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact. That equal-protection theory has been squarely and soundly rejected by an “unwavering line of cases” holding “that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent,” Hernandez v. New York, 500 U. S. 352, 372–373 (O’Connor, J., concurring in judgment), and that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact,” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 264–265. Respondents cannot prove that the action here reflects a racially discriminatory purpose, for any law expressly requiring state actors to afford all persons equal protection of the laws does not— cannot—deny “to any person . . . equal protection of the laws,” U. S. Const., Amdt. 14, §1. Pp. 15–17.
JUSTICE BREYER agreed that the amendment is consistent with the Equal Protection Clause, but for different reasons. First, this case addresses the amendment only as it applies to, and forbids, raceconscious admissions programs that consider race solely in order to obtain the educational benefits of a diverse student body. Second, the

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Syllabus
Constitution permits, but does not require, the use of the kind of race-conscious programs now barred by the Michigan Constitution. It foresees the ballot box, not the courts, as the normal instrument for resolving debates about the merits of these programs. Third, Hunter v. Erickson, 393 U. S. 385, and Washington v. Seattle School Dist. No. 1, 458 U. S. 457, which reflect the important principle that an individual’s ability to participate meaningfully in the political process should be independent of his race, do not apply here. Those cases involved a restructuring of the political process that changed the political level at which policies were enacted, while this case involves an amendment that took decisionmaking authority away from unelected actors and placed it in the hands of the voters. Hence, this case does not involve a diminution of the minority’s ability to participate in the political process. Extending the holding of Hunter and Seattle to situations where decisionmaking authority is moved from an administrative body to a political one would also create significant difficulties, given the nature of the administrative process. Furthermore, the principle underlying Hunter and Seattle runs up against a competing principle favoring decisionmaking through the democratic process. Pp. 1–6.
KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and ALITO, J., joined. ROBERTS, C. J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. BREYER, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined. KAGAN, J., took no part in the consideration or decision of the case.

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Opinion of KENNEDY, J.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–682
_________________
BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-
 GAN, PETITIONER v. COALITION TO DEFEND AF- 
 FIRMATIVE ACTION, INTEGRATION AND IMMI- 

GRANT RIGHTS AND FIGHT FOR EQUALITY 
 BY ANY MEANS NECESSARY (BAMN), ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE SIXTH CIRCUIT

[April 22, 2014] 

JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and JUSTICE ALITO join.
The Court in this case must determine whether an amendment to the Constitution of the State of Michigan, approved and enacted by its voters, is invalid under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
In 2003 the Court reviewed the constitutionality of two admissions systems at the University of Michigan, one for its undergraduate class and one for its law school. The undergraduate admissions plan was addressed in Gratz v. Bollinger, 539 U. S. 244. The law school admission plan was addressed in Grutter v. Bollinger, 539 U. S. 306. Each admissions process permitted the explicit consideration of an applicant’s race. In Gratz, the Court invalidated the undergraduate plan as a violation of the Equal Protection Clause. 539 U. S., at 270. In Grutter, the Court found no

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Opinion of KENNEDY, J.
constitutional flaw in the law school admission plan’s more limited use of race-based preferences. 539 U. S., at 343.
In response to the Court’s decision in Gratz, the university revised its undergraduate admissions process, but the revision still allowed limited use of race-based preferences. After a statewide debate on the question of racial preferences in the context of governmental decisionmaking, the voters, in 2006, adopted an amendment to the State Constitution prohibiting state and other governmental entities in Michigan from granting certain preferences, including race-based preferences, in a wide range of actions and decisions. Under the terms of the amendment, race-based preferences cannot be part of the admissions process for state universities. That particular prohibition is central to the instant case.
The ballot proposal was called Proposal 2 and, after it passed by a margin of 58 percent to 42 percent, the resulting enactment became Article I, §26, of the Michigan Constitution. As noted, the amendment is in broad terms. Section 26 states, in relevant part, as follows:
“(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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.
“(2) The state shall 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.
“(3) For the purposes of this section ‘state’ includes,

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Opinion of KENNEDY, J.
but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.”
Section 26 was challenged in two cases. Among the plaintiffs in the suits were the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN); students; faculty; and prospective applicants to Michigan public universities. The named defendants included thenGovernor Jennifer Granholm, the Board of Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University. The Michigan Attorney General was granted leave to intervene as a defendant. The United States District Court for the Eastern District of Michigan consolidated the cases.
In 2008, the District Court granted summary judgment to Michigan, thus upholding Proposal 2. BAMN v. Regents of Univ. of Mich., 539 F. Supp. 2d 924. The District Court denied a motion to reconsider the grant of summary judgment. 592 F. Supp. 2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F. 3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633–646. The panel majority held that Proposal 2 had violated the principles elaborated by this Court in Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), and in the cases that Seattle relied upon.
The Court of Appeals, sitting en banc, agreed with the panel decision. 701 F. 3d 466 (CA6 2012). The majority opinion determined that Seattle “mirrors the [case] before us.” Id., at 475. Seven judges dissented in a number of opinions. The Court granted certiorari. 568 U. S. ___

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Opinion of KENNEDY, J.
(2013). Before the Court addresses the question presented, it is
important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U. S. ––– (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.
This Court has noted that some States have decided to prohibit race-conscious admissions policies. In Grutter, the Court noted: “Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.” 539 U. S., at 342 (citing United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring) (“[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear”)). In this way, Grutter acknowledged the significance of a dialogue regarding this contested and complex policy question among and within States. There was recognition that our federal structure “permits ‘ innovation and experimentation’ ” and “enables greater citizen ‘ involvement in democratic processes.’ ” Bond v. United

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Opinion of KENNEDY, J.
States, 564 U. S. –––, ––– (2011) (slip op., at 9) (quoting Gregory v. Ashcroft, 501 U. S. 452, 458 (1991)). While this case arises in Michigan, the decision by the State’s voters reflects in part the national dialogue regarding the wisdom and practicality of race-conscious admissions policies in higher education. See, e.g., Coalition for Economic Equity v. Wilson, 122 F. 3d 692 (CA9 1997).
In Michigan, the State Constitution invests independent boards of trustees with plenary authority over public universities, including admissions policies. Mich. Const., Art. VIII, §5; see also Federated Publications, Inc. v. Board of Trustees of Mich. State Univ., 460 Mich. 75, 86–87, 594 N. W. 2d 491, 497 (1999). Although the members of the boards are elected, some evidence in the record suggests they delegated authority over admissions policy to the faculty. But whether the boards or the faculty set the specific policy, Michigan’s public universities did consider race as a factor in admissions decisions before 2006.
In holding §26 invalid in the context of student admissions at state universities, the Court of Appeals relied in primary part on Seattle, supra, which it deemed to control the case. But that determination extends Seattle’s holding in a case presenting quite different issues to reach a conclusion that is mistaken here. Before explaining this further, it is necessary to consider the relevant cases that preceded Seattle and the background against which Seattle itself arose.
Though it has not been prominent in the arguments of the parties, this Court’s decision in Reitman v. Mulkey, 387 U. S. 369 (1967), is a proper beginning point for discussing the controlling decisions. In Mulkey, voters amended the California Constitution to prohibit any state legislative interference with an owner’s prerogative to decline to sell or rent residential property on any basis. Two different cases gave rise to Mulkey. In one a couple could not rent an apartment, and in the other a couple

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Opinion of KENNEDY, J.
were evicted from their apartment. Those adverse actions were on account of race. In both cases the complaining parties were barred, on account of race, from invoking the protection of California’s statutes; and, as a result, they were unable to lease residential property. This Court concluded that the state constitutional provision was a denial of equal protection. The Court agreed with the California Supreme Court that the amendment operated to insinuate the State into the decision to discriminate by encouraging that practice. The Court noted the “immediate design and intent” of the amendment was to “establis[h] a purported constitutional right to privately discriminate.” Id., at 374 (internal quotation marks omitted and emphasis deleted). The Court agreed that the amendment “expressly authorized and constitutionalized the private right to discriminate.” Id., at 376. The effect of the state constitutional amendment was to “significantly encourage and involve the State in private racial discriminations.” Id., at 381. In a dissent joined by three other Justices, Justice Harlan disagreed with the majority’s holding. Id., at 387. The dissent reasoned that California, by the action of its voters, simply wanted the State to remain neutral in this area, so that the State was not a party to discrimination. Id., at 389. That dissenting voice did not prevail against the majority’s conclusion that the state action in question encouraged discrimination, causing real and specific injury.
The next precedent of relevance, Hunter v. Erickson, 393 U. S. 385 (1969), is central to the arguments the respondents make in the instant case. In Hunter, the Court for the first time elaborated what the Court of Appeals here styled the “political process” doctrine. There, the Akron City Council found that the citizens of Akron consisted of “ ‘people of different race[s], . . . many of whom live in circumscribed and segregated areas, under sub-standard unhealthful, unsafe, unsanitary and overcrowded condi-

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tions, because of discrimination in the sale, lease, rental and financing of housing.’ ” Id., at 391. To address the problem, Akron enacted a fair housing ordinance to prohibit that sort of discrimination. In response, voters amended the city charter to overturn the ordinance and to require that any additional antidiscrimination housing ordinance be approved by referendum. But most other ordinances “regulating the real property market” were not subject to those threshold requirements. Id., at 390. The plaintiff, a black woman in Akron, Ohio, alleged that her real estate agent could not show her certain residences because the owners had specified they would not sell to black persons.
Central to the Court’s reasoning in Hunter was that the charter amendment was enacted in circumstances where widespread racial discrimination in the sale and rental of housing led to segregated housing, forcing many to live in “ ‘unhealthful, unsafe, unsanitary and overcrowded conditions.’ ” Id., at 391. The Court stated: “It is against this background that the referendum required by [the charter amendment] must be assessed.” Ibid. Akron attempted to characterize the charter amendment “simply as a public decision to move slowly in the delicate area of race relations” and as a means “to allow the people of Akron to participate” in the decision. Id., at 392. The Court rejected Akron’s flawed “justifications for its discrimination,” justifications that by their own terms had the effect of acknowledging the targeted nature of the charter amendment. Ibid. The Court noted, furthermore, that the charter amendment was unnecessary as a general means of public control over the city council; for the people of Akron already were empowered to overturn ordinances by referendum. Id., at 390, n. 6. The Court found that the city charter amendment, by singling out antidiscrimination ordinances, “places special burden on racial minorities within the governmental process,” thus becoming as im-

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permissible as any other government action taken with the invidious intent to injure a racial minority. Id., at 391. Justice Harlan filed a concurrence. He argued the city charter amendment “has the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.” Id., at 395. But without regard to the sentence just quoted, Hunter rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities. The facts in Hunter established that invidious discrimination would be the necessary result of the procedural restructuring. Thus, in Mulkey and Hunter, there was a demonstrated injury on the basis of race that, by reasons of state encouragement or participation, became more aggravated.
Seattle is the third case of principal relevance here. There, the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools. Voters who opposed the school board’s busing plan passed a state initiative that barred busing to desegregate. The Court first determined that, although “white as well as Negro children benefit from” diversity, the school board’s plan “inures primarily to the benefit of the minority.” 458 U. S., at 472. The Court next found that “the practical effect” of the state initiative was to “remov[e] the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests” because advocates of busing “now must seek relief from the state legislature, or from the statewide electorate.” Id., at 474. The Court therefore found that the initiative had “explicitly us[ed] the racial nature of a decision to determine the decisionmaking process.” Id., at 470 (emphasis deleted).
Seattle is best understood as a case in which the state action in question (the bar on busing enacted by the

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State’s voters) had the serious risk, if not purpose, of causing specific injuries on account of race, just as had been the case in Mulkey and Hunter. Although there had been no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that “permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 807–808 (2007) (BREYER, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure segregation. Specifically, the complaint alleged “that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.” Id., at 810. As part of a settlement with the Office for Civil Rights, the school board implemented the “Seattle Plan,” which used busing and mandatory reassignments between elementary schools to reduce racial imbalance and which was the subject of the state initiative at issue in Seattle. See 551 U. S., at 807–812.
As this Court held in Parents Involved, the school board’s purported remedial action would not be permissible today absent a showing of de jure segregation. Id., at 720–721. That holding prompted JUSTICE BREYER to observe in dissent, as noted above, that one permissible

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reading of the record was that the school board had maintained policies to perpetuate racial segregation in the schools. In all events we must understand Seattle as Seattle understood itself, as a case in which neither the State nor the United States “challenge[d] the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation.” 458 U. S. at 472, n. 15. In other words the legitimacy and constitutionality of the remedy in question (busing for desegregation) was assumed, and Seattle must be understood on that basis. Ibid. Seattle involved a state initiative that “was carefully tailored to interfere only with desegregative busing.” Id., at 471. The Seattle Court, accepting the validity of the school board’s busing remedy as a predicate to its analysis of the constitutional question, found that the State’s disapproval of the school board’s busing remedy was an aggravation of the very racial injury in which the State itself was complicit.
The broad language used in Seattle, however, went well beyond the analysis needed to resolve the case. The Court there seized upon the statement in Justice Harlan’s concurrence in Hunter that the procedural change in that case had “the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.” 385 U. S., at 395. That language, taken in the context of the facts in Hunter, is best read simply to describe the necessity for finding an equal protection violation where specific injuries from hostile discrimination were at issue. The Seattle Court, however, used the language from the Hunter concurrence to establish a new and far-reaching rationale. Seattle stated that where a government policy “inures primarily to the benefit of the minority” and “minorities . . . consider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” must

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be reviewed under strict scrutiny. 458 U. S., at 472, 474. In essence, according to the broad reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected.
The broad rationale that the Court of Appeals adopted goes beyond the necessary holding and the meaning of the precedents said to support it; and in the instant case neither the formulation of the general rule just set forth nor the precedents cited to authenticate it suffice to invalidate Proposal 2. The expansive reading of Seattle has no principled limitation and raises serious questions of compatibility with the Court’s settled equal protection jurisprudence. To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitutional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling. The rule that the Court of Appeals elaborated and respondents seek to establish here would contradict central equal protection principles.
In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that “members of the same racial group—regardless of their age, education, economic status, or the community in which they live— think alike, share the same political interests, and will prefer the same candidates at the polls.” Shaw v. Reno, 509 U. S. 630, 647 (1993); see also Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 636 (1990) (KENNEDY, J., dissenting) (rejecting the “demeaning notion that members of . . . defined racial groups ascribe to certain ‘minority views’

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that must be different from those of other citizens”). It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control, as the Court of Appeals held it did in this case. And if it were deemed necessary to probe how some races define their own interest in political matters, still another beginning point would be to define individuals according to race. But in a society in which those lines are becoming more blurred, the attempt to define racebased categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend. Cf. Ho v. San Francisco Unified School Dist., 147 F. 3d 854, 858 (CA9 1998) (school district delineating 13 racial categories for purposes of racial balancing). Were courts to embark upon this venture not only would it be undertaken with no clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.
Even assuming these initial steps could be taken in a manner consistent with a sound analytic and judicial framework, the court would next be required to determine the policy realms in which certain groups—groups defined by race—have a political interest. That undertaking, again without guidance from any accepted legal standards, would risk, in turn, the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Thus could racial antagonisms and conflict tend to arise in the context of judicial decisions as courts undertook to announce what particular issues of public policy should be classified as advantageous to some group defined by race.

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This risk is inherent in adopting the Seattle formulation. There would be no apparent limiting standards defining
what public policies should be included in what Seattle called policies that “inur[e] primarily to the benefit of the minority” and that “minorities . . . consider” to be “ ‘in their interest.’ ” 458 U. S., at 472, 474. Those who seek to represent the interests of particular racial groups could attempt to advance those aims by demanding an equal protection ruling that any number of matters be foreclosed from voter review or participation. In a nation in which governmental policies are wide ranging, those who seek to limit voter participation might be tempted, were this Court to adopt the Seattle formulation, to urge that a group they choose to define by race or racial stereotypes are advantaged or disadvantaged by any number of laws or decisions. Tax policy, housing subsidies, wage regulations, and even the naming of public schools, highways, and monuments are just a few examples of what could become a list of subjects that some organizations could insist should be beyond the power of voters to decide, or beyond the power of a legislature to decide when enacting limits on the power of local authorities or other governmental entities to address certain subjects. Racial division would be validated, not discouraged, were the Seattle formulation, and the reasoning of the Court of Appeals in this case, to remain in force.
Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that racebased preferences should be adopted. The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be inter-

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jected, surely it ought not to be at the invitation or insistence of the courts.
One response to these concerns may be that objections to the larger consequences of the Seattle formulation need not be confronted in this case, for here race was an undoubted subject of the ballot issue. But a number of problems raised by Seattle, such as racial definitions, still apply. And this principal flaw in the ruling of the Court of Appeals does remain: Here there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools. Here there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences granted by Michigan governmental entities should be ended.
It should also be noted that the judgment of the Court of Appeals in this case of necessity calls into question other long-settled rulings on similar state policies. The California Supreme Court has held that a California constitutional amendment prohibiting racial preferences in public contracting does not violate the rule set down by Seattle. Coral Constr., Inc. v. City and County of San Francisco, 50 Cal. 4th 315, 235 P. 3d 947 (2010). The Court of Appeals for the Ninth Circuit has held that the same amendment, which also barred racial preferences in public education, does not violate the Equal Protection Clause. Wilson, 122 F. 3d 692 (1997). If the Court were to affirm the essential rationale of the Court of Appeals in the instant case, those holdings would be invalidated, or at least would be put in serious question. The Court, by affirming the judgment now before it, in essence would announce a finding that the past 15 years of state public debate on this issue have been improper. And were the argument made that Coral might still stand because it involved racial preferences in public contracting while this case concerns racial preferences in university admissions, the implication would be

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that the constitutionality of laws forbidding racial preferences depends on the policy interest at stake, the concern that, as already explained, the voters deem it wise to avoid because of its divisive potential. The instant case presents the question involved in Coral and Wilson but not involved in Mulkey, Hunter, and Seattle. That question is not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of racebased preferences should be continued.
By approving Proposal 2 and thereby adding §26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power. In the federal system States “respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times.” Bond, 564 U. S., at ––– (slip op., at 9). Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.
The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools, Brown v. Board of Education, 347 U. S. 483 (1954); a wrongful invasion of the home, Silverman v. United States, 365 U. S. 505 (1961); or punishing a protester whose views offend others, Texas v. Johnson, 491 U. S. 397 (1989); and scores of other examples teach that individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed. Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course

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of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.
The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition

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that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.
These precepts are not inconsistent with the wellestablished principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts. Cf. Johnson v. California, 543 U. S. 499, 511–512 (2005) (“[S]earching judicial review . . . is necessary to guard against invidious discrimination”); Edmonson v. Leesville Concrete Co., 500 U. S. 614, 619 (1991) (“Racial discrimination” is “invidious in all contexts”). As already noted, those were the circumstances that the Court found present in Mulkey, Hunter, and Seattle. But those circumstances are not present here.
For reasons already discussed, Mulkey, Hunter, and Seattle are not precedents that stand for the conclusion that Michigan’s voters must be disempowered from acting. Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race. What is at stake here is not whether injury will be inflicted but

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whether government can be instructed not to follow a course that entails, first, the definition of racial categories and, second, the grant of favored status to persons in some racial categories and not others. The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it. Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs designed to increase diversity— consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism.
This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters. See Sailors v. Board of Ed. of County of Kent, 387 U. S. 105, 109 (1967) (“Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs”). Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.

JUSTICE KAGAN took no part in the consideration or decision of this case.

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1

ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–682
_________________
BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-
 GAN, PETITIONER v. COALITION TO DEFEND AF- 
 FIRMATIVE ACTION, INTEGRATION AND IMMI- 

GRANT RIGHTS AND FIGHT FOR EQUALITY 
 BY ANY MEANS NECESSARY (BAMN), ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE SIXTH CIRCUIT

[April 22, 2014]

CHIEF JUSTICE ROBERTS, concurring.
The dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into account in college admissions, while nonetheless concluding that it “do[es] not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court.” Post, at 57 (opinion of SOTOMAYOR, J.). The dissent concedes that the governing boards of the State’s various universities could have implemented a policy making it illegal to “discriminate against, or grant preferential treatment to,” any individual on the basis of race. See post, at 3, 34–35. On the dissent’s view, if the governing boards conclude that drawing racial distinctions in university admissions is undesirable or counterproductive, they are permissibly exercising their policymaking authority. But others who might reach the same conclusion are failing to take race seriously.
The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” Post, at 46. And it urges that “[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts:

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ROBERTS, C. J., concurring
‘I do not belong here.’ ” Ibid. But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. Post, at 45. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. Post, at 46. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.*

——————
* JUSTICE SCALIA and JUSTICE SOTOMAYOR question the relationship between Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), and Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007). See post, at 6, n. 2 (SCALIA, J., concurring in judgment); post, at 23, n. 9 (SOTOMAYOR, J., dissenting). The plurality today addresses that issue, explaining that the race-conscious action in Parents Involved was unconstitutional given the absence of a showing of prior de jure segregation. Parents Involved, supra, at 720–721 (majority opinion), 736 (plurality opinion); see ante, at 9. Today’s plurality notes that the Court in Seattle “assumed” the constitutionality of the busing remedy at issue there, “ ‘even absent a finding of prior de jure segregation.’ ” Ante, at 10 (quoting Seattle, supra, at 472, n. 15). The assumption on which Seattle proceeded did not constitute a finding sufficient to justify the race-conscious action in Parents Involved, though it is doubtless pertinent in analyzing Seattle. “As this Court held in Parents Involved, the [Seattle] school board’s purported remedial action would not be permissible today absent a showing of de jure segregation,” but “we must understand Seattle as Seattle understood itself.” Ante, at 9–10 (emphasis added).

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1

SCALIA, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–682
_________________
BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-
 GAN, PETITIONER v. COALITION TO DEFEND AF- 
 FIRMATIVE ACTION, INTEGRATION AND IMMI- 

GRANT RIGHTS AND FIGHT FOR EQUALITY 
 BY ANY MEANS NECESSARY (BAMN), ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE SIXTH CIRCUIT

[April 22, 2014] 

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment.
It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (SCALIA, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.
Even taking this Court’s sorry line of race-basedadmissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits? React-

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SCALIA, J., concurring in judgment
ing to those race-based-admissions decisions, some States—whether deterred by the prospect of costly litigation; aware that Grutter’s bell may soon toll, see 539 U. S., at 343; or simply opposed in principle to the notion of “benign” racial discrimination—have gotten out of the racial-preferences business altogether. And with our express encouragement: “Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaging in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these raceneutral alternatives as they develop.” Id., at 342 (emphasis added). Respondents seem to think this admonition was merely in jest.1 The experiment, they maintain, is not only over; it never rightly began. Neither the people of the States nor their legislatures ever had the option of directing subordinate public-university officials to cease considering the race of applicants, since that would deny members of those minority groups the option of enacting a policy designed to further their interest, thus denying them the equal protection of the laws. Never mind that it is hotly disputed whether the practice of race-based admissions is ever in a racial minority’s interest. Cf. id., at 371–373 (THOMAS, J., concurring in part and dissenting in part). And never mind that, were a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional. See id., at 322–325.
But the battleground for this case is not the constitu-

——————
1 For simplicity’s sake, I use “respondent” or “respondents” throughout the opinion to describe only those parties who are adverse to petitioner, not Eric Russell, a respondent who supports petitioner.

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tionality of race-based admissions—at least, not quite. Rather, it is the so-called political-process doctrine, derived from this Court’s opinions in Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), and Hunter v. Erickson, 393 U. S. 385 (1969). I agree with those parts of the plurality opinion that repudiate this doctrine. But I do not agree with its reinterpretation of Seattle and Hunter, which makes them stand in part for the cloudy and doctrinally anomalous proposition that whenever state action poses “the serious risk . . . of causing specific injuries on account of race,” it denies equal protection. Ante, at 9. I would instead reaffirm that the “ordinary principles of our law [and] of our democratic heritage” require “plaintiffs alleging equal protection violations” stemming from facially neutral acts to “prove intent and causation and not merely the existence of racial disparity.” Freeman v. Pitts, 503 U. S. 467, 506 (1992) (SCALIA, J., concurring) (citing Washington v. Davis, 426 U. S. 229 (1976)). I would further hold that a law directing state actors to provide equal protection is (to say the least) facially neutral, and cannot violate the Constitution. Section 26 of the Michigan Constitution (formerly Proposal 2) rightly stands.
I 
 A 

The political-process doctrine has its roots in two of our cases. The first is Hunter. In 1964, the Akron City Council passed a fair-housing ordinance “ ‘assur[ing] equal opportunity to all persons to live in decent housing facilities regardless of race, color, religion, ancestry or national origin.’ ” 393 U. S., at 386. Soon after, the city’s voters passed an amendment to the Akron City Charter stating that any ordinance enacted by the council that “ ‘regulates’ ” commercial transactions in real property “ ‘on the basis of race, color, religion, national origin or ancestry’ ”— including the already enacted 1964 ordinance—“must first

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SCALIA, J., concurring in judgment
be approved by a majority of the electors voting on the question” at a later referendum. Id., at 387. The question was whether the charter amendment denied equal protection. Answering yes, the Court explained that “although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law’s impact falls on the minority. The majority needs no protection against discrimination.” Id., at 391. By placing a “special burden on racial minorities within the governmental processes,” the amendment “disadvantage[d]” a racial minority “by making it more difficult to enact legislation in its behalf.” Id., at 391, 393.
The reasoning in Seattle is of a piece. Resolving to “eliminate all [racial] imbalance from the Seattle public schools,” the city school board passed a mandatory busing and pupil-reassignment plan of the sort typically imposed on districts guilty of de jure segregation. 458 U. S., at 460–461. A year later, the citizens of the State of Washington passed Initiative 350, which directed (with exceptions) that “ ‘no school . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student’s place of residence . . . and which offers the course of study pursued by such student,’ ” permitting only courtordered race-based busing. Id., at 462. The lower courts held Initiative 350 unconstitutional, and we affirmed, announcing in the prelude of our analysis—as though it were beyond debate—that the Equal Protection Clause forbade laws that “subtly distor[t] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Id., at 467.
The first question in Seattle was whether the subject matter of Initiative 350 was a “ ‘racial’ issue,” triggering Hunter and its process doctrine. 458 U. S., at 471–472. It was “undoubtedly. . . true” that whites and blacks were

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“counted among both the supporters and the opponents of Initiative 350.” Id., at 472. It was “equally clear” that both white and black children benefited from desegregated schools. Ibid. Nonetheless, we concluded that desegregation “inures primarily to the benefit of the minority, and is designed for that purpose.” Ibid. (emphasis added). In any event, it was “enough that minorities may consider busing for integration to be ‘legislation that is in their interest.’ ” Id., at 474 (quoting Hunter, supra, at 395 (Harlan, J., concurring)).
So we proceeded to the heart of the political-process analysis. We held Initiative 350 unconstitutional, since it removed “the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests.” Seattle, 458 U. S., at 474. Although school boards in Washington retained authority over other studentassignment issues and over most matters of educational policy generally, under Initiative 350, minorities favoring race-based busing would have to “surmount a considerably higher hurdle” than the mere petitioning of a local assembly: They “now must seek relief from the state legislature, or from the statewide electorate,” a “different level of government.” Ibid.
The relentless logic of Hunter and Seattle would point to a similar conclusion in this case. In those cases, one level of government exercised borrowed authority over an apparently “racial issue,” until a higher level of government called the loan. So too here. In those cases, we deemed the revocation an equal-protection violation regardless of whether it facially classified according to race or reflected an invidious purpose to discriminate. Here, the Court of Appeals did the same.
The plurality sees it differently. Though it, too, disavows the political-process-doctrine basis on which Hunter and Seattle were decided, ante, at 10–14, it does not take

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the next step of overruling those cases. Rather, it reinterprets them beyond recognition. Hunter, the plurality suggests, was a case in which the challenged act had “target[ed] racial minorities.” Ante, at 8. Maybe, but the Hunter Court neither found that to be so nor considered it relevant, bypassing the question of intent entirely, satisfied that its newly minted political-process theory sufficed to invalidate the charter amendment.
As for Seattle, what was really going on, according to the plurality, was that Initiative 350 had the consequence (if not the purpose) of preserving the harms effected by prior de jure segregation. Thus, “the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race.” Ante, at 17. That conclusion is derived not from the opinion but from recently discovered evidence that the city of Seattle had been a cause of its schools’ racial imbalance all along: “Although there had been no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies.” Ante, at 9.2 That the district’s effort to end racial imbalance had been stymied by Initiative 350 meant that the people, by passing it, somehow had become complicit in Seattle’s equal-protection-denying status quo, whether they knew it or not. Hence, there was in Seattle a government-furthered “infliction of a

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2 The plurality cites evidence from JUSTICE BREYER’s dissent in Par­ ents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007), to suggest that the city had been a “partial” cause of its segregation problem. Ante, at 9. The plurality in Parents Involved criticized that dissent for relying on irrelevant evidence, for “elid[ing the] distinction between de jure and de facto segregation,” and for “casually intimat[ing] that Seattle’s school attendance patterns reflect[ed] illegal segregation.” 551 U. S., at 736–737, and n. 15. Today’s plurality sides with the dissent and repeats its errors.

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specific”—and, presumably, constitutional—“injury.” Ante, at 14.
Once again this describes what our opinion in Seattle might have been, but assuredly not what it was. The opinion assumes throughout that Seattle’s schools suffered at most from de facto segregation, see, e.g., 458 U. S., at 474, 475—that is, segregation not the “product . . . of state action but of private choices,” having no “constitutional implications,” Freeman, 503 U. S., at 495–496. Nor did it anywhere state that the current racial imbalance was the (judicially remediable) effect of prior de jure segregation. Absence of de jure segregation or the effects of de jure segregation was a necessary premise of the Seattle opinion. That is what made the issue of busing and pupil reassignment a matter of political choice rather than judicial mandate.3 And precisely because it was a question for the political branches to decide, the manner—which is to say, the process—of its resolution implicated the Court’s new process theory. The opinion itself says this: “[I]n the absence of a constitutional violation, the desirability and efficacy of school desegregation are matters to be resolved through the political process. For present purposes, it is enough [to hold reallocation of that political decision to a higher level unconstitutional] that minorities may consider busing for integration to be legislation that is in their interest.” 458 U. S., at 474 (internal quotation marks omitted).
B
Patently atextual, unadministrable, and contrary to our traditional equal-protection jurisprudence, Hunter and
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3 Or so the Court assumed. See 458 U. S., at 472, n. 15 (“Appellants and the United States do not challenge the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation. We therefore do not specifically pass on that issue”).

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Seattle should be overruled. The problems with the political-process doctrine begin
with its triggering prong, which assigns to a court the task of determining whether a law that reallocates policymaking authority concerns a “racial issue.” Seattle, 458 U. S., at 473. Seattle takes a couple of dissatisfying cracks at defining this crucial term. It suggests that an issue is racial if adopting one position on the question would “at bottom inur[e] primarily to the benefit of the minority, and is designed for that purpose.” Id., at 472. It is irrelevant that, as in Hunter and Seattle, 458 U. S., at 472, both the racial minority and the racial majority benefit from the policy in question, and members of both groups favor it. Judges should instead focus their guesswork on their own juridical sense of what is primarily for the benefit of minorities. Cf. ibid. (regarding as dispositive what “our cases” suggest is beneficial to minorities). On second thought, maybe judges need only ask this question: Is it possible “that minorities may consider” the policy in question to be “in their interest”? Id., at 474. If so, you can be sure that you are dealing with a “racial issue.”4
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4 The dissent’s version of this test is just as scattershot. Since, according to the dissent, the doctrine forbids “reconfigur[ing] the political process in a manner that burdens only a racial minority,” post, at 5 (opinion of SOTOMAYOR, J.) (emphasis added), it must be that the reason the underlying issue (that is, the issue concerning which the process has been reconfigured) is “racial” is that the policy in question benefits only a racial minority (if it also benefited persons not belonging to a racial majority, then the political-process reconfiguration would burden them as well). On second thought: The issue is “racial” if the policy benefits primarily a racial minority and “ ‘[is] designed for that purpose,’ ” post, at 44. This is the standard Seattle purported to apply. But under that standard, §26 does not affect a “racial issue,” because under Grutter v. Bollinger, 539 U. S. 306 (2003), race-based admissions policies may not constitutionally be “designed for [the] purpose,” Seattle, supra, at 472, of benefiting primarily racial minorities, but must be designed for the purpose of achieving educational benefits for students of all races, Grutter, supra, at 322–325. So the dissent must

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No good can come of such random judicial musing. The plurality gives two convincing reasons why. For one thing, it involves judges in the dirty business of dividing the Nation “into racial blocs,” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 603, 610 (1990) (O’Connor, J., dissenting); ante, at 11–13. That task is as difficult as it is unappealing. (Does a half-Latino, half–American Indian have Latino interests, American-Indian interests, both, half of both?5) What is worse, the exercise promotes the noxious fiction that, knowing only a person’s color or ethnicity, we can be sure that he has a predetermined set of policy “interests,” thus “reinforc[ing] the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, [and] share the same political interests.”6 Shaw v. Reno, 509 U. S. 630, 647 (1993). Whether done by a judge or a school board, such “racial stereotyping [is] at odds with equal protection mandates.” Miller v. Johnson, 515 U. S. 900, 920 (1995).
But that is not the “racial issue” prong’s only defect. More fundamentally, it misreads the Equal Protection Clause to protect “particular group[s],” a construction that we have tirelessly repudiated in a “long line of cases understanding equal protection as a personal right.”
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mean that an issue is “racial” so long as the policy in question has the incidental effect (an effect not flowing from its design) of benefiting primarily racial minorities.
5 And how many members of a particular racial group must take the same position on an issue before we suppose that the position is in the entire group’s interest? Not every member, the dissent suggests, post, at 44. Beyond that, who knows? Five percent? Eighty-five percent?
6 The dissent proves my point. After asserting—without citation, though I and many others of all races deny it—that it is “common-sense reality” that affirmative action benefits racial minorities, post, at 16, the dissent suggests throughout, e.g., post, at 30, that that view of “reality” is so necessarily shared by members of racial minorities that they must favor affirmative action.

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Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224, 230 (1995). It is a “basic principle that the Fifth and Fourteenth Amendments to the Constitution protect per­ sons, not groups.” Id., at 227; Metro Broadcasting, supra, at 636 (KENNEDY, J., dissenting).7 Yet Seattle insists that only those political-process alterations that burden racial minorities deny equal protection. “The majority,” after all, “needs no protection against discrimination.” 458 U. S., at 468 (quoting Hunter, 393 U. S., at 391). In the years since Seattle, we have repeatedly rejected “a reading of the guarantee of equal protection under which the level of scrutiny varies according to the ability of different groups to defend their interests in the representative process.” Richmond v. J. A. Croson Co., 488 U. S. 469, 495 (1989). Meant to obliterate rather than endorse the practice of racial classifications, the Fourteenth Amendment’s guarantees “obtai[n] with equal force regardless of ‘the race of those burdened or benefited.’ ” Miller, supra, at 904 (quoting Croson, supra, at 494 (plurality opinion)); Adarand, supra, at 223, 227. The Equal Protection Clause “cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection it is not equal.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 289–290 (1978) (opinion of Powell, J.).
The dissent trots out the old saw, derived from dictum in a footnote, that legislation motivated by “ ‘prejudice

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7 The dissent contends, post, at 39, that this point “ignores the obvious: Discrimination against an individual occurs because of that individual’s membership in a particular group.” No, I do not ignore the obvious; it is the dissent that misses the point. Of course discrimination against a group constitutes discrimination against each member of that group. But since it is persons and not groups that are protected, one cannot say, as the dissent would, that the Constitution prohibits discrimination against minority groups, but not against majority groups.

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against discrete and insular minorities’ ” merits “ ‘more exacting judicial scrutiny.’ ” Post, at 31 (quoting United States v. Carolene Products, 304 U. S. 144, 152–153, n. 4). I say derived from that dictum (expressed by the fourJustice majority of a seven-Justice Court) because the dictum itself merely said “[n]or need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition,” id., at 153, n. 4 (emphasis added). The dissent does not argue, of course, that such “prejudice” produced §26. Nor does it explain why certain racial minorities in Michigan qualify as “ ‘insular,’ ” meaning that “other groups will not form coalitions with them— and, critically, not because of lack of common interests but because of ‘prejudice.’ ” Strauss, Is Carolene Products Obsolete? 2010 U. Ill. L. Rev. 1251, 1257. Nor does it even make the case that a group’s “discreteness” and “insularity” are political liabilities rather than political strengths8—a serious question that alone demonstrates the prudence of the Carolene Products dictumizers in leaving the “enquir[y]” for another day. As for the question whether “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation . . . is to be subjected to more exacting judicial scrutiny,” the Carolene Products Court found it “unnecessary to consider [that] now.” 304 U. S., at 152, n. 4. If the dissent thinks that worth considering today, it should explain why the election of a university’s governing board is a “political process which can
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8 Cf., e.g., Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 723–724 (1985) (“Other things being equal, ‘discreteness and insularity’ will normally be a source of enormous bargaining advantage, not disadvantage, for a group engaged in pluralist American politics. Except for special cases, the concerns that underlie Carolene should lead judges to protect groups that possess the opposite characteristic from the ones Carolene emphasizes—groups that are ‘anonymous and diffuse’ rather than ‘discrete and insular’ ”).

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ordinarily be expected to bring about repeal of undesirable legislation,” but Michigan voters’ ability to amend their Constitution is not. It seems to me quite the opposite. Amending the Constitution requires the approval of only “a majority of the electors voting on the question.” Mich. Const., Art. XII, §2. By contrast, voting in a favorable board (each of which has eight members) at the three major public universities requires electing by majority vote at least 15 different candidates, several of whom would be running during different election cycles. See BAMN v. Regents of Univ. of Mich., 701 F. 3d 466, 508 (CA6 2012) (Sutton, J., dissenting). So if Michigan voters, instead of amending their Constitution, had pursued the dissent’s preferred path of electing board members promising to “abolish race-sensitive admissions policies,” post, at 3, it would have been harder, not easier, for racial minorities favoring affirmative action to overturn that decision. But the more important point is that we should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion.
C
Moving from the appalling to the absurd, I turn now to the second part of the Hunter-Seattle analysis—which is apparently no more administrable than the first, compare post, at 4–6 (BREYER, J., concurring in judgment) (“This case . . . does not involve a reordering of the political process”), with post, at 25–29 (SOTOMAYOR, J., dissenting) (yes, it does). This part of the inquiry directs a court to determine whether the challenged act “place[s] effective decisionmaking authority over [the] racial issue at a different level of government.” Seattle, 458 U. S., at 474. The laws in both Hunter and Seattle were thought to fail this test. In both cases, “the effect of the challenged action was to redraw decisionmaking authority over racial matters—and only over racial matters—in such a way as

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to place comparative burdens on minorities.” 458 U. S., at 475, n. 17. This, we said, a State may not do.
By contrast, in another line of cases, we have emphasized the near-limitless sovereignty of each State to design its governing structure as it sees fit. Generally, “a State is afforded wide leeway when experimenting with the appropriate allocation of state legislative power” and may create “political subdivisions such as cities and counties . . . ‘as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them.’ ” Holt Civic Club v. Tuscaloosa, 439 U. S. 60, 71 (1978) (quoting Hunter v. Pittsburgh, 207 U. S. 161, 178 (1907)). Accordingly, States have “absolute discretion” to determine the “number, nature and duration of the powers conferred upon [municipal] corporations and the territory over which they shall be exercised.” Holt Civic Club, supra, at 71. So it would seem to go without saying that a State may give certain powers to cities, later assign the same powers to counties, and even reclaim them for itself.
Taken to the limits of its logic, Hunter-Seattle is the gaping exception that nearly swallows the rule of structural state sovereignty. If indeed the Fourteenth Amendment forbids States to “place effective decisionmaking authority over” racial issues at “different level[s] of government,” then it must be true that the Amendment’s ratification in 1868 worked a partial ossification of each State’s governing structure, rendering basically irrevocable the power of any subordinate state official who, the day before the Fourteenth Amendment’s passage, happened to enjoy legislatively conferred authority over a “racial issue.” Under the Fourteenth Amendment, that subordinate entity (suppose it is a city council) could itself take action on the issue, action either favorable or unfavorable to minorities. It could even reverse itself later. What it could not do, however, is redelegate its power to an even lower level of state government (such as a city-

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council committee) without forfeiting it, since the necessary effect of wresting it back would be to put an additional obstacle in the path of minorities. Likewise, no entity or official higher up the state chain (e.g., a county board) could exercise authority over the issue. Nor, even, could the state legislature, or the people by constitutional amendment, revoke the legislative conferral of power to the subordinate, whether the city council, its subcommittee, or the county board. Seattle’s logic would create affirmative-action safe havens wherever subordinate officials in public universities (1) traditionally have enjoyed “effective decisionmaking authority” over admissions policy but (2) have not yet used that authority to prohibit race-conscious admissions decisions. The mere existence of a subordinate’s discretion over the matter would work a kind of reverse pre-emption. It is “a strange notion—alien to our system—that local governmental bodies can forever pre-empt the ability of a State—the sovereign power—to address a matter of compelling concern to the State.” 458 U. S., at 495 (Powell, J., dissenting). But that is precisely what the political-process doctrine contemplates.
Perhaps the spirit of Seattle is especially disquieted by enactments of constitutional amendments. That appears to be the dissent’s position. The problem with §26, it suggests, is that amending Michigan’s Constitution is simply not a part of that State’s “existing” political process. E.g., post, at 4, 41. What a peculiar notion: that a revision of a State’s fundamental law, made in precisely the manner that law prescribes, by the very people who are the source of that law’s authority, is not part of the “political process” which, but for those people and that law, would not exist. This will surely come as news to the people of Michigan, who, since 1914, have amended their Constitution 20 times. Brief for Gary Segura et al. as Amici Curiae 12. Even so, the dissent concludes that the amendment attacked here worked an illicit “chang[ing]

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[of ] the basic rules of the political process in that State” in “the middle of the game.” Post, at 2, 4. Why, one might ask, is not the amendment provision of the Michigan Constitution one (perhaps the most basic one) of the rules of the State’s political process? And why does democratic invocation of that provision not qualify as working through the “existing political process,” post, at 41?9
II
I part ways with Hunter, Seattle, and (I think) the plurality for an additional reason: Each endorses a version of the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact. Few equal-protection theories have been so squarely and soundly rejected. “An unwavering line of cases from this Court holds that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent,” Hernandez v. New York, 500 U. S. 352, 372–373 (1991) (O’Connor, J., concurring in judgment), and that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact,” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 264–265 (1977). Indeed, we affirmed this principle the same day we decided Seattle: “[E]ven when a neutral law has a disproportionately adverse effect on a racial minority, the Fourteenth Amendment is violated only if a discriminatory purpose can be shown.” Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527, 537–538
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9 The dissent thinks I do not understand its argument. Only when amending Michigan’s Constitution violates Hunter-Seattle, it says, is that constitutionally prescribed activity necessarily not part of the State’s existing political process. Post, at 21, n. 7. I understand the argument quite well; and see quite well that it begs the question. Why is Michigan’s action here unconstitutional? Because it violates HunterSeattle. And why does it violate Hunter-Seattle? Because it is not part of the State’s existing political process. And why is it not part of the State’s existing political process? Because it violates Hunter-Seattle.

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(1982). Notwithstanding our dozens of cases confirming the
exception-less nature of the Washington v. Davis rule, the plurality opinion leaves ajar an effects-test escape hatch modeled after Hunter and Seattle, suggesting that state action denies equal protection when it “ha[s] the serious risk, if not purpose, of causing specific injuries on account of race,” or is either “designed to be used, or . . . likely to be used, to encourage infliction of injury by reason of race.” Ante, at 9, 17 (emphasis added). Since these formulations enable a determination of an equal-protection violation where there is no discriminatory intent, they are inconsistent with the long Washington v. Davis line of cases.10
Respondents argue that we need not bother with the discriminatory-purpose test, since §26 may be struck more straightforwardly as a racial “classification.” Admitting (as they must) that §26 does not on its face “distribut[e] burdens or benefits on the basis of individual racial classifications,” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007), respondents rely on Seattle’s statement that “when the political process or the decisionmaking mechanism used to address racially conscious legislation—and only such legislation—is singled out for peculiar and disadvantageous treatment,” then that “singling out” is a racial classification. 458 U. S., at 485, 486, n. 30. But this is just the political-process theory bedecked in different doctrinal

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10 According to the dissent, Hunter-Seattle fills an important doctrinal gap left open by Washington v. Davis, since Hunter-Seattle’s rule— unique among equal-protection principles—makes clear that “the majority” may not alter a political process with the goal of “prevent[ing] minority groups from partaking in that process on equal footing.” Post, at 33. Nonsense. There is no gap. To “manipulate the ground rules,” post, at 34, or to “ri[g] the contest,” post, at 35, in order to harm persons because of their race is to deny equal protection under Washington v. Davis.

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dress. A law that “neither says nor implies that persons are to be treated differently on account of their race” is not a racial classification. Crawford, supra, at 537. That is particularly true of statutes mandating equal treatment. “[A] law that prohibits the State from classifying individuals by race . . . a fortiori does not classify individuals by race.” Coalition for Economic Equity v. Wilson, 122 F. 3d 692, 702 (CA9 1997) (O’Scannlain, J.).
Thus, the question in this case, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the action reflects a racially discriminatory purpose. Seattle stresses that “singling out the political processes affecting racial issues for uniquely disadvantageous treatment inevitably raises dangers of impermissible motivation.” 458 U. S., at 486, n. 30. True enough, but that motivation must be proved. And respondents do not have a prayer of proving it here. The District Court noted that, under “conventional equal protection” doctrine, the suit was “doom[ed].” 539 F. Supp. 2d 924, 951 (ED Mich. 2008). Though the Court of Appeals did not opine on this question, I would not leave it for them on remand. In my view, any law expressly requiring state actors to afford all persons equal protection of the laws (such as Initiative 350 in Seattle, though not the charter amendment in Hunter) does not—cannot— deny “to any person . . . equal protection of the laws,” U. S. Const., Amdt. 14, §1, regardless of whatever evidence of seemingly foul purposes plaintiffs may cook up in the trial court.
* * *
As Justice Harlan observed over a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would

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be shameful for us to stand in their way.11

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11 And doubly shameful to equate “the majority” behind §26 with “the majority” responsible for Jim Crow. Post, at 1–2 (SOTOMAYOR, J., dissenting).

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BREYER, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–682
_________________
BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-
 GAN, PETITIONER v. COALITION TO DEFEND AF- 
 FIRMATIVE ACTION, INTEGRATION AND IMMI- 

GRANT RIGHTS AND FIGHT FOR EQUALITY 
 BY ANY MEANS NECESSARY (BAMN), ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE SIXTH CIRCUIT

[April 22, 2014]

JUSTICE BREYER, concurring in the judgment.
Michigan has amended its Constitution to forbid state universities and colleges to “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.” Mich. Const., Art. I, §26. We here focus on the prohibition of “grant[ing] . . . preferential treatment . . . on the basis of race . . . in . . . public education.” I agree with the plurality that the amendment is consistent with the Federal Equal Protection Clause. U. S. Const., Amdt. 14. But I believe this for different reasons.
First, we do not address the amendment insofar as it forbids the use of race-conscious admissions programs designed to remedy past exclusionary racial discrimination or the direct effects of that discrimination. Application of the amendment in that context would present different questions which may demand different answers. Rather, we here address the amendment only as it applies to, and forbids, programs that, as in Grutter v. Bollinger, 539 U. S. 306 (2003), rest upon “one justification”: using

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“race in the admissions process” solely in order to “obtai[n] the educational benefits that flow from a diverse student body,” id., at 328 (internal quotation marks omitted).
Second, dissenting in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007), I explained why I believe race-conscious programs of this kind are constitutional, whether implemented by law schools, universities, high schools, or elementary schools. I concluded that the Constitution does not “authorize judges” either to forbid or to require the adoption of diversity-seeking race-conscious “solutions” (of the kind at issue here) to such serious problems as “how best to administer America’s schools” to help “create a society that includes all Americans.” Id., at 862.
I continue to believe that the Constitution permits, though it does not require, the use of the kind of raceconscious programs that are now barred by the Michigan Constitution. The serious educational problems that faced Americans at the time this Court decided Grutter endure. See, e.g., I. Mullis, M. Martin, P. Foy, & K. Drucker, Progress in International Reading Literacy Study, 2011 International Results in Reading 38, Exh. 1.1 (2012) (elementary-school students in numerous other countries outperform their counterparts in the United States in reading); I. Mullis, M. Martin, P. Foy, & A. Arora, Trends in International Mathematics and Science Study (TIMSS), 2011 International Results in Mathematics 40, Exh. 1.1 (2012) (same in mathematics); M. Martin, I. Mullis, P. Foy, & G. Stanco, TIMSS, 2011 International Results in Science, 38, Exh. 1.1 (2012) (same in science); Organisation of Economic Co-operation Development (OECD), Education at a Glance 2013: OECD Indicators 50 (Table A2.1a) (secondary-school graduation rate lower in the United States than in numerous other countries); McKinsey & Co., The Economic Impact of the Achievement Gap in America’s Schools 8 (Apr. 2009) (same; United States

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ranks 18th of 24 industrialized nations). And low educational achievement continues to be correlated with income and race. See, e.g., National Center for Education Statistics, Digest of Education Statistics, Advance Release of Selected 2013 Digest Tables (Table 104.20) (White Americans more likely to have completed high school than African-Americans or Hispanic-Americans), online at http://nces.ed.gov/programs/digest (as visited Apr. 15, 2014, and available in Clerk of Court’s case file); id., Table 219.75 (Americans in bottom quartile of income most likely to drop out of high school); id., Table 302.60 (White Americans more likely to enroll in college than AfricanAmericans or Hispanic-Americans); id., Table 302.30 (middle- and high-income Americans more likely to enroll in college than low-income Americans).
The Constitution allows local, state, and national communities to adopt narrowly tailored race-conscious programs designed to bring about greater inclusion and diversity. But the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs. Compare Parents Involved, 551 U. S., at 839 (BREYER, J., dissenting) (identifying studies showing the benefits of racially integrated education), with id., at 761–763 (THOMAS, J., concurring) (identifying studies suggesting racially integrated schools may not confer educational benefits). In short, the “Constitution creates a democratic political system through which the people themselves must together find answers” to disagreements of this kind. Id., at 862 (BREYER, J., dissenting).
Third, cases such as Hunter v. Erickson, 393 U. S. 385 (1969), and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), reflect an important principle, namely, that an individual’s ability to participate meaningfully in the political process should be independent of his race. Although racial minorities, like other political minorities,

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will not always succeed at the polls, they must have the same opportunity as others to secure through the ballot box policies that reflect their preferences. In my view, however, neither Hunter nor Seattle applies here. And the parties do not here suggest that the amendment violates the Equal Protection Clause if not under the HunterSeattle doctrine.
Hunter and Seattle involved efforts to manipulate the political process in a way not here at issue. Both cases involved a restructuring of the political process that changed the political level at which policies were enacted. In Hunter, decisionmaking was moved from the elected city council to the local electorate at large. 393 U. S., at 389–390. And in Seattle, decisionmaking by an elected school board was replaced with decisionmaking by the state legislature and electorate at large. 458 U. S., at 466.
This case, in contrast, does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another. Rather, here, Michigan law delegated broad policymaking authority to elected university boards, see Mich. Const., Art. VIII, §5, but those boards delegated admissionsrelated decisionmaking authority to unelected university faculty members and administrators, see, e.g., Bylaws of Univ. of Mich. Bd. of Regents §8.01; Mich. State Univ. Bylaws of Bd. of Trustees, Preamble; Mich. State Univ. Bylaws for Academic Governance §4.4.3; Wayne State Univ. Stat. §§2–34–09, 2–34–12. Although the boards unquestionably retained the power to set policy regarding race-conscious admissions, see post, at 25–29 (SOTOMAYOR, J., dissenting), in fact faculty members and administrators set the race-conscious admissions policies in question. (It is often true that elected bodies— including, for example, school boards, city councils, and state legislatures—have the power to enact policies, but in fact delegate that power to administrators.) Although at

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limited times the university boards were advised of the content of their race-conscious admissions policies, see 701 F. 3d 466, 481–482 (CA6 2012), to my knowledge no board voted to accept or reject any of those policies. Thus, unelected faculty members and administrators, not voters or their elected representatives, adopted the race-conscious admissions programs affected by Michigan’s constitutional amendment. The amendment took decisionmaking authority away from these unelected actors and placed it in the hands of the voters.
Why does this matter? For one thing, considered conceptually, the doctrine set forth in Hunter and Seattle does not easily fit this case. In those cases minorities had participated in the political process and they had won. The majority’s subsequent reordering of the political process repealed the minority’s successes and made it more difficult for the minority to succeed in the future. The majority thereby diminished the minority’s ability to participate meaningfully in the electoral process. But one cannot as easily characterize the movement of the decisionmaking mechanism at issue here—from an administrative process to an electoral process—as diminishing the minority’s ability to participate meaningfully in the political process. There is no prior electoral process in which the minority participated.
For another thing, to extend the holding of Hunter and Seattle to reach situations in which decisionmaking authority is moved from an administrative body to a political one would pose significant difficulties. The administrative process encompasses vast numbers of decisionmakers answering numerous policy questions in hosts of different fields. See Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, ___ (2010) (BREYER, J., dissenting). Administrative bodies modify programs in detail, and decisionmaking authority within the administrative process frequently moves around—due to amend-

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ments to statutes, new administrative rules, and evolving agency practice. It is thus particularly difficult in this context for judges to determine when a change in the locus of decisionmaking authority places a comparative structural burden on a racial minority. And to apply Hunter and Seattle to the administrative process would, by tending to hinder change, risk discouraging experimentation, interfering with efforts to see when and how raceconscious policies work.
Finally, the principle that underlies Hunter and Seattle runs up against a competing principle, discussed above. This competing principle favors decisionmaking through the democratic process. Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.
As I have said, my discussion here is limited to circumstances in which decisionmaking is moved from an unelected administrative body to a politically responsive one, and in which the targeted race-conscious admissions programs consider race solely in order to obtain the educational benefits of a diverse student body. We need now decide no more than whether the Federal Constitution permits Michigan to apply its constitutional amendment in those circumstances. I would hold that it does. Therefore, I concur in the judgment of the Court.

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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–682
_________________
BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-
 GAN, PETITIONER v. COALITION TO DEFEND AF- 
 FIRMATIVE ACTION, INTEGRATION AND IMMI- 

GRANT RIGHTS AND FIGHT FOR EQUALITY 
 BY ANY MEANS NECESSARY (BAMN), ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE SIXTH CIRCUIT

[April 22, 2014] 

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting.
We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there. Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in selfgovernment. That right is the bedrock of our democracy, for it preserves all other rights.
Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process. At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities out of the political process altogether by withholding the right to

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vote. This Court intervened to preserve that right. The majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too. The majority persisted. This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration. Although these political restructurings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally in the political process.
This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.1 Prior to the enactment of the constitutional initiative at issue here, all of the admissions policies of Michigan’s public colleges and universities—including race-sensitive admissions policies2—were in the hands of each institution’s governing
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1 I of course do not mean to suggest that Michigan’s voters acted with anything like the invidious intent, see n. 8, infra, of those who historically stymied the rights of racial minorities. Contra, ante, at 18, n. 11 (SCALIA, J., concurring in judgment). But like earlier chapters of political restructuring, the Michigan amendment at issue in this case changed the rules of the political process to the disadvantage of minority members of our society.
2 Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.” Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone—for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a “points” system, whereby an institution accords a fixed numerical advantage to an applicant because of her race; or the admission of otherwise unquali-

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board. The members of those boards are nominated by political parties and elected by the citizenry in statewide elections. After over a century of being shut out of Michigan’s institutions of higher education, racial minorities in Michigan had succeeded in persuading the elected board representatives to adopt admissions policies that took into account the benefits of racial diversity. And this Court twice blessed such efforts—first in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), and again in Grutter v. Bollinger, 539 U. S. 306 (2003), a case that itself concerned a Michigan admissions policy.
In the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive admissions policies. Those voters were of course free to pursue this end in any number of ways. For example, they could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through general public awareness campaigns. Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies. When this Court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s

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fied students to an institution solely on account of their race. None of this is an accurate description of the practices that public universities are permitted to adopt after this Court’s decision in Grutter v. Bol­ linger, 539 U. S. 306 (2003). There, we instructed that institutions of higher education could consider race in admissions in only a very limited way in an effort to create a diverse student body. To comport with Grutter, colleges and universities must use race flexibly, id., at 334, and must not maintain a quota, ibid. And even this limited sensitivity to race must be limited in time, id., at 341–343, and must be employed only after “serious, good faith consideration of workable raceneutral alternatives,” id., at 339. Grutter-compliant admissions plans, like the ones in place at Michigan’s institutions, are thus a far cry from affirmative action plans that confer preferential treatment intentionally and solely on the basis of race.

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voters from choosing not to adopt that policy. Our system of government encourages—and indeed, depends on—that type of democratic action.
But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities. They did so in the 2006 election by amending the Michigan Constitution to enact Art. I, §26, which provides in relevant part that Michigan’s public universities “shall 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 a result of §26, there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant’s legacy status by meeting individually with members of the Board of Regents to convince them of her views, by joining with other legacy parents to lobby the Board, or by voting for and supporting Board candidates who share her position. The same options are available to a citizen who wants the Board to adopt admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State Constitution.
Our precedents do not permit political restructurings

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that create one process for racial minorities and a separate, less burdensome process for everyone else. This Court has held that the Fourteenth Amendment does not tolerate “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Wash­ ington v. Seattle School Dist. No. 1, 458 U. S. 457, 467 (1982) (internal quotation marks omitted). Such restructuring, the Court explained, “is no more permissible than denying [the minority] the [right to] vote, on an equal basis with others.” Hunter v. Erickson, 393 U. S. 385, 391 (1969). In those cases—Hunter and Seattle—the Court recognized what is now known as the “political-process doctrine”: When the majority reconfigures the political process in a manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.
Today, disregarding stare decisis, a majority of the Court effectively discards those precedents. The plurality does so, it tells us, because the freedom actually secured by the Constitution is the freedom of self-government— because the majority of Michigan citizens “exercised their privilege to enact laws as a basic exercise of their democratic power.” Ante, at 15. It would be “demeaning to the democratic process,” the plurality concludes, to disturb that decision in any way. Ante, at 17. This logic embraces majority rule without an important constitutional limit.
The plurality’s decision fundamentally misunderstands the nature of the injustice worked by §26. This case is not, as the plurality imagines, about “who may resolve” the debate over the use of race in higher education admissions. Ante, at 18. I agree wholeheartedly that nothing vests the resolution of that debate exclusively in the courts or requires that we remove it from the reach of the electorate. Rather, this case is about how the debate over the use of race-sensitive admissions policies may be resolved,

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contra, ibid.—that is, it must be resolved in constitutionally permissible ways. While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures. Today, by permitting a majority of the voters in Michigan to do what our Constitution forbids, the Court ends the debate over race-sensitive admissions policies in Michigan in a manner that contravenes constitutional protections long recognized in our precedents.
Like the plurality, I have faith that our citizenry will continue to learn from this Nation’s regrettable history; that it will strive to move beyond those injustices towards a future of equality. And I, too, believe in the importance of public discourse on matters of public policy. But I part ways with the plurality when it suggests that judicial intervention in this case “impede[s]” rather than “advance[s]” the democratic process and the ultimate hope of equality. Ante, at 16. I firmly believe that our role as judges includes policing the process of self-government and stepping in when necessary to secure the constitutional guarantee of equal protection. Because I would do so here, I respectfully dissent.
I
For much of its history, our Nation has denied to many of its citizens the right to participate meaningfully and equally in its politics. This is a history we strive to put behind us. But it is a history that still informs the society we live in, and so it is one we must address with candor. Because the political-process doctrine is best understood against the backdrop of this history, I will briefly trace its

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course. The Fifteenth Amendment, ratified after the Civil War,
promised to racial minorities the right to vote. But many States ignored this promise. In addition to outright tactics of fraud, intimidation, and violence, there are countless examples of States categorically denying to racial minorities access to the political process. Consider Texas; there, a 1923 statute prevented racial minorities from participating in primary elections. After this Court declared that statute unconstitutional, Nixon v. Herndon, 273 U. S. 536, 540–541 (1927), Texas responded by changing the rules. It enacted a new statute that gave political parties themselves the right to determine who could participate in their primaries. Predictably, the Democratic Party specified that only white Democrats could participate in its primaries. Nixon v. Condon, 286 U. S. 73, 81–82 (1932). The Court invalidated that scheme, too. Id., at 89; see also Smith v. Allwright, 321 U. S. 649 (1944); Terry v. Adams, 345 U. S. 461 (1953).
Some States were less direct. Oklahoma was one of many that required all voters to pass a literacy test. But the test did not apply equally to all voters. Under a “grandfather clause,” voters were exempt if their grandfathers had been voters or had served as soldiers before 1866. This meant, of course, that black voters had to pass the test, but many white voters did not. The Court held the scheme unconstitutional. Guinn v. United States, 238 U. S. 347 (1915). In response, Oklahoma changed the rules. It enacted a new statute under which all voters who were qualified to vote in 1914 (under the unconstitutional grandfather clause) remained qualified, and the remaining voters had to apply for registration within a 12-day period. Lane v. Wilson, 307 U. S. 268, 270–271 (1939). The Court struck down that statute as well. Id., at 275.
Racial minorities were occasionally able to surmount the hurdles to their political participation. Indeed, in some

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States, minority citizens were even able to win elective office. But just as many States responded to the Fifteenth Amendment by subverting minorities’ access to the polls, many States responded to the prospect of elected minority officials by undermining the ability of minorities to win and hold elective office. Some States blatantly removed black officials from local offices. See, e.g., H. Rabinowitz, Race Relations in the Urban South, 1865–1890, pp. 267, 269–270 (1978) (describing events in Tennessee and Virginia). Others changed the processes by which local officials were elected. See, e.g., Extension of the Voting Rights Act, Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 97th Cong., 1st Sess., pt. 1, pp. 2016–2017 (1981) (hereinafter 1981 Hearings) (statement of Professor J. Morgan Kousser) (after a black judge refused to resign in Alabama, the legislature abolished the court on which he served and replaced it with one whose judges were appointed by the Governor); Rabinowitz, supra, at 269– 270 (the North Carolina Legislature divested voters of the right to elect justices of the peace and county commissioners, then arrogated to itself the authority to select justices of the peace and gave them the power to select commissioners).
This Court did not stand idly by. In Alabama, for example, the legislature responded to increased black voter registration in the city of Tuskegee by amending the State Constitution to authorize legislative abolition of the county in which Tuskegee was located, Ala. Const. Amdt. 132 (1957), repealed by Ala. Const. Amdt. 406 (1982), and by redrawing the city’s boundaries to remove all the black voters “while not removing a single white voter,” Gomil­ lion v. Lightfoot, 364 U. S. 339, 341 (1960). The Court intervened, finding it “inconceivable that guaranties embedded in the Constitution” could be “manipulated out of existence” by being “cloaked in the garb of [political] rea-

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lignment.” Id., at 345 (internal quotation marks omitted). This Court’s landmark ruling in Brown v. Board of
Education, 347 U. S. 483 (1954), triggered a new era of political restructuring, this time in the context of education. In Virginia, the General Assembly transferred control of student assignment from local school districts to a State Pupil Placement Board. See B. Muse, Virginia’s Massive Resistance 34, 74 (1961). And when the legislature learned that the Arlington County school board had prepared a desegregation plan, the General Assembly “swiftly retaliated” by stripping the county of its right to elect its school board by popular vote and instead making the board an appointed body. Id., at 24; see also B. Smith, They Closed Their Schools 142–143 (1965).
Other States similarly disregarded this Court’s mandate by changing their political process. See, e.g., Bush v. Orleans Parish School Bd., 187 F. Supp. 42, 44–45 (ED La. 1960) (the Louisiana Legislature gave the Governor the authority to supersede any school board’s decision to integrate); Extension of the Voting Rights Act, Hearings on H. R. 4249 et al. before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 146–149 (1969) (statement of Thomas E. Harris, Assoc. Gen. Counsel, American Federation of Labor and Congress of Industrial Organizations) (the Mississippi Legislature removed from the people the right to elect superintendents of education in 11 counties and instead made those positions appointive).
The Court remained true to its command in Brown. In Arkansas, for example, it enforced a desegregation order against the Little Rock school board. Cooper v. Aaron, 358 U. S. 1, 5 (1958). On the very day the Court announced that ruling, the Arkansas Legislature responded by changing the rules. It enacted a law permitting the Governor to close any public school in the State, and stripping local school districts of their decisionmaking authority so long

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as the Governor determined that local officials could not maintain “ ‘a general, suitable, and efficient educational system.’ ” Aaron v. Cooper, 261 F. 2d 97, 99 (CA8 1958) (per curiam) (quoting Arkansas statute). The thenGovernor immediately closed all of Little Rock’s high schools. Id., at 99–100; see also S. Breyer, Making Our Democracy Work 49–67 (2010) (discussing the events in Little Rock).
The States’ political restructuring efforts in the 1960’s and 1970’s went beyond the context of education. Many States tried to suppress the political voice of racial minorities more generally by reconfiguring the manner in which they filled vacancies in local offices, often transferring authority from the electorate (where minority citizens had a voice at the local level) to the States’ executive branch (where minorities wielded little if any influence). See, e.g., 1981 Hearings, pt. 1, at 815 (report of J. Cox & A. Turner) (the Alabama Legislature changed all municipal judgeships from elective to appointive offices); id., at 1955 (report of R. Hudlin & K. Brimah, Voter Educ. Project, Inc.) (the Georgia Legislature eliminated some elective offices and made others appointive when it appeared that a minority candidate would be victorious); id., at 501 (statement of Frank R. Parker, Director, Lawyers’ Comm. for Civil Rights Under Law) (the Mississippi Legislature changed the manner of filling vacancies for various public offices from election to appointment).
II
It was in this historical context that the Court intervened in Hunter v. Erickson, 393 U. S. 385 (1969), and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982). Together, Hunter and Seattle recognized a fundamental strand of this Court’s equal protection jurisprudence: the political-process doctrine. To understand that doctrine fully, it is necessary to set forth in detail precisely

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what the Court had before it, and precisely what it said. For to understand Hunter and Seattle is to understand why those cases straightforwardly resolve this one.
A
In Hunter, the City Council of Akron, Ohio, enacted a fair housing ordinance to “assure equal opportunity to all persons to live in decent housing facilities regardless of race, color, religion, ancestry, or national origin.” 393 U. S., at 386 (internal quotation marks omitted). A majority of the citizens of Akron disagreed with the ordinance and overturned it. But the majority did not stop there; it also amended the city charter to prevent the City Council from implementing any future ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the Akron electorate. Ibid. That amendment changed the rules of the political process in Akron. The Court described the result of the change as follows:
“[T]o enact an ordinance barring housing discrimination on the basis of race or religion, proponents had to obtain the approval of the City Council and of a majority of the voters citywide. To enact an ordinance preventing housing discrimination on other grounds, or to enact any other type of housing ordinance, proponents needed the support of only the City Council.” Seattle, 458 U. S., at 468 (describing Hunter; emphasis deleted).
The Court invalidated the Akron charter amendment under the Equal Protection Clause. It concluded that the amendment unjustifiably “place[d] special burdens on racial minorities within the governmental process,” thus effecting “a real, substantial, and invidious denial of the equal protection of the laws.” Hunter, 393 U. S., at 391, 393. The Court characterized the amendment as “no more

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permissible” than denying racial minorities the right to vote on an equal basis with the majority. Id., at 391. For a “State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” Id., at 392–393. The vehicle for the change—a popular referendum—did not move the Court: “The sovereignty of the people,” it explained, “is itself subject to . . . constitutional limitations.” Id., at 392.
Justice Harlan, joined by Justice Stewart, wrote in his concurrence that although a State can normally allocate political power according to any general principle, it bears a “far heavier burden of justification” when it reallocates political power based on race, because the selective reallocation necessarily makes it far more difficult for racial minorities to “achieve legislation that is in their interest.” Id., at 395 (internal quotation marks omitted).
In Seattle, a case that mirrors the one before us, the Court applied Hunter to invalidate a statute, enacted by a majority of Washington State’s citizens, that prohibited racially integrative busing in the wake of Brown. As early as 1963, Seattle’s School District No. 1 began taking steps to cure the de facto racial segregation in its schools. 458 U. S., at 460–461. Among other measures, it enacted a desegregation plan that made extensive use of busing and mandatory assignments. Id., at 461. The district was under no obligation to adopt the plan; Brown charged school boards with a duty to integrate schools that were segregated because of de jure racial discrimination, but there had been no finding that the de facto segregation in Seattle’s schools was the product of de jure discrimination. 458 U. S., at 472, n. 15. Several residents who opposed the desegregation efforts formed a committee and sued to enjoin implementation of the plan. Id., at 461. When these efforts failed, the committee sought to change the

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rules of the political process. It drafted a statewide initiative “designed to terminate the use of mandatory busing for purposes of racial integration.” Id., at 462. A majority of the State’s citizens approved the initiative. Id., at 463–464.
The Court invalidated the initiative under the Equal Protection Clause. It began by observing that equal protection of the laws “guarantees racial minorities the right to full participation in the political life of the community.” Id., at 467. “It is beyond dispute,” the Court explained, “that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner.” Ibid. But the Equal Protection Clause reaches further, the Court stated, reaffirming the principle espoused in Hunter—that while “laws structuring political institutions or allocating political power according to neutral principles” do not violate the Constitution, “a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.” 458 U. S., at 470. That kind of state action, it observed, “places special burdens on racial minorities within the governmental process,” by making it “more difficult for certain racial and religious minorities” than for other members of the community “to achieve legislation . . . in their interest.” Ibid.
Rejecting the argument that the initiative had no racial focus, the Court found that the desegregation of public schools, like the Akron housing ordinance, “inure[d] primarily to the benefit of the minority, and [was] designed for that purpose.” Id., at 472. Because minorities had good reason to “consider busing for integration to be ‘legislation that is in their interest,’ ” the Court concluded that the “racial focus of [the initiative] . . . suffice[d] to trigger application of the Hunter doctrine.” Id., at 474 (quoting Hunter, 393 U. S., at 395) (Harlan, J. concurring)).

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The Court next concluded that “the practical effect of [the initiative was] to work a reallocation of power of the kind condemned in Hunter.” Seattle, 458 U. S., at 474. It explained: “Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board.” Ibid. Thus, the initiative required those in favor of racial integration in public schools to “surmount a considerably higher hurdle than persons seeking comparable legislative action” in different contexts. Ibid.
The Court reaffirmed that the “ ‘simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification.’ ” Id., at 483 (quoting Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527, 539 (1982)). But because the initiative burdened future attempts to integrate by lodging the decisionmaking authority at a “new and remote level of government,” it was more than a “mere repeal”; it was an unconstitutionally discriminatory change to the political process.3 Seattle,
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3 In Crawford, the Court confronted an amendment to the California Constitution prohibiting state courts from mandating pupil assignments unless a federal court would be required to do so under the Equal Protection Clause. We upheld the amendment as nothing more than a repeal of existing legislation: The standard previously required by California went beyond what was federally required; the amendment merely moved the standard back to the federal baseline. The Court distinguished the amendment from the one in Seattle because it left the rules of the political game unchanged. Racial minorities in Crawford, unlike racial minorities in Seattle, could still appeal to their local school districts for relief.
The Crawford Court distinguished Hunter v. Erickson, 393 U. S. 385 (1969), by clarifying that the charter amendment in Hunter was “something more than a mere repeal” because it altered the framework of the

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458 U. S., at 483–484.
B
Hunter and Seattle vindicated a principle that is as elementary to our equal protection jurisprudence as it is essential: The majority may not suppress the minority’s right to participate on equal terms in the political process. Under this doctrine, governmental action deprives minority groups of equal protection when it (1) has a racial focus, targeting a policy or program that “inures primarily to the benefit of the minority,” Seattle, 458 U. S., at 472; and (2) alters the political process in a manner that uniquely burdens racial minorities’ ability to achieve their goals through that process. A faithful application of the doctrine resoundingly resolves this case in respondents’ favor.
1
Section 26 has a “racial focus.” Seattle, 458 U. S., at 474. That is clear from its text, which prohibits Michigan’s public colleges and universities from “grant[ing] preferential treatment to any individual or group on the basis of race.” Mich. Const., Art. I, §26. Like desegregation of public schools, race-sensitive admissions policies “inur[e] primarily to the benefit of the minority,” 458 U. S., at 472, as they are designed to increase minorities’ access to institutions of higher education.4
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political process. 458 U. S., at 540. And the Seattle Court drew the same distinction when it held that the initiative “work[ed] something more than the ‘mere repeal’ of a desegregation law by the political entity that created it.” 458 U. S., at 483.
4 JUSTICE SCALIA accuses me of crafting my own version (or versions) of the racial-focus prong. See ante, at 8–9, n. 4 (opinion concurring in judgment). I do not. I simply apply the test announced in Seattle: whether the policy in question “inures primarily to the benefit of the minority.” 458 U. S., at 472. JUSTICE SCALIA ignores this analysis, see Part II–B–1, supra, and instead purports to identify three versions of the test that he thinks my opinion advances. The first—whether “ ‘the policy in question benefits only a racial minority, ’ ” ante, at 8, n. 4

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Petitioner argues that race-sensitive admissions policies cannot “inur[e] primarily to the benefit of the minority,” ibid., as the Court has upheld such policies only insofar as they further “the educational benefits that flow from a diverse student body,” Grutter, 539 U. S., at 343. But there is no conflict between this Court’s pronouncement in Grutter and the common-sense reality that race-sensitive admissions policies benefit minorities. Rather, racesensitive admissions policies further a compelling state interest in achieving a diverse student body precisely because they increase minority enrollment, which necessarily benefits minority groups. In other words, constitutionally permissible race-sensitive admissions policies can both serve the compelling interest of obtaining the educational benefits that flow from a diverse student body, and inure to the benefit of racial minorities. There is nothing mutually exclusive about the two. Cf. Seattle, 458 U. S., at 472 (concluding that the desegregation plan had a racial focus even though “white as well as Negro children benefit from exposure to ‘ethnic and racial diversity in the classroom’ ”).
It is worth emphasizing, moreover, that §26 is relevant

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(quoting supra, at 5)—misunderstands the doctrine and misquotes my opinion. The racial-focus prong has never required a policy to benefit only a minority group. The sentence from which JUSTICE SCALIA appears to quote makes the altogether different point that the politicalprocess doctrine is obviously not implicated in the first place by a restructuring that burdens members of society equally. This is the second prong of the political-process doctrine. See supra, at 5 (explaining that the political-process doctrine is implicated “[w]hen the majority reconfigures the political process in a manner that burdens only a racial minority”). The second version—which asks whether a policy “benefits primarily a racial minority,” ante, at 8, n. 4—is the one articulated by the Seattle Court and, as I have explained, see supra, at 15 and this page, it is easily met in this case. And the third—whether the policy has “the incidental effect” of benefitting racial minorities,” ante, at 8–9, n. 4—is not a test I advance at all.

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only to admissions policies that have survived strict scrutiny under Grutter; other policies, under this Court’s rulings, would be forbidden with or without §26. A Gruttercompliant admissions policy must use race flexibly, not maintain a quota; must be limited in time; and must be employed only after “serious, good faith consideration of workable race-neutral alternatives,” 539 U. S., at 339. The policies banned by §26 meet all these requirements and thus already constitute the least restrictive ways to advance Michigan’s compelling interest in diversity in higher education.
2
Section 26 restructures the political process in Michigan in a manner that places unique burdens on racial minorities. It establishes a distinct and more burdensome political process for the enactment of admissions plans that consider racial diversity.
Long before the enactment of §26, the Michigan Constitution granted plenary authority over all matters relating to Michigan’s public universities, including admissions criteria, to each university’s eight-member governing board. See Mich. Const., Art. VIII, §5 (establishing the Board of Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University). The boards have the “power to enact ordinances, by-laws and regulations for the government of the university.” Mich. Comp. Laws Ann. §390.5 (West 2010); see also §390.3 (“The government of the university is vested in the board of regents”). They are “ ‘constitutional corporation[s] of independent authority, which, within the scope of [their] functions, [are] co-ordinate with and equal to . . . the legislature.’ ” Federated Publications, Inc. v. Board of Trustees of Mich. State Univ., 460 Mich. 75, 84, n. 8, 594 N. W. 2d 491, 496, n. 8 (1999).

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The boards are indisputably a part of the political process in Michigan. Each political party nominates two candidates for membership to each board, and board members are elected to 8-year terms in the general statewide election. See Mich. Comp. Laws Ann. §§168.282, 168.286 (West 2008); Mich. Const., Art. VIII, §5. Prior to §26, board candidates frequently included their views on race-sensitive admissions in their campaigns. For example, in 2005, one candidate pledged to “work to end so-called ‘Affirmative-Action,’ a racist, degrading system.” See League of Women Voters, 2005 General Election Voter Guide, online at http:// www.lwvka.org/guide04/regents/html (all Internet materials as visited Apr. 18, 2014, and available in Clerk of Court’s case file); see also George, U-M Regents Race Tests Policy, Detroit Free Press, Oct. 26, 2000, p. 2B (noting that one candidate “opposes affirmative action admissions policies” because they “ ‘basically sa[y] minority students are not qualified’ ”).
Before the enactment of §26, Michigan’s political structure permitted both supporters and opponents of racesensitive admissions policies to vote for their candidates of choice and to lobby the elected and politically accountable boards. Section 26 reconfigured that structure. After §26, the boards retain plenary authority over all admissions criteria except for race-sensitive admissions policies.5 To change admissions policies on this one issue, a Michigan citizen must instead amend the Michigan Constitution. That is no small task. To place a proposed constitutional
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5 By stripping the governing boards of the authority to decide whether to adopt race-sensitive admissions policies, the majority removed the decision from bodies well suited to make that decision: boards engaged in the arguments on both sides of a matter, which deliberate and then make and refine “considered judgment[s]” about racial diversity and admissions policies, see Grutter, 539 U. S., at 387 (KENNEDY, J., dissenting).

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amendment on the ballot requires either the support of two-thirds of both Houses of the Michigan Legislature or a vast number of signatures from Michigan voters—10 percent of the total number of votes cast in the preceding gubernatorial election. See Mich. Const., Art. XII, §§1, 2. Since more than 3.2 million votes were cast in the 2010 election for Governor, more than 320,000 signatures are currently needed to win a ballot spot. See Brief for Gary Segura et al. as Amici Curiae 9 (hereinafter Segura Brief). Moreover, “[t]o account for invalid and duplicative signatures, initiative sponsors ‘need to obtain substantially more than the actual required number of signatures, typically by a 25% to 50% margin.’ ” Id., at 10 (quoting Tolbert, Lowenstein, & Donovan, Election Law and Rules for Using Initiatives, in Citizens as Legislators: Direct Democracy in the United States 27, 37 (S. Bowler, T. Donovan, & C. Tolbert eds., 1998)).
And the costs of qualifying an amendment are significant. For example, “[t]he vast majority of petition efforts . . . require initiative sponsors to hire paid petition circulators, at significant expense.” Segura Brief 10; see also T. Donovan, C. Mooney, & D. Smith, State and Local Politics: Institutions and Reform 96 (2012) (hereinafter Donovan) (“In many states, it is difficult to place a measure on the ballot unless professional petition firms are paid to collect some or all the signatures required for qualification”); Tolbert, supra, at 35 (“ ‘Qualifying an initiative for the statewide ballot is . . . no longer so much a measure of general citizen interest as it is a test of fundraising ability’ ”). In addition to the cost of collecting signatures, campaigning for a majority of votes is an expensive endeavor, and “organizations advocating on behalf of marginalized groups remain . . . outmoneyed by corporate, business, and professional organizations.” Strolovitch & Forrest, Social and Economic Justice Movements and Organizations, in The Oxford Handbook of

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American Political Parties and Interest Groups 468, 471 (L. Maisel & J. Berry eds., 2010). In 2008, for instance, over $800 million was spent nationally on state-level initiative and referendum campaigns, nearly $300 million more than was spent in the 2006 cycle. Donovan 98. “In several states, more money [is] spent on ballot initiative campaigns than for all other races for political office combined.” Ibid. Indeed, the amount spent on state-level initiative and referendum campaigns in 2008 eclipsed the $740.6 million spent by President Obama in his 2008 presidential campaign, Salant, Spending Doubled as Obama Led Billion-Dollar Campaign, Bloomberg News, Dec. 27, 2008, online at http://www.bloomberg.com/apps/ news?pid=newsarchive&sid=anLDS9WWPQW8.
Michigan’s Constitution has only rarely been amended through the initiative process. Between 1914 and 2000, voters have placed only 60 statewide initiatives on the Michigan ballot, of which only 20 have passed. See Segura Brief 12. Minority groups face an especially uphill battle. See Donovan 106 (“[O]n issues dealing with racial and ethnic matters, studies show that racial and ethnic minorities do end up more on the losing side of the popular vote”). In fact, “[i]t is difficult to find even a single statewide initiative in any State in which voters approved policies that explicitly favor racial or ethnic minority groups.”6 Segura Brief 13.
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6 In the face of this overwhelming evidence, JUSTICE SCALIA claims that it is actually easier, not harder, for minorities to effectuate change at the constitutional amendment level than at the board level. See ante, at 11–12 (opinion concurring in judgment) (“voting in a favorable board (each of which has eight members) at the three major public universities requires electing by majority vote at least 15 different candidates, several of whom would be running during different election cycles”). This claim minimizes just how difficult it is to amend the State Constitution. See supra, at 18–20. It is also incorrect in its premise that minorities must elect an entirely new slate of board members in order to effectuate change at the board level. JUSTICE

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This is the onerous task that §26 forces a Michigan citizen to complete in order to change the admissions policies of Michigan’s public colleges and universities with respect to racial sensitivity. While substantially less grueling paths remain open to those advocating for any other admissions policies, a constitutional amendment is the only avenue by which race-sensitive admissions policies may be obtained. The effect of §26 is that a white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy, whereas a black Michigander who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had and that they might never have absent that policy.
Such reordering of the political process contravenes Hunter and Seattle.7 See Seattle, 458 U. S., at 467 (the Equal Protection Clause prohibits “ ‘a political structure that treats all individuals as equals,’ yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to

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SCALIA overlooks the fact that minorities need not elect any new board members in order to effect change; they may instead seek to persuade existing board members to adopt changes in their interests.
7 I do not take the position, as JUSTICE SCALIA asserts, that the process of amending the Michigan Constitution is not a part of Michigan’s existing political process. See ante, at 13–14 (opinion concurring in judgment). It clearly is. The problem with §26 is not that “amending Michigan’s Constitution is simply not a part of that State’s ‘existing political process.’ ” Ante, at 14. It is that §26 reconfigured the political process in Michigan such that it is now more difficult for racial minorities, and racial minorities alone, to achieve legislation in their interest. Section 26 elevated the issue of race-sensitive admissions policies, and not any other kinds of admissions policies, to a higher plane of the existing political process in Michigan: that of a constitutional amendment.

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achieve beneficial legislation” (citation omitted)). Where, as here, the majority alters the political process to the detriment of a racial minority, the governmental action is subject to strict scrutiny. See id., at 485, n. 28. Michigan does not assert that §26 satisfies a compelling state interest. That should settle the matter.
C 1
The plurality sees it differently. Disregarding the language used in Hunter, the plurality asks us to contort that case into one that “rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities.” Ante, at 8. And the plurality recasts Seattle “as a case in which the state action in question . . . had the serious risk, if not purpose, of causing specific injuries on account of race.” Ante, at 8–9. According to the plurality, the Hunter and Seattle Courts were not concerned with efforts to reconfigure the political process to the detriment of racial minorities; rather, those cases invalidated governmental actions merely because they reflected an invidious purpose to discriminate. This is not a tenable reading of those cases.
The plurality identifies “invidious discrimination” as the “necessary result” of the restructuring in Hunter. Ante, at 8. It is impossible to assess whether the housing amendment in Hunter was motivated by discriminatory purpose, for the opinion does not discuss the question of intent.8
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8 It certainly is fair to assume that some voters may have supported the Hunter amendment because of discriminatory animus. But others may have been motivated by their strong beliefs in the freedom of contract or the freedom to alienate property. Similarly, here, although some Michiganders may have voted for §26 out of racial animus, some may have been acting on a personal belief, like that of some of my colleagues today, that using race-sensitive admissions policies in higher education is unwise. The presence (or absence) of invidious discrimination has no place in the current analysis. That is the very purpose of

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What is obvious, however, is that the possibility of invidious discrimination played no role in the Court’s reasoning. We ordinarily understand our precedents to mean what they actually say, not what we later think they could or should have said. The Hunter Court was clear about why it invalidated the Akron charter amendment: It was impermissible as a restructuring of the political process, not as an action motivated by discriminatory intent. See 393 U. S., at 391 (striking down the Akron charter amendment because it “places a special burden on racial minorities within the governmental process”).
Similarly, the plurality disregards what Seattle actually says and instead opines that “the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race.” Ante, at 17. Here, the plurality derives its conclusion not from Seattle itself, but from evidence unearthed more than a quarter-century later in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007): “Although there had been no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school desegregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that ‘permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.’ ”9 Ante, at 9 (quoting Parents Involved, 551 U. S., at 807–808 (BREYER, J., dissenting) (emphasis added). It follows, according to the
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the political-process doctrine; it operates irrespective of discriminatory intent, for it protects a process-based right.
9 The plurality relies on JUSTICE BREYER’s dissent in Parents Involved to conclude that “one permissible reading of the record was that the school board had maintained policies to perpetuate racial segregation in the schools.” Ante, at 9–10. Remarkably, some Members of today’s plurality criticized JUSTICE BREYER’s reading of the record in Parents Involved itself. See 551 U. S., at 736.

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plurality, that Seattle’s desegregation plan was constitutionally required, so that the initiative halting the plan was an instance of invidious discrimination aimed at inflicting a racial injury.
Again, the plurality might prefer that the Seattle Court had said that, but it plainly did not. Not once did the Court suggest the presence of de jure segregation in Seattle. Quite the opposite: The opinion explicitly suggested the desegregation plan was adopted to remedy de facto rather than de jure segregation. See 458 U. S., at 472, n. 15 (referring to the “absen[ce]” of “a finding of prior de jure segregation”). The Court, moreover, assumed that no “constitutional violation” through de jure segregation had occurred. Id., at 474. And it unmistakably rested its decision on Hunter, holding Seattle’s initiative invalid because it “use[d] the racial nature of an issue to define the governmental decisionmaking structure, and thus impose[d] substantial and unique burdens on racial minorities.” 458 U. S., at 470.
It is nothing short of baffling, then, for the plurality to insist—in the face of clear language in Hunter and Seattle saying otherwise—that those cases were about nothing more than the intentional and invidious infliction of a racial injury. Ante, at 8 (describing the injury in Hunter as “a demonstrated injury on the basis of race”); ante, at 8–9 (describing the injury in Seattle as an “injur[y] on account of race”). The plurality’s attempt to rewrite Hunter and Seattle so as to cast aside the political-process doctrine sub silentio is impermissible as a matter of stare decisis. Under the doctrine of stare decisis, we usually stand by our decisions, even if we disagree with them, because people rely on what we say, and they believe they can take us at our word.
And what now of the political-process doctrine? After the plurality’s revision of Hunter and Seattle, it is unclear what is left. The plurality certainly does not tell us. On

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this point, and this point only, I agree with JUSTICE SCALIA that the plurality has rewritten those precedents beyond recognition. See ante, at 5–7 (opinion concurring in judgment).
2
JUSTICE BREYER concludes that Hunter and Seattle do not apply. Section 26, he reasons, did not move the relevant decisionmaking authority from one political level to another; rather, it removed that authority from “unelected actors and placed it in the hands of the voters.” Ante, at 5 (opinion concurring in judgment). He bases this conclusion on the premise that Michigan’s elected boards “delegated admissions-related decisionmaking authority to unelected university faculty members and administrators.” Ibid. But this premise is simply incorrect.
For one thing, it is undeniable that prior to §26, board candidates often pledged to end or carry on the use of racesensitive admissions policies at Michigan’s public universities. See supra, at 18. Surely those were not empty promises. Indeed, the issue of race-sensitive admissions policies often dominated board elections. See, e.g., George, Detroit Free Press, at 2B (observing that “[t]he race for the University of Michigan Board of Regents could determine . . . the future of [the University’s] affirmative action policies”); Kosseff, UM Policy May Hang On Election, Crain’s Detroit Business, Sept. 18, 2000, p. 1 (noting that an upcoming election could determine whether the University would continue to defend its affirmative action policies); University of Michigan’s Admissions Policy Still an Issue for Regents’ Election, Black Issues in Higher Education, Oct. 21, 2004, p. 17 (commenting that although “the Supreme Court struck down the University of Michigan’s undergraduate admissions policy as too formulaic,” the issue “remains an important [one] to several people running” in an upcoming election for the Board of

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Regents). Moreover, a careful examination of the boards and their
governing structure reveals that they remain actively involved in setting admissions policies and procedures. Take Wayne State University, for example. Its Board of Governors has enacted university statutes that govern the day-to-day running of the institution. See Wayne State Univ. Stat., online at http://bog.wayne.edu/code. A number of those statutes establish general admissions procedures, see §2.34.09 (establishing undergraduate admissions procedures); §2.34.12 (establishing graduate admissions procedures), and some set out more specific instructions for university officials, see, e.g., §2.34.09.030 (“Admissions decisions will be based on a full evaluation of each student’s academic record, and on empirical data reflecting the characteristics of students who have successfully graduated from [the university] within the four years prior to the year in which the student applies”); §§2.34.12.080, 2.34.12.090 (setting the requisite grade point average for graduate applicants).
The Board of Governors does give primary responsibility over day-to-day admissions matters to the university’s President. §2.34.09.080. But the President is “elected by and answerable to the Board.” Brief for Respondent Board of Governors of Wayne State University et al. 15. And while university officials and faculty members “serv[e] an important advisory role in recommending educational policy,” id., at 14, the Board alone ultimately controls educational policy and decides whether to adopt (or reject) program-specific admissions recommendations. For example, the Board has voted on recommendations “to revise guidelines for establishment of honors curricula, including admissions criteria”; “to modify the honor point criteria for graduate admission”; and “to modify the maximum number of transfer credits that the university would allow in certain cases where articulation agreements rendered

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modification appropriate.” Id., at 17; see also id., at 18–20 (providing examples of the Board’s “review[ing] and pass[ing] upon admissions requirements in the course of voting on broader issues, such as the implementation of new academic programs”). The Board also “engages in robust and regular review of administrative actions involving admissions policy and related matters.” Id., at 16.
Other public universities more clearly entrust admissions policy to university officials. The Board of Regents of the University of Michigan, for example, gives primary responsibility for admissions to the Associate Vice Provost, Executive Director of Undergraduate Admissions, and Directors of Admissions. Bylaws §8.01, online at http:// www.regents.umich.edu/bylaws. And the Board of Trustees of Michigan State University relies on the President to make recommendations regarding admissions policies. Bylaws, Art. 8, online at http://www.trustees.msu.edu/ bylaws. But the bylaws of the Board of Regents and the Board of Trustees “make clear that all university operations remain subject to their control.” Brief for Respondents Regents of the University of Michigan, the Board of Trustees of Michigan State University et al. 13–14.
The boards retain ultimate authority to adopt or reject admissions policies in at least three ways. First, they routinely meet with university officials to review admissions policies, including race-sensitive admissions policies. For example, shortly after this Court’s decisions in Gratz v. Bollinger, 539 U. S. 244 (2003), and Grutter, 539 U. S., at 306, the President of the University of Michigan appeared before the University’s Board of Regents to discuss the impact of those decisions on the University. See Proceedings 2003–2004, pp. 10–12 (July 2003), online at http://name.umdl.umich.edu/ACW7513.2003.001. Six members of the Board voiced strong support for the University’s use of race as a factor in admissions. Id., at 11– 12. In June 2004, the President again appeared before the

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Board to discuss changes to undergraduate admissions policies. Id., at 301 (June 2004). And in March 2007, the University’s Provost appeared before the Board of Regents to present strategies to increase diversity in light of the passage of Proposal 2. Proceedings 2006–2007, pp. 264– 265 (Mar. 2007), online at http://name.umdl.umich.edu/ ACW7513.2006.001.
Second, the boards may enact bylaws with respect to specific admissions policies and may alter any admissions policies set by university officials. The Board of Regents may amend any bylaw “at any regular meeting of the board, or at any special meeting, provided notice is given to each regent one week in advance.” Bylaws §14.03. And Michigan State University’s Board of Trustees may, “[u]pon the recommendation of the President[,] . . . determine and establish the qualifications of students for admissions at any level.” Bylaws, Art. 8. The boards may also permanently remove certain admissions decisions from university officials.10 This authority is not merely theoretical. Between 2008 and 2012, the University of Michigan’s Board of Regents “revised more than two dozen of its bylaws, two of which fall within Chapter VIII, the section regulating admissions practices.” App. to Pet. for Cert. 30a.
Finally, the boards may appoint university officials who share their admissions goals, and they may remove those officials if the officials’ goals diverge from those of the boards. The University of Michigan’s Board of Regents “directly appoints [the University’s] Associate Vice Provost and Executive Director of Undergraduate Admissions,”
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10 Under the bylaws of the University of Michigan’s Board of Regents, “[a]ny and all delegations of authority made at any time and from time to time by the board to any member of the university staff, or to any unit of the university may be revoked by the board at any time, and notice of such revocation shall be given in writing.” Bylaws §14.04, online at http://www.regents.umich.edu/bylaws.

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and Michigan State University’s Board of Trustees elects that institution’s President. Brief for Respondents Regents of the University of Michigan, the Board of Trustees of Michigan State University et al. 14.
The salient point is this: Although the elected and politically accountable boards may well entrust university officials with certain day-to-day admissions responsibilities, they often weigh in on admissions policies themselves and, at all times, they retain complete supervisory authority over university officials and over all admissions decisions.
There is no question, then, that the elected boards in Michigan had the power to eliminate or adopt racesensitive admissions policies prior to §26. There is also no question that §26 worked an impermissible reordering of the political process; it removed that power from the elected boards and placed it instead at a higher level of the political process in Michigan. See supra, at 17–22. This case is no different from Hunter and Seattle in that respect. Just as in Hunter and Seattle, minorities in Michigan “participated in the political process and won.” Ante, at 5 (BREYER, J., concurring in judgment). And just as in Hunter and Seattle, “the majority’s subsequent reordering of the political process repealed the minority’s successes and made it more difficult for the minority to succeed in the future,” thereby “diminish[ing] the minority’s ability to participate meaningfully in the electoral process.” Ibid. There is therefore no need to consider “extend[ing] the holding of Hunter and Seattle to reach situations in which decisionmaking authority is moved from an administrative body to a political one,” ibid. Such a scenario is not before us.
III
The political-process doctrine not only resolves this case as a matter of stare decisis; it is correct as a matter of first

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principles.
A
Under our Constitution, majority rule is not without limit. Our system of government is predicated on an equilibrium between the notion that a majority of citizens may determine governmental policy through legislation enacted by their elected representatives, and the overriding principle that there are nonetheless some things the Constitution forbids even a majority of citizens to do. The political-process doctrine, grounded in the Fourteenth Amendment, is a central check on majority rule.
The Fourteenth Amendment instructs that all who act for the government may not “deny to any person . . . the equal protection of the laws.” We often think of equal protection as a guarantee that the government will apply the law in an equal fashion—that it will not intentionally discriminate against minority groups. But equal protection of the laws means more than that; it also secures the right of all citizens to participate meaningfully and equally in the process through which laws are created.
Few rights are as fundamental as the right to participate meaningfully and equally in the process of government. See Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886) (political rights are “fundamental” because they are “preservative of all rights”). That right is the bedrock of our democracy, recognized from its very inception. See J. Ely, Democracy and Distrust 87 (1980) (the Constitution “is overwhelmingly concerned, on the one hand, with procedural fairness in the resolution of individual disputes,” and on the other, “with ensuring broad participation in the processes and distributions of government”).
This should come as no surprise. The political process is the channel of change. Id., at 103 (describing the importance of the judiciary in policing the “channels of political change”). It is the means by which citizens may both

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obtain desirable legislation and repeal undesirable legislation. Of course, we do not expect minority members of our society to obtain every single result they seek through the political process—not, at least, when their views conflict with those of the majority. The minority plainly does not have a right to prevail over majority groups in any given political contest. But the minority does have a right to play by the same rules as the majority. It is this right that Hunter and Seattle so boldly vindicated.
This right was hardly novel at the time of Hunter and Seattle. For example, this Court focused on the vital importance of safeguarding minority groups’ access to the political process in United States v. Carolene Products Co., 304 U. S. 144 (1938), a case that predated Hunter by 30 years. In a now-famous footnote, the Court explained that while ordinary social and economic legislation carries a presumption of constitutionality, the same may not be true of legislation that offends fundamental rights or targets minority groups. Citing cases involving restrictions on the right to vote, restraints on the dissemination of information, interferences with political organizations, and prohibition of peaceable assembly, the Court recognized that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” could be worthy of “more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” Id., at 152, n. 4; see also Ely, supra, at 76 (explaining that “[p]aragraph two [of Carolene Products footnote 4] suggests that it is an appropriate function of the Court to keep the machinery of democratic government running as it should, to make sure the channels of political participation and communication are kept open”). The Court also noted that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political pro-

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cesses ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Carolene Products, 304 U. S., at 153, n. 4, see also Ely, supra, at 76 (explaining that “[p]aragraph three [of Carolene Products footnote 4] suggests that the Court should also concern itself with what majorities do to minorities, particularly mentioning laws ‘directed at’ religious, national and racial minorities and those infected by prejudice against them”).
The values identified in Carolene Products lie at the heart of the political-process doctrine. Indeed, Seattle explicitly relied on Carolene Products. See 458 U. S., at 486 (“[W]hen the State’s allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the ‘special condition’ of prejudice, the governmental action seriously ‘curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities’ ” (quoting Carolene Products, 304 U. S., at 153, n. 4)). These values are central tenets of our equal protection jurisprudence.
Our cases recognize at least three features of the right to meaningful participation in the political process. Two of them, thankfully, are uncontroversial. First, every eligible citizen has a right to vote. See Shaw v. Reno, 509 U. S. 630, 639 (1993). This, woefully, has not always been the case. But it is a right no one would take issue with today. Second, the majority may not make it more difficult for the minority to exercise the right to vote. This, too, is widely accepted. After all, the Court has invalidated grandfather clauses, good character requirements, poll taxes, and gerrymandering provisions.11 The third fea-
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11 Attempts by the majority to make it more difficult for the minority to exercise its right to vote are, sadly, not a thing of the past. See Shelby County v. Holder, 570 U. S. ___, ___ (2013) (slip op., at 15–17) (GINSBURG, J., dissenting) (describing recent examples of discriminatory changes to state voting laws, including a 1995 dual voter registration

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ture, the one the plurality dismantles today, is that a majority may not reconfigure the existing political process in a manner that creates a two-tiered system of political change, subjecting laws designed to protect or benefit discrete and insular minorities to a more burdensome political process than all other laws. This is the politicalprocess doctrine of Hunter and Seattle.
My colleagues would stop at the second. The plurality embraces the freedom of “self-government” without limits. See ante, at 13. And JUSTICE SCALIA values a “nearlimitless” notion of state sovereignty. See ante, at 13 (opinion concurring in judgment). The wrong sought to be corrected by the political-process doctrine, they say, is not one that should concern us and is in any event beyond the reach of the Fourteenth Amendment. As they see it, the Court’s role in protecting the political process ends once we have removed certain barriers to the minority’s participation in that process. Then, they say, we must sit back and let the majority rule without the key constitutional limit recognized in Hunter and Seattle.
That view drains the Fourteenth Amendment of one of its core teachings. Contrary to today’s decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing. Why? For the same reason we guard the right of every citizen to vote. If “[e]fforts to reduce the impact of minority votes, in contrast to direct
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system in Mississippi to disfranchise black voters, a 2000 redistricting plan in Georgia to decrease black voting strength, and a 2003 proposal to change the voting mechanism for school board elections in South Carolina). Until this Court’s decision last Term in Shelby County, the preclearance requirement of §5 of the Voting Rights Act of 1965 blocked those and many other discriminatory changes to voting procedures.

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attempts to block access to the ballot,” were “ ‘secondgeneration barriers’ ” to minority voting, Shelby County v. Holder, 570 U. S. ___, ___ (2013) (GINSBURG, J., dissenting) (slip op., at 5), efforts to reconfigure the political process in ways that uniquely disadvantage minority groups who have already long been disadvantaged are third-generation barriers. For as the Court recognized in Seattle, “minorities are no less powerless with the vote than without it when a racial criterion is used to assign governmental power in such a way as to exclude particular racial groups ‘from effective participation in the political proces[s].’ ”12 458 U. S., at 486.
To accept the first two features of the right to meaningful participation in the political process, while renouncing the third, paves the way for the majority to do what it has done time and again throughout our Nation’s history: afford the minority the opportunity to participate, yet manipulate the ground rules so as to ensure the minority’s defeat. This is entirely at odds with our idea of equality under the law.
To reiterate, none of this is to say that the politicalprocess doctrine prohibits the exercise of democratic selfgovernment. Nothing prevents a majority of citizens from pursuing or obtaining its preferred outcome in a political contest. Here, for instance, I agree with the plurality that
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12 Preserving the right to participate meaningfully and equally in the process of government is especially important with respect to education policy. I do not mean to suggest that “the constitutionality of laws forbidding racial preferences depends on the policy interest at stake.” Ante, at 14–15 (plurality opinion). I note only that we have long recognized that “ ‘education . . . is the very foundation of good citizenship.’ ” Grutter, 539 U. S., at 331 (quoting Brown v. Board of Education, 347 U. S. 483, 493 (1954)). Our Nation’s colleges and universities “represent the training ground for a large number of our Nation’s leaders,” and so there is special reason to safeguard the guarantee “ ‘that public institutions are open and available to all segments of American society, including people of all races and ethnicities.’ ” 539 U. S., at 331–332.

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Michiganders who were unhappy with Grutter were free to pursue an end to race-sensitive admissions policies in their State. See ante, at 16–17. They were free to elect governing boards that opposed race-sensitive admissions policies or, through public discourse and dialogue, to lobby the existing boards toward that end. They were also free to remove from the boards the authority to make any decisions with respect to admissions policies, as opposed to only decisions concerning race-sensitive admissions policies. But what the majority could not do, consistent with the Constitution, is change the ground rules of the political process in a manner that makes it more difficult for racial minorities alone to achieve their goals. In doing so, the majority effectively rigs the contest to guarantee a particular outcome. That is the very wrong the politicalprocess doctrine seeks to remedy. The doctrine “hews to the unremarkable notion that when two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course.” BAMN v. Regents of Univ. of Michigan, 701 F. 3d 466, 474 (CA6 2012).
B
The political-process doctrine also follows from the rest of our equal protection jurisprudence—in particular, our reapportionment and vote dilution cases. In those cases, the Court described the right to vote as “ ‘the essence of a democratic society.’ ” Shaw, 509 U. S., at 639. It rejected States’ use of ostensibly race-neutral measures to prevent minorities from exercising their political rights. See id., at 639–640. And it invalidated practices such as at-large electoral systems that reduce or nullify a minority group’s ability to vote as a cohesive unit, when those practices were adopted with a discriminatory purpose. Id., at 641. These cases, like the political-process doctrine, all sought to preserve the political rights of the minority.

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Two more recent cases involving discriminatory restructurings of the political process are also worthy of mention: Romer v. Evans, 517 U. S. 620 (1996), and League of United Latin American Citizens v. Perry, 548 U. S. 399 (2006) (LULAC).
Romer involved a Colorado constitutional amendment that removed from the local political process an issue primarily affecting gay and lesbian citizens. The amendment, enacted in response to a number of local ordinances prohibiting discrimination against gay citizens, repealed these ordinances and effectively prohibited the adoption of similar ordinances in the future without another amendment to the State Constitution. 517 U. S., at 623–624. Although the Court did not apply the political-process doctrine in Romer,13 the case resonates with the principles undergirding the political-process doctrine. The Court rejected an attempt by the majority to transfer decisionmaking authority from localities (where the targeted minority group could influence the process) to state government (where it had less ability to participate effectively). See id., at 632 (describing this type of political restructuring as a “disability” on the minority group). Rather than being able to appeal to municipalities for policy changes, the Court commented, the minority was forced to “enlis[t] the citizenry of Colorado to amend the State Constitution,” id., at 631—just as in this case.
LULAC, a Voting Rights Act case, involved an enactment by the Texas Legislature that redrew district lines for a number of Texas seats in the House of Representatives. 548 U. S., at 409 (plurality opinion). In striking
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13 The Court invalidated Amendment 2 on the basis that it lacked any rational relationship to a legitimate end. It concluded that the amendment “impose[d] a broad and undifferentiated disability on a single named group,” and was “so discontinuous with the reasons offered for it that [it] seem[ed] inexplicable by anything but animus toward the class it affect[ed].” Romer, 517 U. S., at 632.

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down the enactment, the Court acknowledged the “ ‘long, well-documented history of discrimination’ ” in Texas that “ ‘touched upon the rights of . . . Hispanics to register, to vote, or to participate otherwise in the electoral process,’ ” id., at 439, and it observed that that the “ ‘political, social, and economic legacy of past discrimination’ . . . may well [have] ‘hinder[ed] their ability to participate effectively in the political process,’ ” id., at 440. Against this backdrop, the Court found that just as “Latino voters were poised to elect their candidate of choice,” id., at 438, the State’s enactment “took away [their] opportunity because [they] were about to exercise it,” id., at 440. The Court refused to sustain “the resulting vote dilution of a group that was beginning to achieve [the] goal of overcoming prior electoral discrimination.” Id., at 442.
As in Romer, the LULAC Court—while using a different analytic framework—applied the core teaching of Hunter and Seattle: The political process cannot be restructured in a manner that makes it more difficult for a traditionally excluded group to work through the existing process to seek beneficial policies. And the events giving rise to LULAC are strikingly similar to those here. Just as redistricting prevented Latinos in Texas from attaining a benefit they had fought for and were poised to enjoy, §26 prevents racial minorities in Michigan from enjoying a last-resort benefit that they, too, had fought for through the existing political processes.
IV
My colleagues claim that the political-process doctrine is unadministrable and contrary to our more recent equal protection precedents. See ante, at 11–15 (plurality opinion); ante, at 7–17 (SCALIA, J., concurring in judgment). It is only by not acknowledging certain strands of our jurisprudence that they can reach such a conclusion.

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A
Start with the claim that Hunter and Seattle are no longer viable because of the cases that have come after them. I note that in the view of many, it is those precedents that have departed from the mandate of the Equal Protection Clause in the first place, by applying strict scrutiny to actions designed to benefit rather than burden the minority. See Gratz, 539 U. S., at 301 (GINSBURG, J., dissenting) (“[A]s I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion. Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated” (citation omitted)); id., at 282 (BREYER, J., concurring in judgment) (“I agree . . . that, in implementing the Constitution’s equality instruction, government decisionmakers may properly distinguish between policies of inclusion and exclusion, for the former are more likely to prove consistent with the basic constitutional obligation that the law respect each individual equally” (citation omitted)); Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 243 (1995) (Stevens, J., dissenting) (“There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society”); Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 301–302 (1986) (Marshall, J., dissenting) (when dealing with an action to eliminate “pernicious vestiges of past discrimination,” a “less exacting standard of review is appropriate”); Fullilove v. Klutz­ nick, 448 U. S. 448, 518–519 (1980) (Marshall, J., concurring in judgment) (race-based governmental action

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designed to “remed[y] the continuing effects of past racial discrimination . . . should not be subjected to conventional ‘strict scrutiny’ ”); Bakke, 438 U. S., at 359 (Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part) (“racial classifications designed to further remedial purposes” should be subjected only to intermediate scrutiny).
But even assuming that strict scrutiny should apply to policies designed to benefit racial minorities, that view is not inconsistent with Hunter and Seattle. For nothing the Court has said in the last 32 years undermines the principles announced in those cases.
1
JUSTICE SCALIA first argues that the political-process doctrine “misreads the Equal Protection Clause to protect ‘particular group[s],’ ” running counter to a line of cases that treat “ ‘equal protection as a personal right.’ ” Ante, at 9 (opinion concurring in judgment) (quoting Adarand, 515 U. S., at 230). Equal protection, he says, protects “ ‘per­ sons, not groups.’ ” Ante, at 10 (quoting Adarand, 515 U. S., at 227). This criticism ignores the obvious: Discrimination against an individual occurs because of that individual’s membership in a particular group. Yes, equal protection is a personal right, but there can be no equal protection violation unless the injured individual is a member of a protected group or a class of individuals. It is membership in the group—here the racial minority—that gives rise to an equal protection violation.
Relatedly, JUSTICE SCALIA argues that the politicalprocess doctrine is inconsistent with our precedents because it protects only the minority from political restructurings. This aspect of the doctrine, he says, cannot be tolerated because our precedents have rejected “ ‘a reading of the guarantee of equal protection under which the level of scrutiny varies according to the ability of different

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groups to defend their interests in the representative process.’ ” Ante, at 10 (quoting Richmond v. J. A. Croson Co., 488 U. S., 469, 495 (1989) (plurality opinion)). Equal protection, he continues, “ ‘cannot mean one thing when applied to one individual and something else when applied to a person of another color.’ ” Ante, at 10 (quoting Bakke, 438 U. S., at 289–290) (opinion of Powell, J.).
JUSTICE SCALIA is troubled that the political-process doctrine has not been applied to trigger strict scrutiny for political restructurings that burden the majority. But the doctrine is inapplicable to the majority. The minority cannot achieve such restructurings against the majority, for the majority is, well, the majority. As the Seattle Court explained, “ ‘[t]he majority needs no protection against discriminat[ory restructurings], and if it did, a referendum, [for instance], might be bothersome but no more than that.’ ” 458 U. S., at 468. Stated differently, the doctrine protects only the minority because it implicates a problem that affects only the minority. Nothing in my opinion suggests, as JUSTICE SCALIA says, that under the political-process doctrine, “the Constitution prohibits discrimination against minority groups, but not against majority groups.” Ante, at 10, n. 7. If the minority somehow managed to effectuate a political restructuring that burdened only the majority, we could decide then whether to apply the political-process doctrine to safeguard the political right of the majority. But such a restructuring is not before us, and I cannot fathom how it could be achieved.
2
JUSTICE SCALIA next invokes state sovereignty, arguing that “we have emphasized the near-limitless sovereignty of each State to design its governing structure as it sees fit.” Ante, at 13 (opinion concurring in judgment). But state sovereignty is not absolute; it is subject to constitu-

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tional limits. The Court surely did not offend state sovereignty by barring States from changing their voting procedures to exclude racial minorities. So why does the political-process doctrine offend state sovereignty? The doctrine takes nothing away from state sovereignty that the Equal Protection Clause does not require. All it says is that a State may not reconfigure its existing political processes in a manner that establishes a distinct and more burdensome process for minority members of our society alone to obtain legislation in their interests.
More broadly, JUSTICE SCALIA is troubled that the political-process doctrine would create supposed “affirmative-action safe havens” in places where the ordinary political process has thus far produced race-sensitive admissions policies. Ante, at 13–14. It would not. As explained previously, the voters in Michigan who opposed race-sensitive admissions policies had any number of options available to them to challenge those policies. See supra, at 34–35. And in States where decisions regarding race-sensitive admissions policies are not subject to the political process in the first place, voters are entirely free to eliminate such policies via a constitutional amendment because that action would not reallocate power in the manner condemned in Hunter and Seattle (and, of course, present here). The Seattle Court recognized this careful balance between state sovereignty and constitutional protections:
“[W]e do not undervalue the magnitude of the State’s interest in its system of education. Washington could have reserved to state officials the right to make all decisions in the areas of education and student assignment. It has chosen, however, to use a more elaborate system; having done so, the State is obligated to operate that system within the confines of the Fourteenth Amendment.” 458 U. S., at 487.

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The same is true of Michigan.
3
Finally, JUSTICE SCALIA disagrees with “the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact.” Ante, at 15 (opinion concurring in judgment). He would acknowledge, however, that an act that draws racial distinctions or makes racial classifications triggers strict scrutiny regardless of whether discriminatory intent is shown. See Adarand, 515 U. S., at 213. That should settle the matter: Section 26 draws a racial distinction. As the Seattle Court explained, “when the political process or the decisionmaking mechanism used to address racially conscious legislation—and only such legislation—is singled out for peculiar and disadvantageous treatment, the governmental action plainly rests on ‘distinctions based on race.’ ” 458 U. S., at 485 (some internal quotation marks omitted); see also id., at 470 (noting that although a State may “ ‘allocate governmental power on the basis of any general principle,’ ” it may not use racial considerations “to define the governmental decisionmaking structure”).
But in JUSTICE SCALIA’s view, cases like Washington v. Davis, 426 U. S. 229 (1976), and Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 (1977), call Seattle into question. It is odd to suggest that prior precedents call into question a later one. Seattle (decided in 1982) postdated both Washington v. Davis (1976) and Arlington Heights (1977). JUSTICE SCALIA’s suggestion that Seattle runs afoul of the principles established in Washington v. Davis and Arlington Heights would come as a surprise to Justice Blackmun, who joined the majority opinions in all three cases. Indeed, the Seat­ tle Court explicitly rejected the argument that Hunter had been effectively overruled by Washington v. Davis and Arlington Heights:

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“There is one immediate and crucial difference between Hunter and [those cases]. While decisions such as Washington v. Davis and Arlington Heights considered classifications facially unrelated to race, the charter amendment at issue in Hunter dealt in explicitly racial terms with legislation designed to benefit minorities ‘as minorities,’ not legislation intended to benefit some larger group of underprivileged citizens among whom minorities were disproportionately represented.” 458 U. S., at 485.
And it concluded that both the Hunter amendment and the Seattle initiative rested on distinctions based on race. 458 U. S., at 485. So does §26.14
B
My colleagues also attack the first prong of the doctrine as “rais[ing] serious constitutional concerns,” ante, at 11 (plurality opinion), and being “unadministrable,” ante, at 7 (SCALIA, J., concurring in judgment). JUSTICE SCALIA wonders whether judges are equipped to weigh in on what constitutes a “racial issue.” See ante, at 8. The plurality, too, thinks courts would be “with no clear legal standards or accepted sources to guide judicial decision.” Ante, at 12.
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14 The plurality raises another concern with respect to precedent. It points to decisions by the California Supreme Court and the United States Court of Appeals for the Ninth Circuit upholding as constitutional Proposition 209, a California constitutional amendment identical in substance to §26. Ante, at 14. The plurality notes that if we were to affirm the lower court’s decision in this case, “those holdings would be invalidated . . . .” Ibid. I fail to see the significance. We routinely resolve conflicts between lower courts; the necessary result, of course, is that decisions of courts on one side of the debate are invalidated or called into question. I am unaware of a single instance where that (inevitable) fact influenced the Court’s decision one way or the other. Had the lower courts proceeded in opposite fashion—had the California Supreme Court and Ninth Circuit invalidated Proposition 209 and the Sixth Circuit upheld §26—would the plurality come out the other way?

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Yet as JUSTICE SCALIA recognizes, Hunter and Seattle provide a standard: Does the public policy at issue “inur[e] primarily to the benefit of the minority, and [was it] designed for that purpose”? Seattle, 458 U. S., at 472; see ante, at 8. Surely this is the kind of factual inquiry that judges are capable of making. JUSTICE SCALIA, for instance, accepts the standard announced in Washington v. Davis, which requires judges to determine whether discrimination is intentional or whether it merely has a discriminatory effect. Such an inquiry is at least as difficult for judges as the one called for by Hunter and Seattle. In any event, it is clear that the constitutional amendment in this case has a racial focus; it is facially race-based and, by operation of law, disadvantages only minorities. See supra, at 15–16.
“No good can come” from these inquiries, JUSTICE SCALIA responds, because they divide the Nation along racial lines and perpetuate racial stereotypes. Ante, at 9. The plurality shares that view; it tells us that we must not assume all individuals of the same race think alike. See ante, at 11–12. The same could have been said about desegregation: Not all members of a racial minority in Seattle necessarily regarded the integration of public schools as good policy. Yet the Seattle Court had little difficulty saying that school integration as a general matter “inure[d] . . . to the benefit of ” the minority. 458 U. S., at 472.
My colleagues are of the view that we should leave race out of the picture entirely and let the voters sort it out. See ante, at 13 (plurality opinion) (“Racial division would be validated, not discouraged, were the Seattle formulation . . . to remain in force”); ante, at 9 (SCALIA, J., concurring in judgment) (“ ‘[R]acial stereotyping [is] at odds with equal protection mandates’ ”). We have seen this reasoning before. See Parents Involved, 551 U. S., at 748 (“The way to stop discrimination on the basis of race is to stop

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discriminating on the basis of race”). It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as “not sufficient” to resolve cases of this nature. Id., at 788 (KENNEDY, J., concurring in part and concurring in judgment). While “[t]he enduring hope is that race should not matter[,] the reality is that too often it does.” Id., at 787. “[R]acial discrimination . . . [is] not ancient history.” Bartlett v. Strickland, 556 U. S. 1, 25 (2009) (plurality opinion).
Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process. See Part I, supra; see also South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966) (describing racial discrimination in voting as “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution”). And although we have made great strides, “voting discrimination still exists; no one doubts that.” Shelby County, 570 U. S., at __ (slip op., at 2).
Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. See Gratz, 539 U. S., at 298–300 (GINSBURG, J., dissenting) (cataloging the many ways in which “the effects of centuries of lawsanctioned inequality remain painfully evident in our communities and schools,” in areas like employment, poverty, access to health care, housing, consumer transactions, and education); Adarand, 515 U. S., at 273 (GINSBURG, J., dissenting) (recognizing that the “lingering effects” of discrimination, “reflective of a system of racial caste only recently ended, are evident in our workplaces, markets, and neighborhoods”).
And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching

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others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.
V
Although the only constitutional rights at stake in this case are process-based rights, the substantive policy at issue is undeniably of some relevance to my colleagues. See ante, at 18 (plurality opinion) (suggesting that racesensitive admissions policies have the “potential to become . . . the source of the very resentments and hostilities based on race that this Nation seeks to put behind it”). I will therefore speak in response.

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A
For over a century, racial minorities in Michigan fought to bring diversity to their State’s public colleges and universities. Before the advent of race-sensitive admissions policies, those institutions, like others around the country, were essentially segregated. In 1868, two black students were admitted to the University of Michigan, the first of their race. See Expert Report of James D. Anderson 4, in Gratz v. Bollinger, No. 97–75231 (ED Mich.). In 1935, over six decades later, there were still only 35 black students at the University. Ibid. By 1954, this number had risen to slightly below 200. Ibid. And by 1966, to around 400, among a total student population of roughly 32,500— barely over 1 percent. Ibid. The numbers at the University of Michigan Law School are even more telling. During the 1960’s, the Law School produced 9 black graduates among a total of 3,041—less than three-tenths of 1 percent. See App. in Grutter v. Bollinger, O. T. 2002, No. 02– 241, p. 204.
The housing and extracurricular policies at these institutions also perpetuated open segregation. For instance, incoming students were permitted to opt out of rooming with black students. Anderson, supra, at 7–8. And some fraternities and sororities excluded black students from membership. Id., at 6–7.
In 1966, the Defense Department conducted an investigation into the University’s compliance with Title VI of the Civil Rights Act, and made 25 recommendations for increasing opportunities for minority students. Id., at 9. In 1970, a student group launched a number of protests, including a strike, demanding that the University increase its minority enrollment. Id., at 16–23. The University’s Board of Regents responded, adopting a goal of 10 percent black admissions by the fall of 1973. Id., at 23.

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During the 1970’s, the University continued to improve its admissions policies,15 encouraged by this Court’s 1978 decision in Bakke. In that case, the Court told our Nation’s colleges and universities that they could consider race in admissions as part of a broader goal to create a diverse student body, in which students of different backgrounds would learn together, and thereby learn to live together. A little more than a decade ago, in Grutter, the Court reaffirmed this understanding. In upholding the admissions policy of the Law School, the Court laid to rest any doubt whether student body diversity is a compelling interest that may justify the use of race.
Race-sensitive admissions policies are now a thing of the past in Michigan after §26, even though—as experts agree and as research shows—those policies were making a difference in achieving educational diversity. In Grutter, Michigan’s Law School spoke candidly about the strides the institution had taken successfully because of racesensitive admissions. One expert retained by the Law School opined that a race-blind admissions system would have a “very dramatic, negative effect on underrepresented minority admissions.” Grutter, 539 U. S., at 320 (internal quotation marks omitted). He testified that the school had admitted 35 percent of underrepresented minority students who had applied in 2000, as opposed to only 10 percent who would have been admitted had race not been considered. Ibid. Underrepresented minority students would thus have constituted 4 percent, as opposed to the actual 14.5 percent, of the class that entered in 2000. Ibid.
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15 In 1973, the Law School graduated 41 black students (out of a class of 446) and the first Latino student in its history. App. in Grutter v. Bollinger, O. T. 2002, No. 02–241, p. 204. In 1976, it graduated its first Native American student. Ibid. On the whole, during the 1970’s, the Law School graduated 262 black students, compared to 9 in the previous decade, along with 41 Latino students. Ibid.

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Michigan’s public colleges and universities tell us the same today. The Board of Regents of the University of Michigan and the Board of Trustees of Michigan State University inform us that those institutions cannot achieve the benefits of a diverse student body without race-sensitive admissions plans. See Brief for Respondents Regents of the University of Michigan, the Board of Trustees of Michigan State University et al. 18–25. During proceedings before the lower courts, several university officials testified that §26 would depress minority enrollment at Michigan’s public universities. The Director of Undergraduate Admissions at the University of Michigan “expressed doubts over the ability to maintain minority enrollment through the use of a proxy, like socioeconomic status.” Supp. App. to Pet. for Cert. 285a. He explained that university officials in States with laws similar to §26 had not “ ‘achieve[d] the same sort of racial and ethnic diversity that they had prior to such measures . . . without considering race.’ ” Ibid. Similarly, the Law School’s Dean of Admissions testified that she expected “a decline in minority admissions because, in her view, it is impossible ‘to get a critical mass of underrepresented minorities . . . without considering race.’ ” Ibid. And the Dean of Wayne State University Law School stated that “although some creative approaches might mitigate the effects of [§26], he ‘did not think that any one of these proposals or any combination of these proposals was reasonably likely to result in the admission of a class that had the same or similar or higher numbers of African Americans, Latinos and Native Americans as the prior policy.’ ” Ibid.
Michigan tells a different story. It asserts that although the statistics are difficult to track, “the number of underrepresented minorities . . . [in] the entering freshman class at Michigan as a percentage changed very little” after §26. Tr. of Oral Arg. 15. It also claims that “the statistics in California across the 17 campuses in the

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University of California system show that today the underrepresented minority percentage is better on 16 out of those 17 campuses”—all except Berkeley—than before California’s equivalent initiative took effect. Id., at 16. As it turns out, these statistics weren’t “ ‘even good enough to be wrong.’ ” Reference Manual on Scientific Evidence 4 (2d ed. 2000) (Introduction by Stephen G. Breyer (quoting Wolfgang Pauli)).
Section 26 has already led to decreased minority enrollment at Michigan’s public colleges and universities. In 2006 (before §26 took effect), underrepresented minorities made up 12.15 percent of the University of Michigan’s freshman class, compared to 9.54 percent in 2012—a roughly 25 percent decline. See University of Michigan— New Freshman Enrollment Overview, Office of the Registrar, online at http://www.ro.umich.edu/report/10enrolloverview.pdf and http://www.ro.umich.edu/report/12enrollmentsummary.pdf.16 Moreover, the total number of college-aged underrepresented minorities in Michigan has increased even as the number of underrepresented minorities admitted to the University has decreased. For example, between 2006 and 2011, the proportion of black freshmen among those enrolled at the University of Michigan declined from 7 percent to 5 percent, even though the proportion of black college-aged persons in Michigan increased from 16 to 19 percent. See Fessenden and Keller, How Minorities Have Fared in States with Affirmative Action Bans, N. Y. Times, June 24, 2013, online at http://www.nytimes.com/ interactive/2013/06/24/us/affirmative-action-bans.html.

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16 These percentages include enrollment statistics for black students, Hispanic students, Native American students, and students who identify as members of two or more underrepresented minority groups.

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SOTOMAYOR, J., dissenting

UNIVERSITY OF MICHIGAN Black Students17

A recent study also confirms that §26 has decreased minority degree attainment in Michigan. The University of Michigan’s graduating class of 2012, the first admitted after §26 took effect, is quite different from previous classes. The proportion of black students among those attaining bachelor’s degrees was 4.4 percent, the lowest since 1991; the proportion of black students among those attaining master’s degrees was 5.1 percent, the lowest since 1989; the proportion of black students among those attaining doctoral degrees was 3.9 percent, the lowest since 1993; and the proportion of black students among those attaining professional school degrees was 3.5 percent, the lowest since the mid-1970’s. See Kidder, Restructuring Higher Education Opportunity?: African American Degree Attainment After Michigan’s Ban on Affirmative Action, p. 1 (Aug. 2013), online at http://papers.ssrn.com/sol3/ abstract=2318523.
——————
17 This chart is reproduced from Fessenden and Keller, How Minorities Have Fared in States with Affirmative Action Bans, N. Y. Times, June 24, 2013, online at http://www.nytimes.com/interactive/2013/ 06/24/us/affirmative-action-bans.html.

52

SCHUETTE v. BAMN

SOTOMAYOR, J., dissenting
The President and Chancellors of the University of California (which has 10 campuses, not 17) inform us that “[t]he abandonment of race-conscious admissions policies resulted in an immediate and precipitous decline in the rates at which underrepresented-minority students applied to, were admitted to, and enrolled at” the university. Brief for President and Chancellors of the University of California as Amici Curiae 10 (hereinafter President and Chancellors Brief). At the University of California, Los Angeles (UCLA), for example, admission rates for underrepresented minorities plummeted from 52.4 percent in 1995 (before California’s ban took effect) to 24 percent in 1998. Id., at 12. As a result, the percentage of underrepresented minorities fell by more than half: from 30.1 percent of the entering class in 1995 to 14.3 percent in 1998. Ibid. The admissions rate for underrepresented minorities at UCLA reached a new low of 13.6 percent in 2012. See Brief for California Social Science Researchers and Admissions Experts as Amici Curiae 28.
The elimination of race-sensitive admissions policies in California has been especially harmful to black students. In 2006, for example, there were fewer than 100 black students in UCLA’s incoming class of roughly 5,000, the lowest number since at least 1973. See id., at 24.
The University of California also saw declines in minority representation at its graduate programs and professional schools. In 2005, underrepresented minorities made up 17 percent of the university’s new medical students, which is actually a lower rate than the 17.4 percent reported in 1975, three years before Bakke. President and Chancellors Brief 13. The numbers at the law schools are even more alarming. In 2005, underrepresented minorities made up 12 percent of entering law students, well below the 20.1 percent in 1975. Id., at 14.
As in Michigan, the declines in minority representation at the University of California have come even as the

Cite as: 572 U. S. ___ (2014)

53

SOTOMAYOR, J., dissenting
minority population in California has increased. At UCLA, for example, the proportion of Hispanic freshmen among those enrolled declined from 23 percent in 1995 to 17 percent in 2011, even though the proportion of Hispanic college-aged persons in California increased from 41 percent to 49 percent during that same period. See Fessenden and Keller.
UCLA
 Hispanic Students18


And the proportion of black freshmen among those enrolled at UCLA declined from 8 percent in 1995 to 3 percent in 2011, even though the proportion of black college-aged persons in California increased from 8 percent to 9 percent during that same period. See ibid.
—————— 18 Ibid.

54

SCHUETTE v. BAMN

SOTOMAYOR, J., dissenting
UCLA Black Students19

While the minority admissions rates at UCLA and Berkeley have decreased, the number of minorities en-
rolled at colleges across the country has increased. See Phillips, Colleges Straining to Restore Diversity: Bans on
Race-Conscious Admissions Upend Racial Makeup at California Schools, Wall Street Journal, Mar. 7, 2014, p. A3.

—————— 19 Ibid.

Cite as: 572 U. S. ___ (2014)

55

SOTOMAYOR, J., dissenting
BERKELEY AND UCLA20

The President and Chancellors assure us that they have tried. They tell us that notwithstanding the university’s efforts for the past 15 years “to increase diversity on [the University of California’s] campuses through the use of race-neutral initiatives,” enrollment rates have “not rebounded . . . [or] kept pace with the demographic changes among California’s graduating high-school population.” President and Chancellors Brief 14. Since Proposition 209 took effect, the university has spent over a half-billion dollars on programs and policies designed to increase diversity. Phillips, supra, at A3. Still, it has been unable to meet its diversity goals. Ibid. Proposition 209, it says, has “ ‘completely changed the character’ of the university.” Ibid. (quoting the Associate President and Chief Policy
——————
20 This chart is reproduced from Phillips, Colleges Straining to Restore Diversity: Bans on Race-Conscious Admissions Upend Racial Makeup at California Schools, Wall Street Journal, Mar. 7, 2014, p. A3.

56

SCHUETTE v. BAMN

SOTOMAYOR, J., dissenting
Advisor of the University of California).
B
These statistics may not influence the views of some of my colleagues, as they question the wisdom of adopting race-sensitive admissions policies and would prefer if our Nation’s colleges and universities were to discard those policies altogether. See ante, at 2 (ROBERTS, C. J., concurring) (suggesting that race-sensitive admissions policies might “do more harm than good”); ante, at 9, n. 6 (SCALIA, J., concurring in judgment); Grutter, 539 U. S., at 371–373 (THOMAS, J., concurring in part and dissenting in part); id., at 347–348 (SCALIA, J., concurring in part and dissenting in part). That view is at odds with our recognition in Grutter, and more recently in Fisher v. University of Texas at Austin, 570 U. S. ___ (2013), that race-sensitive admissions policies are necessary to achieve a diverse student body when race-neutral alternatives have failed. More fundamentally, it ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.
This Court has recognized that diversity in education is paramount. With good reason. Diversity ensures that the next generation moves beyond the stereotypes, the assumptions, and the superficial perceptions that students coming from less-heterogeneous communities may harbor, consciously or not, about people who do not look like them. Recognizing the need for diversity acknowledges that, “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.” Grutter, 539 U. S., at 333. And it acknowledges that “to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to

Cite as: 572 U. S. ___ (2014)

57

SOTOMAYOR, J., dissenting
talented and qualified individuals of every race and ethnicity.” Id., at 332.
Colleges and universities must be free to prioritize the goal of diversity. They must be free to immerse their students in a multiracial environment that fosters frequent and meaningful interactions with students of other races, and thereby pushes such students to transcend any assumptions they may hold on the basis of skin color. Without race-sensitive admissions policies, this might well be impossible. The statistics I have described make that fact glaringly obvious. We should not turn a blind eye to something we cannot help but see.
To be clear, I do not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court today regarding the constitutionality of §26. But I cannot ignore the unfortunate outcome of today’s decision: Short of amending the State Constitution, a Herculean task, racial minorities in Michigan are deprived of even an opportunity to convince Michigan’s public colleges and universities to consider race in their admissions plans when other attempts to achieve racial diversity have proved unworkable, and those institutions are unnecessarily hobbled in their pursuit of a diverse student body.
* * *
The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities. The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success. Today, the Court discards that doctrine without good reason.
In doing so, it permits the decision of a majority of the voters in Michigan to strip Michigan’s elected university

58

SCHUETTE v. BAMN

SOTOMAYOR, J., dissenting
boards of their authority to make decisions with respect to constitutionally permissible race-sensitive admissions policies, while preserving the boards’ plenary authority to make all other educational decisions. “In a most direct sense, this implicates the judiciary’s special role in safeguarding the interests of those groups that are relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Seattle, 458 U. S., at 486 (internal quotation marks omitted). The Court abdicates that role, permitting the majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan. The result is that Michigan’s public colleges and universities are less equipped to do their part in ensuring that students of all races are “better prepare[d] . . . for an increasingly diverse workforce and society . . .” Grutter, 539 U. S., at 330 (internal quotation marks omitted).
Today’s decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.
I respectfully dissent.

 
 Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 1 of 70
CLOSED,APPEAL,CONSOL
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:06−cv−15024−DML−RSW

Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN) et al v. Granholm et al Assigned to: District Judge David M. Lawson Referred to: Magistrate Judge R. Steven Whalen Case in other court: U.S. Supreme Court, 06−02653, 06−02656
U.S. Court of Appeals − Sixth Circuit, 08−01387/08−01389/08−00001
U.S. Court of Appeals − Sixth Circuit, 08−01387/1389/1534/09 Cause: No cause code entered
Plaintiff

Date Filed: 11/08/2006 Date Terminated: 03/18/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN)

represented by George B. Washington Scheff & Washington 645 Griswold Suite 1817 Detroit, MI 48226−4113 313−963−1921 Fax: 313−963−7587 Email: scheff@ameritech.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shanta Driver Scheff & Washington 645 Griswold Suite 1817 Detroit, MI 48226−4113 313−963−1921 Email: shantadriver@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
United for Equality and Affirmative Action Legal Defense Fund

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Plaintiff Rainbow Push Coalition

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Plaintiff Calvin Jevon Cochran

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Plaintiff

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 4 of 70

Issamar Camacho

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Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 8 of 70

Plaintiff Brittany Jones
Plaintiff Courtney Drake
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V.

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 10 of 70

Consol Plaintiff Chase Cantrell

represented by Erwin S. Chemerinsky UC Irvine School of Law 401 E. Peltason Drive Suite 1000 Irvine, CA 92697−8000 949−824−7722 Fax: 949−824−7336 Email: echemerinsky@law.uci.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Consol Plaintiff
M. N. a minor child by Karen Nestor, Mother and Next Friend

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Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 12 of 70

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Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 13 of 70

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Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff Sheldon Johnson

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 16 of 70

Consol Plaintiff Matthew Countryman

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED
represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 17 of 70

Consol Plaintiff
M. R. a minor child by Brenda Foster, Mother and Next Friend

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED
represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 18 of 70

Consol Plaintiff
Brenda Foster Mother and Next Friend to M. R., a minor

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED
represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 19 of 70

Consol Plaintiff Bryon Maxey

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 20 of 70

Consol Plaintiff Rachel Quinn

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff Kevin Gaines

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 21 of 70

Consol Plaintiff Dana Christensen

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED
represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 22 of 70

Consol Plaintiff
T. J. a minor, by Cathy Alfaro, guardian and next friend

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED
represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 23 of 70

Consol Plaintiff
Cathy Alfaro Guardian and Next Friend to T. J., a minor

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED
represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 24 of 70

Consol Plaintiff
S. W. a minor child by Michael Weisberg, Father and Next Friend

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED
represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 25 of 70

Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff
Michael Weisberg Father and Next Friend to S. W., a minor

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff Casey R. Kasper

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 26 of 70

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff Sergio Eduardo Munoz

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 27 of 70

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff Rosario Ceballo

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 28 of 70

Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff Kathleen Canning

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 29 of 70

Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff Edward Kim

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 30 of 70

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff
M. C. C., II a minor by Carolyn Carter, Mother and Next Friend

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff
Carolyn Carter Mother and Next Friend to M. C. C. II, a minor

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 31 of 70

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff
J. R. a minor by Matthew Robinson, Father and Next Friend

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 32 of 70

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff
Matthew Robinson Father and Next Friend to J. R., a minor

represented by Erwin S. Chemerinsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome R. Watson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence H. Tribe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark P. Fancher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 33 of 70
Melvin J. Hollowell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 01/05/2007 LEAD ATTORNEY
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Karin A. DeMasi (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Lansing, City of

represented by Brigham C. Smith Lansing City Attorney's Office 124 W. Michigan Avenue 5th Floor, City Hall Lansing, MI 48933 517−483−4320 Email: Bsmith@ci.lansing.mi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Michigan, Governor of in her official capacity as Governor of the State of Michigan TERMINATED: 08/15/2007

represented by James E. Long Michigan Department of Attorney General Civil Litigation, Employment & Elections Division P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909 517−373−6434 Fax: 517−335−2454 Email: longj@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian O. Neill

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 34 of 70

Michigan Department of Attorney General P.O. Box 30217 Lansing, MI 48909 517−373−4875 Email: neillb@michigan.gov ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Defendant University of Michigan, Regents of

represented by Laurie J. Michelson Butzel Long 150 W. Jefferson Suite 100 Detroit, MI 48226−4430 313−225−7000 Email: orlowski@butzel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard M. Niehoff 130 S. First Steet 4th Floor Ann Arbor, MI 48104 734−418−4246 Fax: 734−418−4247 Email: lniehoff@honigman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Robin Luce Herrmann Butzel Long Stoneridge West 41000 Woodward Avenue Bloomfield, MI 48304 248−593−3044 Fax: 248−258−1439 Email: luce−herrmann@butzel.com ATTORNEY TO BE NOTICED

Sheldon H. Klein Butzel Long 41000 Woodward Avenue Stoneridge West Bloomfield Hills, MI 48304 248−258−1414 Fax: 248−258−1439 Email: klein@butzel.com ATTORNEY TO BE NOTICED

Defendant
Michigan State University, Board of Trustees of

represented by Laurie J. Michelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address)

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 35 of 70

LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Robin Luce Herrmann (See above for address) ATTORNEY TO BE NOTICED

Sheldon H. Klein (See above for address) ATTORNEY TO BE NOTICED

Defendant
Wayne State University, Board of Governors of

represented by Laurie J. Michelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Robin Luce Herrmann (See above for address) ATTORNEY TO BE NOTICED

Sheldon H. Klein (See above for address) ATTORNEY TO BE NOTICED

Defendant
Trustees of Any Other Public College or University, Community College or School District

represented by George B. Washington (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
Michael Cox Michigan Attorney General

represented by Heather S. Meingast MI Department of Attorney General Appellate Division P.O. Box 30217 Lansing, MI 48909 517−373−4878 Email: meingasth@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph E. Potchen Michigan Department of Attorney General Corporate Oversight Division P.O. Box 30755 Lansing, MI 48909 517−373−1160

Case: 2:06-cv-15024 As of: 02/02/2016 10:17 PM EST 36 of 70

Email: potchenj@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret A. Nelson Michigan Department of Attorney General Public Employment, Elections and Tort P.O. Box 30736 Lansing, MI 48909 517−373−6434 Email: nelsonm9@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant
American Civil Rights Foundation Proposed Defendant−Intervenor

represented by Alan W. Foutz − INACTIVE Pacific Legal Foundation 3900 Lennane Drive Suite 200 Sacramento, CA 95834 916−419−7111 TERMINATED: 06/21/2010

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Sharon L. Browne − INACTIVE Pacific Legal Foundation 930 G Street Sacramento, CA 95814 916−419−7111 Fax: 916−419−7747 ATTORNEY TO BE NOTICED

Intervenor Defendant
Michigan Civil Rights Initiative Committee Proposed Defendant−Intervenor

represented by Alan W. Foutz − INACTIVE (See above for address) TERMINATED: 06/21/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Sharon L. Browne − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant Eric Russell

represented by Michael E. Rosman Center for Individual Rights 1233 20th Street, NW Suite 300 Washington, DC 20036 202−833−8400 Email: rosman@cir−usa.org LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Charles J. Cooper Cooper & Kirk 1523 New Hampshire Avenue NW Washington, DC 20036 202−220−9600 Fax: 202−220−9605 Email: ccooper@cooperkirk.com ATTORNEY TO BE NOTICED

Dean J. Sauer − INACTIVE Cooper & Kirk 1523 New Hampshire Avenue NW Washington, DC 20036 202−220−9670 Fax: 202−220−9605 TERMINATED: 01/22/2008

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Jesse M. Panuccio − INACTIVE Cooper & Kirk 1523 New Hampshire Avenue NW Washington, DC 20036 202−220−9600 Fax: 202−220−9601 ATTORNEY TO BE NOTICED

Kerry L. Morgan Pentiuk, Couvreur, 2915 Biddle Avenue Suite 200 Wyandotte, MI 48192 734−281−7100 Fax: 734−281−7102 Email: kmorganesq@aol.com ATTORNEY TO BE NOTICED

Intervenor Defendant Toward A Fair Michigan

represented by Kerry L. Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E. Rosman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles J. Cooper (See above for address) ATTORNEY TO BE NOTICED

Dean J. Sauer − INACTIVE (See above for address) TERMINATED: 01/22/2008

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

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Intervenor Defendant Ms. Jennifer Gratz

represented by Charles J. Cooper (See above for address) ATTORNEY TO BE NOTICED

Amicus
West Michigan Minority Contractors Association, Incorporated

represented by Brent E. Simmons 300 S. Capitol Avenue P.O. Box 13038 Lansing, MI 48901 517−371−5140 Fax: 517−334−5722 Email: simmonbr@cooley.edu ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Amicus Michigan Education Association

represented by William F. Young White, Schneider, 2300 Jolly Oak Road Okemos, MI 48864 517−349−7744 Email: wyoung@whiteschneider.com ATTORNEY TO BE NOTICED

V. Intervenor Eric Russell
Cross Claimant University of Michigan, Regents of

represented by Charles J. Cooper (See above for address) ATTORNEY TO BE NOTICED
Dean J. Sauer − INACTIVE (See above for address) TERMINATED: 01/22/2008
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Laurie J. Michelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard M. Niehoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Robin Luce Herrmann (See above for address) ATTORNEY TO BE NOTICED

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Cross Claimant Michigan State University, Board of Trustees of
Cross Claimant Wayne State University, Board of Governors of

Sheldon H. Klein (See above for address) ATTORNEY TO BE NOTICED
represented by Laurie J. Michelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard M. Niehoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Robin Luce Herrmann (See above for address) ATTORNEY TO BE NOTICED
Sheldon H. Klein (See above for address) ATTORNEY TO BE NOTICED
represented by Laurie J. Michelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard M. Niehoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
Robin Luce Herrmann (See above for address) ATTORNEY TO BE NOTICED
Sheldon H. Klein (See above for address) ATTORNEY TO BE NOTICED

V.
Cross Defendant
Michigan, Governor of in her official capacity as Governor of the State of Michigan TERMINATED: 08/15/2007

represented by James E. Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian O. Neill (See above for address) ATTORNEY TO BE NOTICED

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George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/08/2006 12/11/2006 12/11/2006
12/11/2006
12/11/2006
12/12/2006 12/13/2006 12/14/2006
12/14/2006 12/14/2006 12/14/2006 12/14/2006 12/14/2006 12/14/2006 12/14/2006

# Docket Text
1 COMPLAINT filed by all plaintiffs against all defendants, Receipt No: 38846 − Fee: $ 350.(THal, ) (Entered: 11/08/2006)
2 CROSSCLAIM filed by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of against Jennifer Granholm(Niehoff, Leonard) (Entered: 12/11/2006)
3 MOTION to Expedite Hearing and Consideration by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of, University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of. (Niehoff, Leonard) (Entered: 12/11/2006)
4 Ex Parte MOTION for Leave to File Excess Pages by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of, University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of. (Niehoff, Leonard) (Entered: 12/11/2006)
5 MOTION for Preliminary Injunction by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of, University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of. (Attachments: # 1 Index of Exhibits # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E)(Niehoff, Leonard) (Entered: 12/11/2006)
6 ORDER granting 4 Motion for Leave to File Excess Pages, directing response to motion for injuction, and requiring filing of proofs of service− Signed by Honorable David M Lawson. (FMos, ) (Entered: 12/12/2006)
7 CERTIFICATE of Service/Summons Returned Executed. Jennifer Granholm served on 12/7/2006, answer due 12/27/2006. (Washington, George) (Entered: 12/13/2006)
8 MOTION to Intervene As Defendant in the Complaint filed by Plaintiffs, and in the Cross Claim filed by the Defendant Universities with Brief in Support by Cox, Michael. (Attachments: # 1 Exhibit 1 − Governor's correspondence)(Nelson, Margaret) (Entered: 12/14/2006)
9 MOTION to Expedite Hearing and Immediate Consideration of his Motion to Intervene as a Party by Cox, Michael. (Nelson, Margaret) (Entered: 12/14/2006)
10 CERTIFICATE of Service/Summons Returned Executed.. (Washington, George) (Entered: 12/14/2006)
11 ATTORNEY APPEARANCE: Brian O. Neill appearing on behalf of Jennifer Granholm, Jennifer Granholm.(Neill, Brian) (Entered: 12/14/2006)
12 ATTORNEY APPEARANCE: James E. Long appearing on behalf of Jennifer Granholm, Jennifer Granholm.(Long, James) (Entered: 12/14/2006)
13 ORDER granting 8 Motion to Intervene, granting 9 Motion to Expedite and directing response to motion for preliminary injunction− signed by Honorable David M Lawson. (FMos, ) (Entered: 12/14/2006)
14 NOTICE of Appearance by Sharon L. Browne on behalf of American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Browne, Sharon) (Entered: 12/14/2006)
15 NOTICE of Appearance by Alan W. Foutz on behalf of American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Foutz, Alan) (Entered: 12/14/2006)

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12/14/2006 12/14/2006 12/14/2006 12/14/2006
12/14/2006
12/14/2006 12/15/2006 12/15/2006 12/17/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/18/2006
12/18/2006

16 MOTION to Intervene by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Foutz, Alan) (Entered: 12/14/2006)
17 DECLARATION by Ward Connerly re 16 MOTION to Intervene In Support of Motion to Intervene filed by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee.(Foutz, Alan) (Entered: 12/14/2006)
18 DECLARATION by Diane Schachterle re 16 MOTION to Intervene In Support of Motion to Intervene filed by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee.(Foutz, Alan) (Entered: 12/14/2006)
19 DECLARATION by Leon Drolet re 16 MOTION to Intervene In Support of Motion to Intervene filed by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Attachments: # 1 Index of Exhibits # 2 Exhibit Exhibit A − Ballot Question Committee Cover Page# 3 Exhibit Exhibit B − Know the Proposals)(Foutz, Alan) (Entered: 12/14/2006)
20 DECLARATION by Jennifer Gratz re 16 MOTION to Intervene In Support of Motion to Intervene filed by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Attachments: # 1 Index of Exhibits # 2 Exhibit Exhibit A − Committee Statement of Organization# 3 Exhibit Exhibit B − News Articles re Gratz & Proposal 2# 4 Exhibit Exhibit C − Gov. Granholm's & Archer's Article# 5 Exhibit Exhibit D − One United Michigan's Press Release# 6 Exhibit Exhibit E − President Coleman's Speech# 7 Exhibit Exhibit F − Gov. Granholm's Statement on Proposal 2)(Foutz, Alan) (Entered: 12/14/2006)
21 [STRICKEN per order on 12/27/06] MOTION to Dismiss by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Foutz, Alan) Modified on 12/27/2006 (FMos, ). (Entered: 12/14/2006)
22 NOTICE of Appearance by Heather S. Meingast on behalf of Cox, Michael. (Meingast, Heather) (Entered: 12/15/2006)
23 NOTICE of Appearance by Joseph E. Potchen on behalf of Cox, Michael. (Potchen, Joseph) (Entered: 12/15/2006)
24 AMENDED COMPLAINT filed by all plaintiffs against all defendants.(Washington, George) (Entered: 12/17/2006)
25 ANSWER to 2 Crossclaim with Certificate of Service by Jennifer Granholm. (Long, James) (Entered: 12/18/2006)
26 [FILING ERROR − RULE 11 VIOLATION]STIPULATION for Entry of Order by Cox, Michael.(Nelson, Margaret) Modified on 12/19/2006 (PMil, ). (Entered: 12/18/2006)
27 MOTION to Intervene by Eric Russell, Toward A Fair Michigan. (Attachments: # 1 Index of Exhibits # 2 Exhibit Proposed Answer In Intervention# 3 Exhibit Statement of Eric Russell# 4 Exhibit Statement of William Allen)(Rosman, Michael) (Entered: 12/18/2006)
28 RESPONSE to 5 MOTION for Preliminary Injunction filed by TAFM and filed by Eric Russell. (Rosman, Michael) (Entered: 12/18/2006)
29 RESPONSE to 5 MOTION for Preliminary Injunction Opposition to Request for Preliminary Injunction filed by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Foutz, Alan) (Entered: 12/18/2006)
30 DECLARATION by Alan W. Foutz re 29 Response to Motion in Support of Opposition to Motion for Preliminary Injunction filed by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Attachments: # 1 Index of Exhibits # 2 Exhibit A − Wayne State University Law School Admissions Standards and Procedures# 3 Exhibit B − Wayne State University Press Release)(Foutz, Alan) (Entered: 12/18/2006)
31 MOTION to Intervene As a Plaintiff by City of Lansing. (Smith, Brigham) (Entered: 12/18/2006)

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12/18/2006 12/18/2006 12/18/2006 12/18/2006 12/19/2006 12/19/2006 12/19/2006 12/19/2006 12/19/2006 12/19/2006 12/19/2006 12/19/2006 12/20/2006
12/20/2006
12/21/2006 12/21/2006
12/21/2006 12/22/2006 12/22/2006

32 DECLARATION by Terri L. Singleton re 31 MOTION to Intervene As a Plaintiff filed by City of Lansing.(Smith, Brigham) (Entered: 12/18/2006)
33 DECLARATION by Mark E. Alley re 31 MOTION to Intervene As a Plaintiff filed by City of Lansing.(Smith, Brigham) (Entered: 12/18/2006)
34 DECLARATION by Joan Jackson Johnson, Ph.D. re 31 MOTION to Intervene As a Plaintiff filed by City of Lansing.(Smith, Brigham) (Entered: 12/18/2006)
35 DECLARATION by Chad A. Gamble re 31 MOTION to Intervene As a Plaintiff filed by City of Lansing.(Smith, Brigham) (Entered: 12/18/2006)
36 ORDER granting temporary injuction and dismissing cross claim in part re 5 − signed by Honorable David M Lawson. (FMos, ) (Entered: 12/19/2006)
37 NOTICE of Change of Attorney Information by Brigham C. Smith on behalf of City of Lansing. (Smith, Brigham) (Entered: 12/19/2006)
38 Emergency MOTION to Intervene and Supplemental Motion by City of Lansing. (Smith, Brigham) (Entered: 12/19/2006)
39 AMENDED ORDER granting temporary injuction and dismissing cross−claim − signed by Honorable David M Lawson. (FMos, ) (Entered: 12/19/2006)
40 NOTICE of Change of Attorney Information by Kerry L. Morgan on behalf of Eric Russell and Toward a Fair Michigan. (Morgan, Kerry) (Entered: 12/19/2006)
41 MOTION to Expedite Hearing on Motion to Intervene by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Foutz, Alan) (Entered: 12/19/2006)
42 RESPONSE to 31 MOTION to Intervene As a Plaintiff filed by Cox, Michael. (Nelson, Margaret) (Entered: 12/19/2006)
43 MOTION to Expedite Prior Motion To Intervene and for A Stay Pending Appeal by TAFM and by Eric Russell. (Rosman, Michael) (Entered: 12/19/2006)
44 RESPONSE to 27 MOTION to Intervene of Eric Russell filed by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of, University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of, City of Lansing. (Niehoff, Leonard) (Entered: 12/20/2006)
45 RESPONSE to 16 MOTION to Intervene of American Civil Rights Foundation filed by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of, University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of. (Niehoff, Leonard) (Entered: 12/20/2006)
46 Ex Parte MOTION for Leave to File Excess Pages and for Expedited Hearing by Cox, Michael. (Nelson, Margaret) (Entered: 12/21/2006)
47 [ADDED TOWARD A FAIR MICHIGAN AS A FILER − APPEAL SHOULD BE LINKED TO 39 ] NOTICE OF APPEAL by Eric Russell. Receipt No: 1002331 − Fee: $ 455 − Fee Status: Fee Paid. (Rosman, Michael) Modified on 12/22/2006 (DWor, ). (Entered: 12/21/2006)
48 REPLY to Response re 16 MOTION to Intervene filed by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Foutz, Alan) (Entered: 12/21/2006)
49 RESPONSE to 43 MOTION to Expedite Prior Motion To Intervene and for A Stay Pending Appeal by TAFM and, 27 MOTION to Intervene and Certificate of Service filed by Jennifer Granholm. (Long, James) (Entered: 12/22/2006)
50 RESPONSE to 41 MOTION to Expedite Hearing on Motion to Intervene, 16 MOTION to Intervene and Certificate of Service filed by Jennifer Granholm. (Attachments: # 1 Exhibit 1 − Operation King's Dream v Connerly)(Long, James) (Entered: 12/22/2006)

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12/22/2006 12/22/2006
12/22/2006 12/26/2006 12/26/2006 12/27/2006
12/27/2006
12/28/2006 12/28/2006 12/28/2006
12/28/2006
12/28/2006 12/28/2006
12/28/2006
12/29/2006 12/29/2006 01/04/2007 01/04/2007
01/04/2007 01/05/2007 01/05/2007

51 STIPULATION re 24 Amended Complaint to Extend Time for Response by Cox, Michael.(Nelson, Margaret) (Entered: 12/22/2006)
52 NOTICE of Appearance by Laurie J. Michelson on behalf of University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of, University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of. (Michelson, Laurie) (Entered: 12/22/2006)
53 Certificate of Service re 47 Notice of Appeal. (DWor, ) (Entered: 12/22/2006)
54 ORDER Suspending Deadlines and for Status and Scheduling Conference − Signed by Honorable David M Lawson. (FMos, ) (Entered: 12/26/2006)
Set Deadlines/Hearings: Status and Scheduling Conference set for 1/5/2007 at 10:00 AM before Honorable David M Lawson. (FMos, ) (Entered: 12/26/2006)
55 OPINION AND ORDER granting 43 Motion to Expedite, granting 41 Motion to Expedite, granting 38 Motion to Intervene, granting in part and denying in part 27 ,denying 16 Motion to Intervene, denying 31 Motion to Intervene, striking 21 Motion to Dismiss − Signed by Honorable David M Lawson. (FMos, ) (Entered: 12/27/2006)
56 NOTICE OF APPEAL by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee re 55 Order on Motion to Intervene, Order on Motion to Dismiss,,,, Order on Motion to Expedite,,,,,,,,. Fee Status: No Fee Paid. (Attachments: # 1 Exhibit Opinion and Order)(Browne, Sharon) (Entered: 12/27/2006)
57 NOTICE OF APPEAL by Eric Russell, Toward A Fair Michigan. Fee Status: No Fee Paid. (Rosman, Michael) (Entered: 12/28/2006)
58 Certificate of Service re 57 Notice of Appeal. (PMil, ) (Entered: 12/28/2006)
59 [FILING ERROR/WRONG EVENT USED/THEY WILL RESUBMIT]NOTICE by Lansing, City of Notice of Appeal (Smith, Brigham) Modified on 12/28/2006 (PMil, ). (Entered: 12/28/2006)
60 NOTICE OF APPEAL of 55 by Lansing, City of. Receipt No: 1007191 − Fee: $ 455 − Fee Status: Fee Paid. (Smith, Brigham) Modified on 12/29/2006 (PMil, ). (Entered: 12/28/2006)
61 Certificate of Service re 60 Notice of Appeal. (PMil, ) (Entered: 12/28/2006)
62 [AMENDED]NOTICE OF APPEAL by Lansing, City of re 55 Order on Motion to Intervene, Order on Motion to Dismiss,,,, Order on Motion to Expedite,,,,,,,,. Fee Status: No Fee Paid. (Smith, Brigham) Modified on 12/29/2006 (PMil, ). (Entered: 12/28/2006)
65 FEE Received in the amount of $455.00 for appeal filing fee by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee − Receipt No. 552518 (PMil, ) (Entered: 01/03/2007)
63 Certificate of Service re 62 Notice of Appeal. (PMil, ) (Entered: 12/29/2006)
64 Certificate of Service re 56 Notice of Appeal. (LBeh, ) (Entered: 12/29/2006)
66 ORDER DENYING as Moot; Motion for Stay of Temporary Injunction Pending Appeal. Signed by Honorable David M Lawson. (VSim, ) (Entered: 01/04/2007)
67 TRANSCRIPT Order Form by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee for proceedings held on − Transcript Unnecessary. (Foutz, Alan) (Entered: 01/04/2007)
68 TRANSCRIPT Order Form by Eric Russell, Toward A Fair Michigan. (Attachments: # 1 certificate of service)(Rosman, Michael) (Entered: 01/04/2007)
Minute Entry −Scheduling Conference held on 1/5/2007 before Honorable David M Lawson. (VSim, ) (Entered: 01/05/2007)
69 ORDER CONSOLIDATING CASES and Granting Attorney General's Motion to Intervene, and Setting dates. Signed by Honorable David M Lawson. (VSim, )

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01/12/2007
01/16/2007 01/17/2007 01/17/2007 01/26/2007 01/26/2007 01/26/2007

(Entered: 01/05/2007)
70 STIPULATION for Extension of Time by Aiana Scott, Allen Vonou, Randiah Green, Brittany Jones, Courtney Drake, Dante Dixon, Joseph Henry Reed, Calvin Jevon Cochran, AFSCME Local 207, AFSCME Local 214, AFSCME Local 312, AFSCME Local 836, AFSCME Local 1642, AFSCME Local 2920, Defend Affirmative Action Party, Jennifer Granholm, University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of, Trustees of Any Other Public College or University, Community College or School District, Lashelle Benjamin, University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of, Jennifer Granholm, Cox, Michael, Beautie Mitchell, American Civil Rights Foundation, Michigan Civil Rights Initiative Committee, Deneshea Richey, Eric Russell, Toward A Fair Michigan, Stasia Brown, City of Lansing, City of Lansing, City of Lansing, City of Lansing, City of Lansing, Michael Gibson, City of Lansing, City of Lansing, Christopher Sutton, Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN), Laquay Johnson, Eric Russell, Lansing, City of, Turqoise Wise−King, Lansing, City of, Lansing, City of, Brandon Flannigan, Chase Cantrell, M. N., Josie Hyman, Karen Nestor, C. U., Chidimma Uche, Issamar Camacho, Joshua Kay, Sheldon Johnson, Matthew Countryman, Kahleif Henry, M. R., Brenda Foster, Bryon Maxey, Shanae Tatum, Rachel Quinn, Kevin Gaines, Dana Christensen, Maricruz Lopez, T. J., Cathy Alfaro, S. W., Alejandra Cruz, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Adarene Hoag, United for Equality and Affirmative Action Legal Defense Fund, Rosario Ceballo, Kathleen Canning, Edward Kim, Candice Young, M. C. C., II, Carolyn Carter, J. R., Tristan Taylor, Matthew Robinson, Williams Frazier, Jerell Erves, Matthew Griffith, Lacrissa Beverly, D'Shawn Featherstone, Danielle Nelson, Julius Carter, Kevin Smith, Rainbow Push Coalition, Kyle Smith, Paris Butler, Touissant King.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(Steinberg, Michael) (Entered: 01/12/2007)
71 STIPULATED ORDER Extending Time to File and Answer Amended Complaint − Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(FMos, ) (Entered: 01/16/2007)
72 ATTORNEY APPEARANCE: Karin A. DeMasi appearing on behalf of Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(DeMasi, Karin) (Entered: 01/17/2007)
73 AMENDED COMPLAINT filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Carolyn Carter, Matthew Robinson against all defendants.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(DeMasi, Karin) (Entered: 01/17/2007)
74 ANSWER to Amended Complaint with Affirmative Defenses by Cox, Michael.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(Nelson, Margaret) (Entered: 01/26/2007)
75 ANSWER to Amended Complaint with Affirmative Defenses with Certificate of Service by Jennifer Granholm.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(Long, James) (Entered: 01/26/2007)
76 ANSWER to Amended Complaint with Affirmative Defenses by Cox, Michael.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(Nelson, Margaret)

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01/26/2007 01/30/2007
01/30/2007 01/30/2007 01/31/2007 02/01/2007 03/01/2007 03/01/2007
03/05/2007 03/05/2007

(Entered: 01/26/2007)
77 ANSWER to Amended Complaint with Affirmative Defenses in 06−15024 by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(Rosman, Michael) (Entered: 01/26/2007)
78 [FILING ERROR − RULE 11 VIOLATION] STIPULATION TO EXTEND TIME TO SERVE DISCLOSURES PURSUANT TO F.R.C.P. 26(a)(1)(A), (B) and (C) by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(DeMasi, Karin) Modified on 1/30/2007 (PMil, ). (Entered: 01/30/2007)
79 ANSWER to Amended Complaint with Affirmative Defenses with Certificate of Service by Jennifer Granholm.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(Long, James) (Entered: 01/30/2007)
80 ANSWER to Amended Complaint with Affirmative Defenses in 06−15637 by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(Rosman, Michael) (Entered: 01/30/2007)
81 ANSWER to Amended Complaint with Affirmative Defenses for Injunctive and Declaratory Relief by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of, University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of.Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(Niehoff, Leonard) (Entered: 01/31/2007)
82 STIPULATION AND ORDER Extending Time to Serve Disclosures Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A),(B), and (C) − Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW,2:06−cv−15637−DML−SDP(FMos, ) (Entered: 02/01/2007)
83 MOTION to Vacate and for Reconsideration by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 03/01/2007)
84 DECLARATION by Karin A. DeMasi re (83 in 2:06−cv−15024−DML−RSW, 27 in 2:06−cv−15637−DML−SDP) MOTION to Vacate and for Reconsideration filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson (Attachments: # 1 Index of Exhibits A through E# 2 Exhibit A − Stipulation For Entry Of Order, Case No.# 3 Exhibit B − Amended Order Granting Temporary# 4 Exhibit C − Eric Russells Motion and Brief In Support# 5 Exhibit D − M. Lawsons Opinion and Order Granting# 6 Exhibit E − Attorney General Michael A. Coxs)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 03/01/2007)
85 STIPULATION AND ORDER Extending Deadline for Filing of Joint Proposed Stipulation of Facts and Responses Thereto − Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 03/05/2007)
89 FEE Received in the amount of $455.00 for 57 Appeal Filing Fee by Toward A Fair Michigan, Eric Russell − Receipt No. 554841 Associated Cases:

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03/07/2007 03/08/2007 03/13/2007 03/14/2007 03/18/2007 03/18/2007 03/20/2007 03/21/2007 03/21/2007
03/22/2007
03/28/2007 04/03/2007

2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) (Entered: 03/14/2007)
86 RESPONSE OF THE UNIVERSITIES TO PLAINTIFFS' PROPOSED STIPULATION by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Niehoff, Leonard) (Entered: 03/07/2007)
87 ORDER denying (83) Motion to Vacate in case 2:06−cv−15024−DML−RSW; denying (27) Motion to Vacate in case 2:06−cv−15637−DML−SDP. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) (Entered: 03/09/2007)
88 NOTICE of Correction of date filed regarding Order on Motion to Vacate (31 in 2:06−cv−15637−DML−SDP, 87 in 2:06−cv−15024−DML−RSW). Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (SGon) (Entered: 03/13/2007)
90 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 03/14/2007)
91 NOTICE of Appearance by Brent E. Simmons on behalf of West Michigan Minority Contractors Association, Inc.. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Simmons, Brent) (Entered: 03/18/2007)
92 APPLICATION AND BRIEF FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE by West Michigan Minority Contractors Association, Inc.. (Attachments: # 1 Exhibit City of Grand Rapids Notice)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Simmons, Brent) (Entered: 03/18/2007)
93 Second MOTION to Amend/Correct First Amended Complaint to Add the Presidents of the Three Universities as Parties Defendant by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN). Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 03/20/2007)
Minute Entry −Scheduling Conference held on 3/21/2007 before Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 03/21/2007)
94 ORDER Granting in Part and Denying in Part Application for Leave to Participate as Amicus Curiae re (92 in 2:06−cv−15024−DML−RSW, 36 in 2:06−cv−15637−DML−SDP) Application, filed by West Michigan Minority Contractors Association, Inc. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 03/21/2007)
95 FIRST Supplemental Case Management and Scheduling Order: Interim Status Conference set for 6/14/2007 at 10:00 AM before Honorable David M Lawson. Dispositive Motion Cut−off set for 7/27/2007,Discovery due by 7/27/2007, Hearing on Dispositive Motions set for 9/21/07 at 9:00 AM. Signed by Honorable David M Lawson. (Refer to image for additional dates)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 03/22/2007)
96 AMENDED COMPLAINT Second Amended Complaint filed by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN) against all defendants.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 03/28/2007)
97 NOTICE of Appearance by Dean J. Sauer on behalf of Toward A Fair Michigan, Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Sauer, Dean) (Entered: 04/03/2007)

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98 NOTICE of Appearance by Charles J. Cooper on behalf of Toward A Fair Michigan, Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 04/03/2007)
99 ANSWER to Amended Complaint with Affirmative Defenses and Certificate of Service by Jennifer Granholm.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Long, James) (Entered: 04/09/2007)
100 ANSWER to Amended Complaint with Affirmative Defenses by Cox, Michael.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Nelson, Margaret) (Entered: 04/09/2007)
101 ANSWER to Amended Complaint with Affirmative Defenses by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Sauer, Dean) (Entered: 04/09/2007)
102 NOTICE TO APPEAR: Rescheduled Dispositive Motion Hearing reset for 9/28/2007 at 9:00 AM before Honorable David M LawsonAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (ATee) (Entered: 04/17/2007)
103 ANSWER to Amended Complaint with Affirmative Defenses to Plaintiff Coalition to Defend Affirmative Action et. al.'s (BAMN's) Second Amended Class−Action Complaint by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Klein, Sheldon) (Entered: 04/23/2007)
104 STIPULATION AND ORDER Amending Case Management and Scheduling Order − Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 05/04/2007)
105 STIPULATION AND ORDER further amending case management and scheduling order − Signed by Honorable David M Lawson. (FMos) (Entered: 05/14/2007)
106 Ex Parte MOTION for Leave to File Excess Pages by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN).Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 05/15/2007)
107 MOTION to Certify Class and For Appointment of Lead Counsel by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
108 DECLARATION by Kathleen Canning re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew RobinsonAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
109 DECLARATION by Chase Cantrell re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew RobinsonAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)

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110 DECLARATION by Rosario Ceballo re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson, Danielle Nelson, Karen NestorAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
111 DECLARATION by Matthew Countryman re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson, Danielle Nelson, Karen NestorAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
112 DECLARATION by Karin A. DeMasi re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson (Attachments: # 1 Index of Exhibits # 2 Exhibit A − Order Consolidating Cases, Granting# 3 Exhibit B − Opinion issued by Hon. Patrick J. Duggan)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
113 DECLARATION by Melvin Butch Hollowell re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew RobinsonAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
114 DECLARATION by Sheldon Johnson re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew RobinsonAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
115 DECLARATION by Casey R. Kasper re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew RobinsonAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
116 DECLARATION by Joshua Kay re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew RobinsonAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
117 DECLARATION by Bryon Maxey re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey,

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Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson, Danielle Nelson, Karen NestorAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
118 DECLARATION by Sergio Eduardo Munoz re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew RobinsonAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
119 DECLARATION by Rachel Quinn re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew RobinsonAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
120 DECLARATION by Mark D. Rosenbaum re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class and For Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson (Attachments: # 1 Index of Exhibits # 2 Exhibit A − Resume of Mark Rosenbaum# 3 Exhibit B − Resume of Catherine Lhamon# 4 Exhibit C − Resume and bibliography of Laurence Tribe# 5 Exhibit D − Resume of Kary Moss# 6 Exhibit E − Resume of Michael J. Steinberg# 7 Exhibit F − Resume of Mark Fancher)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 05/15/2007)
121 MOTION to Certify Class by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN). (Attachments: # 1 Index of Exhibits Index of Exhibits# 2 Exhibit Ex 1 Declaration of Calvin Jevon Cochran# 3 Exhibit Declaration of Arielle Bullard# 4 Exhibit Declaration of Issamar Camacho# 5 Exhibit Declaration of Maricruz Lopez# 6 Exhibit 2006 College Bound Seniors Average SAT Scores# 7 Exhibit Statistics on Graduates of the University of Michigan Law School# 8 Exhibit Selections from the Report of James Anderson# 9 Exhibit Declaration of Josie Hyman# 10 Exhibit Declaration of Alejandra Cruz# 11 Exhibit Declaration of Dmitri Garcia# 12 Exhibit Speech of Mary Sue Coleman# 13 Exhibit Declaration of Cordelia Martin# 14 Exhibit Declaration of Chris Sutton# 15 Exhibit Declaration of Courtney Drake# 16 Exhibit Declaration of Randiah Green# 17 Exhibit Declaration Luke Massie# 18 Exhibit Declaration of George B. Washington# 19 Exhibit Declaration of Shanta Driver# 20 Exhibit Declaration of Miranda Massie# 21 Exhibit Declaration of Donna Stern# 22 Exhibit Declaration of Lorinda Buckingham)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 05/16/2007)
122 ORDER granting 106 Motion for Leave to File Excess Pages. Signed by Honorable David M Lawson. (FMos) (Entered: 05/16/2007)
123 NOTICE of hearing on 121 MOTION to Certify Class, 107 MOTION to Certify Class and For Appointment of Lead Counsel. Motion Hearing set for 8/15/2007 at 3:00 PM before Honorable David M Lawson (FMos) (Entered: 05/18/2007)
124 NOTICE BY JUDGE LAWSON IN CHANGE OF SERVICE PROTOCOL. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) (Entered: 05/21/2007)

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125 NOTICE of hearing on (179 in 2:06−cv−15637−DML−SDP) MOTION for Attorney Fees. Motion Hearing set for 4/27/2009 at 11:00 AM before District Judge David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 06/04/2007)
126 STIPULATED ORDER Extending Time to Respond to Motions for Class Certification. Signed by Honorable David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (SPin) (Entered: 06/05/2007)
Reset Deadlines/Hearings: Interim Status Conference reset for 6/19/2007 at 9:00 AM before Honorable David M Lawson (FMos) (Entered: 06/12/2007)
127 RESPONSE to (60 in 2:06−cv−15637−DML−SDP, 121 in 2:06−cv−15024−DML−RSW) MOTION to Certify Class filed by Cox, Michael.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Nelson, Margaret) (Entered: 06/12/2007)
128 RESPONSE to (46 in 2:06−cv−15637−DML−SDP, 107 in 2:06−cv−15024−DML−RSW) MOTION to Certify Class filed by Michael A. Cox.Associated Cases: 2:06−cv−15637−DML−SDP, 2:06−cv−15024−DML−RSW (Nelson, Margaret) (Entered: 06/12/2007)
129 RESPONSE to (46 in 2:06−cv−15637−DML−SDP, 107 in 2:06−cv−15024−DML−RSW) MOTION to Certify Class, (60 in 2:06−cv−15637−DML−SDP, 121 in 2:06−cv−15024−DML−RSW) MOTION to Certify Class and Certificate of Service filed by Jennifer Granholm.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Long, James) (Entered: 06/12/2007)
130 STIPULATION TO EXTEND TIME TO SERVE THE PLAINTIFFS CLASS CERTIFICATION REPLY BRIEFS by Calvin Jevon Cochran, AFSCME Local 207, AFSCME Local 214, AFSCME Local 312, AFSCME Local 836, AFSCME Local 1642, AFSCME Local 2920, Lashelle Benjamin, American Civil Rights Foundation, Stasia Brown, City of Lansing, Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN), Chase Cantrell, C. U., Issamar Camacho, Matthew Countryman, Dana Christensen, Cathy Alfaro, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Lacrissa Beverly, Julius Carter, Paris ButlerAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Steinberg, Michael) (Entered: 06/12/2007)
131 RESPONSE to (60 in 2:06−cv−15637−DML−SDP, 121 in 2:06−cv−15024−DML−RSW) MOTION to Certify Class by Coalition Plaitiffs filed by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 06/12/2007)
132 RESPONSE to (60 in 2:06−cv−15637−DML−SDP, 121 in 2:06−cv−15024−DML−RSW) MOTION to Certify Class by Cantrell Plaintiffs filed by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 06/12/2007)
133 STIPULATED ORDER Extending Time for Plaintiffs to Reply to Defendants' Responses to Motions for Class Certification. Signed by Honorable David M. Lawson. (SPin) (Entered: 06/14/2007)
Minute Entry −Status Conference of June 19, 2007 adjourned by Honorable David M. Lawson at the parties request. Disposition: adjourned on June 18, 2007 without date. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (SPin) (Entered: 06/18/2007)
134 MOTION for Leave to File Brief in Response to Motions for Class Certification by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Attachments: # 1 Index of Exhibits # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Foutz, Alan) (Entered: 06/22/2007)

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135 REPLY to Response re (46 in 2:06−cv−15637−DML−SDP) MOTION to Certify Class filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 06/25/2007)
136 DECLARATION by Karin A. DeMasi re (71 in 2:06−cv−15637−DML−SDP) Reply to Response to Motion, Supplemental Declaration of Karin A. DeMasi, Esq. in Support of Plaintiffs Chase Cantrell's, et al.'s Motion for Class Certification and for Appointment of Lead Counsel filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson (Attachments: # 1 Exhibit Attorney General Michael A. Cox's Motion to Intervene as a Defendant)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 06/25/2007)
137 REPLY to Response re (60 in 2:06−cv−15637−DML−SDP, 121 in 2:06−cv−15024−DML−RSW) MOTION to Certify Class filed by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN). (Attachments: # 1 Index of Exhibits Index of Exhibits# 2 Exhibit 1−−Article, Marissa Schultz, "Fewer Minorities Get Into UM Law," Detroit News, June 15, 2007# 3 Exhibit 2−Article, Marissa Schultz, "New U−M scholarships replace two axed under Proposal 2," Detroit News, June 21, 2007)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 06/25/2007)
138 ORDER granting 134 Motion for Leave to File Brief Amicus Curiae − Signed by Honorable David M Lawson. (FMos) (Entered: 06/28/2007)
139 SUPPLEMENTAL BRIEF re (46 in 2:06−cv−15637−DML−SDP, 107 in 2:06−cv−15024−DML−RSW) MOTION to Certify Class ("The Cantrell Plaintiffs' Supplemental Reply To The Michigan Civil Rights Initiative Committee And The American Civil Rights Foundation") filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15637−DML−SDP, 2:06−cv−15024−DML−RSW (DeMasi, Karin) (Entered: 06/29/2007)
140 Joint MOTION to Amend/Correct (95 in 2:06−cv−15024−DML−RSW, 95 in 2:06−cv−15024−DML−RSW) Scheduling Order, Set Scheduling Order Deadlines,,,, Discovery Cut Off and Dispositive Motion Cut Off by all parties.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 07/24/2007)
141 ORDER granting joint 140 Motion to Amend Case Management and Scheduling Order − Signed by Honorable David M Lawson. (FMos) (Entered: 07/27/2007)
142 NOTICE of Rescheduled Hearing on Dispositive Motions. Motion Hearing reset for 11/28/2007 at 2:30 PM before Honorable David M Lawson. (FMos) (Entered: 07/27/2007)
143 NOTICE of Appearance by Robin Luce Herrmann on behalf of University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Herrmann, Robin) (Entered: 07/30/2007)
144 SUPPLEMENTAL BRIEF re (60 in 2:06−cv−15637−DML−SDP, 121 in 2:06−cv−15024−DML−RSW) MOTION to Certify Class filed by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN). (Attachments: # 1 Index of Exhibits Index of Exhibits to Supp Brief# 2 Exhibit Exhibit 22−−Racial and ethnic proportions of California High School graduates# 3 Exhibit Exhibit 23−−Underrepresented minorities as percentage of CA High School Graduates and new UC Freshmen# 4 Exhibit Exhibit

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08/07/2007 08/08/2007 08/08/2007 08/09/2007 08/10/2007 08/13/2007 08/15/2007 08/15/2007
08/21/2007 08/21/2007 08/21/2007
08/22/2007

24−−Predicted and Actual Admits by Racial/Ethnic Category, UC Berkeley# 5 Exhibit Ex 25−−Predicted and Actual Admits by Racial/Ethnic Group, UCLA# 6 Exhibit Ex 26−−Distribution of new California Freshmen Offers# 7 Exhibit Ex 27−−Freshman Six−Year Graduation Rate by all ethnic categories)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 08/06/2007)
145 MOTION to Quash Deposition Subpoena by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Attachments: # 1 Exhibit A − Subpoena in a Civil Case)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Foutz, Alan) (Entered: 08/07/2007)
146 MOTION for Leave to Participate as Amicus Curiae by Michigan Education Association.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Young, William) (Entered: 08/08/2007)
147 NOTICE by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee of withdrawal of (145 in 2:06−cv−15024−DML−RSW, 78 in 2:06−cv−15637−DML−SDP) MOTION to Quash Deposition Subpoena.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Foutz, Alan) (Entered: 08/08/2007)
148 ORDER granting 146 Motion for leave to Participate as Amicus Curiae − Signed by Honorable David M Lawson. (FMos) (Entered: 08/09/2007)
149 STIPULATION of Dismissal of Coalition to Defend Affirmative Action et al's Second Amended Complaint Against Def Governor Granholm by Jennifer GranholmAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Long, James) (Entered: 08/10/2007)
150 ORDER from USCA − Disposition: Dismissed [Appeal Case Number 06−2658] (PMil) (Entered: 08/14/2007)
151 ORDER re (81 in 2:06−cv−15637−DML−SDP) Stipulation of Dismissal filed by Jennifer Granholm. Jennifer Granholm terminated from 06−15024 Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) (Entered: 08/15/2007)
Minute Entry −Motion Hearing held on 8/15/2007 re 107 MOTION to Certify Class and For Appointment of Lead Counsel filed by Matthew Countryman, Matthew Robinson, Carolyn Carter, Michael Weisberg, Kathleen Canning, Casey R. Kasper, Cathy Alfaro, Rachel Quinn, Chase Cantrell, Chidimma Uche, Dana Christensen, Sheldon Johnson, Joshua Kay, Sergio Eduardo Munoz, Kevin Gaines, Karen Nestor, Bryon Maxey, Rosario Ceballo, 121 MOTION to Certify Class filed by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN) before Honorable David M Lawson. Disposition: Taken under advisement(Court Reporter Rene Twedt) (FMos) (Entered: 08/21/2007)
152 NOTICE of Change of Electronic Filing Registration Information by Dean J. Sauer on behalf of Eric Russell, Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Sauer, Dean) (Entered: 08/21/2007)
153 NOTICE of Change of Electronic Filing Registration Information by Dean J. Sauer on behalf of Eric Russell, Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Sauer, Dean) (Entered: 08/21/2007)
154 NOTICE by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee Notice of California Filings (Attachments: # 1 Index of Exhibits # 2 Exhibit A − Motion to Quash Deposition Subpoenas# 3 Exhibit B − Points and Authorities in Support of Motion# 4 Exhibit C − Declaration of Foutz in Support of Motion# 5 Exhibit D − Amended Notice of Hearing on Motion)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Foutz, Alan) (Entered: 08/21/2007)
155 ORDER denying 3 Motion for Expedited Consideration as Moot − signed by Honorable David M Lawson. (FMos) (Entered: 08/22/2007)

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08/23/2007 08/23/2007
08/26/2007 08/27/2007 08/31/2007 09/05/2007

156 MOTION to Compel Michigan Civil Rights Initiative Committee's Compliance with Subpoena by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 08/23/2007)
157 DECLARATION by Karin A. DeMasi re (87 in 2:06−cv−15637−DML−SDP) MOTION to Compel Michigan Civil Rights Initiative Committee's Compliance With Subpoena filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson (Attachments: # 1 Index of Exhibits # 2 Exhibit A − Plaintiffs' Notice of Subpoena of the Michigan Civil Rights Initiative Committee Pursuant to Rule 45# 3 Exhibit B − Michigan Civil Rights Initiative Committee's Responses and Objections to Subpoena for Inspection and Copying of Documents# 4 Exhibit C − Notice of Motion and Motion to Intervene by Michigan Civil Rights Initiative Committee and American Civil Rights Foundation# 5 Exhibit D − Opinion and Order Granting Motions to Expedite, Granting in Part and Denying in Part Motions to Intervene, and Striking Motion to Dismiss# 6 Exhibit E − Motion for Leave to File Brief in Response to Motions for Class Certification and Brief Amicus Curiae of Michigan# 7 Exhibit F − Letter dated July 19, 2007 sent by Mr. Kyle Mach, Esq., Counsel for the Cantrell Plaintiffs to Mr. Alan Foutz, Esq., Counsel for the Michigan Civil Rights Initiative Committee# 8 Exhibit G − Coalition Plaintiffs' Supplemental Brief in Support of their Motion for Class Certification and in Response to the Amicus Brief Filed by the Michigan Civil Rights Iniitative [sic] and the American Civil Rights Foundation# 9 Exhibit H − Defendant Attorney General Michael A. Cox's Response to Plaintiffs' Joint Proposed Stipulation of Facts# 10 Exhibit I − Governor Jennifer Granholm's Response to Plaintiffs' Joint Proposed Stipulation of Facts# 11 Exhibit J − Defendant−Intervenor Eric Russell's Response to Plaintiffs' Joint Proposed Stipulation of Facts# 12 Exhibit K − Response of the Universities to Plaintiffs' Proposed Stipulation# 13 Exhibit L − Letter dated July 25, 2007 from Mr. Alan Foutz, Esq., Counsel for the Michigan Civil Rights Initiative Committee, to Mr. Kyle Mach, Esq., Counsel for the Cantrell Plaintiffs# 14 Exhibit M − Letter dated July 26, 2007 from Mr. Kyle Mach, Esq., Counsel for the Cantrell Plaintiffs to Mr. Alan Foutz, Esq., Counsel for the Michigan Civil Rights Initiative Committee# 15 Exhibit N − Letter dated July 30, 2007 sent by Mr. Alan Foutz, Esq., Counsel for the Michigan Civil Rights Initiative Committee, to Mr. Kyle Mach, Esq., Counsel for the Cantrell Plaintiffs# 16 Exhibit O − Letter dated August 1, 2007 sent by Mr. Kyle Mach, Esq., Counsel for the Cantrell Plaintiffs to Mr. Alan Foutz, Esq., Counsel for the Michigan Civil Rights Initiative Committee)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 08/23/2007)
158 NOTICE by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN) of California Filings (Attachments: # 1 Index of Exhibits Index of Exhibits# 2 Exhibit 1−−Plaintiffs' Answer to the Motion to Quash Deposition Subpoenas of Jennifer Gratz and Ward Connerly and in Opposition to the Request for a Protective Order)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 08/26/2007)
159 Notice of Failure to Comply with ECF Policies and Procedures as to attorney William F. Young. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DHam) (Entered: 08/27/2007)
160 NOTICE of hearing on 156 MOTION to Compel Michigan Civil Rights Initiative Committee's Compliance with Subpoena. Motion Hearing set for 9/18/2007 at 4:00 PM before Honorable David M Lawson. (FMos) (Entered: 08/31/2007)
161 STIPULATION Dismissing Chase Cantrell, et al's First Amended Complaint Against Governor Granholm by Jennifer GranholmAssociated Cases: 2:06−cv−15637−DML−SDP, 2:06−cv−15024−DML−RSW (Long, James) (Entered: 09/05/2007)

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09/06/2007
09/06/2007 09/14/2007
09/16/2007 09/18/2007
09/18/2007 09/18/2007 09/28/2007 09/28/2007

162 RESPONSE to (156 in 2:06−cv−15024−DML−RSW, 87 in 2:06−cv−15637−DML−SDP) MOTION to Compel Michigan Civil Rights Initiative Committee's Compliance with Subpoena OPPOSITION OF MOTION TO COMPEL filed by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee. (Attachments: # 1 Exhibit 1 − Coalition to Defend Affirmative Action v. Granholm, Nos. 06−2653/2656, slip op. (6th Cir. Sept. 6, 2007))Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Foutz, Alan) (Entered: 09/06/2007)
163 ORDER Dismissing Cantrell Plaintiffs' First Amended Complaint Against Governor Jennifer Granholm only, re (161 in 2:06−cv−15024−DML−RSW, 91 in 2:06−cv−15637−DML−SDP) Stipulation filed by Jennifer Granholm. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (THal) (Entered: 09/07/2007)
164 REPLY to Response re (156 in 2:06−cv−15024−DML−RSW, 87 in 2:06−cv−15637−DML−SDP) MOTION to Compel Michigan Civil Rights Initiative Committee's Compliance with Subpoena filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 09/14/2007)
165 REPLY to Response re (156 in 2:06−cv−15024−DML−RSW, 87 in 2:06−cv−15637−DML−SDP) MOTION to Compel Michigan Civil Rights Initiative Committee's Compliance with Subpoena filed by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN).Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 09/16/2007)
Minute Entry −Motion Hearing held on 9/18/2007 re 156 MOTION to Compel Michigan Civil Rights Initiative Committee's Compliance with Subpoena filed by Matthew Countryman, Matthew Robinson, Carolyn Carter, Michael Weisberg, Kathleen Canning, Casey R. Kasper, Cathy Alfaro, Rachel Quinn, Chase Cantrell, Chidimma Uche, Dana Christensen, Sheldon Johnson, Joshua Kay, Sergio Eduardo Munoz, Kevin Gaines, Karen Nestor, Bryon Maxey, Rosario Ceballo before Honorable David M Lawson. Disposition: taken under advisement(Court Reporter Rene Twedt) (FMos) (Entered: 09/19/2007)
166 REPLY to Response re (87 in 2:06−cv−15637−DML−SDP) MOTION to Compel filed by Karen Nestor, Chidimma Uche, Bryon Maxey, Rosario Ceballo, Kathleen Canning, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Carolyn Carter, Matthew Robinson, Chase Cantrell, Joshua Kay, Sheldon Johnson, Matthew Countryman, Rachel Quinn.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) (Entered: 09/19/2007)
167 NOTICE OF FAILURE TO COMPLY with Local Rule 5.1.1 issued to attorney Karin A. DeMasi re (96 in 2:06−cv−15637−DML−SDP) Reply to Response to Motion, Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) (Entered: 09/19/2007)
168 TRANSCRIPT of Motion Hearing held on 9/18/07. (Court Reporter: Rene L. Twedt) (Number of Pages: 21) Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) (Entered: 09/28/2007)
169 MOTION to Compel Discovery from University Defendants by Eric Russell. (Attachments: # 1 Index of Exhibits # 2 Exhibit A −− Defendant−Intervenor Eric Russell's First Set of Document Requests to University Defendants# 3 Exhibit B −− Universities' Responses to First Set of Document Requests# 4 Exhibit C −− Russell's Second Set of Document Requests# 5 Exhibit D −− Universities' Responses To Second Document Requests# 6 Exhibit E −− 8−13−07 Email of J. Sauer# 7 Exhibit F −− 8−20−07 Letter of L. Niehoff# 8 Exhibit G−− 8−20−07 Email of J. Sauer# 9 Exhibit H −− 9−4−07 Email of J. Sauer# 10 Exhibit I −− 9−12−07 Email of L. Niehoff)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 09/28/2007)

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10/01/2007 10/05/2007 10/05/2007
10/10/2007 10/11/2007 10/11/2007 10/11/2007 10/11/2007 10/12/2007
10/17/2007

170 MOTION to Amend/Correct (95 in 2:06−cv−15024−DML−RSW, 95 in 2:06−cv−15024−DML−RSW, 39 in 2:06−cv−15637−DML−SDP, 39 in 2:06−cv−15637−DML−SDP) Scheduling Order,,, Set Scheduling Order Deadlines,, by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN).Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 10/01/2007)
171 MOTION for Leave to File ("Cantrell Plaintiffs' Motion For Leave To File Additional Motion For Summary Judgment") by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 10/05/2007)
172 MOTION for Summary Judgment as to Intervenor−Defendant Eric Russell by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson. (Attachments: # 1 Index of Exhibits # 2 Exhibit A−Plaintiffs' Motion for Class Certification# 3 Exhibit B−−Sims letter# 4 Exhibit C−−Russell motion to intervene# 5 Exhibit D−−Cox motion to intervene# 6 Exhibit E−−Russell emergency motion# 7 Exhibit F−−December, 2006 Order# 8 Exhibit G−−Coalition v. Granholm# 9 Exhibit H−−Voluntary Dismissal# 10 Exhibit I−−University RFA's# 11 Exhibit J−−Motion to extend time# 12 Exhibit K−−Russell RFA's# 13 Exhibit L−−Zearfoss Deposition# 14 Exhibit M−−Wu Deposition# 15 Exhibit N−−Russell Deposition# 16 Exhibit O−−Cox re: facts# 17 Exhibit P−−Cox re:class certification# 18 Exhibit Q−−Russell re: class certification# 19 Exhibit R−−Russell document requests# 20 Exhibit S−−Ruiz deposition# 21 Exhibit T−−Russell motion to compel# 22 Exhibit U−−Order amending schedule)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 10/05/2007)
173 RESPONSE to (101 in 2:06−cv−15637−DML−SDP) MOTION for Leave to File Additional Summary Judgment Motion filed by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Rosman, Michael) (Entered: 10/10/2007)
174 ORDER granting 170 Motion to Amend Case Management and Scheduling Order. Signed by Honorable David M Lawson. (FMos) (Entered: 10/11/2007)
175 ORDER granting 171 Motion for Leave to File Additional Motion for Summary Judgment. Signed by Honorable David M Lawson. (FMos) (Entered: 10/11/2007)
176 NOTICE of hearing on 169 MOTION to Compel Discovery from University Defendants, 172 MOTION for Summary Judgment as to Intervenor−Defendant Eric Russell. Motion Hearing set for 11/28/2007 at 2:30 PM before Honorable David M Lawson. (FMos) (Entered: 10/11/2007)
177 ORDER Establishing Guidelines for Filing Exhibits − Signed by Honorable David M Lawson. (FMos) (Entered: 10/11/2007)
178 RESPONSE to (169 in 2:06−cv−15024−DML−RSW, 99 in 2:06−cv−15637−DML−SDP) MOTION to Compel Discovery from University Defendants filed by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of. (Attachments: # 1 Index of Exhibits Index of Exhibits# 2 Exhibit A−Declaration of Leonard Niehoff# 3 Exhibit B−Eric Russell Deposition Excerpts# 4 Exhibit C−Sarah Zearfoss Deposition Excerpts# 5 Exhibit D−Frank Wu Deposition Excerpts# 6 Exhibit E−Unpublished cases# 7 Exhibit F−Elizabeth VanGoethem Declaration# 8 Exhibit G−Dr. Robert Frank Declaration)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Niehoff, Leonard) (Entered: 10/12/2007)
179 MOTION to Dismiss by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of. (Attachments: # 1 Index of Exhibits # 2 Exhibit A−Unpublished case, Brooks v. Glynn

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10/25/2007 10/26/2007 10/29/2007
10/29/2007 10/29/2007 11/01/2007 11/02/2007 11/09/2007 11/09/2007 11/13/2007 11/13/2007
11/13/2007

County)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Niehoff, Leonard) (Entered: 10/17/2007)
180 NOTICE of hearing on 179 MOTION to Dismiss. Motion Hearing set for 1/10/2008 AT 3:00 PM before Honorable David M Lawson. (FMos) (Entered: 10/25/2007)
181 REPLY to Response re (169 in 2:06−cv−15024−DML−RSW, 99 in 2:06−cv−15637−DML−SDP) MOTION to Compel Discovery from University Defendants filed by Eric Russell. (Attachments: # 1 Index of Exhibits Declaration)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 10/26/2007)
182 RESPONSE to (102 in 2:06−cv−15637−DML−SDP, 172 in 2:06−cv−15024−DML−RSW) MOTION for Summary Judgment filed by Eric Russell. (Attachments: # 1 Index of Exhibits # 2 Exhibit Exhibit 1−−Excerpts of Russell Depo# 3 Exhibit Exhibit 2−−Excerpts of Zearfoss Depo# 4 Exhibit Exhibit 3−− Diversity Blueprints# 5 Exhibit Exhibit 4−−Coleman Speech# 6 Exhibit Exhibit 5−−Dean Caminker Statement# 7 Exhibit Exhibit 6−−Excerpts of Spencer Depo# 8 Exhibit Exhibit 7−−Excerpts of Wu Depo)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 10/29/2007)
183 MOTION for Leave to File Declaration Under Seal by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) (Entered: 10/31/2007)
184 [UNSEALED AND FILED AS D.E. 188 ]DECLARATION by Richard H. Sander re (181 in 2:06−cv−15024−DML−RSW, 106 in 2:06−cv−15637−DML−SDP) Reply to Response to Motion, filed by Eric Russell[FILED UNDER SEAL]Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) Modified on 11/13/2007 (Miller, P.). (Entered: 10/31/2007)
185 ORDER granting Eric Russell's 183 Motion to File Declaration Under Seal, Temporarily Placing Declaration Under Seal, and Setting Deadline for Motion to Maintain Declaration Under Seal − Signed by Honorable David M Lawson. (FMos) (Entered: 11/01/2007)
186 MOTION to Unseal (109 in 2:06−cv−15637−DML−SDP, 184 in 2:06−cv−15024−DML−RSW) Declaration filed by Eric Russell by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 11/02/2007)
187 ORDER granting Unopposed 186 Motion to Unseal Declaration − Signed by Honorable David M Lawson. (FMos) (Entered: 11/13/2007)
188 DECLARATION by Richard H. Sander re (181 in 2:06−cv−15024−DML−RSW, 106 in 2:06−cv−15637−DML−SDP) Reply to Response to Motion, filed by Eric RussellAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil)[UNSEALED PURSUANT TO ORDER BY JUDGE LAWSON, D.E. 187 ] (Entered: 11/13/2007)
ReSet Deadlines/Hearings: Rescheduled Dispositive Motion Hearing reset for 1/10/2008 02:00 PM before Honorable David M. Lawson. (SPin) (Entered: 11/13/2007)
189 STIPULATION re (105 in 2:06−cv−15637−DML−SDP, 179 in 2:06−cv−15024−DML−RSW) MOTION to Dismiss Extend the Date for Filing the Answer to the Motion for Summary Judgment by the Defendant Universities by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 11/13/2007)
190 REPLY to Response re (102 in 2:06−cv−15637−DML−SDP, 172 in 2:06−cv−15024−DML−RSW) MOTION for Summary Judgment ("Reply Brief In Further Support Of Motion For Summary Judgment As To Intervenor−Defendant Eric Russell") filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo

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11/16/2007
11/16/2007 11/19/2007 11/21/2007 11/21/2007 11/27/2007 11/28/2007 11/28/2007 11/28/2007
11/30/2007
11/30/2007 11/30/2007

Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson. (Attachments: # 1 Exhibit A to Reply Brief)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 11/13/2007)
191 STIPULATION re (105 in 2:06−cv−15637−DML−SDP, 179 in 2:06−cv−15024−DML−RSW) MOTION to Dismiss (Corrected Stipulation to Extend Date for Filing their Answer to the Motion to Dismiss Filed by the Defendant Universities by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 11/16/2007)
192 TRANSCRIPT of Motion to Certify and Appoint Lead Counsel held on 8/15/07. (Court Reporter: Rene L. Twedt) (Number of Pages: 47) Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) (Entered: 11/16/2007)
193 ORDER Extending Time Period Within Which the Coalition Plaintiffs May Respond to the University Defendants' Motion to Dismiss. Signed by Honorable David M Lawson. (FMos) (Entered: 11/19/2007)
194 MOTION TO EXTEND Page Limit by Michael Cox.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Nelson, Margaret) (Entered: 11/21/2007)
195 ORDER Granting in Part(194) Motion to Extend in case 2:06−cv−15024−DML−RSW; Granting in Part(116) Motion to Extend in case 2:06−cv−15637−DML−SDP. Page limit is extended to 40 pages. Signed by Honorable David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (SPin) (Entered: 11/21/2007)
196 Joint MOTION for Leave to File Excess Pages by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 11/27/2007)
197 ORDER granting (196) Motion for Leave to File Excess Pages in case 2:06−cv−15024−DML−RSW; granting (118) Motion for Leave to File Excess Pages in case 2:06−cv−15637−DML−SDP. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 11/28/2007)
Set/Reset Deadlines as to 169 MOTION to Compel Discovery from University Defendants, 172 MOTION for Summary Judgment as to Intervenor−Defendant Eric Russell. Motion Hearing reset for 1/10/2008 at 2:00 PM before Honorable David M Lawson (FMos) (Entered: 11/28/2007)
198 RESPONSE to (105 in 2:06−cv−15637−DML−SDP, 179 in 2:06−cv−15024−DML−RSW) MOTION to Dismiss by the University Defendants filed by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN).Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 11/28/2007)
199 MOTION to Seal ("Cantrell Plaintiffs' Motion For Leave To File Exhibit Under Seal") by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 11/30/2007)
200 MOTION for Leave to File Exhibits 1−4 of his Summary Judgment Motion Under Seal by Michael Cox.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Nelson, Margaret) (Entered: 11/30/2007)
201 MOTION to Dismiss and/or for Summary Judgment by Michael Cox.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Nelson, Margaret)

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11/30/2007 11/30/2007
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(Entered: 11/30/2007)
202 MOTION for Summary Judgment by Eric Russell. (Attachments: # 1 Index of Exhibits # 2 Exhibit Exhibit A −− Deposition of Ward Connerly# 3 Exhibit Exhibit B −− Deposition of Jennifer Gratz)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Sauer, Dean) (Entered: 11/30/2007)
203 MOTION for Summary Judgment (The Cantrell Plaintiffs' Motion For Summary Judgment) by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson. (Attachments: # 1 Index of Exhibits # 2 Exhibit A − Cox RFA Resp.# 3 Exhibit B − Granholm RFA Resp.# 4 Exhibit C − Wilfore Declaration# 5 Exhibit D − Spencer Deposition# 6 Exhibit E − Zearfoss Deposition# 7 Exhibit F− Wu Deposition# 8 Exhibit G− Johnson Declaration# 9 Exhibit H− Maxey Declaration# 10 Exhibit I − Roberts Declaration# 11 Exhibit J − Gratz Deposition# 12 Exhibit K − Connerly Deposition# 13 Exhibit L − Bowen Decl.# 14 Exhibit M − Oakes Report# 15 Exhibit N − Lenski Deposition# 16 Exhibit O − Edison Minofsky# 17 Exhibit P1 − League of Women Voters# 18 Index of Exhibits P2 − League of Women Voters# 19 Exhibit P3 − League of Women Voters# 20 Exhibit Q − Hildebrandt Letter# 21 Exhibit R − Ruiz Deposition)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 11/30/2007)
206 [DOCUMENT UNSEALED PER 12/6/07 ORDER] DECLARATION of Jeannie Cakes − EXHIBIT One re (125 in 2:06−cv−15637−DML−SDP) MOTION for Summary Judgment by (Cantrell Plaintiffs) Kevin Gaines, Dana Christensen, Cathy Alfaro, Karen Nestor, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson, Chase Cantrell, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (THal) Additional attachment(s) added on 1/2/2008 (Teets, A.). Modified on 1/2/2008 (Teets, A.). (Entered: 12/05/2007)
204 NOTICE by Michael Cox of withdrawal of (122 in 2:06−cv−15637−DML−SDP, 200 in 2:06−cv−15024−DML−RSW) MOTION for Leave to File.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Nelson, Margaret) (Entered: 12/04/2007)
205 ERRATA Sheet re: (123 in 2:06−cv−15637−DML−SDP) MOTION to Dismiss filed by Michael Cox. by Michael Cox (Attachments: # 1 Index of Exhibits # 2 Exhibit 1 − Dep of Frank Wu# 3 Exhibit 2 − Dep of Theodore Spencer# 4 Exhibit 3 − Dep or Sarah Zearfoss# 5 Exhibit 4 − Dep of Robert Ruiz)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Nelson, Margaret) (Entered: 12/04/2007)
207 Stipulated ORDER Granting Extension of Time for the University Defendants to File Reply Brief in Support of Motion to Dismiss. Signed by Honorable David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (SPin) (Entered: 12/06/2007)
208 ORDER Granting (199) Motion for Leave to File Exhibit Under Seal, Temporarily Placing Exhibit Under Seal, and Setting Deadline for Motion to Maintain Declaration Under Seal in case 2:06−cv−15024−DML−RSW; Order Granting (121) Motion for Leave to File Exhibit Under Seal, Temporarily Placing Exhibit Under Seal, and Setting Deadline for Motion to Maintain Declaration Under Seal in case 2:06−cv−15637−DML−SDP. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (SPin) (Entered: 12/06/2007)
Set/Reset Deadlines as to 202 MOTION for Summary Judgment, 201 MOTION to Dismiss and/or for Summary Judgment, 203 MOTION for Summary Judgment Motion Hearing set for 1/10/2008 at 2:00 PM before Honorable David M Lawson (FMos) (Entered: 12/07/2007)
209 REPLY to Response re (105 in 2:06−cv−15637−DML−SDP, 179 in 2:06−cv−15024−DML−RSW) MOTION to Dismiss filed by University of Michigan,

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12/20/2007 01/03/2008 01/07/2008 01/07/2008
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01/07/2008 01/07/2008 01/07/2008 01/07/2008 01/07/2008 01/07/2008 01/07/2008

Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Niehoff, Leonard) (Entered: 12/14/2007)
210 ORDER Pursuant to Stipulation Extending Time to File Response Briefs and Adjourning Hearing on Dispositive Motions re 169 , 172 , 201 , 202 , 203 − Signed by Honorable David M Lawson. (FMos) (Entered: 12/20/2007)
Set/Reset Deadlines as to (179 in 2:06−cv−15024−DML−RSW) MOTION to Dismiss. Motion Hearing reset for 2/6/2008 02:30 PM before Honorable David M Lawson Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 01/03/2008)
211 MOTION for Leave to File Excess Pages MOTION for Leave to File 14−Page Brief by West Michigan Minority Contractors Association, Incorporated.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Simmons, Brent) (Entered: 01/07/2008)
212 Amicus Curiae BRIEF by West Michigan Minority Contractors Association, Incorporated (Attachments: # 1 Index of Exhibits # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 # 6 # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Simmons, Brent) (Entered: 01/07/2008)
213 MOTION for Leave to File Excess Pages ("Cantrell Plaintiffs' Motion For Leave To File A Single 25−Page Omnibus Response To Attorney General Cox's And Eric Russell's Motions To Dismiss And/Or For Summary Judgment") by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 01/07/2008)
214 RESPONSE to (125 in 2:06−cv−15637−DML−SDP) MOTION for Summary Judgment filed by Michael A. Cox.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Nelson, Margaret) (Entered: 01/07/2008)
215 Ex Parte MOTION for Leave to File Excess Pages in Response to the Motions for Summary Judgment Filed by the Attorney General and Eric Russell by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN).Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 01/07/2008)
216 RESPONSE to (125 in 2:06−cv−15637−DML−SDP) MOTION for Summary Judgment Amicus Curiae Brief in Support of Plaintiffs' Motion filed by Michigan Education Association.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Young, William) (Entered: 01/07/2008)
217 MOTION for Leave to File Excess Pages by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 01/07/2008)
218 ORDER Granting in Part (215) Motion for Leave to File Excess Pages in case 2:06−cv−15024−DML−RSW; Granting in Part (136) Motion for Leave to File Excess Pages in case 2:06−cv−15637−DML−SDP. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 01/07/2008)
219 ORDER Granting in Part (213) Motion to Exceed Page Limit 2:06−cv−15024−DML−RSW;Granting in Part (134) Motion to Exceed Page Limit in case 2:06−cv−15637−DML−SDP. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 01/07/2008)
220 RESPONSE to (124 in 2:06−cv−15637−DML−SDP, 202 in 2:06−cv−15024−DML−RSW) MOTION for Summary Judgment, (123 in

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01/07/2008 01/08/2008
01/08/2008 01/08/2008

2:06−cv−15637−DML−SDP, 201 in 2:06−cv−15024−DML−RSW) MOTION to Dismiss ("The Cantrell Plaintiffs' Omnibus Response In Opposition To Attorney General Cox's Motion To Dismiss And/Or For Summary Judgment And Eric Russell's Motion For Summary Judgment") filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 01/07/2008)
221 RESPONSE to (125 in 2:06−cv−15637−DML−SDP, 203 in 2:06−cv−15024−DML−RSW) MOTION for Summary Judgment filed by Eric Russell. (Attachments: # 1 Index of Exhibits Index of Exhibits# 2 Exhibit Exhibit 1 −− Declaration of Chris Wilson# 3 Exhibit Exhibit 3 −− Declaration of Jennifer Gratz)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 01/07/2008)
222 RESPONSE to (202 in 2:06−cv−15024−DML−RSW, 124 in 2:06−cv−15637−DML−SDP) MOTION for Summary Judgment, (123 in 2:06−cv−15637−DML−SDP, 201 in 2:06−cv−15024−DML−RSW) MOTION to Dismiss filed by Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN). (Attachments: # 1 Exhibit Ex A − Deposition of Ward Connerly# 2 Exhibit Ex C Selections from the deposition of Joseph Lenski# 3 Exhibit Ex D Selections from the deposition of Sarah Zearfoss# 4 Exhibit Ex E1 − Selections from the deposition of Ted Spencer (part 1 of 3)# 5 Document Continuation Ex E2 − Selections from the deposition of Ted Spencer (part 2 of 3)# 6 Document Continuation Ex E3 − Selections from the deposition of Ted Spencer (part 3 of 3)# 7 Exhibit Ex F Selections from the deposition of Frank Wu# 8 Exhibit Ex B Selections from the deposition of Clint Stevenson# 9 Index of Exhibits Index of Exhibits# 10 Exhibit Ex G Selections from the deposition of Robert Ruiz# 11 Exhibit Ex H Ward Connerly, Excerpts from Creating Equal# 12 Exhibit Ex I Declaration of Bob Laird# 13 Exhibit Ex J Declaration of Heather Miller# 14 Exhibit Ex K Declaration of Robert Schaeffer# 15 Exhibit Ex L1 Report of Dr. James Anderson, Gratz v Bollinger (part 1 of 2)# 16 Document Continuation Ex L2 Report of Dr. James Anderson, Gratz v Bollinger (part 2 of 2)# 17 Exhibit Ex M1 Trial testimony of Dr. Gary Orfield, Grutter v Bollinger (part 1 of 2)# 18 Document Continuation Ex M2 Trial testimony of Dr. Gary Orfield, Grutter v Bollinger (part 2 of 2)# 19 Exhibit Ex N UM Law School graduates, 1950−1999, Grutter Trial Exhibit 97# 20 Exhibit Ex O Letter of R.W. Fleming, 1970# 21 Exhibit Ex P Selections from Minutes of Regents of the University of Michigan, 1970# 22 Exhibit Ex Q Memorandum of Arthur Ross, 1970# 23 Exhibit Ex R Selections from the General Register, 1958−1959# 24 Exhibit Ex S Letter to the Schools from the University of Michigan, 1960# 25 Exhibit Ex T LSAT and college grade points, Grutter Trial Exhibit 219# 26 Exhibit Ex U LSAT score differences, Grutter Trial Exhibit 223# 27 Exhibit Ex V LSAT score differences, Grutter Trial Exhibit 224# 28 Exhibit Ex W − Expert Report of Eric Foner# 29 Exhibit Ex X Article of William C. Kidder# 30 Exhibit Ex Y Report of the Michigan Civil Rights Commission# 31 Exhibit Ex Z Judge Arthur J. Tarnow's opinion# 32 Exhibit Ex AA Declaration of Eduardo Bonilla−Silva# 33 Exhibit Ex BB William Bowen and Derek Bok, Excerpts from Shape of the River# 34 Exhibit Ex CC Declaration of Kate Stenvig# 35 Exhibit Ex DD Article from Detroit News, Nov 2 2007# 36 Exhibit Ex EE C. Vann Woodward, Excerpt from Origins of the New South# 37 Exhibit Ex FF Eric Foner, Excerpt from Reconstruction# 38 Exhibit Ex GG Selections from the deposition of Jennifer Gratz# 39 Exhibit Ex HH Howard Brotz, Excerpt from African−American Social & Political Thought)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Washington, George) (Entered: 01/08/2008)
223 ORDER Granting Eric Russell's (217) Motion for Leave to File Excess Pages in case 2:06−cv−15024−DML−RSW; Granting Eric Russell's (138) Motion for Leave to File Excess Pages in case 2:06−cv−15637−DML−SDP. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 01/08/2008)
224 MANDATE from USCA as to (47 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Toward A Fair Michigan, (56 in 2:06−cv−15024−DML−RSW)

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01/16/2008 01/17/2008

Notice of Appeal, filed by Michigan Civil Rights Initiative Committee, American Civil Rights Foundation, (57 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Toward A Fair Michigan [Appeal Case Number 06−2653; 06−2656] (THal) (Entered: 01/09/2008)
225 MOTION for to File Declaration Under Temporary Seal by Eric Russell. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 01/09/2008)
226 ORDER Granting (225)Eric Russell's Motion to File Declaration Under Seal, Temporarily Placing Declaration Under Seal, and Setting Deadline for Motion to Maintain Declaration Under Seal in case 2:06−cv−15024−DML−RSW and (146) in case 2:06−cv−15637−DML−SDP. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 01/09/2008)
227 ORDER Granting (211) Motion to File Enlarged Amicus Brief in case 2:06−cv−15024−DML−RSW; Granting (132) Motion to File Enlarged Amicus Brief in case 2:06−cv−15637−DML−SDP. Signed by Honorable David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (SPin) (Entered: 01/09/2008)
228 [UNSEALED AND ATTACHED TO THIS DOCUMENT 2/14/08][FILED UNDER SEAL]DECLARATION by Richard Sander re (221 in 2:06−cv−15024−DML−RSW, 142 in 2:06−cv−15637−DML−SDP) Response to Motion, filed by Eric RussellAssociated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) Modified on 2/14/2008 (Miller, P.). Additional attachment(s) added on 2/14/2008 (Miller, P.). (Entered: 01/10/2008)
229 MOTION for Leave to File Brief Amicus Curiae in Response to Motion to Dismiss and/or Summary Judgment and Request for Oral Argument by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Foutz, Alan) (Entered: 01/14/2008)
230 [STRICKEN PURSUANT TO ORDER OF 1/17/08]Amicus Curiae BRIEF by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee (Attachments: # 1 Index of Exhibits # 2 Exhibit A − Portions of the Transcript of the Deposition of Ward Connerly on Wednesday, October 24, 2007# 3 Exhibit B − Distribution of New California Freshmen Admit Offers to the University of California from Fall 1997 through 2006# 4 Exhibit C − Analysis of Undergraduate Admissions to University of California Campuses by Race and Ethnicity, March 2004# 5 Exhibit D − CSU Systemwide Enrollment by Ethnic Group, from Fall 1997# 6 Exhibit E − UC Berkeley's Freshman 6−year Graduation Statistics for Class Entering in 2000# 7 Exhibit F − UC Berkeley's Freshman 6−year Graduation Statistics for Classes Entering in 1983−1999# 8 Exhibit G − California State University's 6−year Graduation Statistics for Classes Entering in 1995# 9 Exhibit H − California State University's 6−year Graduation Statistics for Classes Entering in 1999)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Foutz, Alan) Modified on 1/17/2008 (Miller, P.). (Entered: 01/14/2008)
231 MOTION for Leave to File Excess Pages ("Cantrell Plaintiffs' Motion For Leave To File A Single 20−Page Omnibus Reply Memorandum In Further Support Of Their Motion For Summary Judgment") by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 01/14/2008)
232 MOTION for Leave to File Excess Pages by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 01/16/2008)
233 ORDER Granting in Part Cantrell Plaintiff's (231) Motion for Leave to File an Omnibus Reply in case 2:06−cv−15024−DML−RSW; Granting in Part Cantrell Plaintiff's (152) Motion for Leave to File an Onmibus Reply in case

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2:06−cv−15637−DML−SDP. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 01/17/2008)
234 ORDER granting in part and denying in part (229) Motion for Leave to File in case 2:06−cv−15024−DML−RSW; granting in part and denying in part (150) Motion for Leave to File in case 2:06−cv−15637−DML−SDP and to strike Docket Entry #230.. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (PMil) (Entered: 01/17/2008)
235 Amicus Curiae BRIEF by American Civil Rights Foundation, Michigan Civil Rights Initiative Committee (Attachments: # 1 Index of Exhibits # 2 Exhibit A − Portions of the Transcript of the Deposition of Ward Connerly on Wednesday, October 24, 2007# 3 Exhibit B − Distribution of New California Freshmen Admit Offers to the University of California from Fall 1997 through 2006# 4 Exhibit C − Analysis of Undergraduate Admissions to University of California Campuses by Race and Ethnicity, March 2004# 5 Exhibit D − CSU Systemwide Enrollment by Ethnic Group, from Fall 1997# 6 Exhibit E − UC Berkeleys Freshman 6−year Graduation Statistics for Class Entering in 2000# 7 Exhibit F − UC Berkeleys Freshman 6−year Graduation Statistics for Classes Entering in 1983−1999# 8 Exhibit G − California State Universitys 6−year Graduation Statistics for Classes Entering in 1995# 9 Exhibit H − California State Universitys 6−year Graduation Statistics for Classes Entering in 1999)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Foutz, Alan) (Entered: 01/18/2008)
236 ORDER Granting in Part Eric Russell's 232 Motion for Leave to File Omnibus Reply. Signed by Honorable David M Lawson. (FMos) (Entered: 01/22/2008)
237 NOTICE of Appearance by Jesse M. Panuccio on behalf of Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Panuccio, Jesse) (Entered: 01/22/2008)
238 NOTICE of Withdrawal of Attorney Dean J. Sauer by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Panuccio, Jesse) (Entered: 01/22/2008)
239 REPLY to Response re (124 in 2:06−cv−15637−DML−SDP, 202 in 2:06−cv−15024−DML−RSW) MOTION for Summary Judgment filed by Eric Russell.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Panuccio, Jesse) (Entered: 01/22/2008)
240 REPLY to Response re (125 in 2:06−cv−15637−DML−SDP, 203 in 2:06−cv−15024−DML−RSW) MOTION for Summary Judgment THE CANTRELL PLAINTIFFS REPLY MEMORANDUM IN FURTHER SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson.Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 01/22/2008)
241 MOTION to Intervene by Jennifer Gratz. (Attachments: # 1 Index of Exhibits Index of Exhibits# 2 Exhibit Exhibit A −− Statement of Jennifer Gratz# 3 Exhibit Exhibit B −− Jennifer Gratz's Proposed Answer to Plaintiffs' Complaints)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 02/01/2008)
242 RESPONSE to (241 in 2:06−cv−15024−DML−RSW, 161 in 2:06−cv−15637−DML−SDP) MOTION to Intervene THE CANTRELL PLAINTIFFS RESPONSE IN OPPOSITION TO MOTION TO INTERVENE BY JENNIFER GRATZ filed by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson. (Attachments: # 1 Exhibit A − Deposition of Jennifer Denise Gratz)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered:

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02/05/2008)
243 ORDER Establishing Schedule for Oral Argument. Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 02/06/2008)
Minute Entry −Motion Hearing held on 2/6/2008 re 172 MOTION for Summary Judgment as to Intervenor−Defendant Eric Russell filed by Matthew Countryman, Matthew Robinson, Carolyn Carter, Michael Weisberg, Kathleen Canning, Casey R. Kasper, Cathy Alfaro, Rachel Quinn, Chase Cantrell, Chidimma Uche, Dana Christensen, Sheldon Johnson, Joshua Kay, Sergio Eduardo Munoz, Kevin Gaines, Karen Nestor, Bryon Maxey, Rosario Ceballo, 202 MOTION for Summary Judgment filed by Eric Russell, 179 MOTION to Dismiss filed by University of Michigan, Regents of, Wayne State University, Board of Governors of, Michigan State University, Board of Trustees of, 201 MOTION to Dismiss and/or for Summary Judgment filed by Michael Cox, 203 MOTION for Summary Judgment (The Cantrell Plaintiffs' Motion For Summary Judgment) MOTION for Summary Judgment (The Cantrell Plaintiffs' Motion For Summary Judgment) MOTION for Summary Judgment (The Cantrell Plaintiffs' Motion For Summary Judgment) MOTION for Summary Judgment (The Cantrell Plaintiffs' Motion For Summary Judgment) MOTION for Summary Judgment (The Cantrell Plaintiffs' Motion For Summary Judgment) filed by Matthew Countryman, Matthew Robinson, Carolyn Carter, Michael Weisberg, Kathleen Canning, Casey R. Kasper, Cathy Alfaro, Rachel Quinn, Chase Cantrell, Chidimma Uche, Dana Christensen, Sheldon Johnson, Joshua Kay, Sergio Eduardo Munoz, Kevin Gaines, Karen Nestor, Bryon Maxey, Rosario Ceballo before Honorable David M Lawson. Disposition: Motions taken under advisement(Court Reporter Rene Twedt) (FMos) (Entered: 02/07/2008)
244 REPLY to Response re (241 in 2:06−cv−15024−DML−RSW, 161 in 2:06−cv−15637−DML−SDP) MOTION to Intervene filed by Jennifer Gratz. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Panuccio, Jesse) (Entered: 02/19/2008)
245 TRANSCRIPT of Dispositive Motions Hearing held on 02/06/2008. (Court Reporter: Rene L Twedt) (Number of Pages: 68) Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Twedt, R) (Entered: 02/20/2008)
246 OPINION AND ORDER Granting in part and Denying in part University Defendants' Motion to Dismiss 179 , Denying Cantrell Plantinff's 203 Motion for Summary Judgment, Granting Attorney General's 201 Motion for Summary Judgment and Dismissing Consolidated Cases − Signed by Honorable David M Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 03/18/2008)
247 OPINION and ORDER Granting Cantrell Plaintiffs' 172 Motion for Summary Judgment as to Intervening Defendant Eric Russell, Denying 241 Motion to Intervene by Jennifer Gratz, and Denying as Moot 107 and 121 Plaintiffs' Respective Motions to Certify the Matters as Class Actions, Intervening Defendant Eric Russell's 202 Motion for Summary Judgment, Cantrell Plaintiffs' 156 Motion to Compel Discovery, and Intervening Defendant Eric Russell's 169 Motion to Compel Discovery from the University Defendant − Signed by Honorable David M Lawson. (FMos) (Entered: 03/18/2008)
248 JUDGMENT. Signed by Honorable David M Lawson. (FMos) (Entered: 03/18/2008)
249 NOTICE OF APPEAL by Aiana Scott, Allen Vonou, Randiah Green, Brittany Jones, Courtney Drake, Dante Dixon, Joseph Henry Reed, Calvin Jevon Cochran, Defend Affirmative Action Party, Lashelle Benjamin, Beautie Mitchell, Deneshea Richey, Stasia Brown, Michael Gibson, Christopher Sutton, Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN), Laquay Johnson, Turqoise Wise−King, Brandon Flannigan, M. N., Josie Hyman, Issamar Camacho, Joshua Kay, Kahleif Henry, M. R., Shanae Tatum, Maricruz Lopez, T. J., Cathy Alfaro, S. W., Alejandra Cruz, Adarene Hoag, United for Equality and Affirmative Action Legal Defense Fund, Edward Kim, Candice Young, M. C. C., II, J. R., Tristan Taylor, Williams Frazier, Jerell Erves, Matthew Griffith, Lacrissa Beverly, D'Shawn Featherstone, Danielle Nelson, Julius

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03/19/2008 03/20/2008 03/21/2008 04/01/2008 04/07/2008
04/11/2008
04/11/2008 10/29/2008
12/11/2008 01/08/2009
01/12/2009

Carter, Kevin Smith, Rainbow Push Coalition, Kyle Smith, Paris Butler, Touissant King re 248 Order. Receipt No: 06450000000001464148 − Fee: $ 455 − Fee Status: Fee Paid. (Washington, George) (Entered: 03/19/2008)
250 Certificate of Service re 249 Notice of Appeal. (PMil) (Entered: 03/19/2008)
251 NOTICE OF APPEAL by Jennifer Gratz, Eric Russell. Receipt No: 06450000000001466367 − Fee: $ 455 − Fee Status: Fee Paid. (Cooper, Charles) (Entered: 03/20/2008)
252 Certificate of Service re 251 Notice of Appeal. (PMil) (Entered: 03/21/2008)
253 MOTION to Amend/Correct 248 Order The Cantrell Plaintiffs' Motion to Alter or Amend Judgment by Chase Cantrell, Karen Nestor, Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, Cathy Alfaro, Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Carolyn Carter, Matthew Robinson. (DeMasi, Karin) (Entered: 04/01/2008)
254 LETTER from USSC re (47 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Toward A Fair Michigan, (56 in 2:06−cv−15024−DML−RSW) Notice of Appeal, filed by Michigan Civil Rights Initiative Committee, American Civil Rights Foundation, (57 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Toward A Fair Michigan − Petition for Writ of Certiorari was filed 3/14/08 and placed on the docket 3/18/08 [Appeal Case Number 07−1182] (PMil) (Entered: 04/08/2008)
255 NOTICE OF APPEAL by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of re (246 in 2:06−cv−15024−DML−RSW, 246 in 2:06−cv−15024−DML−RSW, 246 in 2:06−cv−15024−DML−RSW, 166 in 2:06−cv−15637−DML−SDP, 166 in 2:06−cv−15637−DML−SDP, 166 in 2:06−cv−15637−DML−SDP) Order on Motion to Dismiss,,,, Order on Motion for Summary Judgment, (248 in 2:06−cv−15024−DML−RSW) Order. Receipt No: 06450000000001494159 − Fee: $ 455 − Fee Status: Fee Paid. (Niehoff, Leonard) (Entered: 04/11/2008)
256 Certificate of Service re (175 in 2:06−cv−15637−DML−SDP, 255 in 2:06−cv−15024−DML−RSW) Notice of Appeal,,. (JCre) (Entered: 04/11/2008)
257 LETTER from U.S. Supreme Court re (47 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Toward A Fair Michigan, (56 in 2:06−cv−15024−DML−RSW) Notice of Appeal, filed by Michigan Civil Rights Initiative Committee, American Civil Rights Foundation − The motion of Mountain States Legal Foundation for leave to file a brief as amicus curiae is granted. The motion of Citizens in Charge for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied. [Appeal Case Number 06−2653, 06−2656] (PMil) (Entered: 10/31/2008)
258 OPINION AND ORDER Denying Cantrell Plaintiffs' (253) Motion to Alter or Amend Judgment in case 2:06−cv−15024−DML−RSW. Signed by District Judge David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 12/11/2008)
259 MOTION for Attorney Fees by Eric Russell. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 −− Statement of Michael E. Rosman, # 3 Exhibit A to Statement of Michael E. Rosman −− Center for Individual Rights Timeslips, # 4 Exhibit B to Statement of Michael E. Rosman −− Center for Individual Rights Ledger, # 5 Exhibit 2 −− Statement of David H. Thompson, # 6 Exhibit A to Statement of David H. Thompson −− Cooper & Kirk Bill, # 7 Exhibit 3 −− Laffey Matrix, # 8 Exhibit 4 −− National Law Journal Partner Billing Rate Survey, # 9 Exhibit 5 −− National Law Journal Associate Billing Rate Survey, # 10 Exhibit 6 −− Statement of Kerry L. Morgan)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 01/08/2009)
260 NOTICE OF APPEAL by Chase Cantrell, M. N., Karen Nestor, C. U., Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, M. R., Brenda Foster, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, T. J., Cathy Alfaro, S.

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01/13/2009 01/22/2009
01/23/2009 01/23/2009 01/26/2009
01/30/2009
02/05/2009 02/05/2009 02/10/2009 02/11/2009

W., Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Edward Kim, M. C. C., II, Carolyn Carter, J. R., Matthew Robinson, T. J., S. W., J. R. re (178 in 2:06−cv−15637−DML−SDP, 258 in 2:06−cv−15024−DML−RSW) Order on Motion to Amend/Correct, (246 in 2:06−cv−15024−DML−RSW, 246 in 2:06−cv−15024−DML−RSW, 246 in 2:06−cv−15024−DML−RSW, 166 in 2:06−cv−15637−DML−SDP, 166 in 2:06−cv−15637−DML−SDP, 166 in 2:06−cv−15637−DML−SDP) Order on Motion to Dismiss,,,, Order on Motion for Summary Judgment,. Receipt No: 06450000000001829838 − Fee: $ 455 − Fee Status: Fee Paid. (DeMasi, Karin) (Entered: 01/12/2009)
261 Certificate of Service re (260 in 2:06−cv−15024−DML−RSW, 180 in 2:06−cv−15637−DML−SDP) Notice of Appeal. (DHam) (Entered: 01/13/2009)
262 RESPONSE to (259 in 2:06−cv−15024−DML−RSW, 179 in 2:06−cv−15637−DML−SDP) MOTION for Attorney Fees [entitled Governor Granholm's Response in Opposition to Intervening Defendant Russell's Motion for Attorney Fees] filed by Michigan, Governor of, Michigan, Governor of. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Long, James) (Entered: 01/22/2009)
263 NOTICE of hearing on (179 in 2:06−cv−15637−DML−SDP) MOTION for Attorney Fees. Motion Hearing set for 4/27/2009 at 11:00 AM before District Judge David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 01/23/2009)
264 RESPONSE to (179 in 2:06−cv−15637−DML−SDP) MOTION for Attorney Fees filed by University of Michigan, Regents of, Michigan State University, Board of Trustees of, Wayne State University, Board of Governors of. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Niehoff, Leonard) (Entered: 01/23/2009)
265 RESPONSE to (179 in 2:06−cv−15637−DML−SDP) MOTION for Attorney Fees "Cantrell Plaintiffs' Opposition to Defendant−Intervenor Eric Russell's Motion for Attorneys' Fees" filed by Chase Cantrell, M. N., Karen Nestor, C. U., Chidimma Uche, Joshua Kay, Sheldon Johnson, Matthew Countryman, M. R., Brenda Foster, Bryon Maxey, Rachel Quinn, Kevin Gaines, Dana Christensen, T. J., Cathy Alfaro, S. W., Michael Weisberg, Casey R. Kasper, Sergio Eduardo Munoz, Rosario Ceballo, Kathleen Canning, Edward Kim, M. C. C., II, Carolyn Carter, J. R., Matthew Robinson, T. J., S. W., J. R.. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (DeMasi, Karin) (Entered: 01/26/2009)
266 STIPULATION AND ORDER Extending Time for Attorney General Michael Cox's Response and for Eric Russell's Reply as to (259 in 2:06−cv−15024−DML−RSW, 179 in 2:06−cv−15637−DML−SDP) MOTION for Attorney Fees :( Response due by 2/4/2009, Reply due by 2/11/2009). Signed by District Judge David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (THal) (Entered: 01/30/2009)
267 RESPONSE to (179 in 2:06−cv−15637−DML−SDP) MOTION for Attorney Fees with Cert. of Service filed by Michael Cox. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Nelson, Margaret) (Entered: 02/05/2009)
268 MOTION for Extension of Time to File Response/Reply as to (187 in 2:06−cv−15637−DML−SDP) Response to Motion, with Cert. of Service by Michael Cox. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Nelson, Margaret) (Entered: 02/05/2009)
269 Mail Returned as Undeliverable. Mail sent to Shanta Driver re 266 Stipulation and Order,, Set Motion and R&R Deadlines/Hearings. (DWor) (Entered: 02/10/2009)
270 MOTION for Leave to File Excess Pages by Eric Russell. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A −− Proposed Reply in Support of Motion for Attorneys Fees and Costs)Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 02/11/2009)

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02/13/2009 02/13/2009
02/14/2009 02/14/2009 02/19/2009 04/16/2009 04/27/2009 05/22/2009
06/26/2009
06/26/2009 06/17/2010 06/18/2010 06/18/2010

271 ORDER Denying Russell's (270) Motion for Leave to File Excess Pages in case 2:06−cv−15024−DML−RSW; Denying Russell's (189) Motion for Leave to File Excess Pages in case 2:06−cv−15637−DML−SDP. Signed by District Judge David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (SPin) (Entered: 02/13/2009)
272 ORDER Granting Attorney General Michael Cox's (268) Motion to Accept His Response to Eric Russell's Motion for Attorney's Fees and Costs Out of Time re (268 in 2:06−cv−15024−DML−RSW, 188 in 2:06−cv−15637−DML−SDP)(187 in 2:06−cv−15637−DML−SDP) Response to Motion due 2/5/2009. Signed by District Judge David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (SPin) (Entered: 02/13/2009)
273 REPLY to Response re (179 in 2:06−cv−15637−DML−SDP) MOTION for Attorney Fees filed by Eric Russell. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 02/14/2009)
274 MOTION for Extension of Time to File Response/Reply in Support of Motion for Attorneys' Fees and Costs by Eric Russell. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 02/14/2009)
275 ORDER Granting Eric Russell's ( 274 and 190 Motion to Accept Out−of−Time Reply in Support of His Motion for Attorney's Fees and Costs in 2:06−cv−15024. Signed by District Judge David M. Lawson. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (FMos) (Entered: 02/19/2009)
276 NOTICE by Eric Russell re (259 in 2:06−cv−15024−DML−RSW, 179 in 2:06−cv−15637−DML−SDP) MOTION for Attorney Fees Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Cooper, Charles) (Entered: 04/16/2009)
Minute Entry − Motion Hearing held on 4/27/2009 re (179 in 2:06−cv−15637−DML−SDP) MOTION for Attorney Fees filed by Eric Russell before District Judge David M. Lawson. Disposition: Taken Under Advisement.(Court Reporter Rene Twedt) Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Ware, L.) (Entered: 04/28/2009)
Court Reporter Acknowledgment of Transcript Order Form received on 05/22/2009. Transcript for court proceeding held on: 04/27/2009. Estimated transcript completion date: 05/22/2009. Estimated number of pages: 35. Payment arrangements were made on 05/22/2009. Court Reporter: Rene Twedt (313) 963−0837 Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Twedt, R) (Entered: 05/22/2009)
277 TRANSCRIPT of Motion for Attorney Fees held on 04/27/2009. (Court Reporter: Rene L Twedt) (Number of Pages: 37) (Appeal Purposes) Redaction Request due 7/17/2009. Redacted Transcript Deadline set for 7/27/2009. Release of Transcript Restriction set for 9/24/2009. Transcript may be viewed at the court public terminal or purchased through the Court Reporter at (313) 963−0837 before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Twedt, R) (Entered: 06/26/2009)
278 Notice of Filing Transcript. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Twedt, R) (Entered: 06/26/2009)
279 ORDER denying 259 Motion for Attorney Fees. Signed by District Judge David M. Lawson. (Feijoo, TS) (Entered: 06/17/2010)
280 Notice of Failure to Comply with ECF Policies and Procedures as to attorney Alan W. Foutz. Bounced NEF for (279 in 2:06−cv−15024−DML−RSW) Order on Motion for Attorney Fees. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (TMcg) (Entered: 06/18/2010)
281 Notice of Failure to Comply with ECF Policies and Procedures as to attorney Melvin J. Hollowell, Jr. Bounced NEF for (279 in 2:06−cv−15024−DML−RSW) Order on Motion for Attorney Fees. Associated Cases: 2:06−cv−15024−DML−RSW,

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06/21/2010 07/01/2011
07/01/2011

2:06−cv−15637−DML−SDP (TMcg) (Entered: 06/18/2010)
Attorney Alan W. Foutz is discontinued from receiving Notices of Electronic Filing. Reason: no longer with firm. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Foutz, Alan) (Entered: 06/21/2010)
282 OPINION and Judgment from U.S. Court of Appeals − Sixth Circuit re 251 Notice of Appeal filed by Eric Russell, Jennifer Gratz, 260 Notice of Appeal filed by Matthew Countryman, M. R., J. R., Matthew Robinson, Carolyn Carter, Brenda Foster, Cathy Alfaro, Chase Cantrell, C. U., Edward Kim, Bryon Maxey, Michael Weisberg, Kathleen Canning, Casey R. Kasper, Rachel Quinn, Chidimma Uche, M. N., Dana Christensen, Sheldon Johnson, Joshua Kay, Sergio Eduardo Munoz, M. C. C., II, Karen Nestor, T. J., Kevin Gaines, S. W., Rosario Ceballo, 249 Notice of Appeal filed by Matthew Griffith, J. R., Paris Butler, Maricruz Lopez, Touissant King, Cathy Alfaro, Julius Carter, Jerell Erves, Candice Young, Shanae Tatum, Calvin Jevon Cochran, Michael Gibson, Beautie Mitchell, Stasia Brown, Adarene Hoag, Brittany Jones, Lashelle Benjamin, Rainbow Push Coalition, Allen Vonou, T. J., S. W., D'Shawn Featherstone, Brandon Flannigan, Deneshea Richey, Christopher Sutton, Josie Hyman, M. R., Defend Affirmative Action Party, Joseph Henry Reed, Laquay Johnson, Turqoise Wise−King, Kyle Smith, Alejandra Cruz, Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN), Tristan Taylor, Aiana Scott, Edward Kim, Lacrissa Beverly, Courtney Drake, M. N., Randiah Green, Kevin Smith, Kahleif Henry, Issamar Camacho, Joshua Kay, Williams Frazier, M. C. C., II, Dante Dixon, Danielle Nelson, United for Equality and Affirmative Action Legal Defense Fund, 255 Notice of Appeal,, filed by Wayne State University, Board of Governors of, Michigan State University, Board of Trustees of, University of Michigan, Regents of − Disposition: It is ORDERED that the decision of the district court is AFFIRMED IN PART. IT IS FURTHER ORDERED that the district courts grant of summary judgment for the Defendants−Appellees is REVERSED and this court orders the district court to enter summary judgment in favor of the Plaintiffs−Appellants. [Appeal Case Number 08−1387, 08−1534, 08−1389, 09−1111] (CGre) Modified on 7/1/2011 (CGre). (Entered: 07/01/2011)
283 OPINION and Judgment from U.S. Court of Appeals − Sixth Circuit re (175 in 2:06−cv−15637−DML−SDP, 255 in 2:06−cv−15024−DML−RSW) Notice of Appeal,, filed by Wayne State University, Board of Governors of, Michigan State University, Board of Trustees of, University of Michigan, Regents of, (251 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Jennifer Gratz, (260 in 2:06−cv−15024−DML−RSW, 180 in 2:06−cv−15637−DML−SDP) Notice of Appeal,,, filed by Matthew Countryman, M. R., J. R., Matthew Robinson, Carolyn Carter, Brenda Foster, Cathy Alfaro, Chase Cantrell, C. U., Edward Kim, Bryon Maxey, Michael Weisberg, Kathleen Canning, Casey R. Kasper, Rachel Quinn, Chidimma Uche, M. N., Dana Christensen, Sheldon Johnson, Joshua Kay, Sergio Eduardo Munoz, M. C. C., II, Karen Nestor, T. J., Kevin Gaines, S. W., Rosario Ceballo, (249 in 2:06−cv−15024−DML−RSW) Notice of Appeal,,,, filed by Matthew Griffith, J. R., Paris Butler, Maricruz Lopez, Touissant King, Cathy Alfaro, Julius Carter, Jerell Erves, Candice Young, Shanae Tatum, Calvin Jevon Cochran, Michael Gibson, Beautie Mitchell, Stasia Brown, Adarene Hoag, Brittany Jones, Lashelle Benjamin, Rainbow Push Coalition, Allen Vonou, T. J., S. W., D'Shawn Featherstone, Brandon Flannigan, Deneshea Richey, Christopher Sutton, Josie Hyman, M. R., Defend Affirmative Action Party, Joseph Henry Reed, Laquay Johnson, Turqoise Wise−King, Kyle Smith, Alejandra Cruz, Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN), Tristan Taylor, Aiana Scott, Edward Kim, Lacrissa Beverly, Courtney Drake, M. N., Randiah Green, Kevin Smith, Kahleif Henry, Issamar Camacho, Joshua Kay, Williams Frazier, M. C. C., II, Dante Dixon, Danielle Nelson, United for Equality and Affirmative Action Legal Defense Fund − Disposition: It is ORDERED that the decision of the district court is AFFIRMED IN PART. IT IS FURTHER ORDERED that the district courts grant of summary judgment for the Defendants−Appellees is REVERSED and this court orders the district court to enter summary judgment in favor of the Plaintiffs−Appellants. [Appeal Case Number 08−1387, 08−1534, 08−1389, 09−1111] (CGre) Modified on 7/1/2011 (CGre). (Entered: 07/01/2011)

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07/08/2011 07/11/2011 08/11/2011 08/17/2011 09/09/2011
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284 Notice of E−mail Delivery Failure as to attorney Leonard M. Niehoff. Bounced NEF for 282 Appeal Order/Opinion/Judgment, 283 Appeal Order/Opinion/Judgment. (KCla) (Entered: 07/08/2011)
285 NOTICE of Change of Address/Contact Information by Leonard M. Niehoff on behalf of Michigan State University, Board of Trustees of, University of Michigan, Regents of, Wayne State University, Board of Governors of. Associated Cases: 2:06−cv−15024−DML−RSW, 2:06−cv−15637−DML−SDP (Niehoff, Leonard) (Entered: 07/11/2011)
286 ORDER from U.S. Court of Appeals − Sixth Circuit − Disposition: It is ORDERED that the motion from the Counsel for Michigan Civil Rights Initiative Committee, American Civil Rights Foundation, Pacific Legal Foundation, Center for Equal Opportunity, and National Association of Scholars for leave to file a brief as amici curiae in support of the petition for rehearing en banc, be and it hereby is GRANTED. [Appeal Case Number 08−1387/1389/1534/09−1111]. (CGre) (Entered: 08/12/2011)
287 ORDER from U.S. Court of Appeals − Sixth Circuit re (260 in 2:06−cv−15024−DML−RSW, 180 in 2:06−cv−15637−DML−SDP) Notice of Appeal filed by Matthew Countryman, M. R., J. R., Matthew Robinson, Carolyn Carter, Brenda Foster, Cathy Alfaro, Chase Cantrell, C. U., Edward Kim, Bryon Maxey, Michael Weisberg, Kathleen Canning, Casey R. Kasper, Rachel Quinn, Chidimma Uche, M. N., Dana Christensen, Sheldon Johnson, Joshua Kay, Sergio Eduardo Munoz, M. C. C., II, Karen Nestor, T. J., Kevin Gaines, S. W., Rosario Ceballo − Disposition: It is ORDERED that the motion be and it hereby is DENIED. [Appeal Case Number 08−1387/1389/09−1534/09−1111]. (CGre) (Entered: 08/17/2011)
288 ORDER from U.S. Court of Appeals − Sixth Circuit re (175 in 2:06−cv−15637−DML−SDP, 255 in 2:06−cv−15024−DML−RSW) Notice of Appeal,, filed by Wayne State University, Board of Governors of, Michigan State University, Board of Trustees of, University of Michigan, Regents of, (251 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Jennifer Gratz, (260 in 2:06−cv−15024−DML−RSW, 180 in 2:06−cv−15637−DML−SDP) Notice of Appeal,,, filed by Matthew Countryman, M. R., J. R., Matthew Robinson, Carolyn Carter, Brenda Foster, Cathy Alfaro, Chase Cantrell, C. U., Edward Kim, Bryon Maxey, Michael Weisberg, Kathleen Canning, Casey R. Kasper, Rachel Quinn, Chidimma Uche, M. N., Dana Christensen, Sheldon Johnson, Joshua Kay, Sergio Eduardo Munoz, M. C. C., II, Karen Nestor, T. J., Kevin Gaines, S. W., Rosario Ceballo, (249 in 2:06−cv−15024−DML−RSW) Notice of Appeal,,,, filed by Matthew Griffith, J. R., Paris Butler, Maricruz Lopez, Touissant King, Cathy Alfaro, Julius Carter, Jerell Erves, Candice Young, Shanae Tatum, Calvin Jevon Cochran, Michael Gibson, Beautie Mitchell, Stasia Brown, Adarene Hoag, Brittany Jones, Lashelle Benjamin, Rainbow Push Coalition, Allen Vonou, T. J., S. W., D'Shawn Featherstone, Brandon Flannigan, Deneshea Richey, Christopher Sutton, Josie Hyman, M. R., Defend Affirmative Action Party, Joseph Henry Reed, Laquay Johnson, Turqoise Wise−King, Kyle Smith, Alejandra Cruz, Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN), Tristan Taylor, Aiana Scott, Edward Kim, Lacrissa Beverly, Courtney Drake, M. N., Randiah Green, Kevin Smith, Kahleif Henry, Issamar Camacho, Joshua Kay, Williams Frazier, M. C. C., II, Dante Dixon, Danielle Nelson, United for Equality and Affirmative Action Legal Defense Fund − Disposition: Accordingly, it is ORDERED, that the previous decision and judgment of this court is vacated, the mandate is stayed and this case is restored to the docket as a pending appeal. [Appeal Case Number 08−1387/1389/1534/09−1111] (CGre) (Entered: 09/09/2011)
289 ORDER from U.S. Court of Appeals − Sixth Circuit: granting petition for en banc rehearing to reinstate case. The previous decision and judgment of this court is vacated, the mandate is stayed. [Appeal Case Number 08−1387] (ATee) (Entered: 09/12/2011)
290 ORDER from U.S. Court of Appeals − Sixth Circuit − Disposition: granting Intervenor−Defendant−Appellant Eric Russell leave to file two supplemental briefs [Appeal Case Number 08−1387] (KCas) (Entered: 10/27/2011)
291 ORDER from U.S. Court of Appeals − Sixth Circuit re (175 in 2:06−cv−15637−DML−SDP, 255 in 2:06−cv−15024−DML−RSW) Notice of Appeal, (251 in 2:06−cv−15024−DML−RSW) Notice of Appeal, (260 in

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2:06−cv−15024−DML−RSW, 180 in 2:06−cv−15637−DML−SDP) Notice of Appeal − Disposition: granting motion to enlarge oral argument time. Oral argument will be thirty (30) minutes per side. [Appeal Case Number 08−1387/08−1389/08−1534/09−1111] (KKra) (Entered: 02/10/2012)
292 ORDER from U.S. Court of Appeals − Sixth Circuit re (251 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Jennifer Gratz − Disposition: granting motions for leave to file a brief as amicus/amici curiae in support of the respective parties [Appeal Case Number 08−1387/08−1389] (KKra) (Entered: 03/07/2012)
293 ORDER from U.S. Court of Appeals − Sixth Circuit re (251 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Jennifer Gratz − Disposition: denying motion to "for leave to proceed an appeal and/or relief from order and incorporated brief of former third party intervenors in support of Michigan Civil Rights Commission and Operation King's Dream" [4543769−2] filed by Carl Willams and Hassan Aleem. [Appeal Case Number 08−1387] (KKra) (Entered: 03/07/2012)
294 JUDGMENT from U.S. Court of Appeals − Sixth Circuit re (175 in 2:06−cv−15637−DML−SDP, 255 in 2:06−cv−15024−DML−RSW) Notice of Appeal, (251 in 2:06−cv−15024−DML−RSW) Notice of Appeal, (260 in 2:06−cv−15024−DML−RSW, 180 in 2:06−cv−15637−DML−SDP) Notice of Appeal, (249 in 2:06−cv−15024−DML−RSW) Notice of Appeal− Disposition: he district court's grant of the Defendants−Appellees' motion for summary judgment is REVERSED. The district court's denial of the University Defendants' motion to be dismissed as parties and its grant of the Cantrell Plaintiffs' motion for summary judgment are AFFIRMED. [Appeal Case Number 08−1387] (KKra) (Entered: 11/19/2012)
295 ORDER from U.S. Court of Appeals − Sixth Circuit re (175 in 2:06−cv−15637−DML−SDP, 255 in 2:06−cv−15024−DML−RSW) Notice of Appeal,, filed by Wayne State University, Board of Governors of, Michigan State University, Board of Trustees of, University of Michigan, Regents of, (251 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Jennifer Gratz, (260 in 2:06−cv−15024−DML−RSW, 180 in 2:06−cv−15637−DML−SDP) Notice of Appeal,,, filed by Matthew Countryman, M. R., J. R., Matthew Robinson, Carolyn Carter, Brenda Foster, Cathy Alfaro, Chase Cantrell, C. U., Edward Kim, Bryon Maxey, Michael Weisberg, Kathleen Canning, Casey R. Kasper, Rachel Quinn, Chidimma Uche, M. N., Dana Christensen, Sheldon Johnson, Joshua Kay, Sergio Eduardo Munoz, M. C. C., II, Karen Nestor, T. J., Kevin Gaines, S. W., Rosario Ceballo, (249 in 2:06−cv−15024−DML−RSW) Notice of Appeal,,,, filed by Matthew Griffith, J. R., Paris Butler, Maricruz Lopez, Touissant King, Cathy Alfaro, Julius Carter, Jerell Erves, Candice Young, Shanae Tatum, Calvin Jevon Cochran, Michael Gibson, Beautie Mitchell, Stasia Brown, Adarene Hoag, Brittany Jones, Lashelle Benjamin, Rainbow Push Coalition, Allen Vonou, T. J., S. W., D'Shawn Featherstone, Brandon Flannigan, Deneshea Richey, Christopher Sutton, Josie Hyman, M. R., Defend Affirmative Action Party, Joseph Henry Reed, Laquay Johnson, Turqoise Wise−King, Kyle Smith, Alejandra Cruz, Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN), Tristan Taylor, Aiana Scott, Edward Kim, Lacrissa Beverly, Courtney Drake, M. N., Randiah Green, Kevin Smith, Kahleif Henry, Issamar Camacho, Joshua Kay, Williams Frazier, M. C. C., II, Dante Dixon, Danielle Nelson, United for Equality and Affirmative Action Legal Defense Fund − Disposition: granting motion to stay mandate [Appeal Case Number 08−1387] (KKra) (Entered: 12/11/2012)
296 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on November 28, 2012. [Supreme Court Case Number: 12−682] [Court of Appeals Case Number: 08−1387/08−1534/08−1389/09−1111] (KKra) (Entered: 12/12/2012)
297 ORDER from U.S. Court of Appeals − Sixth Circuit re (175 in 2:06−cv−15637−DML−SDP, 255 in 2:06−cv−15024−DML−RSW) Notice of Appeal,, filed by Wayne State University, Board of Governors of, Michigan State University, Board of Trustees of, University of Michigan, Regents of, (251 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Jennifer Gratz, (260 in 2:06−cv−15024−DML−RSW, 180 in 2:06−cv−15637−DML−SDP) Notice of Appeal,,, filed by Matthew Countryman, M. R., J. R., Matthew Robinson, Carolyn

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03/25/2013
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Carter, Brenda Foster, Cathy Alfaro, Chase Cantrell, C. U., Edward Kim, Bryon Maxey, Michael Weisberg, Kathleen Canning, Casey R. Kasper, Rachel Quinn, Chidimma Uche, M. N., Dana Christensen, Sheldon Johnson, Joshua Kay, Sergio Eduardo Munoz, M. C. C., II, Karen Nestor, T. J., Kevin Gaines, S. W., Rosario Ceballo, (249 in 2:06−cv−15024−DML−RSW) Notice of Appeal,,,, filed by Matthew Griffith, J. R., Paris Butler, Maricruz Lopez, Touissant King, Cathy Alfaro, Julius Carter, Jerell Erves, Candice Young, Shanae Tatum, Calvin Jevon Cochran, Michael Gibson, Beautie Mitchell, Stasia Brown, Adarene Hoag, Brittany Jones, Lashelle Benjamin, Rainbow Push Coalition, Allen Vonou, T. J., S. W., D'Shawn Featherstone, Brandon Flannigan, Deneshea Richey, Christopher Sutton, Josie Hyman, M. R., Defend Affirmative Action Party, Joseph Henry Reed, Laquay Johnson, Turqoise Wise−King, Kyle Smith, Alejandra Cruz, Coalition To Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN), Tristan Taylor, Aiana Scott, Edward Kim, Lacrissa Beverly, Courtney Drake, M. N., Randiah Green, Kevin Smith, Kahleif Henry, Issamar Camacho, Joshua Kay, Williams Frazier, M. C. C., II, Dante Dixon, Danielle Nelson, United for Equality and Affirmative Action Legal Defense Fund − Disposition: denying motion to dissolve stay of mandate [Appeal Case Number 08−1387/08−1389/08−1534/09−1111] (KKra) (Entered: 12/12/2012)
298 LETTER from the US Supreme Court − The motion of David Boyle for leave to file a brief as amicus curiae is granted. The petition for writ of certiorari is granted. [Supreme Court Case Number: 12−682] [Court of Appeals Case Number: 08−1387/08−1534/08−1389/09−1111] (KKra) (Entered: 04/01/2013)
299 CERTIFICATE OF SERVICE Copy of Court Docket sent to the United States Supreme Court (SSch) (Entered: 08/05/2013)
300 OPINION from U.S. Supreme Court [Appeal Case Number 08−1387] (KKra) (Entered: 05/02/2014)
301 JUDGMENT from U.S. Supreme Court [Appeal Case Number 12−682] (KKra) (Entered: 06/09/2014)
302 MANDATE from U.S. Court of Appeals − Sixth Circuit as to (175 in 2:06−cv−15637−DML−SDP, 255 in 2:06−cv−15024−DML−RSW) Notice of Appeal,, filed by Wayne State University, Board of Governors of, Michigan State University, Board of Trustees of, University of Michigan, Regents of, (251 in 2:06−cv−15024−DML−RSW) Notice of Appeal filed by Eric Russell, Jennifer Gratz, (260 in 2:06−cv−15024−DML−RSW, 180 in 2:06−cv−15637−DML−SDP) Notice of Appeal [Appeal Case Number 08−1387/08−1389/08−1534/09−1111] (KKra) (Entered: 07/03/2014)

 
 United States Court of Appeals, Sixth Circuit.
COALITION TO DEFEND AFFIRMATIVE ACTION; Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality
By Any Means Necessary (BAMN), et al., Plaintiffs-Appellees, v.
Jennifer GRANHOLM, et al., Defendants-Appellees, Michigan Civil Rights Initiative Committee; American Civil Rights Foundation; Toward a Fair Michigan,
Proposed Intervenors-Appellants.
Nos. 06-2653, 06-2656. Submitted: Aug. 14, 2007. Decided and Filed: Sept. 6, 2007. Rehearing and Rehearing En Banc Denied Dec. 17,
2007.
*776 ON BRIEF:Sharon L. Browne, Alan W. Foutz, Pacific Legal Foundation, Sacramento, California, Charles J. Cooper, Michael W. Kirk, Cooper & Kirk, Washington, D.C., Kerry L. Morgan, Pentiuk, Couvreue & Kobiljal, Wyandotte, Michigan, Michael E. Rosman, Center for Individual Rights, Washington, D.C., for Appellants. Philip J. Kessler, Butzel Long, Detroit, Michigan, Leonard M. Niehoff, Butzel Long, Ann Arbor, Michigan, George B. Washington, Scheff & Washington, Detroit, Michigan, Michael J. Steinberg, American Civil Liberties Union *777 Fund of Michigan, Detroit, Michigan, James E. Long, Office of the Attorney General, Lansing, Michigan, for Appellees.
Before: KENNEDY, MARTIN, and COLE, Circuit Judges.
COLE, J., delivered the opinion of the court, in which MARTIN, J., joined. KENNEDY, J. (pp. 784-88), delivered a s eparate opinion concurring in part and dissenting in part.
OPINION R. GUY COLE, JR., Circuit Judge.
Before us are two appeals challenging a district court's order denying intervention under Federal Rule of Civil Procedure 24(a) and (b) to (1) the Michigan Civil Rights Initiative committee (the “MCRI”), (2) the American Civil Rights Foundation (the “ACRF”), and (3) Toward a Fair Michigan's (“TAFM,” collec-

tively, the “proposed intervenors”).FN1 Each wishes to intervene in an action brought against (1) Jennifer Granholm, the Governor of Michigan, and (2) the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University (collectively, the “Universities”), seeking to invalidate and permanently enjoin from enforcement a r ecently enacted amendment to Michigan's constitution that outlaws, among other things, sex- and race-based preferences in public education, public employment, and public contracting. Mich. Const., art. 1, § 26. The amendment was the result of the Michigan voters' approval, in November 2006, of Proposal 06-2 (“Proposal 2”), a statewide ballot initiative. For the following reasons, we AFFIRM the district court's denial of intervention to the proposed intervenors.
FN1. The district court similarly denied the City of Lansing's attempt to intervene, and the City of Lansing also appealed. The City of Lansing, however, has since voluntarily dismissed its appeal. See Coalition to Defend Affirmative Action v. Granholm, No. 06-2658 (6th Cir. Aug. 8, 2007) (order).
I. BACKGROUND From approximately July 2004 through December 2004, the MCRI, with the assistance of paid agents, solicited signatures in support of placing a statewide ballot initiative, which would later become Proposal 2, on Michigan's November 2006 general election ballot. Operation King's Dream v. Connerly, 501 F.3d 584, 586, 2007 WL 2416815, at *1 (6th Cir.2007). Proposal 2 has been characterized as “anti-affirmative action,” Operation King's Dream v. Connerly, 2006 WL 2514115, at *1 (E.D.Mich.2006), because, if approved, it would amend Michigan's constitution to prohibit the state from granting “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.” Mich. Const., art. 1, § 26; see also, e.g., Operation King's Dream, 2006 WL 2514115, at *2-3. Indeed, Proposal 2's path to the ballot was not without controversy. Operation King's Dream, 501 F.3d at 591, 2007 WL 2416815, at *6 (“By all accounts, Proposal 2 found its way on the ballot through methods that undermine the integrity and fairness of our democratic processes.”). Nonetheless, on November 7, 2006, Michigan voters approved Proposal 2, with approx-

imately 57.9% of voters favoring it. See State Proposal-06-2: Constitutional Amendment: Ban Affirmative Action Programs, at http:// miboecfr. nictusa. com/ election/ results/ 06 GEN/ 90000002. html (last visited Aug. 11, 2007). After its approval, Proposal 2 was *778 scheduled to go into effect on December 23, 2006. See Mich. Const. art. 12, § 2.
The day after the election, however, on November 8, the Coalition to Defend Affirmative Action, Integration and Immigrant Rights, and Fight for Equality By Any Means Necessary, along with other organizations and individuals (collectively, the “Plaintiffs”), filed suit in the Eastern District of Michigan against Governor Granholm and the Universities, seeking a declaratory judgment that the amendment was invalid and a permanent injunction against its enforcement. “In their amended complaint, [P]laintiffs contended that Proposal 2 violates two federal constitutional provisions (the First and Fourteenth Amendments), three federal civil rights statutes (Title VI, Title VII [,] and Title IX)[,] and one presidential order (Executive Order 11246).” Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 241 (6th Cir.2006). And on December 11, the Universities filed a cr oss-claim against Governor Granholm, seeking a p reliminary injunction permitting them to continue using their existing admissions and financial-aid policies through the end of the 2007 admissions cycle.
On December 14, three days after the Universities filed their cross-claim, the Michigan Attorney General, Michael Cox, moved to intervene in the lawsuit. That same day, the MCRI and the ACRF jointly moved to intervene as well. The district court ruled on only the Attorney General's motion, granting it that day.
On December 18, TAFM and Eric Russell, a white applicant to the University of Michigan Law School, jointly moved to intervene in the lawsuit. That same day, before the district court issued its ruling on the four pending intervention motions (the MCRI's, the ACRF's, TAFM's, and Eric Russell's), the Plaintiffs in the underlying suit and the three sets of parties to the cross-claim filed a stipulation with the district court, which read in relevant part:
It is hereby stipulated, by and between the parties that this Court may order as follows:
(1) that the application of Const[.] 1963, art[.][1],

§ 26 to the current admissions and financial aid policies of the University parties is enjoined through the end of the current admissions and financial aid cycles and no later than 12:01 a.m. on July 1, 2007, at which time this Stipulated Injunction will expire;
(2) that, pursuant to Fed.R.Civ.P. 41(a)(1) and 41(c), the Universities' cross-claim shall be and hereby is dismissed in its entirety, with prejudice only as to the specific injunctive relief requested in the cross-claim [.] ...
Coal. to Defend Affirmative Action, 473 F.3d at 242. On December 19, the district court entered a preliminary injunction, consistent with the parties' stipulation, enjoining the application of Proposal 2 to the Universities' admissions and financial-aid policies until July 1, 2007, and dismissed the Universities' cross-claim. Coal. to Defend Affirmative Action v. Granholm, No. 2:06-cv-15024-DML-RSW, slip op. at 3, 2006 WL 3953321 (E.D.Mich. Dec. 19, 2006) (order).
Having received no response to their motions to intervene, on December 21, Eric Russell and TAFM filed a notice of appeal in this Court, and, the day after that, “they filed in this [C]ourt an ‘Emergency Motion for a Stay Pending Appeal’ of the district court's preliminary injunction and a Petition for a Writ of Mandamus directing the district court to grant their motion to intervene and to vacate its preliminary injunction.” Coal. to Defend Affirmative Action, 473 F.3d at 242.
On December 27, 2006, the district court granted Eric Russell's motion to intervene *779 but denied the MCRI's, the ACRF's, and TAFM's motions both as of right and by permission. Coal. to Defend Affirmative Action v. Granholm, 240 F.R.D. 368 (E.D.Mich.2006) (order). The next day, Eric Russell amended his “Emergency Motion for a Stay Pending Appeal,” and the MCRI, the ACRF, and TAFM all appealed the denials of their motions to intervene.
On December 29, 2006, based on Eric Russell's “Emergency Motion for a Stay Pending Appeal,” a panel of this Court stayed the district court's preliminary injunction pending appeal, allowing article I, section 26 of the Michigan Constitution to take immediate effect. Coal. to Defend Affirmative Action, 473 F.3d at 253. The merits appeal of the district

court's preliminary injunction is still pending before this Court.
II. ANALYSIS “This is but one piece of litigation spurred by the Proposal 2 saga.” Operation King's Dream, 2007 WL 2416815, at *1, 501 F.3d at 586. Today, we address only the appeals of the district court's order denying intervention as of right and by permission to the MCRI, the ACRF, and TAFM. As discussed more fully below, because none of the proposed intervenors have a substantial legal interest in the subject matter of the case, the district court properly denied their motions for intervention as of right. Further, the district court acted within its discretion when it denied them permissive intervention. Fed.R.Civ.P. 24(b).
A. Intervention as of Right [1] Rule 24(a) of the Federal Rules of Civil Pro-
cedure entitles certain parties to intervene in a lawsuit as of right:
Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a p ractical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Fed.R.Civ.P. 24(a). We have explained that a proposed intervenor must establish four factors before being entitled to intervene: (1) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed intervenor's ability to protect their interest may be impaired in the absence of intervention; and (4) the parties already before the court cannot adequately protect the proposed intervenor's interest. Grutter v. Bollinger, 188 F.3d 394, 397-98 (6th Cir.1999). Acknowledging that Rule 24 should be “broadly construed in favor of potential intervenors,” Purnell v. City of Akron, 925 F.2d 941, 950 (6th Cir.1991), the district court nevertheless held that none of the proposed intervenors met any of the four factors.
[2][3] “We review de novo motions to intervene as of right, except for the timeliness element, which is reviewed for an abuse of discretion.” Northland

Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 344 (6th Cir.2007) (citing Grutter, 188 F.3d at 398). A district court abuses its discretion only when we are “left with the definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors or where the trial court improperly applies the law or uses an erroneous legal standard.” Paschal v. Flagstar Bank, 295 F.3d 565, 576 (6th Cir.2002) (citations, alterations, and internal quotation marks omitted).
*780 We begin by addressing whether the proposed intervenors have a s ubstantial legal interest in the litigation. Because we conclude that none do, we need not address the remaining factors. See, e.g., Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.1989) (“[A] failure to meet [any] one of the [four factors] will require that the motion be denied.”).
1. Substantial Legal Interest [4][5] “The proposed intervenors must show that
they have a substantial interest in the subject matter of this litigation.” Grutter, 188 F.3d at 398 (citing Jansen v. City of Cincinnati, 904 F.2d 336, 341 (6th Cir.1990)). Although we have noted that this Circuit “has opted for a rather expansive notion of the interest sufficient to invoke intervention of right,” Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997), this does not mean that any articulated interest will do. See, e.g., Northland Family Planning, 487 F.3d at 344; accord Stupak-Thrall v. Glickman, 226 F.3d 467, 472 (6th Cir.2000) (“[T]his does not mean that Rule 24 poses no barrier to intervention at all.”). Of course, establishing a substantial legal interest “is necessarily fact-specific.” Miller, 103 F.3d at 1245.
a. The MCRI and the ACRF [6] According to the MCRI and the ACRF, “they were at the forefront of the protracted campaign to adopt Proposal 2 a nd are committed to ensuring its constitutionality and timely implementation.” The MCRI, headed by Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), is registered with the Michigan Secretary of State as the official ballot-question committee for Proposal 2, and was, by all accounts, the driving force behind the controversial solicitation of signatures necessary to place Proposal 2 on the ballot. See Operation King's Dream, 501 F.3d at 587,

2007 WL 2416815, at *2. The ACRF is a p ublic-interest corporation dedicated to eradicating sex and race preferences throughout the United States. Ward Connerly, an ACRF board member, was instrumental in the passage of Proposition 209 in California, which similarly banned “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.” Coal. for Economic Equity v. Wilson, 122 F.3d 692, 696 (9th Cir.1997) (quoting Cal. Const. art 1, § 31(a)). Indeed, by design, Proposal 2 t racks the language of Proposition 209. The MCRI and the ACRF worked together, expending labor and funds, to see that Proposal 2 found its way on Michigan's November 2006 general election ballot and to see that the Michigan voters approved Proposal 2. The district court recognized that “[i]t would not be unreasonable to posit that [Proposal 2] would not have reached the ballot without their efforts.” Coal. to Defend Affirmative Action, 240 F.R.D. at 375.
Both the MCRI and the ACRF argue that as groups substantially involved in the process leading to the adoption of the challenged amendment, they have a legal interest in the subject matter of this lawsuit. They rely primarily on our decisions in Grutter and Miller, as well as several Ninth Circuit decisions that we have cited favorably. See Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1397-98 (9th Cir.1995); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 526-28 (9th Cir.1983); State of Idaho v. Freeman, 625 F.2d 886 (9th Cir.1980). We, however, conclude that our precedent requires a contrary conclusion. Since the district court denied the proposed intervenors motions back in December, we decided Northland Family Planning, which is directly*781 on point and controls our disposition.
In Northland Family Planning, six health-care facilities and four physicians filed suit against various Michigan officials, seeking to invalidate and enjoin the enforcement of the Legal Birth Definition Act, which “prohibit [ed] the practice colloquially referred to as partial-birth abortions.” 487 F.3d at 327-28. Like Proposal 2, the Legal Birth Definition Act became law after a successful proposal by a citizen initiative petition. Id. at 327. Prior to the district court holding the Act unconstitutional (which we affirmed), a group called “Stand Together to Oppose Partial-Birth-Abortion” (“STTOP”) moved to intervene

in the litigation under Federal Rule of Civil Procedure 24(a) and (b). Id. at 328. Similar to the MCRI and the ACRF, “STTOP is a ballot-question committee, which was formed to promote the passage and continued viability of the Legal Birth Definition Act.” Id. at 328, 344. The district court denied STTOP's motion to intervene, and we affirmed. Id. at 343-46.
In affirming the denial of STTOP's motion to intervene, we held that an organization involved in the process leading to the adoption of a ch allenged law, does not have a substantial legal interest in the subject matter of a l awsuit challenging the legality of that already-enacted law, unless the challenged law regulates the organization or its members. Id. In so holding, we drew a distinction between cases involving challenges “to the procedure required to pass a particular rule, as opposed to the government's subsequent enforcement of the rule after its enactment.” Id. at 345 (second emphasis added). In drawing this distinction, we explained that “the public at large-including public interest groups-has an interest in the procedure by which a given legal requirement is enacted as a matter of democratic legislative process.” Id. “On the other hand,” we further explained, “in a challenge to the constitutionality of an already-enacted statute, as opposed to the process by which it is enacted, the public interest in its enforceability is entrusted for the most part to the government, and the public's legal interest in the legislative process becomes less relevant.” Id.; accord Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309, 316 (6th Cir.2005) (affirming the denial of a motion to intervene as of right by a committee that existed to support the passage of a local referendum to amend a zoning ordinance). Thus, had STTOP sought to intervene in a suit challenging the legislative process by which the statute was enacted, then it likely would have had a substantial legal interest in the lawsuit due to its involvement in the passage of the statute. Northland Family Planning, 487 F.3d at 345-46. But, after that statute's enactment, STTOP's interest in a suit challenging the enforcement of the statute became insubstantial “due to the state's responsibilities in enforcing and defending it as it is written.” Id. at 346.
Like STTOP's relationship to the Legal Birth Definition Act, the MCRI was created and continues to exist for the purpose of passing and upholding Proposal 2. See id. at 345. The ACRF's goals are, of course, more national, but for the purposes of this case,

its relationship to Proposal 2 and interest in the underlying litigation is identical to the MCRI's. That is, like STTOP, their “legal interest can be said to be limited to the passage of [Proposal 2] rather than the state's subsequent implementation and enforcement of it.” Id. No doubt, each group was instrumental in Proposal 2's path to the ballot and ultimate approval. Their interest in seeing Proposal 2 enforced, however, “is greatly diminished due to the state's responsibilities in enforcing and defending [Proposal 2] as written.” Id. at 346. Therefore, *782Northland Family Planning compels us to hold that the MCRI's and the ACRF's status as organizations involved in the process leading to the adoption of Proposal 2 is insufficient to provide them with a substantial legal interest in a lawsuit challenging the validity of those portions of Michigan's constitution amended by Proposal 2.
[7] This is not to say that all organizations that advocate for the passage of a law lack a substantial legal interest in a suit challenging the government's subsequent enforcement of that law. Indeed, we have held that where a group is “regulated by the new law, or, similarly, whose members are affected by the law, may likely have an ongoing legal interest in its enforcement after it is enacted.” Id. at 345; accord, e.g., Grutter, 188 F.3d at 401 (holding that proposed intervenors, who were applicants to the University of Michigan, had a substantial legal interest in the school's admissions process); Miller, 103 F.3d at 1247 (holding that the Michigan Chamber of Commerce had a substantial legal interest where it was regulated by at least three of the four statutory provisions challenged by plaintiffs). Where, however, an organization has only a general ideological interest in the lawsuit-like seeing that the government zealously enforces some piece of legislation that the organization supports-and the lawsuit does not involve the regulation of the organization's conduct, without more, such an organization's interest in the lawsuit cannot be deemed substantial. See Northland Family Planning, 487 F.3d at 346 (explaining that an organization's interest pertaining only to enforceability of a statute in general is not cognizable as a substantial legal interest without the statute also regulating the organization or its members).
Here, the MCRI and the ACRF have only a general ideological interest in seeing that Michigan enforces Proposal 2. Each group asserts that its mission to enforce civil-rights laws at all levels of government

will be impeded if not granted intervention. To be sure, neither the MCRI nor the ACRF maintains that it or its members are specifically regulated by those portions of Michigan's constitution amended by Proposal 2. The most they claim is that Proposal 2 naturally affects them because each group has at least a few members that are Michigan residents. This, however, amounts to only a generic interest shared by the entire Michigan citizenry. An “interest so generalized will not support a claim for intervention as of right.” Miller, 103 F.3d at 1246 (quoting and citing with approval Athens Lumber Co. v. Federal Election Comm'n, 690 F.2d 1364 (11th Cir.1982)). Thus, the MCRI's and the ACRF's cognizable legal interests extend only to suits challenging the legislative process by which Proposal 2 was approved. At this point, the MCRI's and the ACRF's interest in the underlying litigation “simply pertains to the enforceability of [Proposal 2] in general, which we do not believe to be cognizable as a substantial legal interest sufficient to require intervention as of right.” FN2 Northland Family Planning, 487 F.3d at 346. As we aptly explained in Northland Family Planning, *783 “[w]ithout these sorts of limitations of the legal interest required for intervention, Rule 24 would be abused as a mechanism for the over-politicization of the judicial process.” Id.
FN2. The dissent attempts to differentiate a citizen-initiated legislative enactment from a citizen-initiated amendment to a state's constitution, arguing that a public interest group may have a substantial legal interest in the latter's enforcement. Dissent Op. at 786-87. We are not persuaded by this razor-thin distinction. Regardless how a law came into being, the government is, for the most part, entrusted with enforcing it. Thus, as we stated in Northland Family Planning, the public's legal interest does not extend to suits challenging the enforceability of an already-enacted law. 487 F.3d at 345. So, where, as here, a p ublic interest group has only an ideological stake in the litigation, it too cannot be said to have a substantial legal interest in the law's enforcement.
The MCRI and the ACRF point out, however, that in Grutter we reversed a district court's denial of intervention as of right to the Citizens for Affirmative Action's Preservation (“CAAP”), “a nonprofit organization whose stated mission was to preserve the op-

portunities in higher education for African-American and Latino/a students in Michigan.” 188 F.3d at 397. In Grutter, we held that CAAP had a substantial legal interest in a lawsuit challenging the constitutionality of the University of Michigan's race-conscience admissions policy. Id. at 398-99. The MCRI and the ACRF contend that CAAP, like them, had only an ideological interest in the lawsuit, and because CAAP was granted intervention as of right, they should be too.
The MCRI and the ACRF misidentify CAAP's interest in Grutter. Although CAAP certainly had a general ideological aversion to the elimination of the University of Michigan's race-conscience admissions policy, its members were also directly affected by the challenged policy. At the time of the litigation, CAAP was a coalition consisting of minority students and civil-rights groups, among others, premised on preserving affirmative action in higher education. Indeed, consistent with the makeup of its members, the district court treated CAAP's interests as identical to the proposed minority-student intervenors in that lawsuit, who, like Eric Russell, no doubt had a substantial legal interest in the litigation. See Gratz v. Bollinger, 183 F.R.D. 209, 212 n. 4 (E.D.Mich.1998), rev'd by Grutter, 188 F.3d 394 (“[I]t would appear that the proposed student intervenors and [CAAP] share the same interest in the preservation of race as a factor in determining admissions.... [T]he Court will discuss the interests of both groups together.” (internal citation and quotation marks omitted)). Moreover, CAAP was clear in its intervention motion that its members would be directly affected by the outcome of the litigation. See id. (“CAAP asserts that its membership consists of individuals, some of whom are parents or grandparents of prospective African-American and Latino students in the State of Michigan.”). Consistent with this, in Grutter, we held that CAAP, by virtue of its minority members, “enunciated a specific interest in the subject matter of th[e] case, namely [its] interest in gaining admission to the University of Michigan....” 188 F.3d at 399. Here, the MCRI and the ACRF have made no such specific “enunciation.”
Thus, we hold that the MCRI and the ACRF lack a substantial legal interest in the outcome of this case and affirm the district court's denial of their joint motion to intervene as of right. Accordingly, as mentioned, we need not address the remaining intervention-as-of-right elements.

b. TAFM [8] TAFM's contention that it is entitled to intervene as of right is even less compelling. We have little trouble concluding that TAFM is without a substantial legal interest in the outcome of this case. TAFM took no position in favor or against Proposal 2 b efore, during, or after the November 2006 election, and instead sought only to “promote an educated decision on the question by Michigan citizens through civil and informed discourse.” By all accounts, neither TAFM nor its members are regulated by the challenged constitutional amendment. At best, TAFM has only an ideological interest in seeing that Proposal 2 is enforced. As discussed above, consistent with our holding in *784 Northland Family Planning, this alone does not constitute a substantial legal interest. See 487 F.3d at 346. Therefore, the district court also properly denied TAFM's motion to intervene as of right.
B. Permissive Intervention [9] Under Rule 24(b) of the Federal Rules of Civil
Procedure, a district court may grant intervention to certain interested parties:
Upon timely application anyone may be permitted to intervene in an action ... when an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Fed.R.Civ.P. 24(b). “The denial of permissive intervention should be reversed only for clear abuse of discretion by the trial judge.” Purnell, 925 F.2d at 951 (citing Meyer Goldberg, Inc. v. Fisher Foods, Inc., 823 F.2d 159, 161 (6th Cir.1987)).
[10] In denying the proposed intervenors permissive intervention, the district court explained that, “in cases of this importance, [the district courts] are mere way stations on the judicial road to resolution by courts beyond,” and that granting intervention to the proposed intervenors “will inhibit, not promote, a prompt resolution....” Coal. to Defend Affirmative Action, 240 F.R.D. at 377. The district court expressed further concern that the proposed intervenors would “seek to file more claims, amend pleadings even further, and inject issues that may not lead directly to a

resolution of the issues circumscribed by the present pleadings.” Id. This, coupled with the district court's conclusions that the proposed intervenors lacked a substantial legal interest in the lawsuit, and that the proposed intervenors were adequately represented by existing parties, was a sufficient analysis of the relevant criteria required by Rule 24(b). We cannot say that we are “left with a definite and firm conviction,” Paschal, 295 F.3d at 576, that the district court acted outside its discretion when it d enied permissive intervention to the MCRI, the ACRF, and TAFM. Cf. Miller, 103 F.3d at 1248 (“[The district court must] provide enough of an explanation for its decision to enable this court to conduct meaningful review. It is insufficient merely to quote the rule and to state the result.”).
III. CONCLUSION For these reasons, we AFFIRM.
KENNEDY, Circuit Judge, concurring in part and dissenting in part.
I concur with the majority's disposition with regard to appellant TAFM. I cannot, however, agree that Northland Family Planning Clinic v. Cox, 487 F.3d 323, 346 (6th Cir.2007), “compels us to hold that the MCRI's and the ACRF's status ... is insufficient to provide them with a substantial legal interest” in this case. Maj. Op., ante at 781-82. The majority relies on that opinion to avoid clear prior holdings from both our circuit and the Ninth Circuit (whose holdings we had previously adopted). Therefore, because I conclude that MCRI and ACRF have a substantial legal interest (and easily meet the other Rule 24(a) factors), I dissent.
I. Substantial Legal Interest The majority relies almost solely on Northland
Family Planning; indeed, it concludes that case “compels” its holding here. Maj. Op. at 781-82. Northland Family Planning is distinguishable because (1) the challenged state law in that case was enacted by the legislature, rather than by the citizens through constitutional amendment as here, and (2) the groups here have raised reasons why they cannot *785 rely on the office of the Michigan Attorney General to vigorously advocate the constitutionality of Proposal 2.
At the outset, however, I would note that the majority can only rely on Northland Family Planning because that case fundamentally altered the Rule 24(a)

landscape. Prior precedent was consistent in holding that “interest” was to be construed liberally and “close cases should be resolved in favor of recognizing an interest under Rule 24(a).” Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245, 1247 (6th Cir.1997). While Northland Family Planning carefully distinguished our and some of the Ninth Circuit's prior holdings on their facts, it ignored the basis for those holdings. FN1
FN1. In addition, the intervention discussion may well be dicta. The district court in Northland Family Planning denied the State of Michigan's motion to dismiss and ruled that the state statute was unconstitutional. In the same order, it d enied the public interest group's motion to intervene as a defendant. We affirmed the ruling that the statute was unconstitutional, granting summary judgment to the plaintiffs. We also noted that, “[t]he finality of the summary judgment decision clearly has potential to render moot [the group's] motion to intervene.” 487 F.3d at 344. Nonetheless, we addressed the question. Because the grant of summary judgment to plaintiffs ended the case on the merits, there was no need to determine whether the public interest group had the right to intervene. For this reason, future panels may reject the Rule 24(a) discussion in Northland Family Planning. Indeed, without that foundation, the decided break with prior precedent may very well convince subsequent panels to conclude that this case too is anomalous, and they need not follow it when reflecting on the body of Rule 24(a) case law in this circuit.
In Miller we cited with approval a Ninth Circuit rule that “a public interest group that is involved in the process leading to adoption of legislation has a co gnizable interest in defending that legislation.” Id. That rule found its genesis in a case that cannot be distinguished from Northland Family Planning. In Washington State Bldg. and C onst. Trades Council, AFL-CIO v. Spellman, a voter approved initiative “prohibit[ed] the transportation and storage within [the state] of radioactive waste produced outside the state.” 684 F.2d 627, 629 (9th Cir.1982). The legislature of the state subsequently enacted legislation pursuant to the initiative. In a lawsuit against the state

challenging the constitutionality of the statute, the citizen-group sponsor of the legislation moved to intervene, but the district court denied its motion. The Ninth Circuit reversed the district court and held that the appellant, “as the public interest group that sponsored the initiative, was entitled to intervention as a matter of right under Rule 24(a).” Id. at 630. The public interest group was not regulated by the initiative, which the majority concludes is critical here, Maj. Op. ante at 782-83, nor was it involved in serial litigation concerning the initiative, which Northland Family Planning found was important in Miller. 487 F.3d at 344-45. Nonetheless, and despite consistent citation with approval to the line of Ninth Circuit cases beginning with Spellman, a panel of this court reached the opposite conclusion in Northland Family Planning.
There are good reasons to conclude, however, that the sponsors of a constitutional amendment, like Proposal 2 in this case, have a greater interest in defending the measure than the group that sought to intervene in Northland Family Planning.FN2 *786 There we noted that “in a challenge to the constitutionality of an already enacted statute ... the public interest in its enforceability is entrusted for the most part to the government, and the public's legal interest in the legislative process becomes less relevant.” 487 F.3d at 345 (emphasis mine). That insight rests on a simple presumption: When the government has passed a law, it can be trusted to administer it. When, as here, however, government did not pass the law, but rather the citizens of the state amended their constitution in a general election (arguably because their elected officials would not accede to their will), that presumption does not arise.
FN2. An elaboration of the facts of Northland Family Planning and the Michigan initiative and constitutional amendment procedures is in order: In Michigan, a group can propose laws to the legislature through an initiative.
To invoke the initiative ... petitions signed by a number of registered electors, not less than eight percent ... of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.... Any law proposed by initiative petition

shall be either enacted or rejected by the legislature without change or amendment.... If any law so proposed is not enacted by the legislature within 40 days, [it] shall [be] submit[ted] to the people for approval or rejection at the next general election.
Mich. Const. Art. II § 9. In Northland Family Planning, the proposed intervenor had proposed the challenged law to the legislature through an initiative and the legislature had enacted the law. In contrast, in the instant case, a majority Michigan voters approved an amendment to the Michigan Constitution in a general election pursuant to Mich. Const. Art. 12 § 2.
The procedural history of this case confirms that the plaintiffs have a basis for their fear that the office of the Attorney General cannot be relied on to defend “the public interest in [this amendment's] enforceability.” Id. As the majority notes, the Attorney General and the Governor have already compromised with the plaintiffs and the cross-claimants in this case and stipulated to an injunction that, we have previously found, had no basis in federal law. Maj. Op. ante at 778-79; Coalition v. Granholm, 473 F.3d 237, 244-247 (6th Cir.2006). In addition the “government” in this case is divided; prior to the 2006 general election, the Attorney General publicly supported Proposal 2 and the Governor opposed it. Therefore, while the Attorney General takes the view in his filings that the amendment does not violate the federal Constitution, the Governor has indicated a possibility that she might conclude otherwise. Indeed, although she was sued in her official capacity only, she has requested that the Attorney General put a conflict wall in place in his office to ensure that her position is represented in federal court without the influence of the Attorney General. Governor's Br. at 4-5, No. 06-2656. The Governor and the Attorney General have both filed answers in the district court and, by all appearances, intend to litigate the matter separately.
Therefore, the State of Michigan (the only appropriate defendant in an action to declare a measure adopted in a g eneral election unconstitutional) does not appear to be a party in this case. Instead, Attorney General Cox and Governor Granholm are both either named defendants or, in the case of Attorney General

Cox, an intervening defendant because they have recognized potential for conflicting views (and thus different litigation strategies) between them. It is also unclear what the status of Governor Granholm, as a party, actually is. After Attorney General Cox intervened, she should no longer have been in the case, yet she has continued to file briefs here in support of the denial of intervention, as well as pleadings and briefs in the court below.
All of this reinforces concern with entrusting the “public interest in enforceability” of a general election, voter-approved measure to elected officials. As the example of the Governor proves, there are cases in which the elected officials of a state will disagree with the majority of the voting population on a particular point of public *787 policy. Therefore, when the voters demonstrate their preference on that point of public policy through the constitutional amendment process, it follows that some representative of the voters has a “substantial interest” in defending that position: I agree with the Ninth Circuit's conclusion in Spellman that the sponsor of the measure should be that representative.
The point, therefore, is simply that measures approved by the voting public in a general election are different from legislative acts. This point does not depend on the policy preferences of particular elected officials. Rather, the possibility of conflict creates a substantial interest. It does not matter in the substantial interest inquiry that the Attorney General supported Proposal 2 before the election. That fact will be weighed in consideration of the last factor, namely whether a p arty already in the case will sufficiently represent the position of the proposed intervenor. I turn to that factor, as well as the other remaining ones, presently.
II. Remaining factors Because it concludes that MCRI and ACRF do
not have a substantial legal interest in this case, the majority does not address the remaining factors. I would find, however, that (1) the district court abused its discretion when it d etermined that the motion to intervene was not timely, (2) the ability of MCRI and ACRF to protect its substantial legal interest may be impaired in the absence of intervention, and (3) that the Attorney General, as well as the other parties in the case, might not adequately represent that interest.

First, the parties' motion to intervene was timely. While it is true that appellants must have known about the litigation shortly after it was filed, it i s equally clear that the litigation had not progressed by the time they moved to intervene. “The absolute measure of time between the filing of the complaint and the motion to intervene is one of the least important ... circumstances” to consider. Stupak-Thrall v. Glickman, 226 F.3d 467, 475 (6th Cir.2000). The Attorney General stated in his motion to intervene, filed the very same day as appellants' and found to be timely, that “intervention will in no way unduly delay or prejudice the adjudication of the rights of the original parties since this suit is in its initial phase.” Attorney General's Mot. Interv. ¶ 17. Appellants waited only a week after service on the Governor and only one day after notice of that service was filed in the district court before filing their motion. No discovery had occurred and no orders had issued. None of the traditional hallmarks of a progressing litigation yet existed.
Second, to dispose of the present case without allowing the intervention of the MCRI and ACRF would compromise their ability to protect their interests, as an adverse ruling would threaten the viability of the constitutional amendment that these groups supported. To satisfy this element, “a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied[,]” a “burden [that] is minimal.” Miller, 103 F.3d at 1247 (citing Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir.1991)) (emphasis mine). As such, the appellants' showing that an adverse determination in this case has the potential to hinder their ability to protect their interest in eliminating race-based preferences is sufficient to support intervention.
Third, the Attorney General might not adequately represent the appellants' interest in this matter. The threshold for this requirement is again low; appellants need not show that representation won't be inadequate, only that the potential exists that the Attorney General will not make all of their arguments. *788Grutter v. Bollinger, 188 F.3d 394, 400 (6th Cir.1999); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir.1983). The procedural history of this case indicates that this potentiality exists. While the opponents of the motion have argued that the stipulated injunction was merely a litigation strategy rather than a different theory of the case, the fact that this court overturned the stipulated injunction on appeal indi-

cates that a more zealous litigation approach could significantly alter the enforcement and ultimately the interpretation of this constitutional amendment. In addition, the conflict wall set up across the Attorney General's office at the request of the Governor further indicates that different interpretations of this provision and its interaction with federal constitutional and statutory law are possible; the appellants' interpretation could be more expansive than that of the existing parties.
* * *
In order to ensure vigorous advocacy so that we do not intrude on states' interests in the constitutionality of their own laws, I would hold that sponsors of voter initiatives may intervene as of right to defend the measures they sponsored. Therefore, I would reverse the district court with regard to appellants MCRI and ACRF and remand with instructions to allow those parties to intervene pursuant to Rule 24(a).
C.A.6 (Mich.),2007. Coalition to Defend Affirmative Action v. Granholm 501 F.3d 775, 101 Fair Empl.Prac.Cas. (BNA) 715, 90 Empl. Prac. Dec. P 42,969, 68 Fed.R.Serv.3d 1116
END OF DOCUMENT

 
 For Opinion See 2011 WL 2600665
United States Court of Appeals, Sixth Circuit.
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (bamn), et al., Plaintiffs-Appellants, v.
REGENTS OF THE UNIVERSITY OF MICHIGAN, et al., Defendants-Appellees, andMichael COX, Michigan Attorney General, Intervenor-Appellee. No. 08-1387. May 15, 2009.
On Appeal from the United States District Court for the Eastern District of Michigan at Detroit Oral Argument Requested
Brief of Appellants
George Boyer Washington, Shanta Driver, Scheff, Washington & Driver, P.C., 645 Griswold, Suite 1817, Detroit, MI 48226-0000, (313) 963-1921, Counsel for Appellants Coalition to Defend, Affirmative Action, Integration and Immigrant, Rights and Fight for Equality by Any Means, Necessary (BAMN), et al.
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ... i
TABLE OF AUTHORITIES ... v
STATEMENT IN SUPPORT OF ORAL ARGUMENT ... viii
JURISDICTIONAL STATEMENT ... 1
STATEMENT OF THE ISSUES FOR REVIEW ... 1
STATEMENT OF THE CASE ... 2
STATEMENT OF FACTS ... 7
A. The “preferences/non-discrimination“ distinction used by the district court is false to the core ... 7
B. As Grutter recognized, affirmative action is, in some circumstances, essential today in order to ensure a racially-integrated student body ... 12
C. Proposal 2's attack on affirmative action requires an attack on the democratic rights of racial minorities ... 17
D. The oppression of the minority by the majority ... 22
SUMMARY OF ARGUMENT ... 23

STANDARD OF REVIEW ... 26
ARGUMENT ... 27
I PROPOSAL 2 VIOLATES THE EQUAL PROTECTION CLAUSE BY DEPRIVING BLACK, LATINO, AND NATIVE AMERICAN RESIDENTS OF AN EQUAL POLITICAL PROCEDURE FOR SECURING ADMISSION AND OTHER ACADEMIC STANDARDS THAT FURTHER THEIR ADMISSION TO PUBLIC UNIVERSITIES ... 27
A. The Supreme Court has repeatedly held that a referendum may not be used to deprive racial minorities of an equal political procedure to secure action on measures designed to combat prejudice ... 27
B. The district court erred as a matter of law by sustaining an unequal political procedure based on its belief that the substantive demands of the minority were purportedly seeking a “preference” or “advantage.” ... 31
C. The district court's decision defies the Supreme Court's decision in Grutter ... 37
D. The district court's decision and, even more, the appellate court opinions on which it is based, have approved a radical and dangerous state' rights revision of the Equal Protection Clause ... 40
II PROPOSAL 2 VIOLATES THE EQUAL PROTECTION CLAUSE BY MANDATING DIFFERENT ADMISSION AND EDUCATIONAL POLICIES FOR BLACK, LATINO, AND NATIVE AMERICAN STUDENTS ... 44
A. The Court must look behind the words of Proposal 2 by evaluating in light of the reality of higher education today ... 44
B. Proposal 2 mandates different policies for the admission of minority students than are required for other categories of students ... 46
C. The district court erred as a matter of law in failing to recognize the invidious racial purpose of Proposal 2 ... 50
III PROPOSAL 2'S BAN ON GENDER BASED AFFIRMATIVE ACTION VIOLATES THE EQUAL PROTECTION CLAUSE IN THE SAME WAYS THAT ITS BAN ON RACE-BASED AFFIRMATIVE ACTION VIOLATES THAT CLAUSE ... 55
CONCLUSION AND RELIEF REQUESTED ... 57
CERTIFICATE OF COMPLIANCE ... 59
CERTIFICATE OF SERVICE ... 60
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS ... 61
TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v Pena, 515 U.S. 200 (1995) ... 37

Arthur v Toledo,782 F.2d 565 (6th Cir. 1986) ... 51, 55 Brown v Board of Education, 347 U.S. 483 (1954) ... 7, 23, 31, 45 Buckeye Comm. Hope Foundation v City of Cuyahoga Falls, 263 F.3d 627 (2001), rev'd on other grounds 538 U.S. 188 (2003) ... 51 Cherry Hill Vineyards LLC v. Lilly, 553 F. 3d 423 (6th Cir. 2008) ... 26 Civil Rights Cases, 109 U.S. 3 (1883) ... 35 Coal for Econ Equity v. Wilson, 122 F. 3d 692 (9th Cir.1997), cert. den. 521 U.S. 963 (1997) ... 30, 39, 44 Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480 (N.D. Cal. 1996), rev'd on other grounds, 122 F. 3d 692 (9th Cir.1997), cert. den. 521 U.S. 963 (1997) ... 22 Coal. To Defend Affirmative Action v. Granholm, 473 F. 3d 237 (6th Cir. 2006) ... 4, 5, 31 Committee for Equity v. Michigan High Sch. Athletic Ass'n., 459 F. 3d 676 (6th Cir. 2006) ... 26 Coral Const. Inc v City and County of San Francisco, 57 Cal. Reptr. 3d 781 (2007)), review granted and opinion superceded 65 Cal. Reptr. 3d 761 (2007) ... 39, 40 Crawford v Board of Educ. of City of Los Angeles, 458 U.S. 527 (1982) ... 54 Grutter v Bollinger, 539 U.S 306 (2003) ... passim Hunter v. Erickson, 393 U.S.385 (1969) ... passim Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (2004) ... 56 Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S. Ct. 2738 (2007) ... 42 Personnel Administrator of Massachusetts v Feeney, 442 U.S. 256 (1979) ... 53 Plessy v Ferguson, 163 U.S. 537 (1896) ... 43, 45 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) ... 11, 36, 46 Romer v Evans, 517 U.S. 620 (1996) ... passim Sweatt v Painter, 339 U.S. 629 (1950 ... 38 Village of Arlington Heights v Metropolitan Housing Development Corporation, 429 US 252 (1977) ... 51, 52 Washington v Seattle School District No. 1, 458 U.S. 457 (1977) ... passim

Constitutional Provisions Mich. Const. of 1850 ... 7 Const. of 1850, art.13, sec. 8 ... 7 Mich. Const. 1963, art. 1, sec. 26 ... 1 Const. 1963, art. 1, sec 26(1) ... 18 Const. 1963, art. 1, sec 26(6) ... 18 U.S. Const. amend. XIV ... passim Equal Protection Clause ... passim Statutes 28 U.S.C. s. 1331 ... 1 28 U.S.C. s. 1343(3) ... 1 Civil Rights Act of 1866 ... 34 Civil Rights Act of 1964 ... 35 Freedman's Act ... 34 MCL 37.2801 ... 18 Proposition 209 ... passim Other Authorities 110 Cong. Rec. 13150 (1964) ... 35 Connerly, Ward, Creating Equality ... 48 Foner, Eric, Reconstruction: America's Unfinished Revolution (1988) ... 34 Obama, Barack, Dreams of My Father ... 47 http://miboecfr.nictusa.com/cgi-bin/cfr/precinct_srch_res.cgi ... 23 Michigan Proposal 06-02, now Const. 1963, art. 1, sec. 26 ... passim

www.acri.org (chairman.html) ... 21
www.ag.ca.gov/newsalerts /release (4/23/2009) ... 39
CORPORATE DISCLOSURE STATEMENT
Pursuant to the Federal Rules of Appellate Procedure and Sixth Circuit Rule 26.1, counsel for the plaintiff-appellants certifies that no party to this appeal is a subsidiary or affiliate of a publicly-owned corporation and no publicly-owned corporation that is not a party to this appeal has a financial interest in the outcome. The plaintiff-appellants are either individual students or prospective students, voluntary unincorporated associations, or non-profit corporations.
STATEMENT IN SUPPORT OF ORAL ARGUMENT
The Coalition plaintiff-appellants request oral argument in this case because Michigan Proposal 2's ban on affirmative action programs in Michigan raises an issue of profound importance to Michigan and to the nation. It has now prevented public bodies from adopting or minority residents and their supporters from fighting for the exact programs approved by this Circuit in an en banc decision and by the United States Supreme Court in Grutter v Bollinger, 539 U.S 306 (2003).
A Ninth Circuit panel approved California's Proposition 209, from which Proposal 2 was copied, before Grutter had reestablished the legality of affirmative action in higher education and before the disastrous effects of Proposition 209 on minority enrollment in California's most selective public universities had become clear. Coal for Econ Equity v. Wilson, 122 F. 3d 692, 708 (9th Cir.1997), cert. den. 521 U.S. 963, 1141 (1997). In a situation where clarification of the basic law was clearly needed from the Supreme Court, five judges on the Ninth Circuit nevertheless dissented from the decision denying en banc hearing and expressed the view that Proposition 209 violated the Equal Protection Clause. Id., at 711-718.
The issues presented are of fundamental importance and this Court should grant oral argument on the case.
JURISDICTIONAL STATEMENT
The district court had subject matter jurisdiction over this case under 28 U.S.C. ss. 1331 and 1343(3). The plaintiff-appellants assert that Michigan Proposal 06-02, now Const. 1963, art. 1, sec. 26, violates Section 1 of the Fourteenth Amendment to the Constitution of the United States. On March 18, 2009, the district court issued a final order granting summary judgment to the defendant appellee Michael Cox and dismissing all claims. On March 19, 2009, the plaintiff-appellants filed a timely notice of appeal with the district court.
STATEMENT OF THE ISSUES FOR REVIEW
1. Does Michigan Proposal 06-02, which is now Article 1, Section 26 of the Michigan Constitution, violate the Equal Protection Clause of the Fourteenth Amendment by denying minority residents and their supporters of access to a political procedure for securing change on admission standards related to race that is equal to the political procedure provided for residents seeking change on all other issues by selectively stripping the governing boards of Michigan's public universities of the power to adopt lawful affirmative action plans that have been approved by the Supreme Court and that have been shown to be the only means of assuring that racial minorities have access in any numbers to the most selective schools in public universities
2. Does Michigan Proposal 06-02, which is now Article 1, Section 26 of the Michigan Constitution, violate the Equal Protection Clause of the Fourteenth Amendment by mandating that (a) the universities follow more onerous subs-

tantive policies for the admission of minority students than are followed for the admission of other students and or by (b) allowing them to seek every other form of diversity or integration except racial diversity and integration, which is the form of diversity and integration that is most important and most difficult to achieve
3. Does Michigan Proposal 06-02, which is now Article 1, Section 26 of the Michigan Constitution, violate the Equal Protection Clause of the Fourteenth Amendment as to gender in ways similar to the violations that it imposes due to race
STATEMENT OF THE CASE
In their complaint and on this appeal, the plaintiff-appellants assert that Michigan Proposal 2, the anti-affirmative action amendment to the Michigan constitution backed by Ward Connerly, is essentially an attempt to relitigate the claims that Mr. Connerly and his supporters lost six years ago in the United States Supreme Court decision in Grutter v Bollinger, 539 U.S 306 (2003).
Leaving aside claims that have not been appealed, the plaintiffs' complaint asserted that Proposal 2 violates the Equal Protection Clause in three separate but interrelated ways.
First, it selectively strips the governing boards of the defendant universities of the power to adopt any affirmative action program based on race or national origin, including the very plan approved in Grutter. By so doing, it violates repeated decisions of the Supreme Court of the United States by creating a more onerous, and, in reality, impossible political procedure for minority students seeking changes in admission standards that are in their interest.
Second, when its substantive commands are judged in the light of reality, Proposal 2 violates the Equal Protection Clause by mandating different substantive standards for the admission of minority students and by allowing the governing boards to continue seeking diversity or integration on every axis except the one most protected by the Equal Protection Clause: racial diversity and integration.
Third, by banning all gender-based affirmative action programs under any circumstances whatever, Proposal 2 violates the Equal Protection Clause in ways similar to the violations as to race.
The plaintiffs in this action include black, Latino and women students who assert that they have or will be excluded from the most selective public universities in Michigan as a result of this Proposal. They are led in this action by the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and to Fight for Equality by Any Means Necessary (BAMN). BAMN has fought California's Proposition 209, intervened as a defendant in Grutter, challenged the racially-targeted fraud that was used in getting Proposal 2 on Michigan's ballot, and played a crucial role in defeating anti-affirmative ballot initiatives identical to Proposal 2 in Oklahoma, Missouri, Arizona and Colorado.
Leaving aside the defendants who were dismissed by stipulation or order of the district court, the defendant-appellees in this action include the governing boards and presidents of the University of Michigan, Michigan State University, and Wayne State University. The university defendants, who said affirmative action was essential in Grutter, have fallen silent after the November 2006 elections. They take no position on the constitutionality of Proposal 2.
The Attorney General of Michigan, who was the only statewide officer or candidate in Michigan who supported Proposal 2, has intervened without objection as a defendant. He asserts that the Proposal complies with the Equal Protection Clause.
A motion panel of this Court considered, although explicitly did not decide, some of the issues raised on this appeal. Coal. To Defend Affirmative Action v. Granholm, 473 F. 3d 237 (6th Cir. 2006). In an opinion dissolving a stay, the panel suggested, but did not hold, that Proposal 2 furthered, rather than violated, the Equal Protection Clause because

it banned what the panel proclaimed were “preferences.” Id., at 250-251.
Shortly before that motion panel issued its opinion, another group of plaintiffs (the “Cantrell plaintiffs”) filed suit in district court asserting that as applied to race Proposal 2 violated the Equal Protection Clause in ways similar to those that the Coalition plaintiffs alleged in the first argument described above. The district court consolidated the two cases and they have been consolidated in this Court for briefing and argument.
At the close of discovery below, every party except the Coalition plaintiffs moved for summary judgment. The Coalition plaintiffs asserted that there were crucial factual disputes, primarily over whether affirmative action was a “preference” and over whether the Proposal was in substantive terms a means for imposing a more onerous educational policy targeted at blacks, Latinos and Native Americans.
In its opinion, the district court found there were no disputes over material facts, rejected the arguments of the Coalition plaintiffs, denied the Cantrell plaintiffs' motion for summary judgment, and granted the motion for summary judgment filed by the Attorney General. The district court held that Hunter v. Erickson, 393 U.S.385 (1969) did not provide any right to an equal political procedure for black, Latino and Native American residents and women, because they were fighting for what the court believed were “preferences” or “advantages.” Similarly, the district court held that Proposal 2 did not substantively discriminate against black, Latino and women students because there were other, purportedly benign, reasons for mandating a different treatment of race, national origin and gender in the admission standards.
The Coalition plaintiffs appealed immediately. The Cantrell plaintiffs filed a motion to alter or amend the judgment, which called some of the district court's errors to its attention. After considering that motion for eight months, the district court denied it and the Cantrell plaintiffs then appealed.
The issues at stake are obviously of profound importance to the nation, not only because of its past, but because of its future, in which racial minorities, who are now the majority in several major states, will within a few decades be the majority in the entire country. The fundamental questions at issue in this case are whether the current white majority in Michigan's electorate may effectively exclude the issues of minority admissions from consideration under the political procedures that have governed the universities for a century-and-a-half and whether that white majority may mandate the universities to follow different substantive policies targeted at minority students alone.
The constitutional theory offered in support of Proposal 2 is a radical and dangerous revision of the Equal Protection Clause. The plaintiff-appellants urge this Court to reverse the district court and strike down Proposal 2 as a violation of the Fourteenth Amendment.
STATEMENT OF FACTS
A. The “preferences/non-discrimination“ distinction used by the district court is false to the core.
The legal advocates for Proposal 2 dwell in the realm of soothing abstractions. They say they are against both “discrimination” and “preferences.” But as the Supreme has held since Brown, in dealing with matters of race, the Court cannot deal in abstractions. It must look at the facts-that is, at reality.
In Grutter, the Supreme Court set forth much of the reality that the proponents of Proposal 2 hope to ignore. But even though the Supreme Court has already decided many of the defining issues, it is necessary to set them forth again because the proponents of Proposal 2 have reasserted their old arguments in new forms.
From the Constitution of 1850 forward, the elected governing boards of the University of Michigan and, later, of Michigan State and Wayne State, had full power over all of the academic affairs of those institutions, including the

policies for admission. Const 1850, art.13, sec. 8. When it was still controversial to do so, the Regents of the University of Michigan dropped the race and gender bar (R. 222-15, Anderson Report, at 7-14).
But as justly proud as the University is of that history, it was essentially a segregated institution before affirmative action. In 1960, there were only a few hundred black students out of a total student body of over 18,000.[FN1] Open segregation was rampant in the rental housing where most students lived. In the fraternities and sororities, racial and religious exclusion was blatant-and President Harlan Hatcher refused to do anything about it. Even in the dormitories, the University gave backhanded support to segregation by allowing incoming students to opt out of rooming with Negroes (R. 222-15, Anderson Report at 6-14).
FN1. In this brief, the plaintiffs will, for reasons of space, concentrate on the University of Michigan. The other state schools tended to follow what Michigan did on affirmative action.
The Michigan Law School was, perhaps, the clearest example of the past which the supporters of Proposal 2 would like to forget. During the entire decade of the 1960's, its “color blind” admissions policies resulted in 3,032 white graduates-and nine black graduates. There are no records as to whether there were any Latinos at all (R 222-19, UM Law School Graduates).
If it had not been for the action of black students and their supports, the de facto segregation at the University of Michigan may well have increased. In the early 1960s, the University had begun requiring standardized tests in admissions. With the enormous post-war expansion of the groups applying to college, leading educators had proposed adopting those tests as a way to select students and to identify poorer students who were “diamonds in the rough.” As was known then and is better known today, the standardized tests predicted only first year grades-and that rather weakly. But they had, and continue to have, an enormously disparate impact upon black, Latino and Native American applicants (R 222-14, Dec. of Schaeffer, paras 8-9 and passim.).
In 1970, before the new tests could have their full segregating effect, a student group calling itself the Black Action Movement (BAM), launched a series of protests, including a student strike, demanding that the University of Michigan increase minority admissions. The Governor of Michigan and many other state and national political leaders openly supported the BAM demands. By May 1970, the Regents adopted a modified version of the BAM demands, including the “goal” of achieving ten percent minority admissions by fall 1973 (R 222-21, Minutes of Regents, 1970; R. 222-22, Memo of A. Ross).[FN2]
FN2. Since 1970, affirmative action plans have generally applied to “underrepresented minorities,” which is almost always defined to include black, Latino and Native American students, with occasional breakdowns within those groups. The conditions and inequalities faced by the three groups share many features, but there are also distinctive features for each. Above all, Latinos face discrimination by language and citizenship as well as by “race.” Native Americans, who are generally isolated on reservations or residents of inner city neighborhoods, also face particular circumstances different than either blacks or Latinos. For reasons of space-and because Proposal 2 adversely impacts all three groups-the differences are not set forth in this Brief.
The protestors-and the University-recognized that this meant that the University would be accepting minority students with lower grade point averages and average test scores than white students (R. 222-20, Letter of R. Fleming, March 5, 1970). As reflected in countless decisions of this and other courts, segregation and inequality were rampant in the primary and secondary schools of Michigan during the 1960s. As will be seen, the huge gap in test scores both reflected and exaggerated the inequality in primary and secondary education.
In theory, the Regents could have adopted in 1970, or at any time since, an entirely new admissions system in response to the BAM demands. But no one knew then, or knows now, how to set a single admission standard that judges “merit,” “promise,” or “ability” for students who come from widely differing backgrounds.

The Regents and virtually every selective university in the country thus amended their existing policies to provide special consideration for minority students. Under these amendments-which came to be known as affirmative action-admissions officials explicitly considered race and admitted black, Latino and Native American students with lower average test scores and grade point averages.
By the standard of reality, Michigan's programs aimed at ending the virtual exclusion of minority students from the university. But Vice President Spiro Agnew attacked the Michigan settlement as a preference, asserting that “unqualified students [were] being swept into college on the wave of the new socialism” (R. 222-15, Anderson Report, at 24). But in two key decisions, the United States Supreme Court held that affirmative action was lawful because it furthered a compelling state interest of assuring that the universities educated a racially diverse and integrated student body. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Grutter, supra.
The Regents and the other governing boards changed the plans on repeated occasions after 1970. Bakke and Grutter required changes in some of the programs. The faculty and the administration changed selection procedures for educational reasons. At times when the number of minority students dropped significantly, minority students and their supporters waged new campaigns (Anderson R. 222-15, at 16-27). In every case, the changes were hammered out in the democratic forums of the Regents' or faculty meetings (R. 222-15, Anderson Report, at 23,25)
The programs led to a vast increase in the number of black, Latino and Native American students (See, e.g., R. 221-19, UM Law School graduates). It inspired women of all races to enter fields and schools that had previously been all male. Soon, the hundreds and eventually thousands of successful minority graduates broke down age-old myths of racial and gender inferiority. Among its many other achievements, affirmative action paved the way for the white majority to accept exceptionally-talented political leaders like Colin Powell, Condolezza Rice, and, eventually, Barack Obama.[FN3]
FN3. The proponents of Proposal 2 frequently cite the prominence of Powell, Rice, Obama and others as evidence that affirmative action is no longer needed. But at the same time that they praise the skill of these leaders, they ignore the fact that each one was the product of affirmative action-and even more than that, they ignore that each one of these leaders, often at some risk, has proclaimed that affirmative action must continue if there are to be more leaders like them. The proponents of Proposal 2 cite these leaders as icons, but they refuse to listen to what they have to say on the crucial points at issue.
B. As Grutter recognized, affirmative action is, in some circumstances, essential today in order to ensure a racially-integrated student body.
The most astute proponents of Proposal 2 assert that affirmative action may once have been necessary but that it is no longer needed in the supposedly color-blind world in which we now live.
The Supreme Court rejected that argument in Grutter and there is no indication that the Court has, or will, reconsider that decision. So, the proponents of Proposal 2 have reformulated the exact argument rejected in Grutter by claiming that affirmative action has only a semi-legal status. According to their latest argument, because affirmative action is “preference,” the states may deny universities of any power to adopt such plans and thus deny minorities of any forum in which to fight for it, except through the impossible forum of a statewide referendum.
The facts establishing that we do not live in a color-blind society are obvious-but are ignored all too often. Three out of every four black students in Michigan attend primary or secondary schools that are over 50 percent minority. Almost sixty percent attend schools that are over 90 percent minorities (R. 206, Rep of Jeannie Oakes, at 10-11). Although not separately broken down in the statistics below, on a national basis, Latino students are even more segregated.

Gary Orfield, one of the nation's leading authorities on educational equality, described the dramatic educational inequality caused by this segregation. Unlike poor white children, who are often distributed in middle-class or even upper middle class schools, students in racially segregated schools almost invariably attend schools that have large concentrations of poverty. The differing social milieus exert an upward pressure on academically-inclined poor white students a d ownward pressure on academically-inclined black and Latino students (R 222-17, Test of Orfield, at 101-104).
As Orfield testified, segregated schools are unequal in a thousand ways: they have more rundown, inefficient, and overcrowded buildings; fewer teachers per student; a lower ratio of certified teachers; a narrower curriculum; less academic traditions and connections; higher turnover of students and teachers; less educational resources in families and communities; and more social problems, to name but a few of the differences. Above everything, there is the pervasive stigma of inferiority. As Orfield opined, segregated schools are a “different world in every sense of the word” from predominantly white schools (R 222-17, Test of Orfield, at 93).
Of course, there have been changes since 1970, some good and some bad. The proponents of Proposal focus usually focus only on one change for the better-the growth of a black middle class which has been able to gain somewhat better education for its children. Of course, that middle class has arisen in large part because of affirmative action -which the proponents of Proposal 2 want to eliminate. But even in its own terms, the change for the better is not as large as the proponents of Proposal 2 sometimes claim.
The black middle class is a much lower percentage of the black population than the white middle class is of the white population. Many, although by no means all, of its children who are admitted to Michigan attend Detroit's exam schools or are part of the relatively small, but still significant, number of black students attending integrated suburban schools. Together, these two groups account for a vastly disproportionate share of the in-state minority students admitted as undergraduates at Michigan in 2005 (R. 222-4, Dec. of Miller, at 137, 141-143).
There is, as yet, no comparable development among Latinos in Michigan. Moreover, even for the black students from middle-class backgrounds, inequality has not ended. As Orfield testified, the black middle-class parent is far less stable economically than a white middle class parent with the same income. The black middle-class student has a far greater chance of coming from or returning to segregated and unequal schools than his or her white counterpart (R 222-17, Test. of Orfield, at 102-103).
Moreover, the educational opportunities for the small black middle class and the even smaller Latino middle class are still not equal to those of a disproportionately larger white middle class. Detroit's exam schools are still segregated; the educational opportunities they offer barely match those of an average suburban district. Even the small number of black and Latino students who have gained access to a few predominantly white suburban districts have not achieved equality. Some of those districts shunt minority students into second-class schools and programs. Even where they do not, black and Latino students face isolation and sometimes harassment (R. 222-17, Test. of Orfield, at 102-105).
Finally, even if the education were equal, which it is not, the record below reveals the continued gross disparity in scores on standardized tests. In 2007, white students had an average combined score of 1579 on the SAT verbal and math tests-a score that was, respectively, 125, 208, and 292 points higher than students from of Native American, Chicano and African American backgrounds. Apart from the continuing myth that these tests reflect “intelligence” or “aptitude” claims that the testing companies have long since been forced to abandon there are two myths about these tests that are dispelled by the facts in the record below (R. 222-14, Dec of Schaeffer, at 3; Ex 1).
First, the disparity is not simply the result of the economic differences between white students on the one hand and black and Latino students on the other hand. As Ward Connerly testified, studies conducted on the massive population of the University of California consistently demonstrated that black students from the highest one fifth of income scored lower than whites in the lowest one fifth of income (R. 222-1, Dep. of Connerly, at 101). As white students of

any given economic class outscore minorities in the same class by significant margins, no criteria of class can ever substitute for the consideration of race (R. 222-14, Dec of Schaeffer, paras 16-18).
Second, the disparity is also not simply the result of different educational achievements. In a study of thousands of applicants to Berkeley's famous Boalt Hall Law School, researchers found that black students who had the same grade point average in the same major at the same undergraduate college scored 9 points less on the LSAT than white students-a gap wide enough to ensure that the black students could not be admitted to any selective law school if the scores had been applied rigidly (R. 222-14, Dec of Schaeffer, para 18).
The statistics on the undergraduate class admitted to the University of Michigan's School of Literature, Science and the Arts in fall 2005 provide some measure of the vast inequality that persists even with affirmative action. Nineteen Detroit high schools had no graduates who were admitted-while 131 students from Grosse Pointe's two high schools received offers of admissions and 169 from the three small private schools, Country Day, Cranbrook and Roeper received offers of admissions (R. 222-4, Dec. of Miller, para 16).
The overwhelmingly white supporters of Proposal 2 may believe we live in a color-blind society-but the facts make clear that is absolutely untrue.
C. Proposal 2's attack on affirmative action requires an attack on the democratic rights of racial minorities.
Proposal 2 began in California. In that state, a Republican Governor appointed Ward Connerly as a member of the Board of Regents of the University of California in 1993. Less than two years later, Connerly sponsored a successful resolution by the Regents to end affirmative action in admissions at all nine campuses of the university (R. 222-2, Dec of Laird, para 11).
In his own words, Connerly then led the drive to adopt the constitutional amendment known as Proposition 209 specifically because he wanted to prevent minorities from reversing the ban through the normal democratic procedures: “If [the Regents] revisited and overturned the vote, the principles we fought for [i.e., the end of affirmative action] would be defeated...” (R. 222-11, selections from Ward Connerly's Creating Equality, at 165-166).
Two days after the Grutter decision, Connerly decided to bring the same undemocratic agenda to Michigan. Neither he nor his supporters ever made any attempt to secure a vote by the Regents to end any affirmative action program. Instead, Connerly publicly announced that he would end all such votes by amending the Constitution of Michigan to add a carbon-copy of Proposition 209. In its operative terms, his proposal, which came to be known as Proposal 2, provided as follows:
(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, color, sex, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
Const 1963, art 1, sec 26(1)(emphasis added).
As the Michigan Constitution and statutes already banned “discrimination” on all of these grounds, the sole operative content of Proposal 2 was the three emphasized words banning “preferential treatment.” The Proposal did not define those terms, but it did incorporate the remedies provided by the state civil rights act, including an individual right of action for damages, injunctive relief, and attorneys' fees. Const 1963, art 1, sec 26 (6); MCL 37.2801.
Soon after Proposal 2 passed, the defendant Universities amended their admission policies to eliminate any consideration of race (R. 222-4, Spencer, at 62-63). At the undergraduate level, Michigan adopted a whole series of new

admission criteria that simulated some of the effects of considering race, including, most importantly, special consideration to students from “underrepresented schools” and “underrepresented areas” (R. 222-4, Dep of Spencer, at 94-96).[FN4]
FN4. In the conditions of segregation, selecting students by area can assist in maintaining the numbers of minority students, although it often impairs selecting those minority students who have the best chance of succeeding in college. In his Declaration, Bob Laird, the director of undergraduate admissions at UC Berkeley when Proposition 209 went into effect, stated that the minority students most harmed by Proposition 209 were those who attended integrated middle-class schools. They had the best chance of success at Berkeleybut they came from schools where white and Asian students scored higher on the standardized tests and they were therefore the students who were shut out the most by Proposition 209 (R. 222-12, Dec of Laird, paras 58-60).
The twelve years that Proposition 209 has been in effect in California demonstrate the catastrophic consequences that the forced abandoning of affirmative action has had. In the first year Proposition 209 went into effect, minority admissions at the Berkeley and UCLA, which are the schools most comparable to Michigan, dropped by over 50 percent. In some state medical schools and in the most selective state law schools, the drop was far greater (R. 220-12, Dec of Laird, at 16-17).
The absolute numbers subsequently recovered somewhat, but in Californiaa state where Latinos, blacks and Native Americans are already a clear majority of high-school graduates-the gap between the percentage of minorities in the population and the percentage in the leading universities has increased dramatically. The largest public university in the world is being resegregated, with black and Latino students forced to attend the least selective campuses, while the most selective universities are increasingly white and Asian (R. 222-12, Laird, at 13-14; R. 206, Report of Oakes, at 6).
The record in this case was closed before the first full class admitted under Proposal 2 enrolled in September 2008. However, at Michigan's Law School, from which many of the state's leaders have come, the Director of Admissions testified that without affirmative action there would be an irremediable drop in minority admissions because of the gross disparities in test scores and educational backgrounds (R. 222-3, Dep. of Zearfoss, at 10). The Dean of Wayne State Law School made a similar prediction (R. 222-7, Dep. of Wu, at 79-82).
According to published reports, which are not available on official web sites, the classes that entered in fall 2008 showed a significant drop in minority students at Michigan's Law School and Wayne State's Medical School. There was no comparable drop in undergraduate admissions at Michigan-and the Wayne State Law School data is difficult to interpret because the school for reasons unrelated to affirmative action cut its class size by one third.
Whatever the results were in 2008 or will be in September 2009, however, Proposal 2 has established a regime in which every political procedure puts a constant downward pressure on minority admissions. For the first time since 1850, minority students and their supporters have no political means to present demands to increase minority admissions. Indeed, they have no forum other than a statewide referendum to win adoption of the programs that desegregated the University in 1970 or that were approved by the Supreme Court in 2006.
On the other side, the University is subject to expensive and politically embarrassing suits for any program that is explicitly or implicitly designed to increase the enrollment of racial minorities. The threats are real: conservative political groups financed the politically and economically expensive suit in Grutter and Mr. Connerly himself threatens UCLA and the other schools of the University of California with a suit each time minority admissions creep upwards.[FN5]
FN5. www.acri.org (chairman.html).

Under Proposal 2, the University may, without any fear of suit, adopt programs that are-or that have the appearance of being-“preferences” for poor students, veterans, residents of rural areas, or for any other social group. Only for the social group facing the greatest disparity in opportunity-and for whom special programs are therefore most essential-is it impossible to enact programs that are, or have the appearance of being, “preferences.”
D. The oppression of the minority by the majority.
The proponents of Proposal 2 claim the mantle of the 58 percent vote in favor of that Proposal.
But as the supporters of Proposal 2 know but dare not admit, the “people” means the white people of Michigan. According to the Mitofsky exit polls used by every major news network including Fox News, nine out of every ten black voters cast No ballots on Proposal 2. Michigan's minorities were simply outvoted by the two-to-one majority in favor of Proposal 2 among white citizens, who constituted 85 percent of those who voted in 2006 (R. 222-2, Dep of Linski, Ex 3).
The proponents of Proposal 2 quibble about the polling methods of the Mitofsky poll, but its results are consistent with every known fact. White voters passed Proposition 209 over the determined opposition of the minorities in California's electorate.[FN6] Even more significantly, Michigan's official election returns, of which this Court may clearly take judicial notice, show that in the City of Detroit, which is now over 90 percent minorities, the voters rejected Proposal 2 by a vote of 206,529 to 14,863.[FN7]
FN6. Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, 1495 n. 12 (N.D. Cal. 1996), rev'd on other grounds, 122 F. 3d 692, 708 (9th Cir.1997), cert. den. 521 U.S. 963, 1141(1997)
FN7. http://miboecfr.nictusa.com/cgi-bin/cfr/precinct srch res.cgi.
Even though it is absurd to do so, the proponents of Proposal 2 choose to quibble over the racial character of the vote because they want to cover up and ignore the simple fact that a white majority imposed Proposal 2 on the state over the opposition ofthe overwhelming majority of Michigan's black, Latino and Native American citizens.
SUMMARY OF ARGUMENT
The Fourteenth Amendment had as its fundamental purpose protecting the newly-freed slaves from discriminatory legislation that denied them their basic rights as citizens. In 1954, the Supreme Court restored the original purpose of the Fourteenth Amendment by holding that the white majority could not exclude racial minorities from equal and integrated access to the public schools. Brown v Board of Education, 347 U.S. 483 (1954).
Following Brown, the Court soon held that a white majority could not exclude power over racial issues from public bodies because that excluded minorities from the normal legislative procedures used by other groups to advance their interests. Hunter v Erickson, 393 U.S. 385 (1969).
Much later, the Court held that public universities could, in appropriate circumstances, adopt racially-conscious affirmative action plans designed to assure that the student bodies included significant numbers of black, Latino and Native American students. Grutter, supra.
Proposal 2 violates the fundamental principles established in all three decisions.
Turning first to the rights guaranteed by Hunter, on three occasions, a white majority, opposed to integration, spon-

sored a referendum that deprived government officials of the power to implement the changes that minorities had just won. On each occasion, the Supreme Court struck down the constitutional amendment adopted in those referendums because it deprived racial minorities of the fundamental right to fight for change on equal terms in the legislative bodies that determined the fate of every other group's demands. Hunter, supra; Washington v Seattle School District No. 1, 458 U.S. 457 (1977); Romer v Evans, 517 U.S. 620 (1996)(Kennedy, J).
Proposal 2 follows the exact method struck down in Hunter, Seattle and Romer. The district court, however, summarily disregarded those decisions because it asserted that affirmative action was a “preference” and not a demand to end discrimination. In so ruling, the district court ignored Hunter's requirement of an “extraordinary justification” for depriving minorities of their rights to the same procedures used for deciding all other issues and its command that the state's or the court's view of the substantive merits of the minority's demands could not serve as such a justification.
Furthermore, the district court's distinction between “preferences” and demands to end discrimination is factually and legally wrong. Affirmative action was and is the means by which the de facto segregation of universities was ended and it is the means today that makes it possible for significant numbers of minority students to attend the most selective schools.
Finally, the district court's departure from Hunter has led it to reach results that directly conflict with Grutter. The district court held that Michigan's minority residents have no right to fight on an equal basis for affirmative action programs because they did not further the goal of ending discrimination-even though Grutter just held that affirmative action programs were constitutional precisely because they provided a means to allow students from all races to attend the universities.
In order to justify the results that it reached, the district court and the authorities on which it relies have been forced to adopt a radical state's-rights revision of the Fourteenth Amendment in which minorities have equal procedural rights on all issues except those where the most compelling state interests are involved. On those issues-the most vital of allthe states may do whatever they want by whatever procedure they deem most appropriate.
The district court's conclusions on the substantive standards enacted by Proposal 2 are no less radical a departure from the existing law. In its opinion, the district court identified two substantive purposes offered by the supporters of Proposal 2: decreasing the number of supposedly “underqualified” minority students and, by decreasing the number of those students, imposing a policy of “tough love” which would supposedly encourage minority students to work harder so that they can gain entry on their own “merits.” By its terms and by the statements of purpose offered by its two primary supporters, Proposal 2 specifically targets students on the basis of their race-a targeting that has been outlawed since Brown.
Finally, Proposal 2's ban on gender-based affirmative action violates the Equal Protection Clause in ways similar to its ban on race or national origin based affirmative action.
STANDARD OF REVIEW
The Court reviews de novo the district court's grant of a motion for summary judgment and de novo any challenge to a state law's constitutionality. Cherry Hill Vineyards LLC v. Lilly, 553 F. 3d 423, 431 (6th Cir. 2008); Committee for Equity v. Michigan High Sch. Athletic Ass'n., 459 F. 3d 676, 680 (6th Cir. 2006).
ARGUMENT
I PROPOSAL 2 VIOLATES THE EQUAL PROTECTION CLAUSE BY DEPRIVING BLACK, LATINO, AND NATIVE AMERICAN RESIDENTS OF AN EQUAL POLITICAL PROCEDURE FOR SECURING ADMISSION AND OTHER ACADEMIC STANDARDS THAT FURTHER THEIR ADMISSION TO PUBLIC UNIVERSITIES.

A. The Supreme Court has repeatedly held that a referendum may not be used to deprive racial minorities of an equal political procedure to secure action on measures designed to combat prejudice.
The Supreme Court precedent on which the plaintiffs rely has been established in three cases spanning the years from 1967 through 1996. Hunter, supra; Seattle School District No. 1, supra; Romer, supra.
In Hunter, where the principles at issue were first established, minority citizens and their supporters won a fair housing ordinance by vote of the Akron, Ohio, City Council. The white majority then passed an amendment to the City Charter repealing the ordinance and preventing the passage of any fair housing ordinance without a vote of the electorate. The Court struck down the charter amendment because it imposed the more onerous burden of a referendum on minorities who sought measures designed to overcome racial prejudice and segregation: Moreover, although the law on its face [Section 137] treats Negro and white, Jew and gentile in an identical manner, the reality is that the law's impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that. Like the law requiring specification of candidates' race on the ballot [citation omitted], s 137 places special burden on racial minorities within the governmental process. This is no more permissible than denying them the vote, on an equal basis with others.
Hunter, supra, 393 U.S. at 390-391.
In his concurring opinion, Justice Harlan recognized that a city or a state normally had the right to allocate power as it saw fit, but said that if it did so on racial issues alone, that decision should be struck down unless the state overcame a “heavy burden of justification:” In the case before us, however, the city of Akron has not attempted to allocate governmental power on the basis of any general principle. Here, we have a provision that has the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest. Since the charter amendment is discriminatory on its face, Akron must ‘bear a far heavier burden of justification’ than is required in the normal case. [citation omitted] And Akron has failed to sustain this burden.
Hunter, supra, 395 U.S. at 395 (Harlan, J. concurring).
Thirteen years later, the Court reaffirmed Hunter. Emphasizing that no showing of discriminatory intent was necessary, the Court struck down a referendum adopted in the State of Washington stripping local school boards of the power to use busing to assure integration in primary and secondary schools. Seattle School District No. 1, supra. The Court ruled on the following broad basis: ...[W]hen the political process or the decision-making mechanism used to address racially conscious legislation--and only such legislation--is singled out for peculiar and disadvantageous treatment, the governmental action clearly rests on distinctions based on race [citation omitted]. And when the State's allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the “special condition” of prejudice, the governmental action seriously “curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities.” [citation omitted]. In a most direct sense, this implicates the judiciary's special role in safeguarding the interests of those groups that are “relegated to such a p osition of powerlessness as to command extraordinary protection from the majoritarian political process.”
Id., at 485-486.
Fourteen years later, the Supreme Court expanded Hunter and Seattle to cover groups that were not a suspect class. Romer, supra. In that case, the Court struck down a Colorado constitutional amendment, adopted in a referendum, that prohibited local and state bodies from adopting ordinances or policies that protected lesbians and gay men against discrimination. As Justice Kennedy declared for a six-Justice majority: “A law declaring that in general it shall be

more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id., at 633.
Proposal 2 is an exact copy of the laws that the Supreme Court struck down for violating the Fourteenth Amendment. The elected Regents and the other elected governing boards had adopted affirmative action programs in order to be able to admit significant numbers of minority students. As Connerly declared in his book (see supra, at 17-18), he wanted to repeal those programs in a way that could not be undone by future governing boards. Thus, he and others sponsored a referendum whose sole purpose was to end affirmative action and to assure that it could never be adopted again.
The district court made the findings that should have led it to strike down Proposal 2. It held that Proposal 2 had a clear “racial focus;” that its “impact [fell] entirely on racial minorities and women and that it undeniably made it “...more difficult for minorities to obtain official action that is in their interest” (R. 246, Dist. Ct. Op., at 49). But having recognized how Hunter, Seattle and Romer should apply, the district court suddenly, and almost without explanation, held that they did not apply.
Summarily, it declared that Hunter, Seattle and Romer did not apply because Proposal 2 was supposedly not “...an impediment to protection from unequal treatment but [was] an impediment to receiving preferential treatment” (R. 246, Dist. Ct. Op., at 49-50). As support for this proposition, the district court cited only two authorities: (1) the divided decision by the Ninth Circuit-which was issued long before Grutter and long before the disastrous effects of Proposition 209 had become clear-and (2) the suggestions of the motion panel in this case, which were preliminary and issued on the basis of a two-day briefing schedule. (R. 246, Dist. Ct. Op., at 49-50 citing Coal for Econ Equity v. Wilson, 122 F. 3d 692, 708 (9th Cir.1997), cert. den. 521 U.S. 963, 1141 (1997); Coalition to Defend Affirmative Action v Granholm, supra.
The “preferences are not an attempt to end discrimination” rationale is the entire reasoning of the district court and of the divided Ninth Circuit decision on which it is based.[FN8] As will be seen, this rationale violates Brown, Hunter and Grutter-and, if adopted, would amount to a fundamental state's revision of the Fourteenth Amendment itself.
FN8. The division in the Ninth Circuit was exceptionally sharp. A conservative panel approved Proposition 209. There was no a majority for a rehearing en banc but five judges dissented on the grounds that the panel decision violated Hunter. Of the Ninth Circuit judges who expressed a view on the substantive merits, there were therefore more judges who thought Proposition 209 violated the Hunter precedents than opined that it was consistent with those principles.
B. The district court erred as a matter of law by sustaining an unequal political procedure based on its belief that the substantive demands of the minority were purportedly seeking a “preference” or “advantage.”
Hunter and Seattle make clear that the state had to offer an “extraordinary justification” in order to sustain a charter or constitutional amendment that allocated political power over racial issues alone to a more onerous political procedure. Seattle, supra, 458 U.S. at 485; Hunter, supra, 393 U.S. at 391-392. Moreover, the Court made clear that the substantive nature of the racial minority's demands could not serve as that “extraordinary justification:” It is undeniable that busing for integration...now engenders considerably more controversy that does the sort of fair housing ordinance debated in Hunter. [citation omitted]. But in the absence of a constitutional violation, the desirability and efficacy of school desegregation are matters to be resolved through the political process. For present purposes, it is enough that minorities may consider busing for integration to be “legislation that is in their interest.” Hunter, supra, 393 U.S. at 395.
Seattle, supra, 458 U.S. at 473-474.

The first sign that the district court and the authorities on which it relies have erred badly is their cavalier treatment of these commands by the Supreme Court. The same judges who have demanded exacting factual review as part of the “extraordinary justification” necessary to support an affirmative action plan have required no factual justification at all to satisfy the “extraordinary justification” demanded by Hunter and Seattle. A literary formula-preferences are not attempts to end discrimination-is all that was required.
Similarly, the same judges who demand exacting adherence to precedent have simply ignored specific and binding language by the Supreme Court making clear that neither the state nor the courts could limit the right to procedural equality based on the substantive merits of the minority's demands.[FN9] In the view of the district court and the Ninth Circuit, there is today, for the first time, a substantive litmus test for the procedural rights under Hunter: if the minority's demands are, as here, a demand for what the court deemed “preferences,” the demands, no matter how lawful, are not entitled to protection under Hunter. Only if the district court determines that the demands are, in its view, genuine demands to end discrimination, are minorities entitled to their rights under Hunter.
FN9. The Supreme Court held that the minority had the right to procedural equality when it sought “to enact legislation in its behalf,” Hunter, Supra, 393 U.S. at 395, sought action to “ameliorate race relations or protect racial minorities,” Seattle, Supra, 458 U.S. at 485-486, or “[sought] aid from the government.” Romer, Supra, 517 U.S. at 633-634
By their decisions, the district court and the Ninth Circuit panel have thus assumed a power for the federal judiciary that it does not have and should not want. These decisions will require the federal courts to examine the class of lawful demands that a minority might make. In that class of lawful demands, the courts must then identify the sub-class that should be relegated to a semi-legal status in which public bodies may be denied power even to consider them because they are supposedly a demand for a “preference” or “advantage.”
As is absolutely obvious, this parsing of lawful demands by the federal courts almost certainly would be outcome determinative. If the court found that a demand was a preference, it would almost certainly never be adopted. On the other hand, if it found that the demand was actually directed against discrimination, it might well be adopted in a political body where the minority had equal rights.
By what standards the lower courts should make the fateful decisions as to what is and is not a “preference,” neither the district court nor the circuit court panels say. Apparently, however, they need look no further than the standards that are in existence. If a minority asks for a departure from those standards-which in this case are the grades/test score standards-it is asking for a “preference.” On the other hand, if it can devise a new standard that is purportedly non-discriminatory, that, perhaps, may be a legitimate anti-discrimination demand.
The Supreme Court, which is familiar with our history, recognized the danger of having referenda or courts determine procedural rights by a review of the substantive demands at issue. By its very nature, from Reconstruction forward, the Civil Rights Movement has repeatedly demanded the elimination of, or relief from, existing standards that it saw as discriminatory. Those who benefitted from the existing standards often said that minorities were seeking a preference. Thus, in their day, opponents of fair housing, busing, and lesbian and gay rights labeled the minority's demands as ones for “preferences.” Similarly, Andrew Johnson vetoed the Freedman's Act,[FN10] the Supreme Court struck down the Civil Rights Act of 1866,[FN11] and the Southern segregationists opposed the Civil Rights Act of 1964 because they supposedly created “preferences.”[FN12]
FN10. Johnson opposed the economic relief and schools provided to the newly-freed slaves because “we” (sic.) have never provided such aid for “our” (sic.) people. Eric Foner, Reconstruction: America's Unfinished Revolution, (1988), at 247.
FN11. The Supreme Court struck down the first Civil Rights Act because “there must be some stage in the

progress of his [the Negro's] elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws...” Civil Rights Cases, 109 U.S. 3, 25 (1883).
FN12. During the debate on the Civil Rights Act of 1964, Senator Richard Russell (D-La), among others, asserted that as administered the new law would compel employers “to give priority definitely and almost completely, in most instances, to the members of the minority group.” 110 Cong. Rec. 13150 (1964).
If the “preference/non-discrimination“ standard had been in effect, federal court could easily have found that virtually every major step forward in civil rights was not entitled to equal procedures under the Fourteenth Amendment because the demand was supposedly for a preference.
The disastrous effects of judicial review of the substance of lawful demands to advance minority interests are apparent in this case. From 1970 forward, minorities have seen affirmative action not just as a demand against discrimination, but as the central and only means by which the discrimination inherent in the grades/test score standards could be overcome. Minorities demanded fair housing ordinances to get access to better housing; busing to gain access to better primary and secondary schools; and affirmative action to gain access to the best public universities.
By any objective standard, affirmative action has been and is designed to “overcome the special conditions of prejudice.” It ended the virtual segregation of the University of Michigan. It made it possible for a few students from the non-exam schools in Detroit to be admitted at the same as 70 or more were admitted from a single suburban school. To say, as the district court and the circuit court panels did, that affirmative action is not a demand to end discrimination is to ignore the facts and to insult the deeply-held beliefs and hopes of the minority communities and their supporters.
Of course, from the stand point of the far right, The Truth is that affirmative action is a preference. But the federal courts, which are charged with enforcing the Fourteenth Amendment which was adopted to protect racial minorities -should not adopt the standard of the far right as the test on what may be debated in legislative bodies.
In the narrowest sense, affirmative action departs from the existing admissions systems, and is thus a “preference” within the context ofthe existing system.[FN13] But again, the federal courts, which are charged with assuring a fair legislative process for challenging the existing standards, should not decide that matters are subject to a fair and equal debate based on whether they ask for relief from the existing system. Neither the universities, nor the testing companies, nor any reputable scientist has said that the existing grades/test scores system is racially neutraland the Court cannot possibly say that a demand for departure from such a system forfeits rights as important as those protected by the Equal Protection Clause.
FN13. Both Bakke and Grutter routinely use the word preferences to describe the affirmative action programs at issue in those cases. But in each case, the term signifies a departure from the existing system. Neither case makes any decision, or purports to make any decision, on whether the existing admission systems are racially neutral.
The Hunter, Seattle and Romer Courts rightly avoided this quagmire by declaring in no uncertain terms that the right to procedural equality did not depend upon anyone's view as to the merits of the demands that the minority made. As the district court simply ignored this command, its decision should be reversed.
C. The district court's decision defies the Supreme Court's decision in Grutter.
The Supreme Court has recognized that a state body may, in appropriate circumstances, use “preferences” in order to overcome past “discrimination.” Adarand Constructors, Inc. v Pena, 515 U.S. 200 (1995): Grutter, supra. On those cases, the district court's “preferences/non-discrimination“ standard for determining what subjects are entitled to Hunter rights falls apart completely because the Court has clearly determined “preferences” may be used to overcome

discrimination.
But even though the district court strives mightily to uphold its proposed distinction in higher education, it falls apart there as well. By definition, an affirmative action plan designed to assure a racially diverse student body is designed to assure access to a university for racial minorities. Thus, the Supreme Court upheld the Michigan Law School affirmative action plan because it found that at that law school and in many selective schools affirmative action was the only practical way of assuring racial equality in access to higher education: In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts.” See Sweatt v Painter, 339 U.S. 629, 634 (1950). Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogenous society may participate in the educational institutions that provide the training and education necessary to succeed in America.
Grutter, 539 U.S. at 332.
The district court's decision is thus in direct conflict with Grutter itself. The district court says that affirmative action is not a step towards equalityand yet the Supreme Court says exactly the reverse. Similarly, the district court says that affirmative action is “barely tolerated” the same time that the Supreme Court has endorsed affirmative action in ringing terms because it furthered a compelling interest consistent with the Fourteenth Amendment.
It is no answer to say that Grutter declared that affirmative action should end in 25 years (R 258, Dist Ct Op Deny Mot Alter Judge, at 6) because the issue is plaintiffs' rights now and during the next quarter century.
Nor is it an answer to say that Grutter declared that the states could consider alternatives to affirmative action -because the issue is whether those alternatives must be considered under political procedures in which minorities have the rights set forth in the Hunter precedents.
At the request of the California Supreme Court, the Attorney General of California has recently advised that court that to the extent that Proposition 209 is interpreted “...to bar race or gender conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause of the federal constitution, pursuant to Washington v Seattle School Dist. No. 1, [supra.] and Hunter v Erickson, [supra.]”[FN14] In extensive and strong dissents, five judges from the Ninth Circuit and one from the California Court of Appeals have also reached the conclusion that Proposition 209 (and thus Proposal 2) violates the Equal Protection Clause under Hunter. Coal. For Economic Equity, supra, 122 F 3d a t 711-717 (Schroeder, Pregerson, Norris and Tashima, JJ, dissenting) and at 717-718 (Hawkins, J, dissenting); Coral Cons Inc v City and County of San Francisco, 57 Cal. Reptr. 3d 781, 804-823 (2007)(Rivera, J, dissenting), review granted and opinion superceded 65 Cal. Reptr. 3d 761 (2007).
FN14. The full text of the letter brief that the Attorney General provided to the Supreme Court of California in the Coral Construction case is available on the Attorney General's web site. See www.ag.ca.gov/newsalerts /release (4/23/2009). As of this date, the California Supreme Court has not ruled on the challenge to Proposition 209 in that case. That Court has, however, been an ardent and strong supporter of Proposition 209.
The reasoning in these dissents is thorough and sound. As those judges did, this Court should hold that Proposal 2 violates the Equal Protection Clause because it imposes a more onerous burden on minorities fighting for affirmative action programs, including for the very programs that have been found lawful by the Supreme Court of the United States.

D. The district court's decision and, even more, the Ninth Circuit panel opinion on which it is based, have approved a radical and dangerous state' rights revision of the Equal Protection Clause.
The district court and the Ninth Circuit opinions are based on nothing other than a repetition of quotations from past Supreme Court decisions about the suspect nature of any racial classification. The quotations are genuine, the policy is realand yet it ignores the entire other half of the law under the Equal Protection Clause.
Since the 1960's, the Court has repeatedly recognized the reality of inequality that our history has left us. It has recognized that racial classifications may serve a compelling state purpose and may be the only means for achieving that purpose. Indeed, many, if not most, of the most important civil rights programs have involved the assertion that a compelling need overcame a normally suspect classification.
By any reasonable standard, the rights protected by Hunter are particularly essential in the cases where a minority asserts that a compelling need requires a racially conscious policy. It is precisely on those issues that a public body must have all the facts, consider all the interests, and strike the most appropriate and careful balance. And it is on precisely those issues that a f ederal court, which may be charged with assessing the balance that has been struck, should welcome and protect the right to full and equal debate that is demanded by the Hunter precedents.
Yet it is precisely on those issues-the most important, the most difficult and the most controversial-where the district court and the Ninth Circuit say there is no need for debate at all. According to them, minorities have no right to be heard on the single most important issue of equality in higher education-affirmative action. They have no right to fight for the future of their children and grandchildren.
Connerly and the other proponents of Proposal 2 do not trust any public body to make a decision as to whether affirmative action is necessary. Nor do they trust any court to review any such decision. The only solution, the permanent solution, they say, is a one-shot, winner-take-all referendum in which the white majority can declare there can never be racial inequality in “our” state that is so great that a public official could, for any purpose, vote for an affirmative action program.
The whole approach obviously violates the Hunter precedents. So, too, does the proclamation of a “color blind Constitution.” The Supreme Court has repeatedly held that this theory is “inconsistent in both its approach and its implications with the history, meaning and reach of the Equal Protection Clause.” Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S. Ct. 2738, 2788 (2007)(Kennedy, J.). It must remain an “aspiration,” but “In the real world, it is regrettable to say, it cannot be a universal constitutional principle.” Id., 127 S. Ct. at 2792 (Kennedy, J).
And yet, the Ninth Circuit panel and, less so, the district court say that this constitutional theory, which has been rejected by the Supreme Court, can override the federal rights protected by Hunter. Only the late and not-lamented John C. Calhoun could endorse such an argument.
Above all else, the Fourteenth Amendment was intended to provide national protection against any state's attempts to deny those rights. The substantive outcomes may be different, but minorities must have the same right to equal procedures to fight for affirmative action in Michigan as they now have in Ohio, Kentucky and Tennessee.
Once before, the Court approved a state's rights theory of the Fourteenth Amendment, declaring that the ruling white majority in Louisiana could enact laws that reflected the “usages, customs and traditions of its [white] people...” Plessy v Ferguson, 163 U.S. 537, 550 (1896). Once before, the Court held that the barriers of segregation must fall due to voluntary action: “If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of the individuals.” Id., at 551.

Today, the proponents of Proposal 2 say that the traditions or votes of Michigan may ban all government action to overcome the barriers of de facto segregation.
We know the results. Plessy soon led to ethnic cleansing on American soil. Black citizens were driven from neighborhoods where they had lived for years; schools were forcibly segregated; many all-black schools were shut down; and lynchings spread across the South. For those who say it can never happen again, Proposition 209 has already driven large numbers of black, Latino and Native American students out of the most selective universities in the largest state in the Union.
Proposal 2 is a major step backward. It is a path that the nation should not travel again. Review the facts as to what happened in 1970. Consider the turmoil that would have been created-and the progress that would never have occurred-if Proposal 2 had been the law at that time. This Court should reject Proposal 2's state's-rights attempt to override Hunter and Grutter and should strike down Proposal 2 because it obviously violates the Equal Protection Clause and does so in a radical and dangerous way.
II PROPOSAL 2 VIOLATES THE EQUAL PROTECTION CLAUSE BY MANDATING DIFFERENT ADMISSION AND EDUCATIONAL POLICIES FOR BLACK, LATINO, AND NATIVE AMERICAN STUDENTS.
A. The Court must look behind the words of Proposal 2 by evaluating in light of the reality of higher education today.
Proposal 2's sole substantive change in Michigan law is, as noted above, its three-word word ban on “granting preferential treatment” to persons based on their race, national origin or gender.
The Ninth Circuit dismissed the claim that Proposition 209 intentionally discriminated against minority students on the basis of its language alone: “A law that prohibits the State from classifying individuals by race and gender a fortiori does not classify individuals by raced and gender.” Coalition for Economic Equity, 122 F 3d at 702.
Yet the bitter lessons of our history demonstrate, if nothing else, that a court cannot accept a law's professions of a benign intent as the Alpha and Omega of judicial inquiry. Louisiana once passed a law that required separate but equal accommodations on street cars. Other states enacted laws that adopted “grandfather clauses,” “literacy tests,” “freedom of choice plans,” “state's rights,” “local customs” and a host of other seemingly neutral justifications for flagrant discrimination.
In Brown and all the cases that followed it, the Court held that it would decide the fate of laws challenged under the Equal Protection Clause not on the basis of their words alone, but on the reality of what those laws did: We consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.
Brown v Board of Education, 347 U.S. 483, 492-493 (1954).
As profound as that new standard was, it was not, of course, a panacea. The Plessy Court claimed to look at reality. But it did so through glasses colored by the overwhelming prejudice that had taken hold of white America by the 1890s. Every Justice, save one, declared that if segregation “stamps the colored race with a b adge of inferiority,” that is “solely because that the colored race chooses to put that construction upon it.” Plessy, supra, 163 U.S. at 551. Among other things, Justice Harlan's dissent is justly remembered for his courageous rebuke to his colleagues that they should not have been “so wanting in candor” as to fail to recognize the Louisiana law's obvious intent of stigmatizing and burdening one race and one race alone. Id., at 557.

In analyzing Proposal 2, this Court should combine Brown's demand to look at reality with the honesty and courage of Brown and of Justice Harlan's dissent.
B. Proposal 2 mandates different policies for the admission of minority students than are required for other categories of students.
The reality of admissions at Michigan and every other selective school in the state and the Nation is summarized in the statement of facts above. The students who apply to these schools come from every racial group; from families that are rich, poor, and in-between; from urban, suburban, and rural areas; from other countries and from this one; and from every region of the state and the nation. The secondary schools from which they graduated vary from elite preparatory schools with numerous college-level courses to public schools in the urban centers which rovide onl the barest essentials of a secondar education.
Without a uniform standard for judging “ability” or “promise” among students from widely varying backgrounds, admissions officials at selective universities use a whole series of criteria to take account of differences and to assure that they have a “well-rounded” class in which students from a wide variety of backgrounds can interact. As set forth in Bakke and Grutter and in the statement of facts above, the Civil Rights Movement achieved access for minority students to selective universities by adding the consideration of race and the goal of racial diversity to these systems.
Because the educational and test score differences between whites and underrepresented minorities were so great, the plus factors needed were greater than those that had been used for poor white students in the past. Moreover, because racism has been so deep in this country, the policies of affirmative action by race were far more controversial than the equivalent policies used for admitting poor and working-class white students.
What is absolutely invidious about the substantive command of Proposal 2 is that it allows the universities full discretion to take account of any factor causing educational inequality except race-the factor that everyone concedes causes the greatest educational inequality in the United States. Similarly, it allows universities full discretion to adopt explicit measures designed to assure a class that is diverse in every way except the one that has been most difficult and most important -diversity by race. Behind the professions of “no preferences,” Proposal 2 allows the universities to continue giving favorable consideration to every factor except race-and forces them to go through the charade of pretending to consider applicants without even looking at their race.[FN15]
FN15. The absurdity of this charade can be shown by one example. Suppose the young Barack Obama had applied for law school after Proposal 2. Further suppose that he decided to submit his book Dreams of My Father in place of a r equired autobiographical essay. In order to consider his application without “considering his race,” the censors mandated by Proposal 2 would have to delete almost every word in the book. The fate of Obama's hypothetical application illustrates the point that the supposedly color blind supporters of Proposal 2 have absolutely failed to recognize. The biological fact of a prospective student's race is irrelevant to his qualifications; but the social fact of his or her race and of racism is an almost certainly an essential fact in evaluating the experience and opportunities that the student has had. Indeed, in his own book, Creating Equality, Connerly repeatedly refers to his race in order to explain what he knew and what he did.
In its Opinion, the district court rightly recognized that the two leaders of the campaign in favor of Proposal 2 identified two differing purposes for that law. The statements of both leaders reveal the invidious purpose of this amendment.
Jennifer Gratz, who comes from a lower-middle class suburb of Detroit, conceded that income caused great inequalities in education and that she would not only support but welcome admissions standards at the University of Michigan that admitted persons from lower socio-economic backgrounds with lower average scores and grades than

those from a more privileged background. But when asked whether there were inequalities in education that were caused by race, Gratz repeatedly refused to answer (R. 222-38, Dep of Gratz, 102-107).
Ward Connerly, the other primary leader of the campaign to adopt Proposal 2, conceded virtually every aspect of racial inequality set forth in this brief's statement of facts in this brief. As a result, he recognized that Proposal 2 would drive down the number of black, Latino and Native American students at the University of Michigan and at other selective schools in the state. But, he declared, that was necessary in order to administer a dose of “tough love” to black and Latino students: ...the only way we're going to close this academic gap between black and Latino on the one hand and Asian and white on the other, is not to keep papering it over with preference, but to apply the tough love that's necessary to get black and Latino students up to the bar.
R. 246, Dist Ct Op, at 41, citing R. 221-1, Connerly Dep, at 120.
The district court properly expressed contempt for the rationale offered by Gratz-who wanted a larger “slice of the pie” for herself and other white students-and the rationale offered by Connerly-who believed that “There is virtue in tossing minority students into the deep end and letting them sink or swim on their own (regardless that some might drown in the meantime)....” (R. 246, Dist Ct Op, at 41).
What is shocking, however, is that the district court then asserted that the purposes offered by Gratz and Connerly were non-discriminatory purposes. In what alternate universe, however, can a law that is intended to mandate special policies of “tough love” for categories of students that are defined by race be non-discriminatory? Similarly, how can a law be non-discriminatory when its purpose is to allow universities to recognize every other form of inequality and the need for every type of diversity except the inequality that is deepest and the type of diversity that has been the hardest to achieve?
There is no doubt what the real substance of the debate on Proposal 2 was. Beneath the cry of “no preferences,” the supporters of Proposal 2 asserted that “less qualified” black and Latino students were being admitted while “more qualified” white students were being rejected. This is factually false and insulting to the minority students who have overcome massive inequality in order to be admitted to and graduate from the university. But even the terms of debate reveal the racial focus of Proposal 2-it aims not at excluding “unqualified” students, but at excluding only one category of supposedly “unqualified” students-those who happen to be racial minorities.
That racist policy is the sum and total of Proposal 2.
Proposal 2 is an embarrassment to the State of Michigan and an affront to minority students-and it should be struck down by this Court as a clear and substantive violation of the Equal Protection Clause of the Fourteenth Amendment.
C. The district court erred as a matter of law in failing to recognize the invidious racial purpose of Proposal 2.
The traditional factors considered by the Supreme Court in determining challenges to statutes under the Equal Protection Clause make it even clearer that Proposal 2 has an invidious intent.
In the defining precedent, which involved a challenge to a city's decision to block a road in a way that prohibited residents from a black area from going through a predominantly white area, the Supreme Court held if one of the reasons for the particular ordinance was racial discrimination, the statute as a whole was unconstitutional. Village of Arlington Heights v Metropolitan Housing Development Corporation, 429 US 252, 265-266 (1977). [FN16] In that case, the Court directed the lower courts to look beyond the words of the statute to its effects and to the circumstances surrounding its enactment. In some cases, the Court held, the differing impact of the law on one race rather than another might be so great that the purpose was apparent from the impact alone. Id., at 266. In most cases, however, the

Court held that in determining whether the law had an invidious purpose, the lower courts should also examine factors like “the background of the decision,” “the specific sequence of the events leading up to the challenged decision,” the departures, if any, from the normal substantive and procedural standards, and the statements of the act's sponsors. Id, at 267-268.
FN16. In Arthur v Toledo, 782 F.2d 565, 574 (6th Cir. 1986), this Circuit modified the Arlington standard for laws adopted by popular referenda by holding that “absent a referendum that facially discriminates racially or one where although facially neutral, the only possible rationale is racially motivated, a district court cannot inquire into the electorate's motivations in an equal protection context.” In Buckeye Comm. Hope Foundation v City of Cuyahoga Falls, 263 F.3d 627, 638 n.2 (2001), rev'd on other grounds 538 U.S. 188 (2003), this Circuit then sharply criticized the Arthur standard and held that the “[p]laintiffs do not have to show that the challenged action rested solely on racially discriminatory purposes” in order to show a violation of the Equal Protection Clause. Id., at 634.
Whether Arthur is still good law need not be decided because it does not, in any even govern the facts present here. In Arthur, the Court upheld a facially neutral referendum that rejected approval for the construction of sewer lines. In this case, the referendum in question has an explicit racial focus. It bans “race preferences”-and only race preferences. By definition this law has a racial purpose: the only question is whether it has a benign or an invidious racial purpose.
Judged by any of these standards -- and more surely by all of them together the substantive provisions of Proposal 2 violate the Equal Protection Clause.
The district court held that the depositions in evidence clearly established a factual question as to whether the law would adversely impact minority students (R. 246, Dist. Ct. Op., at 40). The district court then went further, declaring that “...if affirmative action programs have had a positive effect on university admissions of minority students, it is difficult to see how Proposal 2 could not have a disparate impact on minorities” (R. 246, Dist. Ct. Op., at 40). But those findings, as true as they are, miss the point.
Arlington asks whether “...the impact of the official action ...bears more heavily on one race than another.” Id., 429 U.S. at 564. Judged by that standard, the adverse impact of Proposal is infinite: no white student will be excluded from a college or university. By definition, every student excluded will be either black, Latino or Native American. On this so-called civil rights provision, minority residents will bear one hundred percent of the burden of this policy. If ever there were a case where the differential impact was great enough to infer purpose from impact, Id., at 466, a 100 percent difference in burden should be such a case.
Moreover, as set forth above the two leading proponents of Proposal 2 have made clear that they knew of this discriminatory impact and that they supported Proposal 2 not in spite of its consequences for minority students but because of those consequences.[FN17] Gratz wants to reserve more slots for supposedly more qualified white students-while Connerly wants to administer a dose of “tough love” to minority students. Both have thus clearly stated that they have a racial goal in mind-even though they do not agree on the precise nature of that goal.
FN17. The district court cited language from the Supreme Court that mere awareness of the disparate consequences was not adequate to show a discriminatory intent. Personnel Administrator of Massachusetts v Feeney, 442 U.S. 256, 279 (1979). In that case, the Massachusetts Legislature established an absolute veterans preference. Predictably, this had an enormously disparate impact on women. Yet the Court sustained it because the law's objective-assuring jobs for those who served in the military-was a w ell-recognized, non-discriminatory goal. In this case, however, there is no purpose for Proposal 2 other than to drive down minority admissions and to deliver a dose of “tough love” to minority students.

The district court was certainly right in asserting that the racially-targeted fraud used by the supporters of Proposal 2 lends “some credence to the idea that ulterior motives were at work” (R. 246, Dist. Ct. Op., at 42). But it failed to recognize that the entire point of this law was not simply to overrule Grutter, but to prevent the adoption of any affirmative action plan of any kind in the future. To that end, it broke from a 150 year old tradition of leaving all academic matters within the purview of the governing boards.
Finally, the district court is lacking candor when it says that the supporters of Proposal 2 appealed to “fairness and just treatment” (R. 246, Dist. Ct. Op., at 42). It is true that the supporters of Proposal 2 used those words-but they made clear that “fairness and justice” could only be obtained by the end of “race preferences.” The message was clear: supposedly unqualified black and Latino students were taking the place of more deserving white students. The focus was explicitly racial: no other group of purportedly unqualified students was targeted. And the message got through: two out of every three white voters cast ballots in favor of Proposal 2, while 9 out of 10 black voters cast ballots against it.[FN18]
FN18. In numerous contexts, the Court has cited the racial composition of the votes as evidence of whether a law is, or is not, discriminatory. See, e.g., Crawford v Board of Educ. Of City of Los Angeles, 458 U.S. 527, 545 (1982).
Proposal 2 has already done immense harm to the racial climate in Michigan. It has vastly strengthened the racist myth that minority students are unqualified. It has reduced the chance that Michigan's universities will graduate the next Colin Powell, Condolezza Rice or Barack Obama. Even more importantly, it has reduced the chances of tens of thousands of minority youth to obtain an education that everyone knows will change their lives.
Contrary to the opinion of the district court, it is not necessary to “impugn the motives” of 58 percent of Michigan's electorate (R. 246, Dist. Ct. Op., at 42). As this Court has held, the question is not the subjective intent of the voters, but an objective review of the law's purpose. Arthur v Toledo, 782 F.2d 565, 574 (6th Cir. 1986). Proposal 2's clear racial focus, the one hundred percent difference in its impact on minority versus non-minority students, the statements of its sponsors, the departures from the state's 150 year tradition of academic independence, and the racially-polarized nature of the vote all demonstrate Proposal 2's invidious intent.
There is no real dispute over that. The question is the one that faced the first Justice Harlan-having the candor and courage to recognize the purpose that everyone knows was there. The plaintiffs ask this Court to strike down Proposal 2 because it was clearly intended to impose different policies on categories of students defined by race and was in particular aimed at driving down the number of minority students in Michigan's most selective public universities.
III PROPOSAL 2'S BAN ON GENDER BASED AFFIRMATIVE ACTION VIOLATES THE EQUAL PROTECTION CLAUSE IN THE SAME WAYS THAT ITS BAN ON RACE-BASED AFFIRMATIVE ACTION VIOLATES THAT CLAUSE.
Affirmative action opened up schools and entire professions to women who had been never been permitted in any significant numbers. Indeed, the policy of affirmative action for women has been so successful in admissions to higher education that it has largely been rendered unnecessary in that field, except in sciences, engineering and a few other disciplines where age-old exclusion has not yet been overcome (R. 222-4,5,6, Dep. of Spencer, at 208-211).[FN19]
FN19. There is neither time nor need here to analyze why affirmative action by gender has been so successful so much more quickly than affirmative action based on race. But two points can be made. First, there has never been the degree of segregation by gender in the public schools like that imposed by race. Second, because segregation by gender in social life generally has also been far less, there are not the cultural differences on standardized tests in the nearly the same degree as there are based on race.

Nevertheless, the abridgement of rights by gender that Proposal 2 has imposed violates the Fourteenth Amendment in ways analogous to race. By depriving public bodies of any power to use gender-based affirmative action, Proposal 2 has excluded women and their supporters from the political processes available to all other groups. Moreover, by mandating a policy of “tough love” for women applicants in the sciences, engineering and similar fields, the Proposal has mandated a policy for a category of applicants and students defined by gender that can be justified only by an “exceedingly persuasive justification.” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 754 (2004).
Even though equality in admissions for women has progressed far beyond that for race, the hostile climate created by special laws outlawing affirmative action for women can lead to a backwards slide.
Apart from the large difference in degree of impact, there is one difference between the gender classification and the race classification. In dicta in Hunter, the Supreme Court declared that “The majority needs no protection against discrimination, and, if it did, a referendum might be bothersome, but no more than that.” Hunter, supra, 393 U.S. at 391.
The proponents of Proposal 2 asserted, but the district court did not adopt or reject, the claim that Hunter did not apply to gender at all because women are a slight majority of Michigan's population. Yet this is clearly basing far too much on two sentences from an opinion rendered long before gender was recognized as a class entitled to special protection under the Equal Protection Clause. In fact, the entire point of recognizing women as a special class under that Clause is because the degree of past discrimination demonstrated that it, too, was a discrete and insular class that needed special protection from the majoritarian democracy.[FN20]
FN20. Even as to race, the Supreme Court's dictum that the majority needs no protection is clearly dated. There are now cities and states where minorities are the majority of the population but not of the electorate. Today, the Hunter doctrine should be understood to apply to suspect and intermediate classes, not simply to those who are a numerical minority among the population or of the electorate.
The Coalition plaintiffs thus ask that the Court strike down Proposal 2 as to the gender for the same reasons that it should be struck down as to race.
CONCLUSION AND RELIEF REQUESTED
For the reasons stated, the Coalition plaintiffs ask that the Court reverse the district court and hold that Michigan Proposal 2 violates the Equal Protection Clause as applied to university admissions as to both race and gender because it imposes a far more onerous burden on minorities and women seeking change and because it imposes more onerous substantive policies on classes of students defined by race or gender.
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (bamn), et al., Plaintiffs-Appellants, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, et al., Defendants-Appellees, Michael COX, Michigan Attorney General, Intervenor-Appellee. 2009 WL 1439511 (C.A.6 ) (Appellate Brief )
END OF DOCUMENT

 
 For Opinion See 2011 WL 2600665
United States Court of Appeals, Sixth Circuit.
COALITION TO DEFEND AFFIRMATIVE ACTION, et al., Plaintiffs-Appellees, andChase CANTRELL, et al., Plaintiffs-Appellees, v.
THE REGENTS OF THE UNIVERSITY OF MICHIGAN, et al., Defendants-Appellees, andEric RUSSELL, Defendant-Intervenor-Appellant. No. 08-1389. May 15, 2009.
Appeal from the U.S. District Court for the Eastern District of Michigan Case Nos. 06-15024, 06-15637
Appellant's Opening Brief
Michael E. Rosman, Center for Individual, Rights, 1233 20t h St., NW, Ste. 300, Washington, DC 20036, (202) 833-8400.Charles J. Cooper, David H. Thompson, Jesse Panuccio, Cooper & Kirk, PLLC, 1523 New Hampshire Ave., NW, Washington, DC 20036, (202) 220-9600, Counsel for Defendant-Intervenor-Appellant.Kerry L. Morgan, Pentiuk, Couvereur, & Kobiljak, Edelson Building, Ste. 200, 2915 B iddle Avenue, Wyandotte, MI 48192, (734) 281-7100.
TABLE OF CONTENTS
Table of Authorities ... iii
Statement in Support of Oral Argument ... 1
Jurisdictional Statement ... 1
Statement of Issues ... 1
Statement of the Case ... 3
Facts ... 4
Summary of Argument ... 15
Argument ... 16
I. Standard of Review ... 16
II. Intervention as of Right Is Not Subject to Continual Reevaluation and Such a Process Would Prove Unworkable and Inefficient ... 17
III. Mr. Russell Still Qualifies for Intervention as of Right and the Cantrell Plaintiffs Have Not Demonstrated an Absence of Genuine Issues of Material Fact as to that Question ... 21

A. The District Court Correctly Found that Mr. Russell Has a Substantial Legal Interest in Nondiscriminatory Consideration of His Eligibility for Financial Aid ... 24 B. Mr. Russell's Interest May Be Impaired Absent Intervention ... 27 1. The District Court Applied the Wrong Legal Standard ... 28 2. The Cantrell Plaintiffs Did Not Establish the Absence of Genuine Issues of Material Fact ... 30 (a) Scholarship Aid ... 31 (b) Need-Based Financial Aid ... 33 C. Mr. Russell Is Not Adequately Represented by Other Parties to the Litigation ... 38 IV. Mr. Russell Qualifies for Permissive Intervention ... 51 Conclusion ... 53
TABLE OF AUTHORITIES Cases 1064 Old River Rd., Inc. v. City of Cleveland, 137 Fed. Appx. 760 (6th Cir. 2005) ... 18 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ... 44 Akers v. McGinnis, 352 F.3d 1030 (6th Cir. 2003) ... 34 Americans United for Separation of Church & State v. City of Grand Rapids, 922 F.2d 303 (6th Cir. 1990) ... 26 Arthur v. Toledo, 782 F.2d 565 (6th Cir. 1986) ... 45 Bogaert v. Land, 543 F.3d 862 (6th Cir. 2008) ... 30 Buckeye Comm. Hope Foundation v. City of Cuyahoga Falls, 263 F.3d 627 (2001), rev'd 538 U.S. 188 (2003) ... 45 City of Mesquite v. Aladdin's Castle, 455 U.S. 283 (1982) ... 37 Coal. to Defend Affirmative Action v. Granholm, 549 U.S. 1176 (2007) ... 36 Coal. to Defend Affirmative Action v. Granholm, 549 U.S. 1176 (2007) ... passim Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich., 539 F. Supp. 2d 960 (E.D. Mich. 2008) ... passim Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich., 592 F. Supp. 2d 948 (E.D. Mich. 2008) ... 8, 15

Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775 (6th Cir. 2007) ... 8, 18, 38, 40, 43, 44 Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006) ... 8, 9, 14, 24, 35, 39, 40, 41, 51 Coal. to Defend Affirmative Action v. Granholm, 240 F.R.D. 368 (E.D. Mich. 2006) ... 7, 8, 18, 24, 33, 39 Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992) ... 19 Corr v. Mattheis, 407 F. Supp. 847 (D.R.I. 1976) ... 25 Cunningham v. Grayson, 541 F.2d 538 (6th Cir. 1976) ... 20 Davis v. FEC, 128 S. Ct. 2759 (2008) ... 29 Demis v. Sniezek, 558 F.3d 508 (6th Cir. 2009) ... 27 Dep't of Commerce v. United States House of Representatives, 525 U.S. 316 (1999) ... 18, 22, 28 Diamond v. Charles, 476 U.S. 54 (1986) ... 18 Director, Office of Workers' Compensation Programs v. Perini N. Rive Associates, 459 U.S. 297 (1983) ... 18 Farhat v. Jopke, 370 F.3d 580 (6th Cir. 2004) ... 17, 23, 28 Ferguson v. Neighborhood Housing Servs., Inc., 780 F.2d 549 (6th Cir. 1986) ... 36 Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999) ... 22, 27, 38, 44, 47, 48 Hutt v. Gibson Fiber Glass Products, Inc., 914 F.2d 790 (6th Cir. 1990). ... .22, 23, 29 Letherer v. Alger Group, L.L.C., 328 F.3d 262 (6th Cir. 2003) ... 20 Liberte Capital Group, LLC v. Capwill, 126 Fed. Appx. 214 (6th Cir. 2005) ... 51 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ... 27 Martingale LLC v. City of Louisville, 361 F.3d 297 (6th Cir. 2004) ... 28 Matheny v. TVA, 557 F.3d 311 (6th Cir. 2009) ... 16 McConnell v. FEC, 540 U.S. 93 (2003) ... 18, 26 Michigan State v. Miller, 103 F.3d 1240 (6th Cir. 1997) ... 17, 51 Morgan v. McDonough, 726 F.2d 11 (1st Cir. 1984) ... 20, 21 Ne. Florida Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) ... 24

Americans United for Separation of Church & State v. City of Grand Rapids, 922 F.2d 303, 306 (6th Cir. 1990) ... 17, 34, 37 Nyquist v. Mauclet, 432 U.S. 1 (1977) ... 25 Purgess v. Scharrock, 33 F.3d 134 (2d Cir. 1994) ... 36 San Juan County v. United States, 503 F.3d 1163 (10th Cir. 2007) (en banc) ... 26 Sims v. Memphis Processors, Inc., 926 F.2d 524 (6th Cir. 1991) ... 22 Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir. 1989) ... 23 Sutherland v. Mich. Dep't of Treasury, 344 F.3d 603 (6th Cir. 2003) ... 20 Texas v. Lesage, 528 U.S. 18 (1999) ... 24 Trbovich v. United Mine Workers, 404 U.S. 528 (1972) ... 38 White v. Turfway Park Racing Ass'n., Inc., 909 F.2d 941 (6th Cir. 1990) ... 23 Constitutional and Legislative Materials 28 U.S.C. § 1291 ... 1 28 U.S.C. § 1331 ... 1 Fed. R. App. P.4 ... 15 Fed. R. App.P. 4(a)(1)(A) ... 1 Fed. R. Civ. P. 24(a) ... passim Fed. R. Civ. P. 24(b) ... 52 Fed. R. Civ. P. 30(b)(6) ... 10 Fed. R. Civ. P. 56(c) ... 4, 12, 15, 23 The Michigan Daily, Oct. 18, 2007 ... 33 Mich. Const art. I, §§ 26(1)-(2) ... 5 7 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1683 (3d ed. 2007) ... 20 7C Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1922 (3d ed. 2007) ... 19

Statement in Support of Oral Argument
Because this appeal presents an important and complex issue of first impres-sion in this Circuit under the Federal Rules of Civil Procedure, in a case implicat-ing state and federal constitutional rights, oral argument would aid this Court's resolution of the matter.
Jurisdictional Statement
The United States District Court for the Eastern District of Michigan had ju-risdiction over this matter pursuant to 28 U.S.C. § 1331 . Defendant-Intervenor's Notice of Appeal was timely filed in accordance with Fed. R. App. P. 4(a)(1)(A). This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
Statement of Issues
1. Should a federal district court continually reevaluate whether an interven-ing party satisfies the requirements of Fed. R. Civ. P. 24(a) after the dis-trict court and this Court have already determined that the party may in-tervene as of right?
2. If it is proper for a district court to continually reevaluate whether an in-tervening party meets the requirements of Fed. R. Civ. P. 24(a), may the district court dismiss the intervenor on a motion for summary judgment where genuine issues of material fact still exist as to whether the impair-ment prong of that Rule was satisfied?
3. If it is proper for a district court to continually reevaluate whether an intervening party meets the requirements of Fed. R. Civ. P. 24(a), may the district court properly dismiss the intervenor on a motion for summary judgment by concluding that the intervenor is now adequately represented simply because another party begins to assert some, but not all, of the intervenor's arguments and litigation strategies after having refused to do so previously?
4. If the district court properly dismissed the defendant-intervenor in this case, did it otherwise err by failing to provide any reasoning for denying permissive intervention
Statement of the Case
This appeal presents a question of first impression for the Sixth Circuit-indeed, a question that has received virtually no treatment in the federal courts: whether district courts should continually reassess the status of parties who have previously been granted intervention as of right pursuant to Fed. R. Civ. P. 24(a). Specifically at issue is the continued participation of a defendant-intervenor in a suit challenging the validity of Michigan's constitutional ban on the State's use of racial, ethnic, and gender preferences. Eric Russell, currently a student at Wayne State University Law School, was granted leave to intervene in the case in December 2006, when the then-parties to the litigation, including all State Defendants, stipulated to an injunction barring enforcement, as against the State Universities' admission and financial-aid policies, of the constitutional ban. From that time until the day the district court entered its final orders in this case, Mr. Russell participated as a full party. Among the Defendants, he was the only party to pursue factual discovery and to retain experts to counter the expert and factual evidence submitted by the Plaintiffs.
After the district court had dismissed all of the Plaintiffs' claims, it granted what one set of Plaintiffs styled as a “Motion for Summary Judgment as to Eric Russell.” This ruling, which functionally served only to complicate the issues on appeal, was erroneous for several reasons. First, the district court endorsed a re gime of continual reevaluation of intervention decisions, a process that efficient federal litigation cannot possibly accommodate and that neither the Federal Rules nor federal caselaw sanctions. Second, even if it were proper for the court to entertain summary

judgment motions as to the status of intervenors, the court was required to analyze such motions pursuant to the standard burden-shifting framework applicable to Rule 56(c) process. Here, the court eschewed that framework, putting the initial burden on Mr. Russell rather than the moving party. Third, regardless of the standard the court applied, it could not have properly concluded that there exists a total absence of genuine issues of material fact as to whether Mr. Russell continues to satisfy Rule 24(a)'s requirements for intervention as of right. The evidence before the district court clearly showed that Mr. Russell has a continuing interest in nondiscriminatory consideration of his applications for financial aid, that this interest may be impaired in the absence of his intervention, and that he is not adequately represented by any other defendant. For these reasons, the district court's dismissal of Mr. Russell must be reversed.
Facts
On November 7, 2006, the citizens of Michigan approved a ballot initiative, Proposal 2, which amended the State's Constitution to bar the State, including Michigan's public universities, colleges, and schools from “discriminat[ing] against, or grant[ing] 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.” Mich.Const art. I, §§ 26(1)-(2).[FN1] The provision was slated to go into effect on December 23, 2006.
FN1. Even though it is now a valid provision of Michigan's Constitution, Section 26 has generally been referred to as “Proposal 2” throughout this litigation.
On November 8, 2006, the Coalition to Defend Affirmative Action, along with other organizations and individuals (the “Coalition Plaintiffs”), filed in the Eastern District of Michigan a federal challenge to Proposal 2, suing the Governor of Michigan, the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University. Doc. 1.[FN2] On December 11, the University Defendants filed a cross-claim against Governor Granholm and moved for a d eclaratory judgment and a p reliminary injunction allowing the Universities to continue employing their existing race- and gender-preference policies for the remainder of the 2007 a dmissions and financial-aid cycles. Docs. 2, 5. On December 14, 2006, the district court granted the Michigan Attorney General's motion to intervene as a defendant. Docs. 8, 13.
FN2. Unless otherwise noted, district court docket citations are to Case No. 06-15024, the action initiated by the Coalition Plaintiffs.
On December 18, 2006, five days before Proposal 2 was to go into effect, all parties to the litigation the Coalition Plaintiffs, the Governor, the Attorney General, and the Universities-filed a stipulation requesting an order enjoining appli-cation and enforcement of Proposal 2's nondiscrimination provisions as to the Uni-versiies until July 1, 2007-the end of the Universities' 2006-2007 admissions and financial-aid cycles. Doc. 26. The following day the district court issued a “temporary injunction” consistent with the stipulation. Doc. 36.
Also on December 19, another set of plaintiffs (the “Cantrell Plaintiffs”) filed a separate suit, in the same court, challenging Proposal 2 on a “political restructuring” equal protection theory. Case No. 06-15637, Doc. 1. All of the Cantrell Plaintiffs alleged the same injury: that their “ability to obtain reinstate-ment of [the University of Michigan's] former admissions policies is unconstitu-tionally and unequally burdened by the difficulty of seeking an amendment to the Michigan Constitution.” Cantrell Pls.' First Amended Cmplt., Doc. 73, at 4. At the time they filed suit in 2006, the Cantrell Plaintiffs consisted of four University of Michigan professors, four University of Michigan undergraduates, three Univer-sity of Michigan Law School students, one University of Michigan PhD candidate, and six Michigan high school seniors who had applied, or were planning to apply, to the University of Michigan. The record does not reflect the current status of these Plaintiffs, including whether they remain Michigan residents, but if they followed the normal course, the three law-student and four undergraduate plaintiffs have since graduated. Likewise, the plaintiffs who were high school students have likely matriculated at a college or university, but the record does not

reflect whether they were admitted to, or chose to attend, the University of Michigan or any other Michigan public educational institution.
Fearing prejudice to his right to equal treatment under Proposal 2, Eric Russell at that point had been granted admission to Wayne State University Law School and was an applicant to the University of Michigan School of Law a motion to intervene in the Coalition action on December 18. Doc. 27. On Decem-19, Mr. Russell filed an emergency motion asking the district court to expedite its consideration of his intervention motion or to stay the temporary injunction prior to Proposal 2's effective date of December 23. Doc. 43. As no decision on his motion was forthcoming by December 21, Mr. Russell filed a notice of appeal to this Court, Doc. 47, along with an Emergency Motion for Stay Pending Appeal and a Petition for a Writ of Mandamus or Prohibition. All other parties, including the three State Defendants Governor, the Attorney General, and the Universi-opposed Mr. Russell's motion and petition and defended the non-enforcement of Proposal 2.
On December 27, 2006, the district court granted Mr. Russell's motion to intervene. See Coalition to Defend Affirmative Action v. Granholm, 240 F.R.D. 368 (E.D. Mich. 2006).[FN3] And, on December 29, this Court granted Mr. Russell's mo tion for a stay pending appeal, finding an “absence of any likelihood of prevailing in invalidating [Proposal 2] on federal grounds,” and explaining that Proposal 2 “would seem to be an equal-protection virtue, not an equal-protection vice.” Coalition II, 473 F.3d at 240, 249. Specifically with respect to the political-process claim, this Court explained that such claims succeed where the challenged law “ma[kes] it more difficult for minorities to obtain protection from discrimination through the political process,” whereas “Proposal 2 purports to make it more difficult for minorities to obtain racial preferences through the political process.” Id. at 251.
FN3. This Court and the district court have thus far issued six opinions in this case. For ease of reference, these opinions are herein referred to in chronological order as Coalition I-VI. Thus, the district court opinion granting Mr. Russell's motion to intervene, Coal. To Defend Affirmative Action, 240 F.R.D. 368, is referred to as Coalition I. This Court's opinion granting the stay, Coal, to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006), is referred to as Coalition II. This Court's opinion affirming denial of intervention to certain groups, Coal, to Defend Affirmative Action v. Granholm, 501 F.3d 775 (6th Cir. 2007), is referred to as Coalition III. The district court's opinion granting summary judgment to the Attorney General, Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich., 539 F. Supp. 2d 924 (E.D. Mich. 2008), is referred to as Coalition IV. The district court's opinion dismissing Mr. Russell from the case, Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich., 539 F. Supp. 2d 960 (E.D. Mich. 2008), is referred to as Coalition V. And the district court's opinion denying the Cantrell Plaintiffs' Rule 59(e) motion, Coal, to Defend Affirmative Action v. Regents of the Univ. of Mich., 592 F. Supp. 2d 948 (E.D. Mich. 2008), is referred to as Coalition VI.
As to Mr. Russell's status in the case, this Court explained that his interven-tion as of right was proper and that he was now a “party in the case.” Id. at 244. Indeed, given the other Defendants' refusal to enforce Proposal 2, this Court described the district court's conclusion that Mr. Russell's individual interests 'may not be taken into account by the present parties' to “be an understatement.” Id. at 245. As this Court explained:
The parties knew of Russell's opposition to the stipulated injunction... and nonetheless proceeded to seek its entry. Even now, the closest they have come to accounting for his interests in the case is to say that “he is free to reapply” if the Law School denies him admission this year.
Id. From that point in late December 2006 until the day the district court entered its final orders in this case in March 2008, Mr. Russell participated as a full party to this litigation. Of the four defendants in the suit, only he and the Attorney General sought to defend Proposal 2.[FN4] As explained below, however, they took very different approaches to that defense.

FN4. Although the Universities were named as defendants, they have made no efforts to defend Proposal 2. Instead, these State-run institutions first attacked Proposal 2 and then, after losing that battle, settled into a passive-aggressive role, taking no official position on the merits but continuing to join and assist the Plaintiffs in various ways. For example, the Universities supported the Cantrell Plaintiffs' efforts to have Mr. Russell dismissed from the case and also resisted attempts by Mr. Russell to obtain discovery necessary to rebut Plaintiffs' allegations.
On January 5, 2007, the district court consolidated the Coalition and Cantrell suits. Doc. 69. On March 22, 2007, the court entered a case management order, which explained that the case could not be decided upon stipulated facts and thus specified that “a period of discovery will be necessary before a record can be developed that permits adjudication of the matter.” Doc. 95 at 1-2. The order au-thorized the parties to proceed with both fact and expert discovery. Of the two par-ties seeking to defend Proposal -Mr. Russell and the Attorney General-only Mr. Russell sought discovery in an effort to rebut the factual case the Plaintiffs were preparing. Wayne State University Law School-the institution at which Mr. Russell ultimately matriculated-produced its then-dean, Frank Wu, for a deposi-tion as a Fed. R. Civ. P. 30(b)(6) witness. During the discovery period, Mr. Rus-sell also retained two expert witnesses, who filed extensive declarations rebutting claims made by the Plaintiffs and their experts. See Docs. 188, 221 at Ex. 1, 228. The Attorney General retained no such witnesses and did not attempt to rebut the Plaintiffs' factual and expert claims.
The case management order also established a timeline for filing summary judgment motions and specified that “[n]o party may file more than one motion for summary judgment without obtaining leave of court.” Doc. 95 at 3. Although the Cantrell Plaintiffs were planning to, and ultimately did, file a motion for summary judgment as to the merits, they also filed, on October 5, 2007, what was styled as a “Motion for Summary Judgment as to Eric Russell,” which requested that the court dismiss Mr. Russell as a party because he had “no remaining legal interest in this case and, as a matter of law, is no longer entitled to participate in the subject matter of this litigation.” Doc. 172 at 1-2. The Cantrell Plaintiffs moved for leave to file this paper as an additional motion for summary judgment, asserting only one rea-son why such leave was requested and proper-that the issue of Mr. Russell's con tinued participation “should be considered in advance of dispositive motions on the merits” so as to “streamline the litigation and eliminate duplication.” Doc. 171 at 2-3. The district court granted the requested leave over Mr. Russell's objection, Doc. 173, explaining only that it found “the request to be reasonable,” Doc. 175. The court, however, never acted upon the sole reason advanced for this anomalous process, and instead considered the motion alongside the summary judgment fil-ings regarding the merits, deciding the former on the same day as the latter.
On November 30, 2007, three parties separately moved for summary judg-ment on the merits: the Attorney General, Mr. Russell, and the Cantrell Plaintiffs. Docs. 201-03. On March 18, 2008, the Court ruled on all the motions pending be-fore it, bifurcating its ruling into two orders (Docs. 246 and 247) but offering no reason for the bifurcation. Its final judgment effectuating both orders is Document 248.
The district court's first order denied the Cantrell Plaintiffs' motion for summary judgment on the merits of their political restructuring claim, granted the Attorney General's motion for summary judgment on the merits as to all claims, and dismissed the consolidated cases. See Coalition IV, 539 F. Supp. 2d 924. As to the political restructuring claim, the district court found that because Proposal 2 bans racial preferences “[t]here is no question... that [it] makes it more difficult for minorities to obtain official action that is in their interest.” Id. at 956. But the court held that that finding was inconsequential because the Equal Protection Clause “does not prohibit the State from banning programs that give an advantage on the basis of race.” Id. at 957.[FN5] In rejecting the Plaintiffs' challenges to Proposal 2, the district court adopted many of the arguments advanced by Mr. Russell throughout the course of the litigation, including some arguments found only in his papers.
FN5. The district court also addressed the Cantrell Plaintiffs' standing. The court held that it “must take the claims as they are fairly pleaded,” and explained that the Cantrell Plaintiffs “contend that they have suffered harm in that they have been hindered unconstitutionally in advancing their legal objectives through the political process.” Id. at 946. In light of this allegation, the court concluded that the Cantrell Plaintiffs “plainly

identify injuries recognized in the law.” Id. For ex-ample, the court concluded that the professor-plaintiffs have standing because “they support affirmative action” and Proposal 2 has resulted in “heightened diffi-culty in securing legislation or policies... that inure primarily to the benefit of minorities.” Id.
The district court's second order of March 18 granted the Cantrell Plaintiffs' “Motion for Summary Judgment as to Eric Russell.” See Coalition V, 539 F. Supp. 2d 960. Because the court had already dismissed all claims asserted by Plaintiffs in the first order, the second order's sole consequence, and presumably its sole purpose, was to affect Mr. Russell's status on appeal.
The court explained that a “motion for summary judgment... presumes the absence of a genuine issue of material fact for trial,” id. at 967, but did not explain (or cite any authority for) the proposition that the Rule 56(c) process is appropriate for or amenable to questions arising under Rule 24. Instead, citing to a lone First Circuit decision and to a statement in the commentary to Fed. R. Civ. P. 24 that an intervenor of right may be “subject to appropriate conditions or restrictions the court held that “[w]hen a party that has been granted intervention as of right no longer meets the requirements for such intervention, a court properly dismisses that party from the case.” Id. at 968. The court then turned to the four criteria that a proposed intervenor of right must timeliness, substantial legal interest, potential impairment of that interest, and adequacy of representation - determine whether Mr. Russell, already deemed by this Court to have satisfied those criteria, could remain in the case.
The district court found timeliness to be “irrelevant since Russell already [was] a party to the case.” Id. at 968. The court also found that Mr. Russell's interest in receiving racially nondiscriminatory treatment in consideration of financial-aid awards, “likely suffice[s]” as a substantial legal interest. Id. at 969. The court found, however, that Mr. Russell's ability to protect this interest would not be impaired “in the absence of continued intervention.” Id. at 969. Despite noting that “[i]t is unclear whether race was considered in the context of need-based financial aid before Proposal 2,” and despite further noting that under controlling precedent “proof of impairment need only be ‘minimal, the court found that because Dean Wu's deposition testimony since passage of Proposal 2, scholarship eligibility did not depend on criteria impermissible under Proposal 2 “unrebutted,” Mr. Russell did not meet the third prong of the Rule 24(a) test, and thus summary judgment was appropriate. Id. at 971. The court also found that even though this Court “rightly” characterized the Attorney General's “lack of consistency in its acceptance of Proposal as puzzl[ing], Mr. Russell was now adequately represented because “it now appears that the [A]ttorney [G]eneral has resolved to defend the measure. Id. at 971.[FN6]
FN6. In this second order, the court also denied a motion to intervene by another putative applicant to the University of Michigan Law School, Jennifer Gratz. Coalition V, 539 F. Supp. 2d at 971-73. In her motion, Ms. Gratz asserted an interest in defending Proposal 2 so as to ensure nondiscriminatory consideration of her application. Doc. 241 at 10-12. Despite this Court's prior description of Proposal 2 as “an equal-protection virtue,” 473 F.3d at 249, the district court, in its opinion on the merits of this case, described Ms. Gratz's effort to protect this interest as a “craven approach” through which she merely sought to secure “her own slice of the pie,” Coalition IV, 539 F. Supp. 2d at 952. The district court did not explain why it attributed such a motive to Ms. Gratz (and, by implication, Mr. Russell), or how such a description could be accurate in light of the fact that Ms. Gratz is female, yet was seeking to enforce the elimination of preferences for females.
On March 19, 2008, the Coalition Plaintiffs appealed from the final judgment entered on March 18, Doc. 249, and this Court docketed the appeal as No. 08-1387. On March 20, 2008, Mr. Russell appealed from the final judgment to the extent it dismissed him from the consolidated cases, Doc. 251, and this Court docketed the appeal as No. 08-1389. On April 1, 2008, the Cantrell Plaintiffs filed in the district court a Rule 59(e) motion to alter or amend the judgment. Doc. 253. On April 11, 2008, the Universities appealed from the final judgment denying in part their motion to be dismissed as parties, Doc. 255, and this Court docketed the appeal as No. 08-1534. Pursuant to Fed. R. App. P. 4, this Court notified the parties that the appeals would be held in abeyance until the Cantrell Plaintiffs' Rule 59(e) motion was ruled upon by the district court. The district court denied the Cantrell Plaintiffs' Rule 59(e) motion over eight months later, on December 11, 2008. See Coalition VI, 592 F. Supp. 2d 948. On January 12, 2009, the Cantrell Plaintiffs filed a

notice of appeal, Doc. 260, and this Court docketed the appeal as No. 09-1111.
Summary of Argument
The district court ade three errors in granting the Cantrell Plaintiffs' motion for summary judgment as to Mr. Russell. First, the court adopted a regime of continual reevaluation of an intervenor's status' process that has no basis in federal law and that would undermine the efficiency embodied in the Federal Rules of Civil Procedure. Second, even if such a regime were proper, the district court was obliged to apply to this motion for summary judgment the same legal standard that applies to all Rule 56(c) motions, with the initial burden falling on the moving party to show why there was no question of material fact as to whether Mr. Russell still satisfied Rule 24's requirements. And given that the motion was essentially a claim of mootness, that burden was a heavy one. Instead, the district court wrongly put the initial burden on Mr. Russell. Moreover, the court required a conclusive showing that Mr. Russell still satisfied Rule 24(a)'s requirements, whereas all that is required at the summary judgment phase is an open question of material fact. Third, regardless of the standard applied by the court, it had no basis on the merits to grant the motion. The evidence in the record demonstrates that, at the very least, genuine issues of material fact exist; indeed, the evidence affirmatively establishes that Mr. Russell still satisfies the requirements of Rule 24.
ARGUMENT
I. Standard of Review
The district court granted what the Cantrell Plaintiffs styled as a “Motion for Summary Judgment as to Eric Russell,” and in considering the motion purported to apply the summary judgment framework. See Coalition V, 539 F. Supp. 2d at 967. But the Cantrell Plaintiffs did not seek summary judgment as to the merits of their claims or the defenses raised in Mr. Russell's answer to their complaint. Instead, the motion requested that the district court reconsider whether Mr. Russell qualified for intervention under Rule 24. As discussed below, the entire inquiry under taken by the district court was improper and thus the only question this Court need decide is whether the district court should have entertained this motion at all, a question to be reviewed de novo. See Matheny v. TVA, 557 F.3d 311,315 (6th Cir. 2009) (“Questions of law are reviewed de novo.”).
Even if this Court does proceed to review the merits of the district court's decision, however, it must still undertake a de novo review, as that is the standard applicable to both summary judgment and intervention rulings. See Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 344 (6th Cir. 2007) (intervention)[FN7]; Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir. 2004) (summary judgment).
FN7. The timeliness element of a motion to intervene is reviewed for abuse of discretion, id., but as the district court found, timeliness is not at issue here, Coalition V, 539 F. Supp. 2d at 968.
The district court's denial of Mr. Russell's motion for permissive intervention is reviewed for abuse of discretion, but this Court must ensure the lower court “provides enough of an explanation for its decision to enable... meaningful review.” Michigan State v. Miller, 103 F.3d 1240, 1248 (6th Cir. 1997).
II. Intervention as of Right Is Not Subject to Continual Reevaluation and Such a Process Would Prove Unworkable and Inefficient
In granting the Cantrell Plaintiffs' motion, the district court sanctioned a regime that would have district courts, while adjudicating the main subject matter of a suit, hold a continual series of mini-trials whenever a party requested reevaluation of an intervenor's qualifications under Rule 24(a). Such a process of repeatedly and continually reopening the intervention inquirywhich, following the Cantrell Plaintiffs' logic, would apply in both district and appellate courtswould render federal litigation extremely inefficient.[FN8] As the district court itself pointed out in Coalition I,

“[t]he rules of civil procedure, including Rule 24[], must be construed and administered to secure the just, speedy, and inexpensive determina-tion of every action. 240 F.R.D. at 377 (quoting Fed. R. Civ. P. 1). It is to avoid such inefficiencies that the Supreme Court and this Court have held, in analogous situations, that such inquiries are unnecessary. See, e.g., Dep't of Commerce, 525 U.S. 316, 330 (1999) (holding that the presence of at least one party with standing means that court need not inquire into other parties' standing); Director, Office of Workers' Compensation Programs v. Perini N. River Associates, 459 U.S. 297, 303-05 (1983) (same); 1064 Old River Rd., Inc. v. City of Cleveland, 137 Fed. Appx. 760, 765 (6th Cir. 2005) (same); McConnell v. FEC, 540 U.S. 93, 233 (2003) (holding that it is unnecessary to address an intervening defendant's standing where another defendant has standing); Diamond v. Charles, 476 U.S. 54, 64 (1986) (nothing that intervening defendant may submit briefing and argument, regardless of standing, so long as defendant with standing appealed).
FN8. Here, such a process resulted in an entire extra round of summary judgment briefing and an extra appeal.
Moreover, nothing in Rule 24 sanctions a continual reevaluation of the in-erventio inquiry once it has been decided; the Rule speaks to qualifications necessary to enter the case as an intervenor, not to qualifications necessary to remain as a party. See Fed. R. Civ. P. 24(a) (“the court must permit anyone to intervene who” meets certain qualifications) (emphasis added); Coalition III, 501 F.3d at 779 (“We have explained that a proposed intervenor must establish four factors before being entitled to intervene.”) (emphasis added). Indeed, as the district court's opinion demonstrates, such a regime makes no sense under Rule 24 because one of the essential elements for interventiontimeliness of the motion will always be “irrelevant” and superfluous. Coalition V, 539 F. Supp. 2d at 968. See also Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992) (“courts should disfavor interpretations of statutes that render language superfluous”).
As authority for its holding, the district court cited the Advisory Committee Notes to Rule 24, which state that “[a]n intervention of right... may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.” But this statement offers scant support for the court's decision. First, as one respected treatise notes, the “Advisory Committee cites no authority... and it may be said [that] ... the Advisory Committee's qualification in the Notes of important textual language is a questionable technique.” 7C Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1922 (3d ed. 2007). thus... the fact that the Committee Note says that [courts] have the power does not create the power if it does not otherwise exist.” Id. And while conditions of a “housekeeping nature” may be permissible, it is “very doubtful” that courts have the power to make “significant inroads on the standing of an intervenor.” Id. Second, even if reliance on this dubious authority were proper, the statement does not support the out-and-out dismissal of an intervenor, but rather the imposition of “conditions and restrictions' upon an intervenor. By definition, a party must actually remain in the case to have “conditions and restrictions” placed upon it.[FN9]
FN9. Rule 21 states: “Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party.” This Rule is “a mechanism for remedying either the misjoinder or nonjoinder of parties,” and “[t]he cases make it clear that parties are misjoined when they fail to satisfy either of the preconditions for permissive joinder of parties set forth in Rule 20(a).” 7 Wright, Miller & Kane, supra, § 1683 (3d ed. 2001). In other words, Rule 21, although broadly worded, deals with the joinder provisions that precede it, not with the intervention procedure that follows it. 10
In light of the inefficiencies this regime would create, as well as the lack of support in Rule 24 for such a regime, it is little wonder that the district court cited only one case in which a federal court dismissed a previously-admitted intervenor over the intervenor's protest. See Morgan v. McDonough, 726 F.2d 11, 14 (1st Cir. 1984).[FN10] That lone case, which to the best of Appellant's knowledge has never been followed on this point by any court, involved extraordinary circumstances not present here. In Morgan, an organization was granted highly conditional interven-tion and the district court failed to make clear whether the intervention was of right or permissive. Id. at 12. Eight years later, the district court dismissed the organi zation because the public defendant in the case had adopted a lasting, reconstituted

position and the intervenor's stance was completely redundant of the public defen-dant's. Id. at 13. In affirming the dismissal of the intervenor, the First Circuit em-phasized the “unique” nature of the proceedings and the extraordinary passage of time. Id. at 14. By contrast, this case involves none of these extraordinary fea-tures: as discussed below, his position is not wholly redundant of the Attorney General's and the possibility of inadequate representation remains; it is not a dec-ade-long, multi-phase suit, but rather an expedited case that has been resolved at summary judgment; and Mr. Russell is not an organization speaking for the diffuse interests of many members (as does a public defendant), but rather an individual with a highly particularized, personal interest. Moreover, unlike this case, there was no need in Morgan for extensive exploration and resolution of factual issues surrounding the intervenor's status.
FN10. In their reply brief below, the Cantrell Plaintiffs cited three other cases they claimed “empower[ed] th[e] court to dismiss Mr. Russell, Doc. 190 at 3, but none of them are remotely analogous to the situation presented here. Sutherland v. Mich. Dep't of Treasury, 344 F.3d 603, 612-13 (6th Cir. 2003), dealt with the dis-missal of an original defendant because the plaintiffs failed to state a proper claim against it. Letherer v. Alger Group, L.L.C., 328 F.3d 262, 266-67 (6th Cir. 2003), and Cunningham v. Grayson, 541 F.2d 538, 543-44 (6th Cir. 1976), dealt with the dismissal of a defendant who was originally deemed a necessary party, and thus was joined by the court, and who later stipulated or did not object to dismissal. None of these cases dealt with an intervenor of right who objected to dismissal.
III. Mr. Russell Still Qualifies for Intervention as of Right and the Cantrell Plaintiffs Have Not Demonstrated an Absence of Genuine Issues of Ma-terial Fact as to that Question
Even if the district court were correct in holding that it must continually re-examine the qualifications of each and every intervenor in a case, it erred by failing to apply the proper standard to the Cantrell Plaintiffs' summary judgment motion; and, regardless, the court erred in concluding that there was a total absence of any genuine issue of material fact as to whether Mr. Russell still qualified as an inter venor. The evidence before the district court affirmatively established that Mr. Russell does, in fact, still satisfy Rule 24's requirements.
To qualify as an intervenor of right, a party must: (1) file a timely motion to intervene; (2) have a substantial legal interest in the subject matter of the case; (3) face potential impairment of the ability to protect this interest in the absence of in-tervention; and (4) not be adequately represented by the existing parties. Grutter v. Bollinger, 188 F.3d 394, 397-98 (6th Cir. 1999). As the district court explained, the timeliness requirement cannot logically apply here. Coalition V, 539 F. Supp. 2d at 968. Thus, the questions at issue are whether Mr. Russell has a substantial legal interest that may be impaired in the absence of his continued participation, and whether any party to the litigation adequately represents that interest.
Because the Cantrell Plaintiffs brought a Rule 56(c) motion, the familiar summary-judgment framework is applicable. Cf. Dep't of Commerce v. United States House of Representatives, 525 U.S. 316, 329 (1999) (holding that where a party challenges standing in a motion for summary judgment, the party must show there is “no genuine issue of material fact as to justiciability”). “On a motion for summary judgment the movant has the burden of showing conclusively that there exists no genuine issue as to a material fact... ” Hutt v. Gibson Fiber Glass Products, Inc., 914 F.2d 790, 792 (6th Cir. 1990); see also Sims v. Memphis Proc-essors, Inc., 926 F.2d 524, 526 (6th Cir. 1991) (“The moving party bears the bur den of ‘clearly and convincingly’ demonstrating the absence of any genuine issues of material fact.”). In other words, because the Cantrell Plaintiffs moved for sum-mary judgment on the theory that Mr. Russell no longer satisfied the requirements of Rule 24, it was their burden to demonstrate conclusively, based on “the plead-ings, the discovery and disclosure materials on file, and any affidavits,” that there was no genuine issue of material fact as to whether Mr. Russell still satisfied the requirements of Rule 24. Fed. R. Civ. P. 56(c); Farhat, 370 F.3d. at 587; Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (“The substantive law governing the case will determine what issues of fact are material... ”). “An issue of fact is ‘genuine’ if a reasonable person could return a verdict for the non-moving party.” Farhat, 370 F.3d at 587 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must draw all reasonable inferences in the light most favorable to the nonmoving party. White v. Turfway Park Racing Ass'n., Inc., 909 F.2d 941, 943-44 (6th Cir. 1990); Hunt, 914 F.2d at 792 (“[T]he evidence together with all

inferences to be drawn therefrom must be read in the light most favorable to the party opposing the motion.”). That is, if a reasonable jury could find that Mr. Russell has a continuing legal interest in this case, that such interest might be impaired in the absence of his continued intervention, and that no party adequately represents his interest (as that requirement has been de-fined by this Court), then summary judgment was improper. Because the Cantrell Plaintiffs failed to demonstrate an absence of any genuine issue of material fact as to these issues, its motion for summary judgment should have been denied.
A. The District Court Correctly Found that Mr. Russell Has a Sub-stantial Legal Interest in Nondiscriminatory Consideration of His Eligibility for Financial Aid
When the district court granted Mr. Russell's intervention in December 2006, it explained that he asserted a substantial interest sufficient for intervention because “if... plaintiffs are successful in obtaining a ruling that [Proposal 2] is in-valid, Russell's chances of gaining admission to the University of Michigan law school may be diminished.” Coalition I, 240 F.R.D. at 375. Similarly, this Court explained that Mr. Russell's pending application for admission gave him “a direct interest in whether Proposal 2 applies.” Coalition II, 473 F.3d at 243. These decisions thus recognized the general principle that where a party might be subject to “a race-conscious program ... [t]he relevant injury... is the ‘inability to compete on an equal footing.”’ Texas v. Lesage, 528 U.S. 18, 21 (1999) (quoting Ne. Florida Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993)). Accordingly, in its opinion dismissing Mr. Russell, the district court correctly noted that while Mr. Russell no longer has a pending application for admission, he does have a continuing interest in “obtaining] financial aid without regard to... considerations” of race, gender, or ethnicity, and that this in terest ‘likely suffice[s]” as a substantial interest under Rule 24(a).[FN11] Coalition V, 539 F. Supp. 2d at 969. See also id. (“Eric Russell has shown a substantial legal interest”); id. at 971 (recognizing Mr. Russell's interest in “equal treatment in financial aid decisions”).[FN12] Indeed, not only does this interest “likely” suffice, it clearly suffices, for an interest in student financial aid is sufficient to meet the even higher bar of the injury-in-fact requirement of constitutional standing. See Nyquist v. Mauclet, 432 U.S. 1, 6 n.7 (1977) (mere possibility that a student might require financial aid gave standing to challenge a statute excluding financial aid for aliens). Cf. Corr v. Mattheis, 407 F. Supp. 847 (D.R.I. 1976) (interest in student financial aid is protected by the Due Process Clause).
FN11. At the time the district court was considering the Cantrell Plaintiffs' motion, Mr. Russell was also planning to submit a transfer application to the University of Michigan; thus, the opinion below addresses that interest. Because the time for transferring has passed, Mr. Russell does not press the issue here.
FN12. Rule 24 provides that an intervenor must have “an interest” in the outcome of the case. It does not require that the interest that justified intervention at the outset must continue to exist, unchanged, throughout the litigation. Like any other party to litigation, an intervenor's interest may change due to the passage of time, the conduct of the parties, and the outcomes of the ongoing lawsuit. Thus, there is no basis for dismissing an intervenor if he still has an interest in the outcome, even if it is different from the interest originally identified. This is especially true here, where the general nature of the intervenor's interestmaintenance of nondiscriminatory treatment in an application process-remains exactly the same, but the particular application has changed.
Moreover, quite apart from Mr. Russell's interest in nondiscriminatory consideration of his financial-aid applications, he also possesses exactly the same type of interest in this litigation as the Cantrell Plaintiffs, who base their standing to bring suit solely on the allegation that their ability to obtain reinstatement of racial and gender preferences is burdened by Proposal 2. Cantrell Pl.'s First Am. Compl. (Doc. 73) at 4. Take, for example, Professor Kathleen Canning, who maintains that she has standing to sue because she “believes that the University of Michigan's changes to its admissions policies in response to Proposal 2 will make the discussions in her classroom more abstract, and thereby damage the learning process” and that she will now have to lobby at the state rather than the local level to change those policies. Id. at 10. If such an interest clears the high bar of constitutional standing, it follows that Mr. Russell's corresponding interestin not having to lobby for a schooling environment where students are chosen without regard to factors such as

race and genderclears the lower bar of an interest sufficient for intervention of right. See Coalition IV, 539 F. Supp. 2d at 946-47 (concluding that the professor-plaintiffs have standing because they support racial and gender preferences and face “heightened difficulty in securing legislation or policies” mandating the use of such preferences); San Juan County v. United States, 503 F.3d 1163, 1171-72 (10th Cir. 2007) (en banc) (holding “that parties seeking to intervene under Rule 24(a) or (b) need not establish Article III standing so long as another party with constitutional standing on the same side as the intervenor remains in the case”) (quotation marks omitted) (citing McConnell v. FEC, 540 U.S. 93, 233 (2003); Arizonans for Official English v. Arizona, 520 U.S. 43, 66 (1997); Dia-mond v. Charles, 476 U.S. 54, 64 (1986)).[FN13]
FN13. The Cantrell Plaintiffs protestations regarding Mr. Russell's continued participation in this case are thus a great irony, for he, as an intervenor, has every interest that they purport to have as plaintiffs with constitutional standing. More-over, Mr. Russell is distinct from most, if not all, of the Cantrell Plaintiffs because he actually is a student at a Michigan public institution, whereas it is quite possible that none of the Cantrell Plaintiffs are (or ever were) students at Michigan schools. At this point, then, the Cantrell Plaintiffs' claim may boil down to the four profes-sors' allegations that they are harmed by having to teach students who were se-lected without regard to their race, ethnicity, or gender.
Oddly, while the district court went to great lengths to explain why Mr. Rus-sell should no longer remain a party to this case, the court's review of its continu-ing jurisdiction over the Cantrell Plaintiffs' case was cursory at best. In addressing standing, the court, without citation, stated that it “must take the claims as they are fairly pleaded.” Coalition IV, 539 F. Supp. 2d at 946 That, of course, is not true on summary judgment. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (“In response to a summary judgment motion,... the plaintiff can no longer rest on such mere allegations...”) (quotation marks omitted). Moreover, the district court ignored entirely the jurisdictional question of mootness. See Demis v. Sniezek, 558 F.3d 508, 512 (6th Cir. 2009).
B. Mr. Russell's Interest May Be Impaired Absent Intervention
This Court has explained that impairment need only be “possible if interven-tion is denied. This burden is minimal.” Grutter v. Bollinger, 188 F.3d 394, 399 (6th Cir. 1999). Despite recognizing that Mr. Russell had a continuing, substantial legal interest, the district court concluded that there was no possibility his ability to protect that interest may be impaired in the absence of continued intervention. Coalition V, 539 F. Supp. 2d at 969. Its conclusion was erroneous both because it was based on the wrong legal standard and because the evidence before the court not only showed that the Cantrell Plaintiffs failed to establish the absence of genu-ine issues of material fact regarding potential impairment, but also established just the opposite-the potential and even likelihood of impairment.
1. The District Court Applied the Wrong Legal Standard
Because the Cantrell Plaintiffs brought a motion for summary judgment to challenge Mr. Russell's settled status as an intervenor, it was their burden to con-clusively demonstrate an absence of any genuine issue of material fact as to whether his ability to protect his interest in nondiscriminatory consideration for fi-nancial aid may be impaired in the absence of intervention. See Farhat, 370 F.3d. at 587. Cf. Dep't of Commerce, 525 U.S. at 329. Yet this is not the standard the district court applied to this question. Instead, the court explained its consideration of the issue as follows: The Court concludes... that Eric Russell has failed to establish that impairment of his substantial legal interest with respect to... Wayne State is possible if continued intervention is denied. Although proof of impairment need only be minimal, this element poses a burden nonetheless, which Russell has failed to carry.
Coalition V, 539 F. Supp. 2d at 971 (emphasis added and quotation marks omit-ted). But both the district court and this Court had already decided Mr. Russell qualified as an intervenor of right. The motion at issue was not a motion to inter-vene, but rather a motion for summary judgment, and thus the initial burden was on the Cantrell Plaintiffs, not on

Mr. Russell. See Martingale LLC v. City of Lou isville, 361 F.3d 297, 301 (6th Cir. 2004) (“The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential ele-ment of the non-moving party's case.”). Moreover, at the summary judgment stage, the nonmoving party need not firmly “establish” any fact, but rather need only show that a genuine issue of material fact exists.
The Rule 24 inquiry is analogous to (though not as burdensome as) the standing inquiry. Standing is a snapshot, and the facts relevant to the inquiry are those in existence when the suit is filed. Thus, for example, in the precursor to this case, Gratz, the Supreme Court held that Patrick Hamacher, who had already graduated from Michigan State University by the time the case reached the Court, still had standing to pursue an appeal regarding his claim for injunctive relief. 539 U.S. at 251 n.1, 262. As the Supreme Court noted just last Term, “[w]hile the proof required to establish standing increases as the suit proceeds, the standing in-quiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Davis v. FEC, 128 S. Ct. 2759, 2769 (2008). There is no question that at the time he intervened, Mr. Russell satis-fied the Rule 24 analogue to standing.
Thus, what the Cantrell Plaintiffs really question is whether Mr. Russell's claim has become moot-either because his interest has dissipated, he no longer faces impairment, or he is adequately represented. Cf. Gratz, 539 U.S. at 268 (not-ing that a student's interest in nondiscriminatory treatment can become moot). But when a party brings a mootness challenge, that party “bears a ‘heavy burden’ and must show that ‘subsequent events make it absolutely clear that the allegedly wrongful behavior cannot reasonably be expected to recur and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”’ Bogaert v. Land, 543 F.3d 862, 869 (6th Cir. 2008) (quoting Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 530-31 (6th Cir. 2001)). The district court utterly ignored this concept, and not only failed to place a “heavy burden” on the Cantrell Plaintiffs' placed no burden at all. The lower court's opinion thus violated controlling legal standards. Accordingly, at the very least, the decision below must be reversed and remanded for adjudication under the correct legal standard.
2. The Cantrell Plaintiffs Did Not Establish the Absence of Genuine Issues of Material Fact
Remand is unnecessary, however, because the evidence before the court not only failed to establish the absence of any genuine issue of material fact as to whether Mr. Russell still satisfies the minimal burden of showing potential impairment, it affirmatively proved that Mr. Russell's interest may be impaired in the absence of his continued intervention. The district court focused on two types of financial aid: scholarship aid and need-based financial aid.
(a) Scholarship Aid
As to the first category of aid-scholarships funded by donors and administered by Wayne State-the district found that it “is clear that race, ethnicity, or gender were factors in approximately fourteen annual scholarships.”[FN14] Coalition V, 539 F. Supp. 2d at 971 (emphasis added). The court then engaged in this puzzling analysis:
FN14. Mr. Russell's eligibility for these scholarships is established in the record: Q. [A]ssuming he met the revised characteristics, Eric Russell would be eligible to receive those scholarships; is that correct
A. That would be correct.
Wu Dep., Doc. 182-8, at 239:20-23.
Wu testified that, following the passage of Proposal 2, he or a devel-opment officer “systematically approach[ed]” the donors to inform them that such criteria were impermissible. Some of the donors-it is unclear how many-agreed to continue funding the scholarships with elimination of the impermissible criteria. Accordingly, assuming he met the remaining criteria... Russell “would be eligible to receive those scholarships.” This evidence remains unrebutted.

Id. (citations omitted). Thus, the sum total of the district court's findings and analysis on this issue is as follows: (1) prior to Proposal 2, Wayne State, in award-ing scholarships, considered race, ethnicity, and gender; (2) after Proposal 2, Wayne State renegotiated some scholarships-no mention of the open factual question of the status of the other scholarships-to comply with Proposal 2; (3) this evidence is undisputed; (4) therefore, there is no possibility that Mr. Russell's interest in nondiscriminatory consideration for scholarships could be impaired if Proposal 2 were invalidated. Obviously, the district court's conclusion is a non se-quitur.
Moreover, because the Plaintiffs seek to invalidate Proposal 2, the relevant question is not whether Mr. Russell's interest in competing on equal footing for these scholarships would be impaired with Proposal 2 in place, but rather what might happen if Proposal 2 is invalidated. On this point, the district court made no findings, and thus its conclusion that no genuine issue of material fact exists as to impairment is wholly unsupported. The established fact, recognized by the district court, is that prior to Proposal 2, Wayne State granted scholarship aid on the basis of race and gender. Given the Universities' consistent efforts to preserve the use of race and gender preferences, it blinks reality to conclude that there is no potential for reinstatement of such a policy should the Plaintiffs succeed in this suit.[FN15] And that potential is all that need exist for Mr. Russell to qualify as an intervenor. The Cantrell Plaintiffs did not even come close to showing an absence of such poten-tial.
FN15. Although the district court did not include it in its analysis or reasoning, the following statement by Dean Wu was also in the record: Q. And if at any time... Proposal 2 were rescinded or enjoined in any way, do you anticipate that the donor groups would again request that their scholarships be slotted or devoted to minority students
A. I have no way of predicting what the behavior of individual do-nors would be, but ... [w]e would not expect even if Prop 2 were struck down... that we would go back and renegotiate the agree-ments.
Doc. 182, Ex. 7 at 239:24-240:13. Even had the district court considered this evi-dence, it would not have been sufficient to demonstrate the total absence of poten-tial impairment. As Dean Wu admitted, he could not predict, or control, donor be-havior. And given that “[n]ew scholarships are being created all the time,” id. at 237:15-16, and that donors had previously established scholarships with race and gender preferences, the likelihood of future attempts to establish scholarships em-ploying race and gender preferences is high. Indeed, at one of Wayne State's fel-low schools, the University of Michigan, the alumni responded to Proposal 2 by establishing a shadow financial-aid system that would award monies based on race and gender, a fact that Mr. Russell pointed out to the district court in his response. See Doc. 182 at 9 n.4 (citing Chris Herring, “Alumni Assoc, to give aid to minorities,” The Michigan Daily, Oct. 18, 2007 (reporting that “[t]he Alumni Associa-tion of the University of Michigan plans to hand out scholarships based on race and gender by next fall” in an effort “intended to limit the effect of Proposal 2”)). Dean Wu offered no testimony regarding whether Wayne State would reject such proposals. And given that he did not testify as to whether he had the authority to make final decisions regarding scholarships, and that he was already slated to leave the deanship at the time of his deposition, Wu Dep., Doc. 182-8, at 137:8-15, his broad statement regarding the school's future plans holds little predictive value.
Moreover, given that the Cantrell Plaintiffs alleged injury is the inability to lobby for race and gender preferences at the local level, it is certain that their vic-tory in this litigation will impair Mr. Russell's corresponding interest in not having to lobby at the local level for a nondiscriminatory regime.
(b) Need-Based Financial Aid
As to need-based financial aid, the district court flatly found that “[i]t is un-clear whether race was considered in the context of need-based financial aid before Proposal 2; there is in fact no evidence on the point.” Coalition V, 539 F.

Supp. 2d at 971. Given that the Universities campaigned zealously against passage of Pro posal 2 and fought to maintain their use of racial and gender preferences even after its enactment,[FN16] the factual question of whether, in the absence of a legal mandate to do otherwise, they used such preferences in distributing need-based aid is highly relevant to determining whether the law school would revert back to a system of considering such factors should Proposal 2 be struck down. Cf. Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003) (a party that has ceased challenged conduct faces “heavy burden” in establishing that the party “cannot reasonably be expected to start up again”). This is especially true here, where actual cessation of the use of racial and gender preferences occurred solely because of Mr. Russell's litigation efforts. Cf. Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 342-43 (6th Cir. 2007) (“that burden is increased by the fact that the voluntary cessation only appears to have occurred in response to the present litigation, which shows a greater likelihood that it could be resumed”). Thus, on a critical issue, the Cantrell Plaintiffs failed to show a total absence of a material question of fact and therefore did not carry their burden on summary judgment. Moreover, the district court found that the Cantrell Plaintiffs submitted no evidence on this issue-a total failure of proof-and therefore cannot possibly be said to have carried the burden of showing mootness.
FN16. As the district court found at the outset of this case: “The University defendants plainly oppose Proposal 2 as evidenced by their cross-claim in this action contesting the constitutionality of the amendment and seeking the delay of its implementation.” Coalition I, 240 F.R.D. at 376.
Moreover, while the district court's assertion that there existed no evidence on this point was true to the extent that the Cantrell Plaintiffs failed to submit documentary evidence or deposition testimony, the court ignored the admissions on file relevant to this question. The Universities, including Wayne State, admitted that their financial-aid policies prior to Proposal 2 did mandate consideration of factors prohibited by Proposal 2. For example, in their very first filing submitted in this case, a cross-claim against Governor Granholm, the Universities admitted: Months before the current cycle began the Universities put their admissions and financial aid policies in place in reliance on the Supreme Court's reaf-firmation... that they have... [a] right... to ... give some consideration to [] factors such as race. Before the current cycle began the Universities de-voted substantial time and energy to training their admissions and financial aid personnel about those policies and to disseminating information about those policies to the public.... [T]he Universities have already made thousands of decisions applying those policies and processes during this cycle.
Doc. 2 at 4-5 (emphasis added). Numerous similar admissions, made to both this Court and the Supreme Court during the course of this litigation, are set out in the margin.[FN17] Such “admissions in the pleadings are generally binding on the parties” both “before the trial court [and] ... on appeal,” and they “eliminate the need for evidence on the subject matter of the admission, as admitted facts are no longer at issue.” Ferguson v. Neighborhood Housing Servs., Inc., 780 F.2d 549, 550-51 (6th Cir. 1986). See also Purgess v. Scharrock, 33 F.3d 134, 144 (2d Cir. 1994). While the Universities' statements do not specify as between need-based financial aid and scholarships, given that all reasonable inferences must be drawn in Mr. Russell's favor, and that Appellees faced a heavy burden, these admissions at least establish the clear likelihood that race and gender were considered in need-based financial-aid decisions and thus establish that a genuine issue of material fact exists.
FN17. See Univ. Defs./Appellees' Combined Response/Opp. to Emergency Mot. to Stay Pending Appeal and Pet. for Writ of Mandamus, Coalition II, 473 F.3d 237 (Nos. 06-2640, 06-2642), at 1-2 (“The Universities had previously designed, implemented, trained personnel around, and publicly announced their admissions and financial aid policies, which were developed in specific reliance on the Supreme Court's reaffirmation... that they have the right... to... give some consideration to factors such as race.” ) (emphasis added); id. at 21 (“Many months ago the Universities designed, implemented and trained personnel around their admission and financial aid policies, which were developed in reliance on the Supreme Court's reaffirmation that they... may... give some consideration to factors such as race.... ); id. at 28 (arguing that the Universities cannot render “their present admissions and financial aid practices” compliant with Proposal 2); id. at 36-37 (stating that the use of race preferences as deemed permissible by the Supreme Court “describes the admissions and financial aid decision-making of the Universities”); id. at 43 (“Those who applied to and sought admission to

or financial aid from the Universities did so with the expectation that their materials would be evaluated under the policies in place for that cycle. They prepared those materials with the understanding, for example, that their distinctive experiences as a woman... or as... [an] African American... might receive some consideration.”); Br. of the Regents of the Univ. of Michigan, The Bd. of Trustees of Mich. State Univ., and the Bd. of Governors of Wayne State Univ. in Response to Petr's Mot. to Dissolve Stay and Reinstate Inj., Coal, to Defend Affirmative Action v. Granholm, 549 U.S. 1176 (2007) (No. 06A678), at 3 (“Months before the effective date of the Amendment, the Universities designed, implemented, trained personnel around, and publicly announced their admissions and financial aid policies. Those policies were developed... to... give some consideration to factors such as race.”); id. at 17 (“The Sixth Circuit stay, and the urgent need to proceed with admissions and financial aid processes, forced the Universities to move into a ‘safe harbor’ and begin making decisions during this cycle without considering factors such as race and gender.”) (attached as Addendum 2).

Nonetheless, the district court found the following two statements-and onland only the following two statements the then-dean of Wayne State Law School sufficient to demonstrate a total absence of a genuine issue of material fact as to potential impairment: (1) that, at present (that is, with Proposal 2 in effect), “[ilace will not affect any financial aid decision made as to Eric Russell or any other student”; and (2) that “he has no reason to believe this would change in the event Proposal 2 were invalidated.” Coalition V, 539 F. Supp. 2d at 971 (quotation marks omitted). These scant snippets of testimony are hardly suggestive of the absence of genuine issues of material fact. First, they fail to establish whether Wayne State considered race, gender, and ethnicity for need-based financial aid prior to Proposal 2. Second, Dean Wu's statement that under Proposal 2 Mr. Russell would receive equal treatment is irrelevant is obviously true if Wayne State is complying with the law as it now stands, and the very purpose of Mr. Russell's intervention is to defend that state of affairs from the legal challenges mounted by the Plaintiffs in these cases. Third, as noted above, Dean Wu's lone statement that he had no reason to believe Wayne State would adopt a different regime is insufficient in light of the well-settled principle, in the even more stringent context of Article III standing, “that a defendant's voluntary cessation of a challenged practice” is inherently suspect and thus does not moot the legal issues related to the practice. City of Mes quite v. Aladdin's Castle, 455 U.S. 283, 289 (1982); Northland, 487 F.3d at 342.[FN18] Dean Wu's statement is especially insufficient in light of the fact that Michigan's universities, including Wayne State and its officials: (1) employed racial, ethnic, and gender preferences prior to Proposal 2's enactment; (2) vocally campaigned against the ballot measure;[FN19] (3) fought against Proposal 2's implementation in this very litigation by stipulating to an injunction that this Court found had no basis in federal law; (4) maintained, all the way to the Supreme Court, that they have a First Amendment right to impose racial and gender preferences, presumably because they intended to maintain those policies if they were successful in that claim; and, (5) despite their formal status as Defendants in this case, not only refused to defend Proposal 2 against the Plaintiffs' challenges, but aided Plaintiffs' litigation efforts at every step.

FN18. Moreover, Dean Wu's tenure at Wayne State ended shortly after his deposition, so there is a real

possibility that the new administration holds a very different opinion about what path the school would likely

follow if Proposal 2 were struck down. Wu Dep., Doc. 182-8, at 137:8-15; Doc. 182 at 11 (citing Frank W.

Wu,

Personal

Announcement,

April

10,

2007,

http://

deanwub-

log.classcaster.org/blog/general/2007/04/10/personal_ announcemen t.).

FN19. See, e.g., Wu Dep. 52:14-16, Doc 222-7, at 16 (“It would be fair to characterize the presentations I gave as hostile to Proposal 2.”).

C. Mr. Russell Is Not Adequately Represented by Other Parties to the Litigation

Precedent from both the Supreme Court and this Court teach that a proposed intervenor “need show only that there is a potential for inadequate representation,” and the burden is “minimal.” Grutter v. Bollinger, 188 F.3d 394, 400 (6th Cir. 1999) (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). See also Coalition III, 501 F.3d at 787 (noting that proposed intervenors “need not show that representation won't be inadequate, only that the potential exists that the Attorney General will not make all of their arguments”). On its motion for summary judgment, it

was the Cantrell Plaintiffs' burden to show that there was no genuine issue of material fact regarding whether such a minimal showing of potential inadequacy could be made. Hutt, 914 F.2d at 792. In the portion of its opinion dealing with this prong, the district court failed to acknowledge that only a potential for inadequate representation need exist and that the burden of showing such a potential is minimal. Moreover, as with the impairment prong, the district court must be reversed because it failed to recognize that the initial burden was on the Cantrell Plaintiffs and that that burden was a heavy one given that the nature of the challenge is akin to a mootness question.
In any case, the district court erred in concluding that the Attorney General adequately represents Mr. Russell's interest. Both this Court and the district court already decided the adequacy question once, finding that the Attorney General's stipulation to the preliminary injunction barring enforcement of Proposal 2 demon-strated not only the potential for, but the actual existence of, inadequate representa-tion. See Coalition I, 240 F.R.D. at 376-77; Coalition II, 473 F.3d at 243-45. As this Court forcefully explained, it was an “understatement” to say that Mr. Rus-sell's ‘individual interest... may not be taken into account by the present par-ties.”’ Coalition II, 473 F.3d at 245. Instead, his interest already had been inade-quately represented: Subsequent events confirm[ed] that the stipulated injunction did not account for the concerns of all interested parties.... The parties [in-cluding the Attorney General] knew of Russell's opposition to the stipulated injunction, to say nothing of the opposition to the injunc-tion by other interested groups seeking to intervene in the case (in-cluding the proponent of Proposal 2), and nonetheless proceeded to seek its entry.
Id. There is no need to speculate about whether it is possible that the Attorney General might fail to represent Mr. Russell-that possibility was already reality. It thus follows, as Judge Kennedy aptly observed in September 2007, that “[t]he pro-cedural history of this case indicates that this potentiality exists.” Coalition III, 501 F.3d at 788 (Kennedy, J., concurring in part and dissenting in part).[FN20] An in-tervenor once bitten is entitled to be twice shy.
FN20. The majority in Coalition III did not reach the question of adequacy of representation. Id. at 783 (majority op.).
Despite this recent history, the district court concluded that because “it now appears that the attorney general has resolved to defend the measure,” Mr. Rus-sell's interest is adequately represented. Coalition V, 539 F. Supp. 2d at 971. But the Attorney General's position on the constitutionality of Proposal 2 has not changed; he defended the validity of the amendment even as he entered the stipu lated injunction suspending its enforcement. See Coalition II, 473 F.3d at 247 (“Far from raising doubts about the validity of the amendment under federal law, the Attorney General thoroughly explains why it does not violate the Federal Con-stitution or any federal statutes.”). Nonetheless, the Attorney General-citing what he deemed “the equities” of the situation confronting the State-chose to enter the stipulation with the Plaintiffs and withhold enforcement.[FN21] And future considera-tion of always-shifting equities-political, pragmatic, economic, or otherwise-ight well lead him to adopt something other than a complete and robust defense of Proposal 2, such as a willingness to settle the case or to support a narrow con-struction of Proposal 2, such as that called for by other State actors. See Universi-ties' Resp. to Russell's Stay Mot., Appeal Nos. 06-2640, 2642, at 29 (arguing that Proposal 2 is ambiguous and race and gender preference policies used in 2006 do not violate Proposal 2). Given that the Attorney General has adopted such a course once, it defies logic to conclude, on the basis of one round of briefing in the district court, that there is no possibility that he will do so again.[FN22] And that is all that is needed to meet the “minimal” requirement of inadequate representation: the mere potential of inadequacy.
FN21. See Attorney General Mike Cox's Resp. in Opp. to Emergency Mot. for Stay Pending Appeal, Coalition II, 473 F.3d 237 (Nos. 06-2640, 06-2642), at 3; Attorney General Mike Cox's Resp. in Opp. to Pet. for Writ of Mandamus, id., at 2.
FN22. Indeed, the district court's telling choice of words-that “it now appears that the attorney general has resolved to defend the measure” implies uncertainty about the Attorney General's posture.

Indeed, despite this Court's recognition of the importance of Mr. Russell's interest and its admonition “that the stipulated injunction did not account for the concerns of all interested parties,” Coalition II, 473 F.3d at 245, it appears that the Attorney General still discounts the significance of Mr. Russell's particular interest in nondiscriminatory evaluation of his applications. As recently as February of this year, in a filing before the district court, the Attorney General characterized Mr. Russell's interest and success in securing nondiscriminatory consideration of his admissions application as “purely technical” and “de minimis.” Attorney General Michael A. Cox's Resp. in Opp. to Eric Russell's Mot. for Attorney's Fees, Doc. 267, at 6.
The district court supported its legal conclusion regarding the adequacy of representation with only one factual finding: “the two summary judgment motions [(Mr. Russell's and the Attorney General's)] duplicate each other.” Coalition V, 539 F. Supp. 2d at 971. Not only is this finding factually erroneous, it is legally insufficient to support the court's conclusion.
First, even if the briefs of Mr. Russell and the Attorney General were carbon copies, the fact that two parties might advance similar or even precisely the same argument at a given phase of litigation does not mean that the potential for inade-quate representation dissipates. As already noted, the Attorney General's consid-eration of the “equities” of this case might change, as it already has at least once, and he might abandon or trim some of his legal arguments. Indeed, the Attorney General noted in his brief to this Court that application of Proposal 2 in the educa-tional realm presents different equities than application in “all other” areas, “such as contracting and hiring.” Cox Coalition II Mandamus Resp. at 3-4. But Mr. Russell maintains that the equities are the same, and he is especially interested in full and robust application of Proposal 2 in the educational realm. As Judge Ken-nedy has correctly noted, “a more zealous litigation approach,” such as the one fa-vored by Mr. Russell, “could significantly alter the enforcement and ultimately the interpretation of this constitutional amendment.” Coalition III, 501 F.3d at 788 (Kennedy, J., concurring in part and dissenting in part).[FN23]
FN23. Judge Kennedy also rightly noted that “the conflict wall set up across the Attorney General's office at the request of the Governor further indicates that dif-ferent interpretations of this provision and its interaction with federal constitutional and statutory law are possible; the [private intervenor's] interpretation could be more expansive than that of the existing parties.” Id.
Second, the district court wholly ignored, in its opinion dismissing Mr. Rus-sell, that he was the only defendant to seek factual discovery and to present expert opinion evidence, and thus would have been the only defendant prepared to ad-dress the factual and expert arguments made by the Plaintiffs if the case had pro-ceeded to trial. This omission is especially peculiar given that the district court's merits opinion, issued on the same day, recognized that Mr. Russell, but not the Attorney General, “challenges the underlying assumption that preferential treat-ment is good for racial minorities... submit[ting] the declaration” of an expert in support of this assertion. Coalition IV, 539 F. Supp. 2d at 938-39. In any event, Mr. Russell's efforts show that he was and is willing to expend resources and ef-fort, to pursue strategies, and to present arguments in defense of Proposal 2 that the Attorney General is not willing to expend, pursue, and present.[FN24] Again, as Judge Kennedy has correctly explained, these “more zealous litigation approaches]“ could significantly affect this case. Coalition III, 501 F.3d at 788 (Kennedy, J., concurring in part and dissenting in part). See also Grutter, 539 U.S. at 318 (not-ing that the district court heard “extensive” factual and expert testimony in an equal protection challenge to Michigan law school's admissions policy); id. at 330 (relying on evidence produced at district court level).
FN24. The Attorney General has not given any indication that, in the event of a remand, he will mount a factual defense of Proposal 2.
Third, even a cas ual comparison of the Attorney General's summary judg-ment filings, Mr. Russell's summary judgment filings, and the district court's mer-its opinion reveals that it is simply untrue that the briefs were duplicative. Indeed, in its merits opinion, the district court explicitly relied on arguments and authori-ties advanced only by Mr. Russell. For example:

* In its analysis of the Coalition Plaintiffs' “conventional” equal protection challenge, the district court relied on the Supreme Court's holdings in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), yet only Mr. Russell, not the Attorney General, cited and discussed this case in his summary judgment briefing. Compare Coalition IV, 539 F. Supp. 2d at 948-49 (citing Adarand to reject the Coalition Plaintiffs' request that the court “look at the ‘reality of the situation... including evidence of de facto segregation”), with Eric Russell's Mot. for Summ. J. (“Russell SJ Mot.”), Doc. 202, at 20 (citing Adarand for the proposition that “while the Equal Protection Clause may sometimes permit the narrow use of ex-press racial classifications to remedy past de jure segregation... it does not permit the freewheeling use of racial classifications as a general rem-edy for perceived social inequities of the sort alleged by the Coalition Plaintiffs[]”). * Likewise, the district court held that this Court's decision in Arthur v. Toledo, 782 F.2d 565 (6th Cir. 1986), foreclosed the Coalition Plaintiffs' argument that Proposal 2 has a discriminatory intent, noting that “the par-ties have cited no authority that undercuts Arthur's precedential applica-tion to a traditional equal protection challenge.” Coalition IV, 539 F. Supp. 2d at 950; see also id. at 952. Only Mr. Russell, and not the Attor ney General, cited Arthur and made this argument in the summary judg-ment briefing. See Russell SJ Mot. at 13-14; Eric Russell's Reply in Support of His Mot. for Summ. J. (“Russell SJ Reply”), Doc. 239, at 7 n.2.[FN25]
FN25. The district court also suggested that the Sixth Circuit “expressed doubts” about Arthur in Buckeye Comm. Hope Foundation v. City of Cuyahoga Falls, 263 F.3d 627, 638 n.2 (2001), rev'd 538 U.S. 188 (2003). See Coalition IV, 539 F. Supp. 2d at 950. Once again, only Mr. Russell, and not the Attorney General, cited and addressed Buckeye in the summary judgment papers. See Russell SJ Mot. at 14-15 n.3; Russell SJ Reply at 7 n.2.
* In concluding that “the demonstration of discriminatory purpose ... vexes the Coalition plaintiffs and dooms their conventional equal protec-tion argument,” the district court “based” its holding “on the evidence presented,” namely the deposition testimony of Ward Connerly that the only way we're going to close this academic gap between black and La-tino on the one hand and Asian and white on the other, is not to keep pa-pering over it with preferences, but to apply the tough love that's neces-sary to get black and Latino students up to the bar.”' Coalition IV, 539 F. Supp. 2d at 952. It was Mr. Russell, not the Attorney General, who brought this exact quote to the court's attention at the summary judgment phase. See Russell SJ Reply at 9-10. * In further rebuffing the Coalition Plaintiffs' argument, the district court stated: “To impugn the motives of 58% of Michigan's electorate, in the absence of extraordinary circumstances which do not exist here, simply is not warranted on this record.” Coalition IV, 539 F. Supp. 2d at 952. This bears a striking resemblance to an argument that can be found only in Mr. Russell's briefing: “To suggest that the only possible motivation for vot-ing in favor of Proposal 2 was invidious discrimination against racial mi-norities would be a vile insult to 58 percent of Michigan's voters.” Rus-sell SJ Mot. at 16.[FN26]
FN26. In discussing the vote over Proposal 2, the court also relied on testimony provided by Mr. Russell's election expert. See id. at 932 (citing Russell Resp. to Cantrell Mot. for Summ. J., Doc. 221-2 (Wilson Decl.)).
* The Attorney General did not submit a reply brief responding to the ar-guments made by the Cantrell and Coalition Plaintiffs, whereas Mr. Rus-sell did submit such a brief-a fact the district explicitly noted in its mer-its opinion but neglected to mention in its opinion dismissing Mr. Rus-sell. See Coalition IV, 539 F. Supp. 2d at 939.
In light of these facts, the district court's statement that Mr. Russell's participation as a defendant in the case was “a mere make-weight that adds nothing of substance to the debate,” Coalition V, 539 F. Supp. 2d at 971, is demonstrably erroneous and, indeed, baffling.
The district court's dismissal of Mr. Russell thus runs directly afoul of this Court's holding in Grutter that minority applicants to the University of Michigan were entitled to intervene to defend the University's use of racial preferences in admissions and financial aid even though the University itself was vigorously de-fending those policies. 188 F.3d at

401. Emphasizing that only a showing of “po-tential for inadequate representation” was necessary, this Court held that the pro-posed intervenors crossed that threshold because they “presented legitimate and reasonable concerns about whether the University will present particular defenses of the contested race-conscious admissions policies.” Id. at 400-01. “[T]he pro-posed intervenors are not required to show that the representation will in fact be inadequate. Indeed, it may be enough to show that the existing party who purports to seek the same outcome will not make all of the prospective intervenor's argu-ments.” Id. at 400. Specifically, this Court “f[ou]nd persuasive [intervenors'] ar-gument that the University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy.” Id. at 401.
Mr. Russell's case for inadequate representation is far more compelling than that of the Grutter intervenors, for he does not merely have “reasonable concerns” that it may be “unlikely” that the Attorney General will present some of Mr. Rus-sell's legal arguments and his factual defense. As demonstrated, it is certain that the Attorney General will not. The Attorney General did not present in his sum-mary judgment briefs several of the arguments made by Mr. Russell-arguments that the district court relied on in upholding Proposal 2. And the Attorney General did not seek fact or expert discovery and would be ill-prepared to put on such evi-dence were this case remanded for trial. It is Defendant-Intervenor Russell alone who is prepared to do this. Incredibly, it is this very fact-that Mr. Russell sought to investigate and counter the factual and expert assertions presented by both sets of Plaintiffs while the Attorney General did not offer such a defense-that the Cantrell Plaintiffs cited to support their motion for summary judgment as to Mr. Russell. Doc 172. at 13.[FN27]
FN27. In a discovery dispute below, the Universities, who supported the Cantrell Plaintiffs' motion for summary judgment as to Mr. Russell, also admitted that “no other party has requested the documents [Mr. Russell] demands.” Doc. 178 at 3, 5, 6.
It is also important to recall that in Grutter this Court accepted the interve-nors' argument that the University of Michigan was “subject to internal and exter-nal institutional pressures that may prevent it from articulating some of the de-fenses...that the proposed intervenors intend to present.” Grutter, 188 F.3d at 400. In particular, the Court observed that the University was unlikely to present evi-dence of its own alleged “past discrimination.” Id at 401. In this case, the “inter-nal and external institutional pressures” preventing Michigan's public defendants from presenting Mr. Russell's factual defense are equally compelling. The factual defense that Mr. Russell alone is prepared to present (were this case to go to trial) likewise implicates past discrimination of the Defendants, but he is also prepared to show that the regimes of racial preferences formerly used by Michigan's public Universities-and which those Universities, in obvious league with the Plaintiffs, have actively defended and sought to resurrect in this very lawsuit-are systemati-cally harming underrepresented minorities now. In other words, Mr. Russell's de-fense of Proposal 2 implicates the current and recent policies and practices of Michigan's public universities, and will show that those universities' policies of racial and gender classifications have systematically injured the very parties they were supposedly designed to help. The “institutional pressures” that prevent Michigan's public officials from contending that Michigan's institutions of higher education have been systematically injuring racial minorities are, if anything, far greater than those that prevented a public admission of past discrimination in Grut-ter.
In short, given that on a motion for summary judgment the underlying sub-stantive law defines what is material-here the minimal burden to show potential inadequacy of representation-and that all reasonable inferences must be drawn in favor of the non-moving party, the district court plainly erred in concluding, on this record, that there was no possibility that the Attorney General would fail to fully and adequately represent Mr. Russell's particular interest, much less that there was no genuine issue of material fact as to this issue.
IV. Mr. Russell Qualifies for Permissive Intervention
Even if this Court finds that the court below was correct in dismissing Mr. Russell as an intervenor of right, Mr. Russell should still be permitted to continue as a party to this case as a permissive intervenor. When Mr. Russell first

sought to enter this case, he moved for both intervention as of right and permissive interven-tion. See Doc. 27 at 10-11. Because the district court granted intervention of right, it did not rule at that time on permissive intervention. The court's later dismissal of Mr. Russell from the case was effectively a delayed denial of his motion to in-tervene permissively. See Coalition II, 473 F.3d at 244 (finding that “the district court's failure to address [Mr. Russell's] meritorious intervention motion... amounted to an effective denial of the motion”) (citing Americans United for Sepa-ration of Church & State v. City of Grand Rapids, 922 F.2d 303, 306 (6th Cir. 1990)). This decision should be reversed.
The district court offered no explanation for denying Mr. Russell's request for permissive intervention, a practice this Court has held to be an abuse of discre-tion that alone necessitates a remand. See Mich. State, 103 F.3d at 1248; Liberte Capital Group, LLC v. Capwill, 126 Fed. Appx. 214, 221 (6th Cir. 2005).
A remand is unnecessary, however, because the record provides ample basis for this Court to hold that Mr. Russell qualifies for permissive intervention. As noted above, the district court found that although Mr. Russell still has “a substan tial legal interest” in this litigation sufficient to satisfy the first prong of Rule 24(a), he “failed to satisfy the impairment element.” See Coalition V, 539 F. Supp. 2d at 969. The same was true of the intervenors in Liberte, 126 Fed. App. at 219, but this Court held that permissive intervention should have been granted because (1) the intervenors presented a question of law or fact in common and (2) the interven-tion would not “result in undue delay or excessive prejudice to the original parties in the case,” id. at 220-21. So too here. Mr. Russell easily satisfies the test for permissive intervention, which is available to “anyone” whose “claim or defense” has “a common question of law or fact” with “the main action.” Fed. R. Civ. P. 24(b). Mr. Russell's interest in nondiscriminatory consideration of his financial-aid application, and his defenses of Proposal 2, obviously have issues of both fact and law in common with the main action. And far from causing undue delay and excessive prejudice, Mr. Russell's participation in the case has served to ensure that issues are fully developed and that arguments and evidence critical to the both the district court's and this Court's prior rulings have been made.[FN28]
FN28. Paradoxically, the Plaintiffs' argued below, and have reiterated in the course of opposing his motion to participate in the merits appeal, that Mr. Russell's continued participation is prejudicial both because (1) he raises issues and arguments separate and apart from those raised by the Attorney General and (2) his participation is duplicative. These dueling propositions serve to underscore the feigned nature of the Plaintiffs' exasperation and to betray the real reason that they seek so urgently to eliminate Mr. Russell from this case. We suggest that Plaintiffs have not expended enormous resources, and consumed substantial time and energy of this Court and the district court, for the purpose of dismissing a “make-weight“ defendant whose “duplicative” arguments could safely be ignored.
CONCLUSION
For the foregoing reasons, the judgment of the district court should be reversed and Mr. Russell should be reinstated as an intervenor in this case.
COALITION TO DEFEND AFFIRMATIVE ACTION, et al., Plaintiffs-Appellees, Chase CANTRELL, et al., Plaintiffs-Appellees, v. THE REGENTS OF THE UNIVERSITY OF MICHIGAN, et al., Defendants-Appellees, Eric RUSSELL, Defendant-Intervenor-Appellant. 2009 WL 1439513 (C.A.6 ) (Appellate Brief )
END OF DOCUMENT

 
 For Opinion See 2011 WL 2600665
United States Court of Appeals, Sixth Circuit.
Chase CANTRELL, et al., Plaintiffs-Appellants, v.
ATTORNEY GENERAL MICHAEL COX, et al., Defendants-Appellees. No. 09-1111. May 15, 2009.
On Appeal from the United States District Court for the Eastern District of Michigan
Brief of Plaintiffs-Appellants
Mark D. Rosenbaum, Counsel of Record, Catherine E. Lhamon, ACLU Foundation of Southern, California, 1313 West Eighth Street, Los Angeles, CA 90017, (213) 977-9500.Laurence H. Tribe, Hauser Hall 420, 1575 Massachusetts Avenue, Cambridge, MA 02138, (617) 495-4621.John Payton, Anurima Bhargava, NAACP Legal Defense &, Educational Fund, Inc., 99 Hudson Street, 16th Floor, New York, NY 10013, (212) 965-2200.Karin A. DeMasi, Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019-7475, (212) 474-1000.Erwin Chemerinsky, University of California, Irvine, School of Law, 401 East Peltason Drive, Suite 1000, Irvine, CA 92697, (949) 824-7722.Kary L. Moss, Michael J. Steinberg, Mark P. Fancher, ACLU Fund of Michigan, 2966 Woodward Avenue, Detroit, MI 48201, (313) 578-6814.Joshua I. Civin, Naacp Legal Defense &, Educational Fund, Inc., 1441 Eye Street, NW, 10th Floor, Washington, DC 20005, (202) 682-1300.Dennis Parker, ACLU Foundation Racial, Justice Program, 125 Broad Street, 18th Floor, New York, NY 10004-2400, (212) 519-7832.John E. Johnson, Detroit Branch NAACP, 8220 Second Avenue, Detroit, MI 48202, (313) 980-0102, Counsel for Plaintifs-Appellants.Jerome R. Watson, Miller, Canfield, Paddock And, Stone, P.L.C., 150 West Jefferson, Suite 2500, Detroit, MI 48226, (313) 963-6420.Daniel P. Tokaji, The Ohio State University, Moritz College of Law, 55 West 12th Avenue, Columbus, OH 43206, (614) 292-6566.
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ... i
TABLE OF AUTHORITIES ... iv
STATEMENT IN SUPPORT OF ORAL ARGUMENT ... v
JURISDICTIONAL STATEMENT ... viii
CITATION FORMS ... ix
STATEMENT OF ISSUE FOR REVIEW ... 1
STATEMENT OF THE CASE ... 1
STATEMENT OF FACTS ... 5
A. The Advent of Proposal 2 ... 5
B. Admissions Before and After Proposal 2 ... 8

C. The Difficulty of Amending Michigan's Constitution ... 11
SUMMARY OF ARGUMENT ... 13 STANDARD OF REVIEW ... 15
ARGUMENT ... 15
A. Proposal 2 Restructures the Political Process by Lodging Decision-making Authority Over the Question of Race-Conscious Admissions at a New and Remote Level of Government ... 18
1. The District Court correctly found that Proposal 2 has a racial focus ... 18
2. The District Court correctly found that the process of amending Michigan's constitution is more onerous than seeking a policy change by lobbying the Universities directly ... 21
B. The District Court, in Granting Summary Judgment for the Attorney General, Relied Upon an Erroneous and Unjustified Distinction Between Actions that Preclude “Equal Protection” and Those that Preclude “Preferential Treatment.” ... 24 1. The District Court's proffered distinction between precluding “preferential treatment” and withholding “equal protection” is inconsistent with the process-based nature of the Hunter/Seattle doctrine ... 24
2. The District Court's profferred distinction between precluding “preferential treatment” and withholding “equal protection” is directly contrary to controlling Supreme Court precedent ... 31 3. The District Court's Distinction between “Preferential Treatment” and “Equal Protection” Undermines the Essential Purpose of the Hunter/Seattle Principle ... 35
CONCLUSION ... 37 TABLE OF AUTHORITIES
ases
Associated General Contractors of California v. San Francisco Unified School District, 616 F.2d 1381 (9th Cir. 1980) ... 32 Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423 (6th Cir. 2008) ... 15
Cmtys. for Equity v. Mich. High Sch. Athletic Ass'n., 459 F.3d 676 (6th Cir. 2006) ... 15 Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006) ... 3
Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) ... 21, 26, 32
Gratz v. Bollinger, 539 U.S. 244 (2003) ... 7 Grutter v. Bollinger, 539 U.S. 306 (2003) ... passim

Hunter v. Erickson, 393 U.S. 385 (1969) ... passim Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970) ... 19 Lenscrafters, Inc. v. Robinson, 403 F.3d 798 (6th Cir. 2005) ... 15 Operation King's Dream v. Connerly, 501 F.3d 584 (6th Cir. 2007) ... 7, 8, 12, 23 Parents Involved in Community Schools v. Seattle School District No. 1, 127 S. Ct. 2738 (2007) 1 ... 4, 31, 33 Romer v. Evans, 517 U.S. 620 (1996) ... 14, 18, 35 United States v. Carolene Prods., 304 U.S. 144 (1938) ... 25, 26 Washington v. Davis, 426 U.S. 229 (1976) ... 24 Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) ... passim Statutes, Rules, Constitutional Provisions U.S. Const. amend. XIV, § 1 ... passim Federal Rule of Civil Procedure 59(e) ... 4 Mich. Comp. Laws §§ 37.2101-.2804 ... 19 Mich. Const. art. I, § 26 ... 8 Mich. Const. art. II, § 9 ... 12 Mich. Const. art. VIII, § 5 ... 5 Other Authorities Vikram D. Amar & Evan H. Caminker, Equal Protection, Unequal Political Burdens, and the CCRI, 23 Hastings Const. L.Q. 1019, 1041 (1996) ... 26 Charles Black, Foreword, “State Action,” Equal Protection, and California's Proposition 14, 81 Harv. L. Rev. 69, 82 (1967-68) ... 26 Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 Cal. L. Rev. 1139, 1148 (2008) ... 29 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 103 (1980) ... 26 Alan Howard and Bruce Howard, The Dilemma of the Voting Rights Act - Recognizing the Emerging Political Equality Norm, 83 Colum. L. Rev. 1615, 1645-46 (1983) ... 26

John E. Nowak & Ronald D. Rotunda, Treatise on Constitutional Law 660 (2008) ... 26

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure and Sixth Circuit Rule 26.1, counsel for Plaintiffs-Appellants certify that no party to this appeal is a subsidiary or affiliate of a publicly owned corporation and no publicly owned corporation that is not a party to this appeal has a financial interest in the outcome. Plaintiffs-Appellants are all individual students and faculty members.

STATEMENT IN SUPPORT OF ORAL ARGUMENT

Pursuant to Federal Rule of Appellate Procedure and Sixth Circuit Rule 34(a), Plaintiffs-Appellants hereby respectfully request oral argument on the present appeal. This appeal raises important issues relating to the Cantrell Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

JURISDICTIONAL STATEMENT
The District Court had subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331. This case arises under Section One of the Fourteenth Amendment to the United States Constitution. The Cantrell Plaintiffs argue that Proposal 06-02, an amendment to Michigan's Constitution, denies them the Equal Protection of Michigan's laws.

The Court of Appeals has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1291. On March 18, 2008, the District Court issued a final order granting summary judgment to the Attorney General and dismissing all claims. On December 11, 2008, the District Court denied Plaintiffs' motion to alter or amend that judgment. On January 12, 2009, Plaintiffs filed a timely notice of appeal with the District Court.

CITATION FORMS

RE Consol. Order
Compl. Johnson Decl. Pls.' SJ Mot. & Ex. Pls.' Russ. Mot. & Ex.
Tr. 3/18/08 Order

#Record Entry Number from the District Court Docket No. 2:06-cv-15637-DML-SDP
Order Consolidating Cases, Granting Attorney General's Motion to Intervene, and Setting Dates, dated January 5, 2007
Cantrell Plaintiffs' First Amended Complaint, dated January 17, 2007
Declaration of Sheldon Johnson in Support of Cantrell Plaintiffs' Motion to Certify Class, dated April 30, 2007
Cantrell Plaintiffs' Motion for Summary Judgment, dated November 30, 2007, with attached exhibits
Cantrell Plaintiffs' Motion for Summary Judgment as to Defendant-Intervenor Eric Russell, dated October 5, 2007, with attached exhibits
Transcript of Dispositive Motions Hearing, held on February 6, 2008
Opinion and Order Granting in Part and Denying in Part University Defendants' Motion to Dismiss, Denying Cantrell Plaintiffs' Motion for Summary Judgment,

Pls.' Mot. Alt. 12/11/08 Order

Granting Attorney General's Motion for Summary Judgment, and Dismissing Cases, dated March 18, 2008
Cantrell Plaintiffs' Motion to Alter or Amend Judgment, dated April 1, 2008
Opinion and Order Denying Cantrell Plaintiffs' Motion to Alter or Amend Judgment, dated December 11, 2008

STATEMENT OF ISSUE FOR REVIEW

Whether the District Court erred in granting the Attorney General's Motion for Summary Judgment by holding that Michigan's Ballot Proposal 06-02, in barring Michigan's public universities from considering race as one factor among many in admissions decisions, did not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, according to principles established in Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), since it burdened racial minorities' efforts to secure “preferential treatment” rather than protection from “unequal treatment” in the normal political process.

STATEMENT OF THE CASE

This appeal seeks to restore to every citizen in Michigan the constitutionally guaranteed right to full political participation. In 2006, a majority of Michigan's voters passed Proposal 06-02 (“Proposal 2“), a state constitutional amendment prohibiting Michigan's public universities from adopting the race-conscious admissions programs upheld by the United States Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003). As a result of that amendment, citizens -who may lobby for the consideration of any other factor in admissions -may no longer lobby for the consideration of race. After Proposal 2, race-conscious admissions programs, which unquestionably inure primarily to the benefit of minority applicants, can only be restored through another constitutional amendment.

To be clear, this appeal does not involve the constitutionality of race-admissions programs. The Supreme Court already has upheld the consideration of race as a single, non-dispositive factor in admissions decisions -and, indeed, has determined that such programs serve the compelling state interest of diversity in Michigan's higher education classrooms. See Grutter, 539 U.S. at 333. While such programs are not constitutionally required, their implementation was the result of a hard-fought battle waged over decades through regular political channels. That outcome is not at issue in this appeal.

Instead, this appeal addresses the constitutionality of requiring only certain citizens -those seeking to lobby their public universities for the consideration of race -to obtain a constitutional amendment in order to be heard. It is this process that the Equal Protection Clause protects by prohibiting the majority of a state's electorate from lodging decision-making authority over racial issues -and racial issues alone -irretrievably in its own hands. As Supreme Court precedent in the Hunter/Seattle line of cases dictates, the Equal Protection Clause prohibits a racially selective restructuring of the political decision-making process in order to “mak[e] it more difficult for certain racial... minorities [than for other members of the community] to achieve legislation that is in their interest.” Hunter, 393 U.S. at 395; accord Seattle, 458 U.S. at 470. The result is the same whether the outcome is labeled “preferential treatment” or “equal protection.”

A related case was previously before this Court, to decide the narrow procedural issue of whether to enforce the entry of a stipulated injunction to delay Proposal 2's effective date until after the 2006-2007 admissions cycle. See Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006).[FN1] On December 29, 2006, this Court refused to enforce that injunction, but made clear it was not addressing the merits of the case. Coal. to Defend Affirmative Action, 473 F.3d at 243 (“Let us be clear that the merits of the appeal... are not before this panel.”). The Cantrell Plaintiffs were not a party to that appeal.

FN1. On November 8, 2006, the day after Proposal 2 was enacted, a collection of interest groups and individuals, led by the Coalition to Defend Affirmative Action, brought suit against the Governor and three of Michigan's public

universities to obtain an injunction against the amendment's enforcement. After the Attorney General moved to intervene, the District Court granted the parties “a measure of relief by entering a stipulated order temporarily enjoining Proposal 2's implementation at Michigan's universities.” (3/18/08 Order, RE #166, at 6.)
On January 17, 2007, the Cantrell Plaintiffs, a group of students, faculty and prospective applicants to Michigan's public universities, filed an Amended Complaint seeking to prohibit Proposal 2's enforcement on the grounds that it violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by impermissibly restructuring Michigan's political process on the basis of race. (See Compl., RE #17, ¶¶ 9-27, 57-58.) On March 18, 2008, the District Court denied the Cantrell Plaintiffs' motion for summary judgment, granted the Attorney General's motion for summary judgment, and dismissed all claims. (3/18/08 Order, RE #166, at 43-51, 55.)[FN2] The District Court found that Proposal 2 indisputably has a racial focus and makes it significantly more difficult for minorities to obtain official action in their interest from the Universities; it nonetheless denied the Cantrell Plaintiffs' Equal Protection challenge “[b]ecause the political restructuring effectuated by Proposal 2 does not... distanc[e] racial minority groups from the means of obtaining equal protection.” (Id at 51.) Instead, according to the District Court, Proposal 2 merely precludes “preferential treatment.” (Id. at 49-50.)
FN2. Although the Cantrell Plaintiffs did not name as defendants the Regents of the University of Michigan, the Board of Trustees of Michigan State University and the Board of Governors of Wayne State University (collectively, the “Universities”), the District Court consolidated the Coalition and Cantrell cases on January 5, 2007, after the Cantrell Plaintiffs filed their initial complaint. (See Consol. Order, RE #12.) The District Court then held that, as “both groups of plaintiffs claim that Proposal 2's impact on admissions amounts to a discriminatory restructuring of the political process,” the Universities were proper parties to the action since “striking down that amendment would not grant the plaintiffs the relief they ultimately seek without action on the universities' part.” (3/18/08 Order, RE #166, at 22.)
Pursuant to Federal Rule of Civil Procedure 59(e), the Cantrell Plaintiffs moved the District Court to alter or amend that judgment on the basis that a distinction between precluding “preferential treatment” and “equal protection” was inconsistent both with the process-based nature of the doctrine established by Hunter v. Erickson and Washington v. Seattle School District No. 1, and with the very holding in Seattle itself. (See Pls.' Mot. Alt., RE #173.) The District Court did not amend its earlier Order (see 12/11/08 Order, RE #178), leading to the present appeal.
STATEMENT OF FACTS
A. The Advent of Proposal 2.
The District Court's opinion sets out the principal facts underlying this litigation. (See 3/18/08 Order, RE #166, at 3-7.) The Universities have long enjoyed autonomy over their admissions policies and procedures. Pursuant to Michigan's Constitution, the Universities are controlled by independent boards. Mich. Const. art. VIII, § 5. Each board enjoys the power of “general supervision of its institutions and the control and direction of all expenditures from the institution's funds.” Id. Generally, the boards have “delegated the responsibility to establish admissions standards, policies and procedures to units within the institutions, including central admissions offices, schools and colleges.” (Pls.' Russ. Mot., RE #102, Ex. I (Univ. Defs.' Resp.) No. 4.)
The Universities typically set their admissions criteria through informal processes. Students, faculty and other individuals have always been “free to lobby the Universities for or against the adoption of particular admissions policies.”[FN3] (Id. No. 7.) In 1992, partially in response to decades of lobbying by African-Americans and other underrepresented minority groups for an admissions policy that would lead to the benefits of student body diversity, the University of Michigan Law School began to consider race as one of many factors in making admissions decisions. (See id. Nos. 8-9; 3/18/08 Order, RE #166, at 3-4, 13.)
FN3. At both the University of Michigan and Wayne State Law Schools, for example, faculty vote on admissions criteria. (See Pls.' SJ Mot., RE #125, Ex. E (Zearfoss Dep.) at 64, 213-14; Ex. F (Wu Dep.) at 190-91.) Individuals, including students, are free to propose changes by meeting with faculty or administrators. (Id, Ex. E (Zearfoss Dep.) at

209-10; Ex. F (Wu Dep.) at 192-93.)
The United States Supreme Court upheld the Law School's admissions policy against constitutional challenge in Grutter v. Bollinger, 539 U.S. 306 (2003). In Grutter, the Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions,” and that the Law School's policy “bears the hallmarks of a narrowly tailored plan.” 539 U.S. at 325, 334. (See 3/18/08 Order, RE #166, at 4.) The Law School evaluated all applicants upon a wide set of criteria, affording “individualized consideration to applicants of all races” while “adequately ensuring] that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions.” Grutter, 539 U.S. at 337.
On the same day Grutter was decided, the Supreme Court invalidated the admissions policy of the University of Michigan's undergraduate college as insufficiently individualized, flexible or holistic in contrast to the Law School's plan and thus in violation of the Equal Protection Clause. See Gratz v. Bollinger, 539 U.S. 244, 275-76 (2003).
Nonetheless, the victorious plaintiff in Gratz, along with others, embarked upon a mission to place a proposal, Proposal 06-02, on Michigan's statewide ballot for November 2006 that would ban the consideration of race and gender in programs for public employment, public contracting and admission to Michigan's public schools and universities. (See 3/18/08 Order, RE #166, at 4.) “The signature-gathering phase of the initiative process generated considerable controversy.” (Id In a prior case, this Court found that “the solicitation and procurement of signatures in support of placing Proposal 2 on the general election ballot was rife with fraud and deception.... By all accounts, Proposal 2 found its way on the ballot through methods that undermine the integrity and fairness of our democratic processes.” Operation King's Dream v. Connerly, 501 F.3d 584, 591 (6th Cir. 2007).
Nevertheless, Proposal 2 remained on the ballot and passed as a state constitutional amendment, receiving 57.9% of the vote. (3/18/08 Order, RE #166, at 5.) “Only three of Michigan's 83 counties rejected the measure; the rest approved it.” (Id.) An exit poll conducted by Edison Research found that 70% of non-white men and 82% of non-white women voted against Proposal 2; African-American voters opposed the measure by the sizable margin of 86% to 14%. (Id. at 6; Pls.' SJ Mot., RE #125, Ex. Oat 1.)[FN4]
FN4. Although the District Court noted that “the reliability of th[is] poll has been questioned,” primarily by Defendant-Intervenor Eric Russell, no contradictory results were introduced into the Record. (3/18/08 Order, RE #166, at 6.)
Proposal 2 amended the state Constitution by adding the following provisions pertinent to this appeal:
“(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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.
(3) For the purposes of this section ‘state’ includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.”
Mich. Const. art. I, § 26. o
B. Admissions Befre and After Proposal 2.
Following Grutter and Gratz, the Universities amended their admissions policies to comply with the Supreme Court's instruction. (See 3/18/08 Order, RE #166, at 13.) Theodore Spencer, Associate Vice-Provost and Director of Undergraduate Admissions at the University of Michigan, testified that Grutter provided a “great road map of what a holistic [and thus permissible] review process should look like.” (Pls.' SJ Mot., RE #125, Ex. D (Spencer Dep.) at 38.) Mr. Spencer explained under

such a holistic approach, decisions were not based on “any one particular factor,” but rather upon a “the composite review of all the information that the student provides.” (Id) Post-Grutter, the University of Michigan's undergraduate admissions officers considered “50 to 80 different categories” in reviewing an application. (Id. at 35.) Along with race and ethnicity, such factors included personal interests and achievements, geographic location, alumni connections, athletic skills, socioeconomic status, family educational background, “overcoming obstacles, work experience [and] any extraordinary awards, both inside the classroom and outside the classroom.” (Id at 34-35.)
After Proposal 2, the Universities could consider any of these factors except for race. “It is the undisputed testimony of university officials that Proposal 2 prohibits them from considering race to any degree.” (3/18/08 Order, RE #166, at 14.) The Universities, however, “continue[] to consider various other non-academic factors,” such as those listed above. (Id.) Thus, the only resulting change to existing policies was the deletion of race as a potential factor in the admissions process. Sarah Zearfoss, Assistant Dean and Director of Admissions for the University of Michigan Law School, testified that “the meat of [the school's admissions] policy is the same... with the exception of race.” (Pls.' SJ Mot., RE #125, Ex. E (Zearfoss Dep.) at 192.) Frank Wu, Dean of the Wayne State University Law School, acknowledged that students “could still offer a variety of viewpoints” about how to shape the school's admissions program, “but it would be futile for them to agitate for the inclusion of race” as a factor. (Id., Ex. F (Wu Dep.) at 193.)
The uncontested evidence in the record below suggests that, as a direct result of Proposal 2, minority student populations will decrease at Michigan's most selective public universities. (See 3/18/08 Order, RE #166, at 14-15.) Citing to the experiences of other states -including California and Texas with similar legal prohibitions on race-conscious admissions, officials for each of the Universities testified that Proposal 2 “will depress minority enrollment,” and called it “impossible” to “achieve the same sort of racial and ethnic diversity” or enroll a “critical mass of underrepresented minorities” without considering race. (Id. at 15; Pls.' SJ Mot, RE #125, Ex. D (Spencer Dep.) at 100-01; Ex. E (Zearfoss Dep.) at 56-57, 193; see also Ex. F (Wu Dep.) at 78-79.) Plaintiffs' witness Jeannie Oakes, Presidential Professor in Educational Equity at UCLA and an expert in the area of students' access to college, declared that “Michigan differs from California and Texas in ways that make it even more unlikely that race-neutral approaches would result in the diversity required at the University of Michiga (3/18/08 Order, RE #166, at 16 (quoting Pls.' SJ Mot, RE #125, Ex. M (Oakes Decl., Ex. 1 at 3-4) (filed under seal).) Indeed, even Ward Connerly, the architect of Proposal 2 and similar measures across the country, freely admitted that, following Proposal 2, “the University of Michigan would be virtually resegregated as the University of California Berkeley and UCLA have” become. (Pls.' SJ Mot., RE #125, Ex. K (Connerly Dep.) at 120.)
C. The Difficulty of Amending Michigan's Constitution.
In contrast to the informal and low-cost method of lobbying University officials to change their admissions policies, the process of amending Michigan's Constitution is “lengthy, complex, difficult and expensive.” (Id, Ex. C (Wilfore Decl.) at 2.) Kristina Wilfore, Executive Director of the Ballot Initiative Strategy Center and an expert in ballot initiative campaigns, testified that a “voter initiative campaign targeted at overturning Proposal 2 “ with regard to considering race in public school admissions “faces overwhelming odds.” (Id. ¶ 39.) Successful campaigns require “connections with a network of supporters, political capital with the major players in the relevant state, and access to significant financial resources.” (Id. ¶12.) A ballot initiative campaign may last three years and can cost as much as $153 million. (Id. ¶11, 25.) Further, the initial stages “can take anywhere from six months to two years of advance work,” and successful proponents “may be forced to spend additional funds to defend the measure from legal challenges after it has already been approved.” (Id, ¶ 15, 23).
In politically competitive Michigan, “with expensive media markets and a large number of initiatives vying for voters' attention on any given ballot,” the amendment process is “particularly onerous, expensive and burdensome when compared to other states.” (Id. ¶¶ 27, 29.) Placing a constitutional amendment on the state ballot requires gathering signatures totaling “not less than eight percent... of the total votes cast for all candidates for governor at the last preceding general election.” Mich. Const. art. II, § 9. As of 2007, “a petition seeking to place an initiative to amend Michigan's Constitution on the next statewide election ballot [would] require more than 380,000 signatures” (Pls.' SJ Mot, RE #125, Ex. A (Cox Resp.) No. 17), if not substantially more than that as any “invalid signatures are eliminated through a v erification process” (Id., Ex. B (Granholm Resp.) No. 24).[FN5] An initiative's early signature-gathering and public-relations phases alone can cost between $5 million and $15 million.

(Id., Ex. C (Wilfore Decl.) ¶¶ 30-31.)
FN5. This signature verification system is meant to combat “fraud and deception.” Connerly, 501 F.3d at 591.
Proponents of initiatives that would benefit minority groups, such as race-conscious admissions policies, face greater obstacles in this process due to the “unique problems associated with pro-affirmative action ballot initiatives and minority protection measures generally,” which do not reduce to “simple messages.” (Id. ¶ 34, 36.) Since “[o]verturning any recently passed measure requires more efforts ... than seeking to approve a new measure,” moreover, “it is extremely unlikely that groups supporting affirmative action would commit any significant resources to a new measure in Michigan.” (Id. ¶8.)
SUMMARY OF ARGUMENT
This appeal raises the question of when a state's selective exclusion of racial issues - and only those issues - from the normal political and administrative agenda denies the equal protection of that state's laws to members of the detrimentally affected racial groups, and thus violates the Fourteenth Amendment of the United States Constitution. The selective exclusion of issues with a racial focus from states' ordinary decision-making processes is governed not by ordinary Equal Protection principles, but by the standards set forth in Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982). “These cases yield a simple but central principle”: A state may not “allocate[] governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decision-making process.” Seattle, 458 U.S. at 469-70. Such selective restructuring of the political process, “by lodging decisionmaking authority over the question at a new and remote level of government,” violates the Equal Protection Clause. Id. at 483.
The Cantrell Plaintiffs respectfully disagree with the District Court on a single point of law: whether there exists a constitutionally grounded distinction between laws that impede minorities' efforts to obtain “equal protection” and those that preclude what the District Court labeled “preferential treatment” as a means to limit the Hunter/Seattle principle. There does not. Any such claimed distinction would eviscerate these holdings, which safeguard a fair political process rather than a particular political outcome. Indeed, an asserted difference between precluding “equal protection” and “preferential treatment” finds no support in either case, or their progeny.[FN6] See, e.g., Romer v. Evans, 517 U.S. 620, 633 (1996) (“A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection in the most literal sense.”)
FN6. Nor can the District Court's ruling be reconciled with the Supreme Court's decisions in Grutter v. Bollinger or Parents Involved in Community Schools v. Seattle School District No. 1, 127 S. Ct. 2738 (2007). (See infra Part B.2.)
Properly applied, the Hunter/Seattle doctrine exposes Proposal 2 as a discriminatory law that suspends the rules of political engagement in Michigan by categorically banning policies primarily benefiting people of color, rendering it functionally impossible for those policies to be restored. Under a Proposal 2 regime, a constitutionally permissible and perfectly legal higher education admissions policy, designed to assemble a broadly diverse “mix of students with varying backgrounds and experiences who will respect and learn from each other,” Grutter, 539 U.S. at 314 (internal quotation marks omitted), must yield to a system, enacted by the majority, that singles out and penalizes those applicants - and solely those applicants - for whom race is inseparable from their personal identities.
STANDARD OF REVIEW
This Court “review[s] de novo the district court's grant of summary judgment Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir. 2008) (citing Lenscrafters, Inc. v. Robinson, 403 F.3d 798, 802 (6th Cir. 2005)). In particular, a state law's constitutionality “is a question of law which this Court reviews de novo.” Id. (citing Cmtys. for Equity v. Mich. High Sch. Athletic Ass'n., 459 F.3d 676, 680 (6th Cir. 2006)).
ARGUMENT

As the District Court recognized, “[t]he lesson of the Hunter/Seattle line of cases is that the [Equal Protection] Clause,” in addition to barring invidious classifications, “protects equal access to the political process against different sorts of discrimination.” (3/18/08 Order, RE #166, at 44.) Precisely like the laws struck down by the Supreme Court in Hunter and Seattle, Proposal 2 violates the Fourteenth Amendment because it “uses the racial nature of an issue to define the governmental decisionmaking structure, and thus imposes substantial and unique burdens on racial minorities.” Seattle, 458 U.S. at 470. In Hunter and Seattle, as in this case, the laws at issue force their targeted policies' primary beneficiaries i.e., citizens of color - to run a “gauntlet” of popular approval that other citizens and laws are spared. See Hunter, 393 U.S. at 390-91.[FN7]
FN7. For a fuller overview of both Hunter and Seattle, the Cantrell Plaintiffs respectfully refer this Court to the District Court's March 18, 2008 Order. (See 3/18/08 Order, RE #166, at 44-47.)
In Hunter, an amendment to the city charter of Akron, Ohio required that all ordinances regulating real estate transactions “on the basis of race, color, religion, national origin or ancestry” be approved by referendum before they could become effective, whereas other ordinances were subject to a r eferendum only in limited circumstances. 393 U.S. at 387, 390. Although the Supreme Court recognized that “the law, on its face, treats Negro and white, Jew and gentile in an identical manner, the reality is that the law's impact falls on the minority” and thus the amendment “place [d] special burdens on racial minorities within the governmental process.” Id. at 391. Because the Fourteenth Amendment forbids states to “disadvantage any particular group by making it more difficult to enact legislation in its behalf,” the Court concluded that the charter amendment constituted “a real, substantial, and invidious denial of the equal protection of the laws.” Id. at 393.
Seattle involved a challenge to “Initiative 350,” a Washington state ballot measure that prohibited any school board from “'directly or indirectly requi-ing] any student to attend a school other than one in the student's neighborhood. 458 U.S. at 462. The amendment's many exceptions, however, effectively allowed for busing for any reason other than to promote racial integration. Accordingly, proponents of integration had to seek relief from the statewide electorate or the legislature, a hurdle that proponents of all other educational policies were spared. Id. Thus, the Supreme Court reasoned that “despite its facial neutrality, there is little doubt that the initiative was effectively drawn for racial purposes,” due to its “adverse effects upon busing for integration,” a policy that “inures primarily to the benefit of the minority” student community. Id. at 471-72 (internal quotation marks omitted); see also id. at 474 (“[T]he practical effect of Initiative 350 is to work a reallocation of power of the kind condemned in Hunter.”). Since Initiative 350 “remove[d] the authority to address a racial problem - and only a racial problem - from the existing decisionmaking body in such a way as to burden minority interests,” the state constitutional amendment violated the Equal Protection Clause. Id. at 474.
In both cases, the Court looked no further than (1) whether the law in question had a “racial focus,” and (2) whether it required those championing legislation “inur[ing] primarily to the benefit of the minority” to “surmount a considerably higher hurdle than [those] seeking comparable legislative action.”[FN8] Seattle, 458 U.S. at 470-74; see also Hunter, 393 U.S. at 390-91; Romer, 517 U.S. at 632 (applying Hunter and Seattle to invalidate a state constitutional amendment that “impos[ed] a broad and undifferentiated disability on a single named group”). Although the District Court correctly found that Proposal 2 satisfies both of these conditions, as discussed below, the District Court added a third and highly circular element: that, to violate the Equal Protection Clause, the political restructuring at issue must “distanc [e] racial minority groups from the means of obtaining equal protection.” (3/18/08 Order, RE #166, at 51.) Since this added condition finds no support in controlling precedent, and since Proposal 2 runs afoul of both traditional prongs of the Hunter/Seattle test, the Cantrell Plaintiffs have made out a prima facie Equal Protection violation. Thus, the District Court's grant of Summary Judgment for the Attorney General must be reversed.
FN8. In the words of the Attorney General: “In order for the Plaintiffs to prevail on this Hunter claim, they must establish essentially two elements.” (Tr., RE #165, at 5-6.)
A. Proposal 2 Restructures the Political Process by Lodging Decision-making Authority Over the Question of Race-Conscious Admissions at a New and Remote Level of Government.

1. The District Court correctly found that Proposal 2 has a racial focus.
As the District Court correctly found, “there can be no question that Proposal 2 has a racial focus.” (3/18/08 Order, RE #166, at 47.) For a challenged enactment to have a racial focus, “it is enough that minorities may consider [the subject matter] to be ‘legislation that is in their interest’ and that “inure[s] primarily to the[ir] benefit” Seattle, 458 U.S. at 472-74 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)). Laws that are “effectively drawn for racial purposes” will also be deemed to have a racial focus. Seattle, 458 U.S. at 471 (striking down initiative that was “carefully tailored to interfere only with desegregative busing”); see also Hunter, 393 U.S. at 395 (invalidating law that had “the clear purpose of making it more difficult for certain racial and religious minorities” to further their political aims); Lee v. Nyquist, 318 F. Supp. 710, 718 (W.D.N.Y. 1970) (finding unconstitutional a law that was “destined to bring an end to New York's strong prointegration policy”), aff'd, 402 U.S. 935 (1971).
Here, Proposal 2's ban on “grant[ing] preferential treatment to[] any individual or group on the basis of race” could only have been designed to eliminate race-conscious admissions policies, which inure primarily to the benefit of applicants of color. (See 3/18/08 Order, RE #166, at 47.) Notably, Proposal 2's so-called “anti-discrimination” provisions are superfluous in light of existing statutory law, as Michigan has had strong anti-discrimination measures in effect for over thirty years. See Elliot-Larsen Civil Rights Act of 1976, as amended, Mich. Comp. Laws §§ 37.2101-.2804.
Furthermore, communities of color have long considered race-conscious admissions policies to be in their interest. Beginning in the 1960s, “African Americans and other underrepresented minorities,” among others, “lobbied for the adoption of admissions policies [which] allowed for the consideration of race” and “sought to increase minority presence at the Universities.” (Pls' Russ. Mot, RE #102, Ex. I (Univ. Defs. Resp.) Nos. 8, 9). Since that time, race-conscious admissions policies have maintained their critical importance to underrepresented communities. One of the Cantrell Plaintiffs, for example, has declared that he “would not have applied to the University of Michigan” had Proposal 2 been in effect when he was a senior in high school “because [he] had no desire to go to a school that lacked a critical mass of students of color.” (Johnson Decl., RE #53,2.) An exit poll conducted by Edison Research found that 70% of non-white men and 82% of non-white women voted against Proposal 2, as did 86% of African-American voters. (Pls.' SJ Mot., RE #125, Ex. O at 1.) Representatives of each of the Universities, moreover, testified that the amendment “will depress minority enrollment.”[FN9] (See 3/18/08 Order, RE #166, at 15; Pls.' SJ Mot., RE #125, Ex. D (Spencer Dep.) at 100-01; Ex. E (Zearfoss Dep.) at 56-57, 193; Ex. F (Wu Dep.) at 78-79.)
FN9. Drawing on experiences with similar laws in California and Texas, uncontested expert testimony in the Record establishes that race-neutral policies such as “percent plans” or using socioeconomic status will not achieve racial diversity to nearly the same extent as race-conscious policies, sharpening Proposal 2's negative impact on minority enrollment. (See Pls.' SJ Mot., RE #125, Ex. L (Bowen Decl.); see also 3/18/08 Order, RE #166, at 14-17.)
Fairly examined, Proposal 2 lacks any purpose in the area of higher education other than to eliminate and prevent constitutionally permissible race-conscious admissions policies.[FN10] Indeed, Proposal 2 was “characterized by the Michigan Attorney General at oral argument in this case as an anti-affirmative action measure.” (3/18/08 Order at 4; see Tr., RE #165, at 15-16.) The ballot argument drafted by the proponents of Proposal 2 flatly stated that race-conscious affirmative action “practices are WRONG and it is time that we got rid of them.” (Pls.' SJ. Mot., RE #125, Ex. P (2006 Voter Guide) at 30.) One such listed practice, inaccurate in light of the Supreme Court's decisions in Grutter and Gratz, was awarding “extra points in college admissions.” (Id.)
FN10. “To that extent, the related argument that racial minorities plus women constitute a majority of the population, and therefore Proposal 2 does not discriminate against minorities, likewise borders on nonsense.” (3/18/08 Order, RE #166, at 47-48 (citing the Ninth Circuit's rejection of this premise in Coalition for Economic Equity v. Wilson, 122 F.3d 692, 705 (9th Cir. 1997).)
2. The District Court correctly found that the process of amending Michigan's constitution is more onerous than seeking a policy change by lobbying the Universities directly.

The Cantrell Plaintiffs also agree with the District Court's conclusion “that Proposal 2 makes it more difficult for minorities to obtain official action that is in their interest.” (3/18/08 Order, RE #166, at 49.) Prior to Proposal 2's effective date, proponents of affirmative action could, and successfully did, lobby University officials to adopt race-conscious admissions programs. Proposal 2 leaves the Universities' admissions processes unaltered, with the critical and intentional exception that they no longer are free to maintain or adopt policies that include the consideration of an applicant's race. By denying racial minorities the “right to ask university officials to take into consideration certain [i.e., racial] factors when they decide how to constitute an admissions class” (id.), Proposal 2 surgically removes race-conscious admissions policies from the ordinary political process, effectively silencing their proponents. By contrast, Proposal 2 in no way affects the ability of students or other individuals to lobby for the Universities to consider any other factor in the admissions process.
Not only did Proposal 2 require the Universities to end their race-conscious admissions policies, but it also makes it difficult, if not impossible, for proponents to restore these policies in the future. Hence, like the charter amendment in Hunter and the constitutional amendments in Seattle and Romer, Proposal 2 places decision-making over an issue primarily benefiting a minority group “at a new and remote level of government.” Seattle, 458 U.S. at 483. With Proposal 2 in effect, groups that would like to see race-conscious admission programs implemented must lobby the entire voting population of Michigan to enact a constitutional amendment - in the unlikely event that the majority would soon reverse course. Since persuading an entire electorate is far more onerous than seeking a policy change by lobbying University admissions officers, an avenue which remains open for all non-racial issues, minorities face a “considerably higher hurdle than [those] seeking comparable legislative action.” Seattle, 458 U.S. at 474.
As discussed above, a “voter initiative campaign targeted at overturning Proposal 2“ with regard to considering race in public school admissions “faces overwhelming odds.” (Pls.' SJ Mot., RE #125, Ex. C (Wilfore Decl.¶39.) The process of amending Michigan's Constitution is “lengthy, complex, difficult and expensive.” (Id. at 2.) In Michigan, “with expensive media markets and a particularly large number of initiatives vying for voters' attention on any given ballot,” the amendment process is “particularly onerous, expensive and burdensome when compared to other states,” and can take many years and cost many millions of dollars. (Id. ¶¶11, 25, 29.) Given the difficulty in overturning any recently passed measure, let alone one that “found its way on the ballot through methods that undermine the integrity and fairness of our democratic processes,” Connerly, 501 F.3d at 591, “it is extremely unlikely that groups supporting affirmative action would commit any significant resources to a new measure in Michigan” (Pls.' SJ Mot., RE #125, Ex. C (Wilfore Decl.)38).
B. The District Court, in Granting Summary Judgment for the Attorney General, Relied Upon an Erroneous and Unjustified Distinction Between Actions that Preclude “Equal Protection” and Those that Preclude “Preferential
Treatment.”
A single issue stands between the Cantrell Plaintiffs and full agreement with the District Court: namely, the District Court's view that the Hunter/Seattle principle admits of a distinction “between laws that protect against unequal treatment on the basis of race and those that seek advantageous treatment on the basis of race.” (3/18/08 Order, RE #166, at 49.) The District Court's purported distinction is incompatible with the Hunter/Seattle principle, which constitutionally protects a fair political process, as opposed to any particular political outcome. Nothing in either case endorses the claimed exception to the rule. In fact, had this “exception” been recognized after Hunter, the Supreme Court would have decided Seattle differently.
1. The District Court's proffered distinction between precluding “preferential treatment” and withholding “equal protection” is inconsistent with the process-based nature of the Hunter/Seattle doctrine.
Ordinarily, a court will not subject a law to heightened scrutiny absent a suspect classification or proof of racially discriminatory intent. See, e.g., Washington v. Davis, 426 U.S. 229, 239-41 (1976). As the District Court correctly noted, however, “[t]he lesson of the Hunter/Seattle line of cases is that the [Equal Protection] Clause also protects equal access to the political process against different sorts of discrimination.” (3/18/08 Order, RE #166, at 44 (emphasis added).) In these cases, a conventional Equal Protection analysis would be misplaced. Indeed, “the idea that a political restructuring claim must be based on

purposeful discrimination finds no support in the cases.” (3/18/08 Order, RE #166, at 48.) As discussed previously, Hunter and Seattle require only that the challenged law have a “racial focus,” in that it excludes from the ordinary political process issues that are obviously of special relevance to members of a particular racial group.
The immateriality of the “discriminatory purpose” requirement flows directly from the process-based injury that the Hunter/Seattle line of cases is designed to remedy. When a law carves out from the ordinary political process issues of special pertinence to racial minorities, then the law wears its procedural flaws on its face. See Seattle, 458 U.S. at 485 (“[L]egislation of the kind challenged in Hunter... falls into an inherently suspect category.”) Because such legislation “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938), one of the bedrock justifications for heightened judicial inquiry applies. Thus, the Hunter/Seattle doctrine is at heart an application of the core Fourteenth Amendment principle that state laws skewing the political process against a particular racial group warrant suspicion.[FN11]
FN11. The process-based nature of the Hunter/Seattle principle is universally recognized by both courts and scholars. See, e.g., Seattle, 458 U.S. at 485-86 (reaffirming that judicial deference is inappropriate when legislation ‘curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities' (quoting Carolene Prods., 304 U.S. at 152 n.4)); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 103 (1980) (justifying heightened judicial scrutiny when “the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out”); Vikram D. Amar & Evan H. Caminker, Equal Protection, Unequal Political Burdens, and the CCRI, 23 Hastings Const. L.Q. 1019, 1041 (1996) (“Hunter and Seattle reflect what might be called a ‘political process' concern embedded within equal protection jurisprudence.”); Alan Howard and Bruce Howard, The Dilemma of the Voting Rights Act ‘ecognizing the Emerging Political Equality Norm, 83 Colum. L. Rev. 1615, 1645-46 (1983) (“The majority in Seattle School District embraced the [notion] that states must structure their political institutions according to what the [Hunter] Court called neutral principles that provid[e] a just framework within which the diverse political groups in the society may fairly compete.” (internal quotation marks omitted)); 3 John E. Nowak & Ronald D. Rotunda, Treatise on Constitutional Law 473 (4th ed. 2008) (“A state may not place ‘in the way of the racial minority's attaining its political goal any barriers which, within the state's political system taken as a whole, are especially difficult of surmounting, by comparison with those barriers that normally stand in the way of those who wish to use political processes to get what they want.” (quoting Charles Black, Foreword, “State Action,” Equal Protection, and California's Proposition 14, 81 Harv. L. Rev. 69, 82 (1967-68))).
By insisting that the Hunter/Seattle doctrine applies only to laws that impede efforts to obtain “equal protection” in the form of protection from discrimination, the District Court has erroneously imposed an outcome-based limitation on a process-based right. In particular, the District Court's adherence to the Ninth Circuit's rationale in Coalition for Economic Equity v. Wilson, 122 F.3d 692, 707 (9th Cir. 1997), that to be unconstitutional a political restructuring must “burden[] an individual's right to equal treatment,” fundamentally mistakes the kind of injury against which Hunter and Seattle protect. (See 3/18/08 Order, RE #166, at 50.) To be sure, after hearing all sides of the debate, the Universities could themselves have chosen to modify or repeal their race-conscious admissions programs and not faced a constitutional challenge; if they had done so prior to Proposal 2's enactment, the disaffected groups would have redoubled their efforts to lobby University officials for the policies' return. “That, after all, is how race-conscious admissions programs developed in the first place.” (Id. at 49.) Being deprived on racial grounds of an opportunity to take part in this normal political process is itself a denial of equal treatment, regardless of what outcome the process might produce. Imposing such a “special burden[] on racial minorities within the governmental process.... is no more permissible than denying them the vote, on an equal basis with others.” Hunter, 393 U.S. at 391.
Conversely, the Supreme Court has acknowledged that not all laws structuring political institutions or allocating political power “are subject to equal protection attack,” even though they may make it more difficult “‘for minorities to achieve favorable legislation.”’ Seattle, 458 U.S. at 470 (quoting Hunter, 393 U.S. at 394). A state may place the same obstacles in the path of everyone seeking the benefits of governmental action, such as an executive veto or a referendum requirement; equal protection concerns arise only “when the state allocates government power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.” Id. at 470. Again, this rationale is process -rather than outcome - based.

An example makes clear the error in the District Court's logic. Suppose, for instance, that the voters of Michigan approve an amendment to the state Constitution barring any public university from offering courses in African-American history. Under the District Court's reasoning, such an amendment would not implicate the Hunter/Seattle principle, because the prohibited courses would not themselves have protected any person from discrimination on the basis of race. Indeed, given a university's limited teaching resources, offering specialized courses in African-American history might well be regarded as a form of “preferential treatment,” because no university can afford to offer courses in every form of history desired by its student body. Still, since university officials would remain free to consider requests for any other specialized courses except those of unique relevance to African-American students, such a racially focused exclusion would deprive those students of an equal chance to lobby for their curricular interests, thus violating the Equal Protection Clause under Hunter and Seattle.[FN12]
FN12. Although this illustration may sound far-fetched, it is precisely this type of ill conceived and racially focused state action that the continuing presence of the Hunter/Seattle doctrine prevents.
Likewise, Proposal 2 deprives students with a particular interest in race-conscious admissions from lobbying -as every other student may - for the Universities to allow consideration of one of the most significant aspects of their applications. This is particularly acute for many applicants of color, for whom racial identity may well be the most essential component of how they view themselves and what they might bring to a university seeking a genuinely diverse student enrollment. See Grutter, 539 U.S. at 333 (“Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.”); Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 Cal. L. Rev. 1139, 1148 (2008) (“The problem is compounded by the fact that the life story of many people -particularly with regard to describing disadvantage -simply does not make sense without reference to race.”). In the words of one Plaintiff: “Being a black American is one of the most important ways in which I view myself, along with being my parent's son [and] being a Christian.” (Pls.' SJ Mot., RE #125, Ex. G (Johnson Decl.) .)
If children of alumni, oboe players, track stars and residents of Michigan's Upper Peninsula are all, within the four corners of their applications, permitted to press their arguments to University administrators that these characteristics are educationally valuable and thus worthy of consideration in the admissions process, then racial minorities must be given the same chance. To hold otherwise on the ground that affirmative action affords “preferential treatment” squarely misses the point of Hunter, Seattle, Romer and the like. The injury imposed by Proposal 2 is not that Proposal 2 repeals Michigan's affirmative action programs. Rather, the injury is that Proposal 2 prospectively bars University officials from giving equal - indeed, any access in the political process to racial minorities for purposes of considering their unique interests, thereby depriving those minorities of a level playing field. Unlike all other citizens, who may continue to advocate admissions policies that advance their own interests, “any individual or group who believes that any of the Universities should restore its prior admissions policies and their use of race” may now express this belief “only by seeking a state constitutional amendment.” (Plss.' SJ Mot, RE #125, Ex. B (Granholm Resp.) No. 21.)
2. The District Court's profferred distinction between precluding “preferential treatment” and withholding “equal protection” is directly contrary to controlling Supreme Court precedent.
The District Court's distinction between barring “preferential treatment” and denying “equal protection” likewise breaks impermissibly with controlling precedent. In upholding Proposal 2, the District Court relied on the fact that “the Supreme Court has never held that affirmative action is required.” (12/11/08 Order, RE #178, at 6.) With all due respect to the District Court, that misses the point. Indeed, the amendment barring the voluntary integrative busing program at issue in Seattle violated the Equal Protection Clause even though, like here, the program was not constitutionally required.
In Seattle, the Supreme Court struck down a statewide initiative which banned an inter-district busing program aimed at integrating Seattle's elementary and secondary schools. The Court did so even though the busing program was not constitutionally mandated to remedy prior intentional discrimination, and thus ensure what the District Court in this case labeled “equal treatment.” See 458 U.S. at 461-64; see also Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2752, 2768 (2007) (noting that the Seattle School District was “never segregated by law nor subject to court-ordered desegregation,”

and thus “the remedial justification for racial classifications cannot decide these cases”).
As such, the District Court's reliance upon the Ninth Circuit's 1997 opinion in Coalition for Economic Equity, upholding a statewide California ballot initiative similar to Proposal 2, does not provide any coherent basis upon which to distinguish the voluntary busing program in Seattle from the affirmative action programs at issue here. Attempting to distinguish Proposal 2 from Initiative 350 in Seattle, the District Court repeats the Ninth Circuit's statement that “[u]nlike racial preference programs, school desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights.” Coalition for Economic Equity, 122 F.3d at 708 n.16. But the Supreme Court's decisions in Grutter and Parents Involved both of which postdate the Ninth Circuit's opinion defeat this assertion here.[FN13] Grutter established that “racial preference programs” such as race-conscious admissions policies are not always inherently invidious, 539 U.S. at 334-45, and do not work wholly to the benefit of certain members of one group, Id at 328-32, but instead may benefit the entire student body and the community at large. Further, Parents Involved held that K-12 school desegregation programs that prejudice individual students on the basis of their race can sometimes impose injury and thereby deprive citizens of rights.[FN14] See 127 S. Ct. at 2751.
FN13. The Ninth Circuit's conclusion was supported only by a citation to Associated General Contractors of California v. San Francisco Unified School District, 616 F.2d 1381, 1387 (9th Cir. 1980), a case that concerned neither university admissions nor student busing. In Associated General Contractors, the court stated in dicta that busing remedies for de jure segregation were more defensible than the racial-quota system of public contracting then under consideration. Even assuming this to be true, Associated General Contractors was decided before Seattle, which struck down a ban on inter-district busing remedying purely de facto segregation. That case therefore provides no basis for distinguishing between Proposal 2 and Seattle's Initiative 350.
FN14. As a result, the District Court's assertion that “these decisions do not change the fact that affirmative action programs not mandated by the obligation to cure past discrimination are fundamentally different than laws intended to protect against discrimination” likewise misses the point. (3/18/08 Order, RE #166, at 50.)
Thus, there is no plausible way to distinguish Washington's unconstitutional anti-integrative busing initiative from Michigan's Proposal 2 on the ground that the latter prohibits access to mere “preferential treatment” while the former stood in the way of obtaining “equal protection.” Significantly, no other court has adopted this novel distinction, and Seattle which unlike Coalition for Economic Equality, is binding authority plainly rejects it.
Sidestepping this issue in denying the Cantrell Plaintiffs' Motion to Alter or Amend Judgment (Pls.' Mot. Alt, RE #173), the District Court offered no principled basis for its refusal to apply the Hunter/Seattle principle to Proposal 2, other than to assert that “[t]he initiative in Seattle is still fundamentally different than Proposal 2 in that racial integration programs do not presumptively offend the Equal Protection Clause, whereas affirmative action programs might.” (12/11/08 Order, RE #178, at 5.) Yet, as noted above, the Supreme Court has already turned this formulation on its head. In Grutter, the Court upheld the very higher education admissions programs since banned by Proposal 2, thus making clear that the relevant “affirmative action programs” not only do not offend the Equal Protection Clause, but serve the compelling state interest of diversity in higher education. In Parents Involved, conversely, the Court struck down a so-called “racial integration program” as constituted in that case for offending the Equal Protection Clause not just presumptively, but in fact.
Indeed, the District Court acknowledged the Cantrell Plaintiffs “ma[de] a fair point,” namely that “the Court in Seattle did not (and could not) rely on the notion that the restructuring at issue impeded efforts to secure equal treatment.” (12/11/08 Order, RE #178, at 5.) The inexorable conclusion, surely suggested in Parents Involved, is that consideration of the race of individual students in Seattle's voluntary busing program afforded “preferential treatment.” By failing to recognize the similarity of the busing program at issue in Seattle to the Universities' race-conscious admissions programs at issue here, the District Court, as did the Ninth Circuit, impermissibly ignored Seattle's dictates and effectively dislodged its holding from that of Hunter. While the Ninth Circuit's error may not have been apparent when Coalition for Educational Equity was decided in 1997, Parents Involved and Grutter now compel a contrary conclusion.

3. The District Court's Distinction between “Preferential Treatment” and “Equal Protection” Undermines the Essential Purpose of the Hunter/Seattle Principle.
The Hunter/Seattle principle is a bedrock Fourteenth Amendment doctrine never modified, or even re-examined, by the Supreme Court. The distinction invoked by the District Court to uphold Proposal 2 is factually and doctrinally unsound, and usurps the principle's essential purpose of preserving racial minorities' access to the political process. In the context of university admissions, labeling consideration of race to be “preferential treatment” rests on the faulty assumption that applicants' unique race-based experiences are somehow less educationally relevant than the myriad other qualitative traits that the universities are free to consider.
In rejecting the Colorado Attorney General's argument in Romer that a state constitutional amendment banning measures protecting gays and lesbians was permissible because the amendment denied merely “special rights,” the Supreme Court stated: “We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them....” 517 U.S. at 631. The same may be said of the ability to identify all of one's most pertinent characteristics -including race -in a college or law school application. Once an artificial distinction between denying “equal protection” and “preferential treatment” is honored, therefore, there is no defensible stopping point.
Thus, following established precedent, this Court should hold that when a constitutional amendment bars a state's ordinary political and administrative process from addressing a discrete category of issues primarily benefiting racial minorities, instead predicating any discussion of those issues upon a direct majority vote, such an amendment falls squarely within the Hunter/Seattle principle and violates the Equal Protection Clause.
CONCLUSION
For the foregoing reasons, the Cantrell Plaintiffs request that the Court of Appeals reverse the District Court's grant of summary judgment, and invalidate Michigan's Proposal 06-02, pursuant to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as applied to the consideration of race in admissions to Michigan's public universities.
Appendix not available.
Chase CANTRELL, et al., Plaintiffs-Appellants, v. ATTORNEY GENERAL MICHAEL COX, et al., Defendants-Appellees. 2009 WL 1456909 (C.A.6 ) (Appellate Brief )
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 2009 WL 1581786 (C.A.6)

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For Opinion See 2011 WL 2600665
United States Court of Appeals, Sixth Circuit.
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (Bamn), et al., Plaintiffs-Appellants, v.
REGENTS OF THE UNIVERSITY OF MICHIGAN, et al., Defendants-Appellees. andMICHAEL COX, Michigan Attorney General, Intervenor-Appellee., Nos. 08-1387, 08-1534. June 2, 2009.
On Appeal from the United States District Court for the Eastern District of Michigan at Detroit Oral Argument Requested
Appellants-Cross-Appellees' First Brief
George Boyer Washington, Shanta Driver, Scheff, Washington & Driver, P.C., 645 Griswold, Suite 1817, Detroit, MI 48226-0000, (313) 963-1921, Counsel for Appellants Coalition to Defend, Affirmative Action, Integration and Immigrant, Rights and Fight for Equality by Any Means, Necessary (BAMN), et al.
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ... i
TABLE OF AUTHORITIES ... v
STATEMENT IN SUPPORT OF ORAL ARGUMENT ... viii
JURISDICTIONAL STATEMENT ... 1
STATEMENT OF THE ISSUES FOR REVIEW ... 1
STATEMENT OF THE CASE ... 2
STATEMENT OF FACTS ... 7
A. The “preferences/non-discrimination“ distinction used by the district court is false to the core ... 7
B. As Grutter recognized, affirmative action is, in some circumstances, essential today in order to ensure a racially-integrated student body ... 12
C. Proposal 2's attack on affirmative action requires an attack on the democratic rights of racial minorities ... 17
D. The oppression of the minority by the majority ... 22
SUMMARY OF ARGUMENT ... 23

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STANDARD OF REVIEW ... 26
ARGUMENT ... 27
I PROPOSAL 2 VIOLATES THE EQUAL PROTECTION CLAUSE BY DEPRIVING BLACK, LATINO, AND NATIVE AMERICAN RESIDENTS OF AN EQUAL POLITICAL PROCEDURE FOR SECURING ADMISSION AND OTHER ACADEMIC STANDARDS THAT FURTHER THEIR ADMISSION TO PUBLIC UNIVERSITIES ... 27
A. The Supreme Court has repeatedly held that a referendum may not be used to deprive racial minorities of an equal political procedure to secure action on measures designed to combat prejudice ... 27
B. The district court erred as a matter of law by sustaining an unequal political procedure based on its belief that the substantive demands of the minority were purportedly seeking a “preference” or “advantage.” ... 31
C. The district court's decision defies the Supreme Court's decision in Grutter ... 3
D. The district court's decision and, even more, the appellate court opinions on which it is based, have approved a radical and dangerous state's rights revision of the Equal Protection Clause ... 40
II PROPOSAL 2 VIOLATES THE EQUAL PROTECTION CLAUSE BY MANDATING DIFFERENT ADMISSION AND EDUCATIONAL POLICIES FOR BLACK, LATINO, AND NATIVE AMERICAN STUDENTS ... 44
A. The Court must look behind the words of Proposal 2 by evaluating in light of the reality of higher education today ... 44
B. Proposal 2 mandates different policies for the admission of minority students than are required for other categories of students ... 46
C. The district court erred as a matter of law in failing to recognize the invidious racial purpose of Proposal 2 ... 50
III PROPOSAL 2'S BAN ON GENDER BASED AFFIRMATIVE ACTION VIOLATES THE EQUAL PROTECTION CLAUSE IN THE SAME WAYS THAT ITS BAN ON RACE-BASED AFFIRMATIVE ACTION VIOLATES THAT CLAUSE ... 55
CONCLUSION AND RELIEF REQUESTED ... 57
CERTIFICATE OF COMPLIANCE ... 59
CERTIFICATE OF SERVICE ... 60
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS ... 61
TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v Pena, 515 U.S. 200 (1995) ... 37

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Arthur v Toledo, 782 F.2d 565 (6th Cir. 1986) ... 51, 55 Brown v Board of Education, 347 U.S. 483 (1954) ... 7, 23, 31, 45 Buckeye Comm. Hope Foundation v City of Cuyahoga Falls, 263 F.3d 627 (2001), rev'd on other grounds 538 U.S. 188 (2003) ... 51 Cherry Hill Vineyards LLC v. Lilly, 553 F. 3d 423 (6th Cir. 2008) ... 26 Civil Rights Cases, 109 U.S. 3(1883) ... 35 Coal for Econ Equity v. Wilson, 122 F. 3d 692 (9th Cir.1997), cert. den. 521 U.S. 963 (1997) ... 30, 39, 44 Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480 (N.D. Cal. 1996), rev'd on other grounds, 122 F. 3d 692 (9th Cir.1997), cert. den. 521 U.S. 963 (1997) ... 22 Coal. To Defend Affirmative Action v. Granholm, 473 F. 3d 237 (6th Cir. 2006) ... 4, 5, 31 Committee for Equity v. Michigan High Sch. Athletic Ass'n., 459 F. 3d 676 (6th Cir. 2006) ... 26 Coral Const. Inc v City and County of San Francisco, 57 Cal. Reptr. 3d 781 (2007)), review granted and opinion superceded 65 Cal. Reptr. 3d 761 (2007) ... 39, 40 Crawford v Board of Educ. of City of Los Angeles, 458 U.S. 527 (1982) ... 54 Grutter v Bollinger, 539 U.S 306 (2003) ... passim Hunter v. Erickson, 393 U.S.385 (1969) ... passim Mississippi Univ. for Women v. Hogan, 458 U.S. 718(2004) ... 56 Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S. Ct. 2738 (2007) ... 42 Personnel Administrator of Massachusetts vFeeney, 442 U.S. 256 (1979) ... 53 Plessy v Ferguson, 163 U.S. 537 (1896) ... 43, 45 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) ... 11, 36, 46 Romer v Evans, 517 U.S. 620 (1996) ... passim Sweatt v Painter, 339 U.S. 629 (1950) ... 38 Village of Arlington Heights v Metropolitan Housing Development Corporation, 429 US 252 (1977) ... 51, 52 Washington v Seattle School District No. 1, 458 U.S. 457 (1977) ... passim

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Constitutional Provisions Mich. Const. of 1850 ... 7 Const. of 1850, art.13, sec. 8 ... 7 Mich. Const. 1963, art. 1, sec. 26 ... 1 Const. 1963, art. 1, sec 26(1) ... 18 Const. 1963, art. 1, sec 26(6) ... 18 U.S. Const. amend. XIV ... passim assim Equal Protection Clause ... p Statutes 28 U.S.C. s. 1331 ... 1 28 U.S.C. s. 1343(3) ... 1 Civil Rights Act of 1866 ... 34 Civil Rights Act of 1964 ... 35 Freedman's Act ... 34 MCL 37.2801 ... 18 Proposition 209 ... passim Other Authorities 110 Cong. Rec. 13150 (1964) ... 35 Connerly, Ward, Creating Equality ... 48 Foner, Eric, Reconstruction: America's Unfinished Revolution (1988) ... 34 Obama, Barack, Dreams of My Father ... 47 http://miboecfr.nictusa.com/cgi-bin/cfr/precinct_srch_res.cgi ... 23 Michigan Proposal 06-02, now Const. 1963, art. 1, sec. 26 ... passim

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www.acri.org (chairman.html) ... 21
www.ag.ca.gov/newsalerts/release (4/23/2009) ... 39
CORPORATE DISCLOSURE STATEMENT
Pursuant to the Federal Rules of Appellate Procedure and Sixth Circuit Rule 26.1, counsel for the plaintiff-appellants certifies that no party to this appeal is a subsidiary or affiliate of a publicly-owned corporation and no publicly-owned corporation that is not a party to this appeal has a financial interest in the outcome. The plaintiff-appellants are either individual students or prospective students, voluntary unincorporated associations, or non-profit corporations.
STATEMENT IN SUPPORT OF ORAL ARGUMENT
The Coalition plaintiff-appellants request oral argument in this case because Michigan Proposal 2's ban on affirmative action programs in Michigan raises an issue of profound importance to Michigan and to the nation. It has now prevented public bodies from adopting or minority residents and their supporters from fighting for the exact programs approved by this Circuit in an en banc decision and by the United States Supreme Court in Grutter v Bollinger, 539 U.S 306 (2003).
A Ninth Circuit panel approved California's Proposition 209, from which Proposal 2 was copied, before Grutter had reestablished the legality of affirmative action in higher education and before the disastrous effects of Proposition 209 on minority enrollment in California's most selective public universities had become clear. Coal for Econ Equity v. Wilson, 122 F. 3d 692, 708 (9t1 cert. den. 521 U.S. 963, 1141 (1997). In a situation where clarification of the basic law was clearly needed from the Supreme Court, five judges on the Ninth Circuit nevertheless dissented from the decision denying en banc hearing and expressed the view that Proposition 209 violated the Equal Protection Clause. Id., at 711718.
The issues presented are of fundamental importance and this Court should grant oral argument on the case.
JURISDICTIONAL STATEMENT
The district court had subject matter jurisdiction over this case under 28 U.S.C. ss. 1331 and 1343(3). The plaintiff-appellants assert that Michigan Proposal 06-02, now Const. 1963, art. 1, sec. 26, violates Section 1 of the Fourteenth Amendment to the Constitution of the United States. On March 18, 2009, the district court issued a final order granting summary judgment to the defendant appellee Michael Cox and dismissing all claims. On March 19, 2009, the plaintiff-appellants filed a timely notice of appeal with the district court.
STATEMENT OF THE ISSUES FOR REVIEW
1. Does Michigan Proposal 06-02, which is now Article 1, Section 26 of the Michigan Constitution, violate the Equal Protection Clause of the Fourteenth Amendment by denying minority residents and their supporters of access to a political procedure for securing change on admission standards related to race that is equal to the political procedure provided for residents seeking change on all other issues by selectively stripping the governing boards of Michigan's public universities of the power to adopt lawful affirmative action plans that have been approved by the Supreme Court and that have been shown to be the only means of assuring that racial minorities have access in any numbers to the most selective schools in public universities?
2. Does Michigan Proposal 06-02, which is now Article 1, Section 26 of the Michigan Constitution, violate the Equal Protection Clause of the Fourteenth Amendment by mandating that (a) the universities follow more onerous subs-

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tantive policies for the admission of minority students than are followed for the admission of other students and by (b) allowing them to seek every other form of diversity or integration except racial diversity and integration, which is the form of diversity and integration that is most important and most difficult to achieve
3. Does Michigan Proposal 06-02, which is now Article 1, Section 26 of the Michigan Constitution, violate the Equal Protection Clause of the Fourteenth Amendment as to gender in ways similar to the violations that it imposes due to race
STATEMENT OF THE CASE
In theircomplaint and on this appeal, the plaintiff-appellants assert that Michigan Proposal 2, the anti-affirmative action amendment to the Michigan constitution backed by Ward Connerly, is essentially an attempt to relitigate the claims that Mr. Connerly and his supporters lost six years ago in the United States Supreme Court decision in Grutter v Bollinger, 539 U.S 306 (2003).
Leaving aside claims that have not been appealed, the plaintiffs' complaint asserted that Proposal 2 violates the Equal Protection Clause in three separate but interrelated ways.
First, it selectively strips the governing boards of the defendant universities of the power to adopt any affirmative action program based on race or national origin, including the very plan approved in Grutter. By so doing, it violates repeated decisions of the Supreme Court of the United States by creating a more onerous, and, in reality, impossible political procedure for minority students seeking changes in admission standards that are in their interest.
Second, when its substantive commands are judged in the light of reality, Proposal 2 violates the Equal Protection Clause by mandating different substantive standards for the admission of minority students and by allowing the governing boards to continue seeking diversity or integration on every axis except the one most protected by the Equal Protection Clause: racial diversity and integration.
Third, by banning all gender-based affirmative action programs under any circumstances whatever, Proposal 2 violates the Equal Protection Clause in ways similar to the violations as to race.
The plaintiffs in this action include black, Latino and women students who assert that they have or will be excluded from the most selective public universities in Michigan as a result of this Proposal. They are led in this action by the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN). BAMN has fought California's Proposition 209, intervened as a defendant in Grutter, challenged the racially-targeted fraud that was used in getting Proposal 2 on Michigan's ballot, and played a crucial role in defeating anti-affirmative ballot initiatives identical to Proposal 2 in Oklahoma, Missouri, Arizona and Colorado.
Leaving aside the defendants who were dismissed by stipulation or order of the district court, the defendant-appellees in this action include the governing boards and presidents of the University of Michigan, Michigan State University, and Wayne State University. The university defendants, who said affirmative action was essential in Grutter, have fallen silent after the November 2006 elections. They take no position on the constitutionality of Proposal 2.
The Attorney General of Michigan, who was the only statewide officer or candidate in Michigan who supported Proposal 2, has intervened without objection as a defendant. He asserts that the Proposal complies with the Equal Protection Clause.
A motion panel of this Court considered, although explicitly did not decide, some of the issues raised on this appeal. Coal. To Defend Affirmative Action v. Granholm, 473 F. 3d 237 (6th Cir. 2006). In an opinion dissolving a stay, the panel suggested, but did not hold, that Proposal 2 furthered, rather than violated, the Equal Protection Clause because

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it banned what the panel proclaimed were “preferences.” Id., at 250-251.
Shortly before that motion panel issued its opinion, another group of plaintiffs (the “Cantrell plaintiffs”) filed suit in district court asserting that as applied to race Proposal 2 violated the Equal Protection Clause in ways similar to those that the Coalition plaintiffs alleged in the first argument described above. The district court consolidated the two cases and they have been consolidated in this Court for briefin and arument.
At the close of discovery below, every party except the Coalition plaintiffs moved for summary judgment. The Coalition plaintiffs asserted that there were crucial factual disputes, primarily over whether affirmative action was a “preference” and over whether the Proposal was in substantive terms a means for imposing a more onerous educational policy targeted at blacks, Latinos and Native Americans.
In its opinion, the district court found there were no disputes over material facts, rejected the arguments of the Coalition plaintiffs, denied the Cantrell plaintiffs' motion for summary judgment, and granted the motion for summary judgment filed by the Attorney General. The district court held that Hunter v. Erickson, 393 U.S.385 (1969) did not provide any right to an equal political procedure for black, Latino and Native American residents and women, because they were fighting for what the court believed were “preferences” or “advantages.” Similarly, the district court held that Proposal 2 did not substantively discriminate against black, Latino and women students because there were other, purportedly benign, reasons for mandating a different treatment of race, national origin and gender in the admission standards.
The Coalition plaintiffs appealed immediately. The Cantrell plaintiffs filed a motion to alter or amend the judgment, which called some of the district court's errors to its attention. After considering that motion for eight months, the district court denied it and the Cantrell plaintiffs then appealed.
The issues at stake are obviously of profound importance to the nation, not only because of its past, but because of its future, in which racial minorities, who are now the majority in several major states, will within a few decades be the majority in the entire country. The fundamental questions at issue in this case are whether the current white majority in Michigan's electorate may effectively exclude the issues of minority admissions from consideration under the political procedures that have governed the universities for a century-and-a-half and whether that white majority may mandate the universities to follow different substantive policies targeted at minority students alone.
The constitutional theory offered in support of Proposal 2 is a radical and dangerous revision of the Equal Protection Clause. The plaintiff-appellants urge this Court to reverse the district court and strike down Proposal 2 as a violation of the Fourteenth Amendment.
STATEMENT OF FACTS
A. The “preferences/non-discrimination“ distinction used by the district court is false to the core.
The legal advocates for Proposal 2 dwell in the realm of soothing abstractions. They say they are against both “discrimination” and “preferences.” But as the Supreme has held since Brown, in dealing with matters of race, the Court cannot deal in abstractions. It must look at the facts-that is, at reality.
In Grutter, the Supreme Court set forth much of the reality that the proponents of Proposal 2 hope to ignore. But even though the Supreme Court has already decided many of the defining issues, it is necessary to set them forth again because the proponents of Proposal 2 have reasserted their old arguments in new forms.
From the Constitution of 1850 forward, the elected governing boards of the University of Michigan and, later, of Michigan State and Wayne State, had full power over all of the academic affairs of those institutions, including the

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policies for admission. Const 1850, art.13, sec. 8. When it was still controversial to do so, the Regents of the University of Michigan dropped the race and gender bar (R. 222-15, Anderson Report, at 7-14).
But as justly proud as the University is of that history, it was essentially a segregated institution before affirmative action. In 1960, there were only a few hundred black students out of a total student body of over 18,000.[FN1] Open segregation was rampant in the rental housing where most students lived. In the fraternities and sororities, racial and religious exclusion was blatant-and President Harlan Hatcher refused to do anything about it. Even in the dormitories, the University gave backhanded support to segregation by allowing incoming students to opt out of rooming with Negroes (R. 222-15, Anderson Report at 6-14).
FN1. In this brief, the plaintiffs will, for reasons of space, concentrate on the University of Michigan. The other state schools tended to follow what Michigan did on affirmative action.
The Michigan Law School was, perhaps, the clearest example of the past which the supporters of Proposal 2 would like to forget. During the entire decade of the 1960's, its “color blind” admissions policies resulted in 3,032 white graduates-and nine black graduates. There are no records as to whether there were any Latinos at all (R 222-19, UM Law School Graduates).
If it had not been for the action of black students and their supporters, the de facto segregation at the University of Michigan may well have increased. In the early 1960s, the University had begun requiring standardized tests in admissions. With the enormous post-war expansion of the groups applying to college, leading educators had proposed adopting those tests as a way to select students and to identify poorer students who were “diamonds in the rough.” As was known then and is better known today, the standardized tests predicted only first year grades and that rather weally. But they had, and continue to have, an enormously disparate impact upon black, Latino and Native American applicants (R 222-14, Dec. of Schaeffer, paras 8-9 and passim.).
In 1970, before the new tests could have their full segregating effect, a student group calling itself the Black Action Movement (BAM), launched a series of protests, including a student strike, demanding that the University of Michigan increase minority admissions. The Governor of Michigan and many other state and national political leaders openly supported the BAM demands. By May 1970, the Regents adopted a modified version of the BAM demands, including the “goal” of achieving ten percent minority admissions by fall 1973 (R 222-21, Minutes of Regents, 1970; R. 222-22, Memo of A. Ross).[FN2]
FN2. Since 1970, affirmative action plans have generally applied to “underrepresented minorities,” which is almost always defined to include black, Latino and Native American students, with occasional breakdowns within those groups. The conditions and inequalities faced by the three groups share many features, but there are also distinctive features for each. Above all, Latinos face discrimination by language and citizenship as well as by “race.” Native Americans, who are generally isolated on reservations or residents of inner city neighborhoods, also face particular circumstances different than either blacks or Latinos. For reasons of space-and because Proposal 2 adversely impacts all three groups-the differences are not set forth in this Brief.
The protestors-and the University-recognized that this meant that the University would be accepting minority students with lower grade point averages and lower average test scores than white students (R. 222-20, Letter of R. Fleming, March 5, 1970). As reflected in countless decisions of this and other courts, segregation and inequality were rampant in the primary and secondary schools of Michigan during the 1960s. As will be seen, the huge gap in test scores both reflected and exaggerated the inequality in primary and secondary education.
In theory, the Regents could have adopted in 1970, or at any time since, an entirely new admissions system in response to the BAM demands. But no one knew then, or knows now, how to set a single admission standard that judges “merit,” “promise,” or “ability” for students who come from widely differing backgrounds.

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The Regents and virtually every selective university in the country thus amended their existing policies to provide special consideration for minority students. Under these amendments-which came to be known as affirmative action-admissions officials explicitly considered race and admitted black, Latino and Native American students with lower average test scores and grade point averages.
By the standard of reality, Michigan's programs aimed at ending the virtual exclusion of minority students from the university. But Vice President Spiro Agnew attacked the Michigan settlement as a preference, asserting that “unqualified students [were] being swept into college on the wave of the new socialism” (R. 222-15, Anderson Report, at 24). But in two key decisions, the United States Supreme Court held that affirmative action was lawful because it furthered a compelling state interest of assuring that the universities educated a racially diverse and integrated student body. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Grutter, supra.
The Regents and the other governing boards changed the plans on repeated occasions after 1970. Bakke and Grutter required changes in some of the programs. The faculty and the administration changed selection procedures for educational reasons. At times when the number of minority students dropped significantly, minority students and their supporters waged new campaigns (Anderson R. 222-15, at 16-27). In every case, the changes were hammered out in the democratic forums of the Regents' or faculty meetings (R. 222-15, Anderson Report, at 23,25)
The programs led to a vast increase in the number of black, Latino and Native American students (See, e.g., R. 221-19, UM Law School graduates). It inspired women of all races to enter fields and schools that had previously been all-male. Soon, the hundreds and eventually thousands of successful minority graduates broke down age-old myths of racial and gender inferiority. Among its many other achievements, affirmative action paved the way for the white majority to accept exceptionally talented political leaders like Colin Powell, Condolezza Rice, and, eventually, Barack Obama.[FN3]
FN3. The proponents of Proposal 2 frequently cite the prominence of Powell, Rice, Obama and others as evidence that affirmative action is no longer needed. But at the same time that they praise the skill of these leaders, they ignore the fact that each one was the product of affirmative action-and even more than that, they ignore that each one of these leaders, often at some risk, has proclaimed that affirmative action must continue if there are to be more leaders like them. The proponents of Proposal 2 cite these leaders as icons, but they refuse to listen to what they have to say on the crucial points at issue.
B. As Grutter recognized, affirmative action is, in some circumstances, essential today in order to ensure a racially-integrated student body.
The most astute proponents of Proposal 2 assert that affirmative action may once have been necessary but that it is no longer needed in the supposedly color-blind world in which we now live.
The Supreme Court rejected that argument in Grutter and there is no indication that the Court has, or will, reconsider that decision. So, the proponents of Proposal 2 have reformulated the exact argument rejected in Grutter by claiming that affirmative action has only a semi-legal status. According to their latest argument, because affirmative action is “preference,” the states may deny universities of any power to adopt such plans and thus deny minorities of any forum in which to fight for it, except through the impossible forum of a statewide referendum.
The facts establishing that we do not live in a color-blind society are obvious-but are ignored all too often. Three out of every four black students in Michigan attend primary or secondary schools that are over 50 percent minority. Almost sixty percent attend schools that are over 90 percent minorities (R. 206, Rep of Jeannie Oakes, at 10-11). Although not separately broken down in the statistics below, on a national basis, Latino students are even more segregated.

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Gary Orfield, one of the nation's leading authorities on educational equality, described the dramatic educational inequality caused by this segregation. Unlike poor white children, who are often distributed in middle-class or even upper middle class schools, students in racially segregated schools almost invariably attend schools that have large concentrations of poverty. The differing social milieus exert an upward pressure on academically-inclined poor white students and a downward pressure on academically-inclined black and Latino students (R 222-17, Test of Orfield, at 101-104).
As Orfield testified, segregated schools are unequal in a thousand ways: they have more rundown, inefficient, and overcrowded buildings; fewer teachers per student; a lower ratio of certified teachers; a narrower curriculum; fewer academic traditions and connections; higher turnover of students and teachers; fewer educational resources in families and communities; and more social problems, to name but a few of the differences. Above everything, there is the pervasive stigma of inferiority. As Orfield opined, segregated schools are a “different world in every sense ofthe word” from predominantly white schools (R 222-17, Test of Orfield, at 93).
Of course, there have been changes since 1970, some good and some bad. The proponents of Proposal 2 focus usually focus only on one change for the better-the growth of a black middle class which has been able to gain somewhat better education for its children. Of course, that middle class has arisen in large part because of affirmative action-which the proponents of Proposal 2 want to eliminate. But even in its own terms, the change for the better is not as large as the proponents of Proposal 2 sometimes claim.
The black middle class is a much lower percentage of the black population than the white middle class is of the white population. Many, although by no means all, of its children who are admitted to Michigan attend Detroit's exam schools or are part of the relatively small, but still significant, number of black students attending integrated suburban schools. Together, these two groups account for a vastly disproportionate share of the in-state minority students admitted as undergraduates at Michigan in 2005 (R. 222-4, Dec. of Miller, at 137, 141-143).
There is, as yet, no comparable development among Latinos in Michigan. Moreover, even for the black students from middle-class backgrounds, inequality has not ended. As Orfield testified, the black middle-class parent is far less stable economically than a white middle-class parent with the same income. The black middle-class student has a far greater chance of coming from or returning to segregated and unequal schools than his or her white counterpart (R 222-17, Test. of Orfield, at 102-103).
Moreover, the educational opportunities for the small black middle class and the even smaller Latino middle class are still not equal to those of a disproportionately larger white middle class. Detroit's exam schools are still segregated; the educational opportunities they offer barely match those of an average suburban district. Even the small number of black and Latino students who have gained access to a few predominantly white suburban districts have not achieved equality. Some of those districts shunt minority students into second-class schools and programs. Even where they do not, black and Latino students face isolation and sometimes harassment (R. 222-17, Test. of Orfield, at 102-105).
Finally, even if the education were equal, which it is not, the record below reveals the continued gross disparity in scores on standardized tests. In 2007, white students had an average combined score of 1579 on the SAT verbal and math tests-a score that was, respectively, 125, 208, and 292 points higher than students from of Native American, Chicano and African-American backgrounds. Apart from the continuing myth that these tests reflect “intelligence” or “aptitude” claims that the testing companies have long since been forced to abandon-there are two myths about these tests that are dispelled by the facts in the record below (R. 222-14, Dec of Schaeffer, at 3; Ex 1).
First, the disparity is not simply the result of the economic differences between white students on the one hand and black and Latino students on the other hand. As Ward Connerly testified, studies conducted on the massive population of the University of California consistently demonstrated that black students from the highest one-fifth of income scored lower than whites in the lowest one-fifth of income (R. 222-1, Dep. of Connerly, at 101). As white students of

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any given economic class outscore minorities in the same class by significant margins, no criteria of class can ever substitute for the consideration of race (R. 222-14, Dec of Schaeffer, paras 16-18).
Second, the disparity is also not simply the result of different educational achievements. In a study of thousands of applicants to Berkeley's famous Boalt Hall Law School, researchers found that black students who had the same grade point average in the same major at the same undergraduate college scored 9 points less on the LSAT than white students-a gap wide enough to ensure that the black students could not be admitted to any selective law school if the scores had been applied rigidly (R. 222-14, Dec of Schaeffer, para 18).
The statistics on the undergraduate class admitted to the University of Michigan's School of Literature, Science and the Arts in fall 2005 provide some measure of the vast inequality that persists even with affirmative action. Nineteen Detroit high schools had no graduates who were admitted-while 131 students from Grosse Pointe's two high schools received offers of admissions and 169 from the three small private schools, Country Day, Cranbrook and Roeper received offers of admissions (R. 222-4, Dec. of Miller, para 16).
The overwhelmingly white supporters of Proposal 2 may believe we live in a color-blind society-but the facts make clear that is absolutely untrue.
C. Proposal 2's attack on affirmative action requires an attack on the democratic rights of racial minorities.
Proposal 2 began in California. In that state, a Republican governor appointed Ward Connerly as a member of the Board of Regents of the University of California in 1993. Less than two years later, Connerly sponsored a successful resolution by the Regents to end affirmative action in admissions at all nine campuses of the University (R. 222-2, Dec of Laird, para 11).
In his own words, Connerly then led the drive to adopt the constitutional amendment known as Proposition 209 specifically because he wanted to prevent minorities from reversing the ban through the normal democratic procedures: “If [the Regents] revisited and overturned the vote, the principles we fought for [i.e., the end of affirmative action] would be defeated...” (R. 222-11, selections from Ward Connerly's Creating Equality, at 165-166).
Two days after the Grutter decision, Connerly decided to bring the same undemocratic agenda to Michigan. Neither he nor his supporters ever made any attempt to secure a vote by the Regents to end any affirmative action program. Instead, Connerly publicly announced that he would end all such votes by amending the Constitution of Michigan to add a carbon-copy of Proposition 209. In its operative terms, his proposal, which came to be known as Proposal 2, provided as follows:
(1)The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, color, sex, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
Const 1963, art 1, sec 26(1)(emphasis added).
As the Michigan Constitution and statutes already banned “discrimination” on all of these grounds, the sole operative content of Proposal 2 was the three emphasized words banning “preferential treatment.” The Proposal did not define those terms, but it did incorporate the remedies provided by the state civil rights act, including an individual right of action for damages, injunctive relief, and attorneys' fees. Const 1963, art 1, sec 26 (6); MCL 37.2801.
Soon after Proposal 2 passed, the defendant Universities amended their admission policies to eliminate any consideration of race (R. 222-4, Spencer, at 62-63). At the undergraduate level, Michigan adopted a whole series of new

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admission criteria that simulated some of the effects of considering race, including, most importantly, special consideration to students from “underrepresented schools” and “underrepresented areas” (R. 222-4, Dep of Spencer, at 94-96).[FN4]
FN4. In the conditions of segregation, selecting students by area can assist in maintaining the numbers of minority students, although it often impairs selecting those minority students who have the best chance of succeeding in college. In his Declaration, Bob Laird, the director of undergraduate admissions at UC Berkeley when Proposition 209 went into effect, stated that the minority students most harmed by Proposition 209 were those who attended integrated middle-class schools. They had the best chance of success at Berkeley-but they came from schools where white and Asian students scored higher on the standardized tests and they were therefore the students who were shut out the most by Proposition 209 (R. 222-12, Dec of Laird, paras 58-60).
The twelve years that Proposition 209 has been in effect in California demonstrate the catastrophic consequences that the forced abandoning of affirmative action has had. In the first year Proposition 209 went into effect, minority admissions at Berkeley and UCLA, which are the schools most comparable to Michigan, dropped by over 50 percent. In some state medical schools and in the most selective state law schools, the drop was far greater (R. 220-12, Dec of Laird, at 16-17).
The absolute numbers subsequently recovered somewhat, but in California-a state where Latinos, blacks and Native Americans are already a clear majority of high-school graduates-the gap between the percentage of minorities in the population and the percentage in the leading universities has increased dramatically. The largest public university in the world is being resegregated, with black and Latino students forced to attend the least selective campuses, while the most selective universities are increasingly white and Asian (R. 222-12, Laird, at 13-14; R. 206, Report of Oakes, at 6).
The record in this case was closed before the first full class admitted under Proposal 2 enrolled in September 2008. However, at Michigan's Law School, from which many of the state's leaders have come, the Director of Admissions testified that without affirmative action there would be an irremediable drop in minority admissions because of the gross disparities in test scores and educational backgrounds (R. 222-3, Dep. of Zearfoss, at 10). The Dean of Wayne State Law School made a similar prediction (R. 222-7, Dep. of Wu, at 79-82).
According to published reports, which are not available on official web sites, the classes that entered in fall 2008 showed a significant drop in minority students at Michigan's Law School and Wayne State's Medical School. There was no comparable drop in undergraduate admissions at Michigan-and the Wayne State Law School data is difficult to interpret because the school, for reasons unrelated to affirmative action, cut its class size by one third.
Whatever the results were in 2008 or will be in September 2009, however, Proposal 2 has established a regime in which every political procedure puts a constant downward pressure on minority admissions. For the first time since 1850, minority students and their supporters have no political means to present demands to increase minority admissions. Indeed, they have no forum other than a statewide referendum to win adoption of the programs that desegregated the University in 1970 or that were approved by the Supreme Court in 2006.
On the other side, the University is subject to expensive and politically embarrassing suits for any program that is explicitly or implicitly designed to increase the enrollment of racial minorities. The threats are real: conservative political groups financed the politically and economically expensive suit in Grutter and Mr. Connerly himself threatens UCLA and the other schools of the University of California with a suit each time minority admissions creep upwards.[FN5]
FN5. www.acri.org (chairman.html).

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Under Proposal 2, the University may, without any fear of suit, adopt programs that are-or that have the appearance of beingpreferences” for poor students, veterans, residents of rural areas, or for any other social group. Only for the social group facing the greatest disparity in opportunity-and for whom special programs are therefore most essential-is it impossible to enact programs that are, or have the appearance of being, “preferences.”
D. The oppression of the minority by the majority.
The proponents of Proposal 2 claim the mantle of the 58 percent vote in favor of that Proposal.
means the white people of Michigan. According to the Mitofsky exit polls used by every major news network, including Fox News, nine out of every ten black voters cast No ballots on Proposal 2. Michigan's minorities were simply outvoted by the two to one majority in favor of Proposal 2 among white citizens, who constituted 85 percent of those who voted in 2006 (R. 222 2, Dep of Linski, Ex 3).
The proponents of Proposal 2 quibble about the polling methods of the Mitofsky poll, but its results are consistent with every known fact. White voters passed Proposition 209 over the determined opposition of the minorities in California's electorate.[FN6] Even more significantly, Michigan's official election returns, of which this Court may clearly take judicial notice, show that in the City of Detroit, which is now over 90 percent minorities, the voters rejected Proposal 2 by a vote of 206,529 to 14,863.[FN7]
FN6. Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, 1495 n. 12 (N.D. Cal. 1996), rev'd on other grounds, 122 F. 3d 692, 708 (9th Cir.1997), cert. den. 521 U.S. 963, 1141(1997)
FN7. http://miboecfr.nictusa.com/cgi-bin/cfr/precinct srch res.cgi.
Even though it is absurd to do so, the proponents of Proposal 2 choose to quibble over the racial character of the vote because they want to cover up and ignore the simple fact that a white majority imposed Proposal 2 on the state over the opposition of the overwhelming majority of Michigan's black, Latino and Native American citizens.
SUMMARY OF ARGUMENT
The Fourteenth Amendment had as its fundamental purpose protecting the newly-freed slaves from discriminatory legislation that denied them their basic rights as citizens. In 1954, the Supreme Court restored the original purpose of the Fourteenth Amendment by holding that the white majority could not exclude racial minorities from equal and integrated access to the public schools. Brown v Board of Education, 347 U.S. 483 (1954).
Following Brown, the Court soon held that a white majority could not exclude power over racial issues from public bodies because that excluded minorities from the normal legislative procedures used by other groups to advance their interests. Hunter v Erickson, 393 U.S. 385 (1969).
Much later, the Court held that public universities could, in appropriate circumstances, adopt racially-conscious affirmative action plans designed to assure that the student bodies included significant numbers of black, Latino and Native American students. Grutter, supra.
Proposal 2 violates the fundamental principles established in all three decisions.
Turning first to the rights guaranteed by Hunter, on three occasions, a white majority, opposed to integration, sponsored a referendum that deprived government officials of the power to implement the changes that minorities had just

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won. On each occasion, the Supreme Court struck down the constitutional amendment adopted in those referendums because it deprived racial minorities of the fundamental right to fight for change on equal terms in the legislative bodies that determined the fate of every other group's demands. Hunter, supra; Washington v Seattle School District No. 1,458 U.S. 457 (1977); Romer v Evans, 517 U.S. 620 (1996)(Kennedy, J).
Proposal 2 follows the exact method struck down in Hunter, Seattle and Romer. The district court, however, summarily disregarded those decisions because it asserted that affirmative action was a “preference” and not a demand to end discrimination. In so ruling, the district court ignored Hunter's requirement of an “extraordinary justification” for depriving minorities of their rights to the same procedures used for deciding all other issues and its command that the state's or the court's view of the substantive merits of the minority's demands could not serve as such a justification.
Furthermore, the district court's distinction between “preferences” and demands to end discrimination is factually and legally wrong. Affirmative action was and is the means by which the de facto segregation of universities was ended, and it is the means today that makes it possible for significant numbers of minority students to attend the most selective schools.
Finally, the district court's departure from Hunter has led it to reach results that directly conflict with Grutter. The district court held that Michigan's minority residents have no right to fight on an equal basis for affirmative action programs because they did not further the goal of ending discrimination-even though Grutter just held that affirmative action programs were constitutional precisely because they provided a means to allow students from all races to attend the universities.
In order to justify the results that it reached, the district court and the authorities on which it relies have been forced to adopt a radical state's-rights revision of the Fourteenth Amendment in which minorities have equal procedural rights on all issues except those where the most compelling state interests are involved. On those issues-the most vital of all-the states may do whatever they want b whatever rocedure the deem most aroriate.
The district court's conclusions on the substantive standards enacted by Proposal 2 are no less radical a departure from the existing law. In its opinion, the district court identified two substantive purposes offered by the supporters of Proposal 2: decreasing the number of supposedly “underqualified” minority students and, by decreasing the number of those students, imposing a policy of “tough love” which would supposedly encourage minority students to work harder so that they can gain entry on their own “merits.” By its terms and by the statements of purpose offered by its two primary supporters, Proposal 2 specifically targets students on the basis of their race-a targeting that has been outlawed since Brown.
Finally, Proposal 2's ban on gender-based affirmative action violates the Equal Protection Clause in ways similar to its ban on race or national origin based affirmative action.
STANDARD OF REVIEW
The Court reviews de novo the district court's grant of a motion for summary judgment and reviews de novo any challenge to a state law's constitutionality. Cherry Hill Vineyards LLC v. Lilly, 553 F. 3d 423, 431 (6th Cir. 2008); Committee for Equity v. Michigan High Sch. Athletic Ass n., 459 F. 3d 676, 680 (6th Cir. 2006).
ARGUMENT I
PROPOSAL 2 VIOLATES THE EQUAL PROTECTION CLAUSE BY DEPRIVING BLACK, LATINO, AND NATIVE AMERICAN RESIDENTS OF AN EQUAL POLITICAL PROCEDURE FOR SECURING ADMISSION AND OTHER ACADEMIC STANDARDS THAT FURTHER THEIR ADMISSION TO PUB-
LIC UNIVERSITIES.

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a. the supreme court has repeatedly held that a referendum may not be used to deprive racial minorities of an equal political procedure to secure action on measures designed to combat prejudice.
The Supreme Court precedent on which the plaintiffs rely has been established in three cases spanning the years from 1967 through 1996. Hunter, supra; Seattle School District No. 1, supra; Romer, supra.
In Hunter, where the principles at issue were first established, minority citizens and their supporters won a fair housing ordinance by vote of the Akron, Ohio, City Council. The white majority then passed an amendment to the City Charter repealing the ordinance and preventing the passage of any fair housing ordinance without a vote of the electorate. The Court struck down the charter amendment because it imposed the more onerous burden of a referendum on minorities who sought measures designed to overcome racial prejudice and segregation: Moreover, although the law on its face [Section 137] treats Negro and white, Jew and gentile in an identical manner, the reality is that the law's impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that. Like the law requiring specification of candidates race on the ballot [citation omitted], s 137 places special burden on racial minorities within the governmental process. This is no more permissible than denying them the vote, on an equal basis with others.
Hunter, supra, 393 U.S. at 390-391.
In his concurring opinion, Justice Harlan recognized that a city or a state normally had the right to allocate power as it saw fit, but said that if it did so on racial issues alone, that decision should be struck down unless the state overcame a “heavy burden of justification:” In the case before us, however, the city of Akron has not attempted to allocate governmental power on the basis of any general principle. Here, we have a provision that has the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest. Since the charter amendment is discriminatory on its face, Akron must bear a far heavier burden of justification than is required in the normal case. [citation omitted] And Akron has failed to sustain this burden.
Hunter, supra, 395 U.S. at 395 (Harlan, J. concurring).
Thirteen years later, the Court reaffirmed Hunter. Emphasizing that no showing of discriminatory intent was necessary, the Court struck down a referendum adopted in the State of Washington stripping local school boards of the power to use busing to assure integration in primary and secondary schools. Seattle School District No. 1, supra. The Court ruled on the following broad basis: ...[W]hen the political process or the decision-making mechanism used to address racially conscious legislation--and only such legislation--is singled out for peculiar and disadvantageous treatment, the governmental action clearly rests on distinctions based on race [citation omitted]. And when the State's allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the “special condition” of prejudice, the governmental action seriously “curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities.” [citation omitted]. In a most direct sense, this implicates the judiciary's special role in safeguarding the interests of those groups that are “relegated to such a p osition of powerlessness as to command extraordinary protection from the majoritarian political process.”
Id., at 485-486.
Fourteen years later, the upreme Court expanded Hunter and Seattle to cover groups that were not a suspect class. Romer, supra. In that case, the Court struck down a Colorado constitutional amendment, adopted in a referendum, that prohibited local and state bodies from adopting ordinances or policies that protected lesbians and gay men against discrimination. As Justice Kennedy declared for a six-Justice majority: “A law declaring that in general it shall be

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more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id., at 633.
Proposal 2 is an exact copy of the laws that the Supreme Court struck down for violating the Fourteenth Amendment. The elected Regents and the other elected governing boards had adopted affirmative action programs in order to be able to admit significant numbers of minority students. As Connerly declared in his book (see supra, at 17-18), he wanted to repeal those programs in a way that could not be undone by future governing boards. Thus, he and others sponsored a referendum whose sole purpose was to end affirmative action and to assure that it could never be adopted again.
The district court made the findings that should have led it to strike down Proposal 2. It held that Proposal 2 had a clear “racial focus;” that its “impact [fell] entirely on racial minorities and women;” and that it undeniably made it “...more difficult for minorities to obtain official action that is in their interest” (R. 246, Dist. Ct. Op., at 49). But having recognized how Hunter, Seattle and Romer should apply, the district court suddenly, and almost without explanation, held that they did not apply.
Summarily, it declared that Hunter, Seattle and Romer did not apply because Proposal 2 was supposedly not “...an impediment to protection from unequal treatment but [was] an impediment to receiving preferential treatment” (R. 246, Dist. Ct. Op., at 49-50). As support for this proposition, the district court cited only two authorities: (1) the divided decision by the Ninth Circuit-which was issued long before Grutter and long before the disastrous effects of Proposition 209 had become clear-and (2) the suggestions of the motion panel in this case, which were preliminary and issued on the basis of a two-day briefing schedule. (R. 246, Dist. Ct. Op., at 49-50 citing Coal for Econ Equity v. Wilson, 122 F. 3d 692, 708 (9th Cir.1997), cert. den. 521 U.S. 963, 1141(1997); Coalition to Defend Affirmative Action v Granholm, supra.
The “preferences are not an attempt to end discrimination” rationale is the entire reasoning of the district court and of the divided Ninth Circuit decision on which it is based.[FN8] As will be seen, this rationale violates Brown, Hunter and Grutter-and, if adopted, would amount to a fundamental state's rights revision of the Fourteenth Amendment itself.
FN8. The division in the Ninth Circuit was exceptionally sharp. A conservative panel approved Proposition 209. There was no majority for a rehearing en banc but five judges dissented on the grounds that the panel decision violated Hunter. Of the Ninth Circuit judges who expressed a view on the substantive merits, there were therefore more judges who thought Proposition 209 violated the Hunter precedents than opined that it was consistent with those principles.
B. The district court erred as a matter of law by sustaining an unequal political procedure based on its belief that the substantive demands of the minority were purportedly seeking a “preference” or “advantage.”
Hunter and Seattle make clear that the state had to offer an “extraordinary justification” in order to sustain a charter or constitutional amendment that allocated political power over racial issues alone to a more onerous political procedure. Seattle, supra, 458 U.S. at 485; Hunter, supra, 393 U.S. at 391-392. Moreover, the Court made clear that the substantive nature of the racial minority's demands could not serve as that “extraordinary justification:” It is undeniable that busing for integration...now engenders considerably more controversy than does the sort of fair housing ordinance debated in Hunter. [citation omitted]. But in the absence of a constitutional violation, the desirability and efficacy of school desegregation are matters to be resolved through the political process. For present purposes, it is enough that minorities may consider busing for integration to be “legislation that is in their interest.” Hunter, supra, 393 U.S. at 395.
Seattle, supra, 458 U.S. at 473-474.

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The first sign that the district court and the authorities on which it relies have erred badly is their cavalier treatment of these commands by the Supreme Court. The same judges who have demanded exacting factual review as part of the “extraordinary justification” necessary to support an affirmative action plan have required no factual justification at all to satisfy the “extraordinary justification” demanded by Hunter and Seattle. A literary formulapreferences are not attempts to end discrimination-is all that they required.
Similarly, the same judges who demand exacting adherence to precedent have simply ignored specific and binding language by the Supreme Court making clear that neither the state nor the courts could limit the right to procedural equality based on the substantive merits of the minority's demands.[FN9] In the view of the district court and the Ninth Circuit, there is today, for the first time, a substantive litmus test for procedural rights under Hunter: if the minority's demands are, as here, a demand for what the court deemed “preferences,” the demands, no matter how lawful, are not entitled to protection under Hunter. Only if the district court determines that the demands are, in its view, genuine demands to end discrimination, are minorities entitled to their rights under Hunter.
FN9. The Supreme Court held that the minority had the right to procedural equality when it sought “to enact legislation in its behalf,” Hunter, Supra, 393 U.S. at 395, sought action to “ameliorate race relations or protect racial minorities,” Seattle, Supra, 458 U.S. at 485-486, or “[sought] aid from the government.” Romer, Supra, 517 U.S. at 633-634
By their decisions, the district court and the Ninth Circuit panel have thus assumed a power for the federal judiciary that it does not have and should not want. These decisions will require the federal courts to examine the class of lawful demands that a minority might make. In that class of lawful demands, the courts must then identify the sub-class that should be relegated to a semi-legal status in which public bodies may be denied power even to consider them because they are supposedly a demand for a “preference” or “advantage.”
As is absolutely obvious, this parsing of lawful demands by the federal courts almost certainly would be outcome-determinative. If the court found that a demand was a preference, it would almost certainly never be adopted. On the other hand, if it found that the demand was actually directed against discrimination, it might well be adopted in a political body where the minority had equal rights.
By what standards the lower courts should make the fateful decisions as to what is and is not a “preference,” neither the district court nor the circuit court panels say. Apparently, however, they need look no further than the standards that are in existence. If a minority asks for a departure from those standards-which in this case are the grades/test score standards-it is asking for a “preference.” On the other hand, if it can devise a new standard that is purportedly non-discriminatory, that, perhaps, may be a legitimate anti-discrimination demand.
The Supreme Court, which is familiar with our history, recognized the danger of having referenda or courts determine procedural rights by a review of the substantive demands at issue. By its very nature, from Reconstruction forward, the Civil Rights Movement has repeatedly demanded the elimination of, or relief from, existing standards that it saw as discriminatory. Those who benefitted from the existing standards often said that minorities were seeking a preference. Thus, in their day, opponents of fair housing, busing, and lesbian and gay rights labeled the minority's demands as ones for “preferences.” Similarly, Andrew Johnson vetoed the Freedman's Act,[FN10] the Supreme Court struck down the Civil Rights Act of 1866,[FN11] and the Southern segregationists opposed the Civil Rights Act of 1964 because they supposedly created “preferences.”[FN12]
FN10. Johnson opposed the economic relief and schools provided to the newly-freed slaves because “we“ (sic.) have never provided such aid for “our” (sic.) people. Eric Foner, Reconstruction: America's Unfinished Revolution, (1988), at 247.
FN11. The Supreme Court struck down the first Civil Rights Act because “there must be some stage in the

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progress of his [the Negro's] elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws...” Civil Rights Cases, 109 U.S. 3, 25(1883).
FN12. During the debate on the Civil Rights Act of 1964, Senator Richard Russell (D-La), among others, asserted that as administered the new law would compel employers “to give priority definitely and almost completely, in most instances, to the members of the minority group.” 110 Cong. Rec. 13150 (1964).
If the “preference/non-discrimination” standard had been in effect, federal courts could easily have found that virtually every major step forward in civil rights was not entitled to equal procedures under the Fourteenth Amendment because the demand was supposedly for a preference.
The disastrous effects of judicial review of the substance of lawful demands to advance minority interests are apparent in this case. From 1970 forward, minorities have seen affirmative action not just as a demand against discrimination, but as the central and only means by which the discrimination inherent in the grades/test score standards could be overcome. Minorities demanded fair housing ordinances to get access to better housing; busing to gain access to better primary and secondary schools; and affirmative action to gain access to the best public universities.
By any objective standard, affirmative action has been and is designed to “overcome the special conditions of prejudice.” It ended the virtual segregation of the University of Michigan. It made it possible for a few students from the non-exam schools in Detroit to be admitted at the same time as 70 or more were admitted from a single suburban school. To say, as the district court and the circuit court panels did, that affirmative action is not a demand to end discrimination is to ignore the facts and to insult the deeply-held beliefs and hopes of the minority communities and their supporters.
Of course, from the standpoint of the far right, The Truth is that affirmative action is a preference. But the federal courts, which are charged with enforcing the Fourteenth Amendment-which was adopted to protect racial minorities-should not adopt the standard of the far right as the test of what may be debated in legislative bodies.
In the narrowest sense, affirmative action departs from the existing admissions systems, and is thus a “preference” within the context of the existing system.[FN13] But again, the federal courts, which are charged with assuring a fair legislative process for challenging the existing standards, should not decide that matters are subject to a fair and equal debate based on whether they ask for relief from the existing system. Neither the universities, nor the testing companies, nor any reputable scientist has said that the existing grades/test scores system is racially neutral-and the Court cannot possibly say that a demand for departure from such a system forfeits rights as important as those protected by the Equal Protection Clause.
FN13. Both Bakke and Grutter routinely use the word “preferences” to describe the affirmative action programs at issue in those cases. But in each case, the term signifies a departure from the existing system. Neither case makes any decision, or purports to make any decision, on whether the existing admission systems are racially neutral.
The Hunter, Seattle and Romer Courts rightly avoided this quagmire by declaring in no uncertain terms that the right to procedural equality did not depend upon anyone's view as to the merits of the demands that the minority made. As the district court simply ignored this command, its decision should be reversed.
C. The district court's decision defies the Supreme Court's decision in Grutter.
The Supreme Court has recognized that a state body may, in appropriate circumstances, use “preferences” in order to overcome past “discrimination.” Adarand Constructors, Inc. v Pena, 515 U.S. 200 (1995): Grutter, supra. In those cases, the district court's “preferences/non-discrimination” standard for determining what subjects are entitled to

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Hunter rights falls apart completely because the Court has clearly determined “preferences” may be used to overcome discrimination.
But even though the district court strives mightily to uphold its proposed distinction in higher education, it falls apart there as well. By definition, an affirmative action plan designed to assure a racially diverse student body is designed to assure access to a university for racial minorities. Thus, the Supreme Court upheld the Michigan Law School affirmative action plan because it found that at that law school and in many selective schools affirmative action was the only practical way of assuring racial equality in access to higher education: In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts.” See Sweatt v Painter, 339 U.S. 629, 634 (1950). Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogenous society may participate in the educational institutions that provide the training and education necessary to succeed in America.
Grutter, 539 U.S. at 332.
It is no answer to say that Grutter declared that affirmative action should end in 25 years (R 258, Dist Ct Op Deny Mot Alter Judge, at 6) because the issue is plaintiffs rights now and during the next quarter century.
Nor is it an answer to say that Grutter declared that the states could consider alternatives to affirmative action-because the issue is whether those alternatives must be considered under political procedures in which minorities have the rights set forth in the Hunter precedents.
At the request of the California Supreme Court, the Attorney General of California has recently advised that court that to the extent that Proposition 209 is interpreted “...to bar race or gender conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause of the federal constitution, pursuant to Washington v Seattle School Dist. No. 1, [supra.] and Hunter v Erickson, [supra.] [FN14] In extensive and strong dissents, five judges from the Ninth Circuit and one from the California Court of Appeals have also reached the conclusion that Proposition 209 (and thus Proposal 2) violates the Equal Protection Clause under Hunter. Coal. For Economic Equity, supra, 122 F 3d at 711-717 (Schroeder, Pregerson, Norris and Tashima, JJ, dissenting) and at 717-718 (Hawkins, J, dissenting); Coral Const. Inc v C ity and County of San Francisco, 57 Cal. Reptr. 3d 781, 804-823 (2007)(Rivera, J, dissenting), review granted and opinion superceded 65 Cal. Reptr. 3d 761 (2007).
FN14. The full text of the letter brief that the Attorney General provided to the Supreme Court of California in the Coral Construction case is available on the Attorney General's web site. See www.ag.ca.gov/newsalerts /release (4/23/2009). As of this date, the California Supreme Court has not ruled on the challenge to Proposition 209 in that case. That Court has, however, been an ardent and strong supporter of Proposition 209.
The reasoning in these dissents is thorough and sound. As those judges did, this Court should hold that Proposal 2 violates the Equal Protection Clause because it imposes a more onerous burden on minorities fighting for affirmative action programs, including for the very programs that have been found lawful by the Supreme Court of the United States.
D. The district court's decision and, even more, the Ninth Circuit panel opinion on which it is based, have approved a radical and dangerous state's rights revision of the Equal Protection Clause.

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The district court and the Ninth Circuit opinions are based on nothing other than a repetition of quotations from past Supreme Court decisions about the suspect nature of any racial classification. The quotations are genuine, the policy is real-and yet it ignores the entire other half of the law under the Equal Protection Clause.
Since the 1960s, the Court has repeatedly recognized the reality of inequality that our history has left us. It has recognized that racial classifications may serve a compelling state purpose and may be the only means for achieving that purpose. Indeed, many, if not most, of the most important civil rights programs have involved the assertion that a compelling need overcame a normally suspect classification.
By any reasonable standard, the rights protected by Hunter are particularly essential in the cases where a minority asserts that a compelling need requires a racially conscious policy. It is precisely on those issues that a public body must have all the facts, consider all the interests, and strike the most appropriate and careful balance. And it is on precisely those issues that a f ederal court, which may be charged with assessing the balance that has been struck, should welcome and protect the right to full and equal debate that is demanded by the Hunter precedents.
Yet it is precisely on those issues-the most important, the most difficult and the most controversial-where the district court and the Ninth Circuit say there is no need for debate at all. According to them, minorities have no right to be heard on the single most important issue of equality in higher education affirmative action. They have no right to fight for the future of their children and grandchildren.
Connerly and the other proponents of Proposal 2 do not trust any public body to make a decision as to whether affirmative action is necessary. Nor do they trust any court to review any such decision. The only solution, the permanent solution, they say, is a one-shot, winner-take-all referendum in which the white majority can declare there can never be racial inequality in “our” state that is so great that a public official could, for any purpose, vote for an affirmative action program.
The whole approach obviously violates the Hunter precedents. So, too, does the proclamation of a “color-blind Constitution.” The Supreme Court has repeatedly held that this theory is “inconsistent in both its approach and its implications with the history, meaning and reach of the Equal Protection Clause.” Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S. Ct. 2738, 2788 (2007)(Kennedy, J.). It must remain an “aspiration,” but “In the real world, it is regrettable to say, it cannot be a universal constitutional principle.” Id., 127 S. Ct. at 2792 (Kennedy, J).
And yet, the Ninth Circuit panel and, less so, the district court say that this constitutional theory, which has been rejected by the Supreme Court, can override the federal rights protected by Hunter. Only the late and not-lamented John C. Calhoun could endorse such an argument.
Above all else, the Fourteenth Amendment was intended to provide national protection against any state's attempts to deny those rights. The substantive outcomes may be different, but minorities must have the same right to equal procedures to fight for affirmative action in Michigan as they now have in Ohio, Kentucky and Tennessee.
Once before, the Court approved a state's rights theory of the Fourteenth Amendment, declaring that the ruling white majority in Louisiana could enact laws that reflected the “usages, customs and traditions of its [white] people...” Plessy v Ferguson, 163 U.S. 537, 550 (1896). Once before, the Court held that the barriers of segregation must fall due to voluntary action: “If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of the individuals.” Id., at 551.
Today, the proponents of Proposal 2 say that the traditions or votes of Michigan may ban all government action to overcome the barriers of de facto segregation.

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We know the results. Plessy soon led to ethnic cleansing on American soil. Black citizens were driven from neighborhoods where they had lived for years; schools were forcibly segregated; many all-black schools were shut down; and lynchings spread across the South. For those who say it can never happen again, Proposition 209 has already driven large numbers of black, Latino and Native American students out of the most selective universities in the largest state in the Union.
Proposal 2 is a major step backward. It is a path that the nation should not travel again. Review the facts as to what happened in 1970. Consider the turmoil that would have been created-and the progress that would never have occurred if Proposal 2 had been the law at that time. This Court should reject Proposal 2's state's-rights attempt to override Hunter and Grutter and should strike down Proposal 2 because it obviously violates the Equal Protection Clause and does so in a radical and dangerous way.
II PROPOSAL 2 VIOLATES THE EQUAL PROTECTION CLAUSE BY MANDATING DIFFERENT ADMISSION AND EDUCATIONAL POLICIES FOR BLACK, LATINO, AND NATIVE AMERICAN STUDENTS.
A. The Court must look behind the words of Proposal 2 by evaluating them in light of the reality of higher education today.
Proposal 2's sole substantive change in Michigan law is, as noted above, its three-word word ban on “granting preferential treatment” to persons based on their race, national origin or gender.
The Ninth Circuit dismissed the claim that Proposition 209 intentionally discriminated against minority students on the basis of its language alone: “A law that prohibits the State from classifying individuals by race and gender a fortiori does not classify individuals by race and gender.” Coalition for Economic Equity, 122 F 3d at 702.
Yet the bitter lessons of our history demonstrate, if nothing else, that a co urt cannot accept a law's professions of benign intent as the Alpha and Omega of judicial inquiry. Louisiana once passed a law that required separate but equal accommodations on street cars. Other states enacted laws that adopted “grandfather clauses,” “literacy tests,” “freedom of choice plans,” “state's rights,” “local customs” and a host of other seemingly neutral justifications for flagrant discrimination.
In Brown and all the cases that followed it, the Court held that it would decide the fate of laws challenged under the Equal Protection Clause not on the basis of their words alone, but on the reality of what those laws did: We consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.
Brown v Board of Education, 347 U.S. 483, 492-493 (1954).
As profound as that new standard was, it was not, of course, a panacea. The Plessy Court claimed to look at reality. But it did so through glasses colored by the overwhelming prejudice that had taken hold of white America by the 1890s. Every Justice, save one, declared that if segregation “stamps the colored race with a b adge of inferiority,” that is “solely because the colored race chooses to put that construction upon it.” Plessy, supra, 163 U.S. at 551. Among other things, Justice Harlan's dissent is justly remembered for his courageous rebuke to his colleagues that they should not have been “so wanting in candor” as to fail to recognize the Louisiana law's obvious intent of stigmatizing and burdening one race and one race alone. Id., at 557.
In analyzing Proposal 2, this Court should combine Brown's demand to look at reality with the honesty and courage of Brown and of Justice Harlan's dissent.

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B. Proposal 2 mandates different policies for the admission of minority students than are required for other categories of students.
The reality of admissions at Michigan and every other selective school in the state and the nation is summarized in the statement of facts above. The students who apply to these schools come from every racial group; from families that are rich, poor, and in-between; from urban, suburban, and rural areas; from other countries and from this one; and from every region of the state and the nation. The secondary schools from which they graduated vary from elite preparatory schools with numerous college-level courses to public schools in the urban centers which provide only the barest essentials of a secondary education.
Without a uniform standard for judging “ability” or “promise” among students from widely varying backgrounds, admissions officials at selective universities use a whole series of criteria to take account of differences and to assure that they have a “well-rounded” class in which students from a wide variety of backgrounds can interact. As set forth in Bakke and Grutter and in the statement of facts above, the Civil Rights Movement achieved access for minority students to selective universities by adding the consideration of race and the goal of racial diversity to these systems.
Because the educational and test score differences between whites and underrepresented minorities were so great, the plus factors needed were greater than those that had been used for poor white students in the past. Moreover, because racism has been so deep in this country, the policies of affirmative action by race were far more controversial than the equivalent policies used for admitting poor and working-class white students.
What is absolutely invidious about the substantive command of Proposal 2 is that it allows the universities full discretion to take account of any factor causing educational inequality except race--the factor that everyone concedes causes the greatest educational inequality in the United States. Similarly, it allows universities full discretion to adopt explicit measures designed to assure a class that is diverse in every way except the one that has been most difficult and most important-diversity by race. Behind the profession of “no preferences,” Proposal 2 allows the universities to continue giving favorable consideration to every factor except race-and forces them to go through the charade of pretending to consider applicants without even looking at their race.[FN15]
FN15. The absurdity of this charade can be shown by one example. Suppose the young Barack Obama had applied for law school after Proposal 2. Further suppose that he decided to submit his book Dreams from My Father in place of a required autobiographical essay. In order to consider his application without “considering his race,” the censors mandated by Proposal 2 would have to delete almost every word in the book. The fate of Obama's hypothetical application illustrates the point that the supposedly color-blind supporters of Proposal 2 have absolutely failed to recognize. The biological fact of a prospective student's race is irrelevant to his qualifications; but the social fact of his or her race and of racism is almost certainly an essential fact in evaluating the experience and opportunities that the student has had. Indeed, in his own book, Creating Equality, Connerly repeatedly refers to his race in order to explain what he knew and what he did.
In its Opinion, the district court rightly recognized that the two leaders of the campaign in favor of Proposal 2 identified two differing purposes for that law. The statements of both leaders reveal the invidious purpose of this amendment.
Jennifer Gratz, who comes from a lower-middle-class suburb of Detroit, conceded that income caused great inequalities in education and that she would not only support but welcome admissions standards at the University of Michigan that admitted persons from lower socio-economic backgrounds with lower average scores and grades than those from a more privileged background. But when asked whether there were inequalities in education that were caused by race, Gratz repeatedly refused to answer (R. 222-38, Dep of Gratz, 102-107).
Ward Connerly, the other primary leader of the campaign to adopt Proposal 2, conceded virtually every aspect of

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racial inequality set forth in this brief's statement of facts. As a result, he recognized that Proposal 2 would drive down the number of black, Latino and Native American students at the University of Michigan and at other selective schools in the state. But, he declared, that was necessary in order to administer a dose of “tough love” to black and Latino students: ...the only way we're going to close this academic gap between black and Latino on the one hand and Asian and white on the other, is not to keep papering it over with preference, but to apply the tough love that's necessary to get black and Latino students up to the bar.
R. 246, Dist Ct Op, at 41, citing R. 221-1, Connerly Dep, at 120.
The district court properly expressed contempt for the rationale offered by Gratz-who wanted a larger “slice of the pie” for herself and other white students- the rationale offered by Connerly-who believed that “There is virtue in tossing minority students into the deep end and letting them sink or swim on their own (regardless that some might drown in the meantime)....” (R. 246, Dist Ct Op, at 41).
What is shocking, however, is that the district court then asserted that the purposes offered by Gratz and Connerly were non-discriminatory purposes. In what alternate universe, however, can a law that is intended to mandate special policies of “tough love” for categories of students that are defined by race be nondiscriminatory? Similarly, how can a law be non-discriminatory when its purpose is to allow universities to recognize every other form of inequality and the need for every type of diversity except the inequality that is deepest and the type of diversity that has been the hardest to achieve?
There is no doubt what the real substance of the debate on Proposal 2 was. Beneath the cry of “no preferences,” the supporters of Proposal 2 asserted that “less qualified” black and Latino students were being admitted while “more qualified” white students were being rejected. This is factually false and insulting to the minority students who have overcome massive inequality in order to be admitted to and graduate from the university. But even the terms of debate reveal the racial focus of Proposal 2-it aims not at excluding “unqualified” students, but at excluding only one category of supposedly “unqualified” students-those who happen to be racial minorities.
That racist policy is the sum and total of Proposal 2.
Proposal 2 is an embarrassment to the State of Michigan and an affront to minority students-and it should be struck down by this Court as a clear and substantive violation of the Equal Protection Clause of the Fourteenth Amendment.
C. The district court erred as a matter of law in failing to recognize the invidious racial purpose of Proposal 2.
The traditional factors considered by the Supreme Court in determining challenges to statutes under the Equal Protection Clause make it even clearer that Proposal 2 has an invidious intent.
In the defining precedent, which involved a challenge to a city's decision to block a road in a way that prohibited residents from a black area from going through a predominantly white area, the Supreme Court held if one of the reasons for the particular ordinance was racial discrimination, the statute as a whole was unconstitutional. Village of Arlington Heights v Metropolitan Housing Development Corporation, 429 US 252, 265-266 (1977). [FN16] In that case, the Court directed the lower courts to look beyond the words of the statute to its effects and to the circumstances surrounding its enactment. In some cases, the Court held, the differing impact of the law on one race rather than another might be so great that the purpose was apparent from the impact alone. Id., at 266. In most cases, however, the Court held that in determining whether the law had an invidious purpose, the lower courts should also examine factors like “the background ofthe decision,” “the specific sequence ofthe events leading up to the challenged decision,” the departures, if any, from the normal substantive and procedural standards, and the statements of the act's sponsors. Id., at 267-268.

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FN16. In Arthur v Toledo, 782 F.2d 565, 574 (6th Cir. 1986), this Circuit modified the Arlington standard for laws adopted by popular referenda by holding that “absent a referendum that facially discriminates racially or one where although facially neutral, the only possible rationale is racially motivated, a district court cannot inquire into the electorate's motivations in an equal protection context.” In Buckeye Comm. Hope Foundation v City of Cuyahoga Falls, 263 F.3d 627, 638 n.2 (2001), rev on other grounds 538 U.S. 188 (2003), this Circuit then sharply criticized the Arthur standard and held that the “[p]laintiffs do not have to show that the challenged action rested solely on racially discriminatory purposes” in order to show a violation of the Equal Protection Clause. Id., at 634.
Whether Arthur is still good law need not be decided because it does not, in any event govern the facts present here. In Arthur, the Court upheld a facially neutral referendum that rejected approval for the construction of sewer lines. In this case, the referendum in question has an explicit racial focus. It bans “race preferences”-and only race preferences. By definition this law has a racial purpose: the only question is whether it has a benign or an invidious racial purpose.
Judged by any of these standards--and more surely by all of them together-- the substantive provisions of Proposal 2 violate the Equal Protection Clause.
The district court held that the depositions in evidence clearly established a factual question as to whether the law would adversely impact minority students (R. 246, Dist. Ct. Op., at 40). The district court then went further, declaring that “...if affirmative action programs have had a positive effect on university admissions of minority students, it is difficult to see how Proposal 2 could not have a disparate impact on minorities” (R. 246, Dist. Ct. Op., at 40). But those findings, as true as they are, miss the point.
Arlington asks whether “...the impact ofthe official action...bears more heavily on one race than another.” Id., 429 U.S. at 564. Judged by that standard, the adverse impact of Proposal 2 is infinite: no white student will be excluded from a college or university. By definition, every student excluded will be either black, Latino or Native American. On this so-called civil rights provision, minority residents will bear one hundred percent of the burden of this policy. If ever there were a case where the differential impact was great enough to infer purpose from impact, Id., at 466, a 100 percent difference in burden should be such a case.
Moreover, as set forth above the two leading proponents of Proposal 2 have made clear that they knew of this discriminatory impact and that they supported Proposal 2 not in spite of its consequences for minority students but because of those consequences.[FN17] Gratz wants to reserve more slots for supposedly more qualified white students-while Connerly wants to administer a dose of “tough love” to minority students. Both have thus clearly stated that they have a racial goal in mind-even though they do not agree on the precise nature of that goal.
FN17. The district court cited language from the Supreme Court that mere awareness of the disparate consequences was not adequate to show a discriminatory intent. Personnel Administrator of Massachusetts v Feeney, 442 U.S. 256, 279 (1979). In that case, the Massachusetts Legislature established an absolute veterans preference. Predictably, this had an enormously disparate impact on women. Yet the Court sustained it because the law's objective-assuring jobs for those who served in the military-was a w ell-recognized, non-discriminatory goal. In this case, however, there is no purpose for Proposal 2 other than to drive down minority admissions and to deliver a dose of “tough love” to minority students.
The district court was certainly right in asserting that the racially-targeted fraud used by the supporters of Proposal 2 lends “some credence to the idea that ulterior motives were at work” (R. 246, Dist. Ct. Op., at 42). But it failed to recognize that the entire point of this law was not simply to overrule Grutter, but to prevent the adoption of any affirmative action plan of any kind in the future. To that end, it broke from a 150-year-old tradition of leaving all aca-

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demic matters within the purview of the governing boards.
Finally, the district court is lacking candor when it says that the supporters of Proposal 2 appealed to “fairness and just treatment” (R. 246, Dist. Ct. Op., at 42). It is true that the supporters of Proposal 2 used those words-but they made clear that “fairness and justice” could only be obtained by the end of “race preferences.” The message was clear: supposedly unqualified black and Latino students were taking the place of more deserving white students. The focus was explicitly racial: no other group of purportedly unqualified students was targeted. And the message got through: two out of every three white voters cast ballots in favor of Proposal 2, while 9 out of 10 black voters cast ballots against it.[FN18]
FN18. In numerous contexts, the Court has cited the racial composition of the votes as evidence of whether a law is, or is not, discriminatory. See, e.g., Crawford v Board of Educ. Of City of Los Angeles, 458 U.S. 527, 545 (1982).
Proposal 2 has already done immense harm to the racial climate in Michigan. It has vastly strengthened the racist myth that minority students are unqualified. It has reduced the chance that Michigan's universities will graduate the next Colin Powell, Condolezza Rice or Barack Obama. Even more importantly, it has reduced the chances of tens of thousands of minority youth to obtain an education that everyone knows will change their lives.
Contrary to the opinion of the district court, it is not necessary to “impugn the motives” of 58 percent of Michigan's electorate (R. 246, Dist. Ct. Op., at 42). As this Court has held, the question is not the subjective intent of the voters, but an objective review of the law's purpose. Arthur v Toledo, 782 F.2d 565, 574 (6th Cir. 1986). Proposal 2's clear racial focus, the one hundred percent difference in its impact on minority versus non-minority students, the statements of its sponsors, the departures from the state's 150-year tradition of academic independence, and the racially-polarized nature of the vote all demonstrate Proposal 2's invidious intent.
There is no real dispute over that. The question is the one that faced the first Justice Harlan-having the candor and courage to recognize the purpose that everyone knows was there. The plaintiffs ask this Court to strike down Proposal 2 because it was clearly intended to impose different policies on categories of students defined by race and was in particular aimed at driving down the number of minority students in Michigan's most selective public universities.
III PROPOSAL 2'S BAN ON GENDER-BASED AFFIRMATIVE ACTION VIOLATES THE EQUAL PROTECTION CLAUSE IN THE SAME WAYS THAT ITS BAN ON RACE-BASED AFFIRMATIVE ACTION VIOLATES THAT CLAUSE.
Affirmative action opened up schools and entire professions to women who had never before been admitted in any significant numbers. Indeed, the policy of affirmative action for women has been so successful in admissions to higher education that it has largely been rendered unnecessary in that field, except in sciences, engineering and a few other disciplines where age-old exclusion has not yet been overcome (R. 222-4,5,6, Dep. of Spencer, at 208-211).[FN19]
FN19. There is neither time nor need here to analyze why affirmative action by gender has been so successful so much more quickly than affirmative action based on race. But two points can be made. First, there has never been the degree of segregation by gender in the public schools like that imposed by race. Second, because segregation by gender in social life generally has also been far less, there are not the cultural differences on standardized tests in the nearly the same degree as there are based on race.
Nevertheless, the abridgement of rights by gender that Proposal 2 has imposed violates the Fourteenth Amendment in ways analogous to race. By depriving public bodies of any power to use gender-based affirmative action, Proposal 2 has excluded women and their supporters from the political processes available to all other groups. Moreover, by mandating a policy of “tough love” for women applicants in the sciences, engineering and similar fields, the Proposal

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has mandated a policy for a category of applicants and students defined by gender that can be justified only by an “exceedingly persuasive justification.” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 754 (2004).
Even though equality in admissions for women has progressed far beyond that for race, the hostile climate created by special laws outlawing affirmative action for women can lead to a backwards slide.
Apart from the large difference in degree of impact, there is one difference between the gender classification and the race classification. In dicta in Hunter, the Supreme Court declared that “The majority needs no protection against discrimination, and, if it did, a referendum might be bothersome, but no more than that.” Hunter, supra, 393 U.S. at 391.
The proponents of Proposal 2 asserted, but the district court did not adopt or reject, the claim that Hunter did not apply to gender at all because women are a slight majority of Michigan's population. Yet this is clearly basing far too much on two sentences from an opinion rendered long before gender was recognized as a class entitled to special protection under the Equal Protection Clause. In fact, the entire point of recognizing women as a special class under that Clause is because the degree of past discrimination demonstrated that it, too, was a discrete and insular class that needed special protection from the majoritarian democracy.[FN20]
FN20. Even as to race, the Supreme Court's dictum that the majority needs no protection is clearly dated. There are now cities and states where minorities are the majority of the population but not of the electorate. Today, the Hunter doctrine should be understood to apply to suspect and intermediate classes, not simply to those who are a numerical minority among the population or the electorate.
The Coalition plaintiffs thus ask that the Court strike down Proposal 2 as to gender for the same reasons that it should be struck down as to race.
CONCLUSION AND RELIEF REQUESTED
For the reasons stated, the Coalition plaintiffs ask that the Court reverse the district court and hold that Michigan Proposal 2 violates the Equal Protection Clause as applied to university admissions as to both race and gender because it imposes a far more onerous burden on minorities and women seeking change and because it imposes more onerous substantive policies on classes of students defined by race or gender.
Appendix not available.
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (Bamn), et al., Plaintiffs-Appellants, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, et al., Defendants-Appellees. MICHAEL COX, Michigan Attorney General, Intervenor-Appellee., 2009 WL 1581786 (C.A.6 ) (Appellate Brief )
END OF DOCUMENT

 
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For Opinion See 2011 WL 2600665
United States Court of Appeals, Sixth Circuit.
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (Bamn), et al., Plaintiffs - Appellants, v.
REGENTS OF THE UNIVERSITY OF MICHIGAN, et al., Defendants-Cross-Appellants. No. 08-1534. June 12, 2009.
On Appeal from the United States District Court for the Eastern District of Michigan at Detroit
Defendants/cross-Appellants' Second Cross-Appeal Brief
Butzel Long, Leonard M. Niehoff, 350 S. Main Street, Suite 300, Ann Arbor, MI 48014, (734) 213-3625, Attorneys for Defendants/Cross, Appellants Regents of the University, of Michigan, et al.
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ... i
TABLE OF AUTHORITIES ... iii
STATEMENT IN SUPPORT OF ORAL ARGUMENT ... iv
JURISIDICTIONAL STATEMENT ... v
STATEMENT OF ISSUE FOR REVIEW ... 1
I. STATEMENT OF THE CASE ... 1
II. STATEMENT OF FACTS ... 3
III. ARGUMENT ... 5
A. The District Court Erred in Concluding the University Defendants Were Necessary Defendants ... 5
IV. CONCLUSION ... 12
TABLE OF AUTHORITIES
Cases
American Fid. Fire Ins. Co. v. Construcciones Werl, Inc., 407 F. Supp. 164 (D.C. V.I. 1975) ... 6
Ashcroft v. Iqbal, 2009 U.S. LEXIS 3472 (U.S. May 18, 2009) ... 10

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ... 10, 13
Brooks v. Glynn County, 1989 U.S. Dist. LEXIS 4776 (S.D. Ga. 1989) ... 6, 7, 8
Cherry Hill Vineyards, LLC v. Lilly, 403 F.3d 798 (6th Cir. 2005) ... 5
Hispanic Coalition on R eapportionment v. Legislative Reapportionment Commission, 536 F. Supp. 578 ( E.D. Pa. 1982) ... 9
Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) ... 9
Snyder v. Millersville Univ., No. 07-1660, 2008 U.S. Dist. LEXIS 97943 (E.D. Pa. Dec. 3, 2008) ... 9
Williams v. Doyle, 494 F. Supp. 2d 1019 (W.D. Wis. 2007) ... 10
Statutes
Fed. R. Civ. P. 20 ... 10
Fed. R. Civ. P. 21 ... 4, 5, 13
STATEMENT IN SUPPORT OF ORAL ARGUMENT
Pursuant to the Federal Rule of Appellate Procedure 34(a)(1) and Sixth Circuit Rule 34(a), the University Defendants-Appellants hereby respectfully request oral argument on their cross-appeal. The University Defendants-Appellants' cross-appeal raises the important and foundational question of whether the Universities are properly named as parties in the action brought by the Coalition Plaintiffs-Appellants. The University Defendants-Appellants further note that the Coalition Plaintiffs-Appellants have requested oral argument with respect to their appeal.
JURISIDICTIONAL STATEMENT
The Court of Appeals has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1291. On March 18, 2008, the District Court issued a final order granting summary judgment to the Attorney General and dismissing all claims. In that same order, however, the District Court denied in part the University Defendants-Appellants' Motion to Dismiss. On April 11, 2008, the University Defendants-Appellants filed a Notice of Appeal, thereby taking a timely appeal from that portion of the District Court's order.
STATEMENT OF ISSUE FOR REVIEW
Whether the District Court erred in denying in part the University Defendants-Appellants' Motion to Dismiss, where the University Defendants-Appellants argued that they are not proper parties to this case because they cannot afford the Coalition Plaintiffs-Appellants the relief they demand.
I. STATEMENT OF THE CASE
The Second Amended Complaint (“the Complaint”) filed by Plaintiffs-Appellants the Coalition to Defendant Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, et al. (“the Coalition”) challenged the constitutionality of Article I, § 26 of the Michigan Constitution (“Proposal 2”). The Complaint

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properly named the Attorney General of the State of Michigan as a defendant. But the Complaint also named as defendants the Regents of the University of Michigan, the Board of Trustees of Michigan State University, the Board of Governors of Wayne State University, Mary Sue Coleman, in her official capacity as President of the University of Michigan, Lou Anna K. Simon, in her official capacity as President of Michigan State University, and Irvin D. Reid, in his official capacity as President of Wayne State University (collectively, the “Universities”).[FN1] Simply put, the Universities do not belong in this case.
FN1. The plaintiffs in the companion case of Cantrell, et al. v. Cox, et al. did not name the Universities as parties and did not oppose the dismissal of the Universities from the case brought by the Coalition.
The limited role of the Universities here is obvious but merits emphasis. The Universities did not draft Proposal 2. They did not pass Proposal 2. They cannot change Proposal 2. They are not executive branch entities charged with the responsibility of enforcing Proposal 2. Indeed, the only role of the Universities is that they-like every other public body affected by this constitutional amendment-must follow Proposal 2. The Universities were therefore powerless to afford the Coalition the relief sought in the Complaint-an injunction against the enforcement of Proposal 2. In contrast, the Coalition could have obtained such relief from another party to the litigation, namely, the Attorney General.
As a result, the Universities filed a Motion to Dismiss, in which they argued that, inter alia, they were unnecessary parties to this action. In its March 18, 2008 Opinion and Order the District Court granted the Attorney General's Motion for Summary Judgment and dismissed the Complaint on its merits. In that same Opinion and Order, however, the District Court also denied the Universities' Motion to Dismiss for misjoinder. The Universities have filed this limited cross appeal because they believe the District Court erred in so ruling and because they wish to preserve the argument that they were not properly named as defendants in this case.
II. STATEMENT OF FACTS
On November 7, 2006, the voters of the State of Michigan passed Proposal 2, which added a new Section 26 to Article I of the Michigan State Constitution. In pertinent part, Proposal 2 amended the Constitution as follows:
(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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.
(2) The state shall 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...
Shortly after the enactment of Proposal 2, the Coalition commenced an action challenging its validity and seeking to prevent its enforcement.[FN2]
FN2. The Coalition filed its initial Complaint on November 8, 2006. District Court Record Entry (“RE”) 1. The Coalition filed an Amended Complaint on December 17, 2006. RE 24. And the Coalition filed a Second Amended Complaint on March 28, 2007. RE 96. As noted above, in this brief “the Complaint” refers to the Coalition's Second Amended Complaint.
The Complaint alleged that Proposal 2 violates federal law, including the United States Constitution. See Complaint, RE 96, at ¶11. The first count of the Complaint claimed that Proposal 2 violates the Equal Protection Clause of the Fourteenth Amendment by “intentionally discriminating” against minorities. Id. at ¶¶105-111. The second and fourth counts of the Complaint claimed that Proposal 2 violates the Equal Protection Clause of the Fourteenth Amendment by

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restructuring government in a manner than eliminates “equal political means” for minorities and women to petition for university admissions policies in their interest. Id. at ¶¶ 112-121, 130-136. The third count alleged that Proposal 2 is preempted by Title VI of the Civil Rights Act of 1964. Id. at ¶¶ 122-129. The fifth count alleged that Proposal 2 is preempted by Title IX of Education Amendments of 1972. Id. at ¶¶ 137-142. And the sixth count alleged that Proposal 2 violated “the First Amendment rights of the universities.” Id. at ¶¶ 143-149. In other words, the Complaint challenged the lawfulness of Proposal 2 itself and maintained that the enforcement of Proposal 2 would violate federal law. The Complaint therefore requested preliminary and permanent injunctive and declaratory relief restraining the “enforcement of] Proposal 2 insofar as it applies to the admission, education and graduation of students at the defendant universities.” Id. at 21.
On October 17, 2007, the Universities filed a Motion to Dismiss in which they requested that the court drop them from the case. RE 179. Among other things, the Universities argued that Fed. R. Civ. P. 21 provides a mechanism for courts to dismiss unnecessary parties from a lawsuit. And they maintained that they plainly qualified as unnecessary defendants because they could not provide the relief the Complaint demanded.
The District Court denied this aspect of the Universities' Motion to Dismiss.[FN3] RE 246. The court acknowledged that “dismissal for misjoinder is proper where the party is not responsible for the alleged harm and does not have the power to accord relief.” RE 246 at 22. But the court nevertheless concluded that the Universities were “properly joined as parties to this case” because “the claims brought against the universities are intertwined with those challenging proposal 2 in general.” Id. The Universities respectfully submit that in so ruling the District Court applied an incorrect legal standard to an incorrect characterization of the allegations of the Complaint and consequently reached an incorrect conclusion.[FN4]
FN3. The District Court granted the Universities' motion insofar as it requested dismissal of the Coalition's claim that Proposal 2 violated the Universities' right to academic freedom. The District Court concluded that the Coalition lacked standing to advance this claim. See RE 246 at 23-27.
FN4. This Court reviews de novo a district court's ruling on summary judgment. Cherry Hill Vineyards, LLC v. Lilly, 403 F.3d 798, 802 (6th Cir. 2005).
III. ARGUMENT
A. The District Court Erred in Concluding the University Defendants Were Necessary Defendants
Fed. R. Civ. P. 21 provides, in pertinent part, as follows: Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.
Rule 21 thus provides “a mechanism for correcting either the misjoinder or non- joinder of parties or claims.” American Fid. Fire Ins. Co. v. Construcciones Werl, Inc., 407 F. Supp. 164, 190 (D.C. V.I. 1975).
Rule 21 does not itself define “misjoinder.” The cases interpreting the rule, however, clarify its meaning and application. That case law makes plain that where a defendant's presence is not necessary to afford a plaintiff complete relief, such as where the defendant lacks the authority to provide the requested relief, the defendant should be dropped as a party and dismissed without prejudice. See, e.g., Brooks v. Glynn County, 1989 U.S. Dist. LEXIS 4776, *11 (S.D. Ga. 1989) (“Where a particular defendant lacks authority to provide the requested relief, dismissal is proper.”).
Brooks is instructive here. In that case, plaintiffs- African American voters in the various judicial circuits in Georgia-brought a class action challenging state laws that allowed for the use of “at large” elections. Plaintiffs claimed that such elections prevented African Americans from being the majority voting bloc in many districts. Id. at *2-*4.

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Plaintiffs argued that this election system unfairly discriminated against African American voters and violated the Federal Voting Rights Act and the 13th, 14th, and 15th amendments. Id. at 2. Plaintiffs sued the State Election Board, the Secretary of the State of Georgia, and the Chairman of the State Election Board. Id. Plaintiffs also sued the “Superintendent of Elections” of several counties (“local defendants”).
The local defendants moved to be dropped from the case pursuant to Rule 21 on the basis that the election practices at issue were statewide and that, therefore, the state defendants-not the local defendants-were responsible for the challenged practices. Id. at *4-*5. The local defendants argued that they had no power to grant plaintiffs any of the relief requested, and that dismissing them would not prejudice the plaintiffs or the state defendants. Id. Plaintiffs claimed that the local defendants were proper parties because they supervised the elections and would implement any changes to the law. Id. at *6. Thus, the argument raised by plaintiffs in Brooks is identical to that raised by the Coalition here, i.e., that a party who has no connection with a law beyond the obligation to follow it is a proper defendant in a lawsuit challenging that law.
The court in Brooks granted the local defendants' Rule 21 motion and held that they were not necessary parties: The Court finds that the local defendants' presence is not necessary to afford plaintiffs complete relief. State officials are charged with the responsibility of complying with preclearance requirements. In addition, the other challenged election procedures were promulgated by the state legislature and not by the local defendants.... [Georgia law] specifies that a superintendent's rulemaking authority is circumscribed by laws and by regulations of the State Elections Board. Plaintiffs have not alleged that the local defendants failed to follow the dictates of the State Election Board or that the local defendants applied state law discriminatorily. Consequently, the Court can afford plaintiffs the relief requested without the presence of the local defendants; the Court can address the alleged grievances, if necessary, by directing the state defendants to amend state laws, by declaring certain statutes unenforceable until precleared, and by enjoining certain state-wide procedures. The gravamen of plaintiffs' complaint is that the local defendants and other superintendents have acted in accordance with a superior court judge election system that discriminates against blacks. The local defendants do not have the authority to amend these laws. They function in a ministerial capacity and they cannot act in a manner inconsistent with the statute governing election of superior court judges. Where a particular defendant lacks authority to provide the requested relief, dismissal is proper... [t]he power to alter the contested procedures rests with the state defendants. Joinder of the local defendants is superfluous and they will be dismissed.
Id. at *8-*11. See also Hispanic Coalition on Reapportionment v. Legislative Reapportionment Commission, 536 F. Supp. 578, 584 (E.D. Pa. 1982) (“[W]here certain defendants are clearly without authority or power to effect any of the relief sought by plaintiffs, a motion to drop those defendants may be properly granted.”).
In addition, numerous courts have dismissed defendants in circumstances like these on standing grounds, reasoning that no case or controversy existed between those particular defendants and the plaintiffs in the case. See, e.g., Okpalobi v. Foster, 244 F.3d 405, 425 (5th Cir. 2001) (holding that because the governor and attorney general “have no powers to redress the injuries alleged, the plaintiffs have no case or controversy with these defendants that will permit them to maintain this action in federal court.”); Snyder v. Millersville Univ., No. 07-1660, 2008 U.S. Dist. LEXIS 97943, at *12 (E.D. Pa. Dec. 3, 2008) (“In proceeding against only individuals who do not have the authority to afford her the desired relief... plaintiff's request for a mandatory injunction necessarily fails”); Williams v. Doyle, 494 F. Supp. 2d 1019, 1024 (W.D. Wis. 2007) (“[A] claim for injunctive relief can only stand against someone who has the authority to grant it.”)
The Universities should have been dismissed pursuant to Rule 21 because the Complaint demanded no relief they could provide. Rather, as discussed above, the Complaint claims only that Proposal 2 violates various federal laws and asks for an injunction against its enforcement. Because the requested remedy would have restrained the “enforc[ement] of Proposal 2,” the Complaint, in its totality, raised a claim solely with respect to the State officer charged with defending and enforcing that constitutional provision - the Attorney General.

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Indeed, a line of case law decided after the Motion to Dismiss was filed makes clear that the Complaint failed to meet basic pleading requirements with respect to the claim for relief against the Universities. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (holding that a “plaintiff's obligation to provide the ‘grounds' of ‘his entitle[ment] to relief’ requires more than labels and conclusions”); see also Ashcroft v. Iqbal, 2009 U.S. LEXIS 3472 (U.S. May 18, 2009) (holding that the standard articulated in Twombly applies to all civil actions). A complaint that fails even to request relief that the Universities could provide obviously does not comply with this demanding standard.
The District Court therefore erred in concluding that “the claims brought against the universities are intertwined with those challenging Proposal 2 in general.” RE 246 at 22. After all, the Complaint - for the reasons discussed - did not actually advance any claim against the Universities; rather, it simply alleged that Proposal 2 itself runs afoul of various federal laws. Accordingly, there were no “claims brought against the universities” in the Complaint, let alone claims that were “intertwined” with “those challenging Proposal 2 in general.”
The District Court further erred in relying on Fed. R. Civ. P. 20(a) in concluding that the Universities were properly joined in this case. The District Court reasoned that “[b]ecause the claims against the university defendants and the attorney general share common questions of law and fact and arise out of the same occurrence, the preconditions of joinder under Rule 20(a) have been met and dismissal is unwarranted.” RE 246 at 22. But that analysis obviously does not apply here, where the Complaint actually states no claim at all against the Universities, let alone a claim that “share[s] common questions of law and fact and arise[s] out of the same occurrence” as the other claims advanced.
Unfortunately, the District Court fell into this error because it accepted an argument that was advanced by the Coalition but that has no merit. In response to the Universities' Motion to Dismiss, the Coalition argued they had a claim against, and might need a remedy against, the Universities because those institutions “implemented” Proposal 2 by making such changes to their admissions and financial aid policies as the law required. RE 198 at 1. The Coalition contended that, if the District Court declared that Proposal 2 violated the Constitution or other federal law, and if that violation had “harmed the admission” of minorities, then “affirmative relief' against the Universities might be required to undo those injuries. Id. at 7. The District Court apparently accepted this argument, stating that “[i]f this Court were to find Proposal 2 unconstitutional, affirmative action would not automatically be reinstated into the admissions process. Rather, the universities would have to choose to do so on their own.” RE 246 at 22.
This line of reasoning suffers from two fatal flaws. First, the Complaint nowhere states that the Universities violated the Fourteenth Amendment or the federal civil rights laws; rather, it alleges, over and over again, that Proposal 2 runs afoul of those provisions. Nor does the Complaint include a r equest for relief that encompasses the “affirmative” remedies that the District Court speculated might prove necessary. Indeed, with respect to this failing the Coalition made no argument at all, save the weak observation that the “Second Amended Complaint repeatedly requests ‘such further relief as may be necessary’ to implement any judgment that they secure.” RE 198 at 2, n. 1. Surely, the pleading requirements of the federal rules demand a more specific allegation than that. Again, see Twombly and its progeny, as discussed above.
Second, and for these purposes more importantly, such a claim against the Universities-even if made-would not bring them within the terms of Rule 20(a). After all, the “transaction” or “occurrence” allegedly giving rise to such a claim would not be the passage of Proposal 2; it would be the implementing policies and procedures adopted by the Universities. Of course, the Universities deny that the Coalition has a legally cognizable claim against them based on their decision to obey the law.[FN5] But the critical point here is that if such a claim did exist it would not belong in this lawsuit. Permissive joinder under Rule 20(a) therefore has no application here.
FN5. In addition, if the Coalition were to prevail in this action, and if a court were to hold Proposal 2 unconstitutional or otherwise unlawful, and if the law required the Universities to take remedial steps as a result, then there is no reason to believe that the Universities would not follow the law and take such steps.

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IV. CONCLUSION
The Universities are not necessary parties to this action. They are not charged with the responsibility of enforcing Proposal 2 against anyone or of defending Proposal 2 in court. They did not draft or enact Proposal 2 and they cannot repeal it, amend it, or ignore it. At present, all they can do is comply with their legal obligation to follow it. In contrast, should this Court grant the Coalition the relief it seeks, that relief can be obtained from the Defendant Attorney General. Because the Universities are not necessary parties to this action they should have been dismissed pursuant to Fed. R. Civ. P. 21. This aspect of the District Court's Opinion and Order should therefore be reversed.
COALITION TO DEFEND AFFIRMATIVE ACTION, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (Bamn), et al., Plaintiffs - Appellants, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, et al., Defendants-Cross-Appellants. 2009 WL 1856882 (C.A.6 ) (Appellate Brief )
END OF DOCUMENT

 
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For Opinion See 2011 WL 2600665
United States Court of Appeals, Sixth Circuit. Chase CANTRELL, et al, Plaintiffs-Appellants,
v. Michael COX, Michigan Attorney General, Intervenor-Defendant-Appellee.
No. 09-1111. July 22, 2009.
Appeal from the United States District Court, Eastern District of Michigan, Southern Division, Honorable David M. Lawson
Brief for Defendant-Appellee
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Co-Counsel, Margaret A. Nelson, Heather S. Meingast, Assistant Attorneys General, Co-Counsel of Record, Attorneys for Defendants-Appellee, Public Employment, Elections & Tort Div, P.O. Box 30736, Lansing, MI 48909, (517) 373-6434.
TABLE OF CONTENTS
Table of Authorities ... iii
Statement in Support of Oral Argument ... v
Jurisdictional Statement ... 1
Statement of Issues Presented ... 2
Statement of the Case ... 3
Statement of Facts ... 1
Summary of Argument ... 5
Argument ... 7
I. In November 2006, the voters of the State of Michigan adopted a constitutional amendment that prohibits discrimination against or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in public University admissions, government contracting and hiring. The amendment effectively removes all discretion from the respective governing bodies of the Universities to consider race or gender as a factor in admission. The constitutional amendment does not violate the Equal Protection Clause of the Fourteenth Amendment by restructuring the political process to lodge decision-making authority over the questions of race-conscious admissions at anew and remote level of government ... 7
A. Standard of Review ... 7
B. Discussion ... 7

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1. The Supreme Court trilogy - Hunter, Seattle, and Romer ... 8
2. The District Court correctly held that the Hunter, Seattle, and Romer holdings are inapplicable to art. 1, § 26 because the amendment does not create an unequal burden on racial minorities to obtaining equal treatment or protection under the law ... 10
3. The distinction drawn by the District Court between impediments to seeking “equal treatment” and impediments to seeking “preferential treatment” is supported by the law ... 19
4. Additionally, this Court should conclude that § 26 is constitutional because the university admissions process is not a political process for purposes of applying Hunter and its progeny ... 29
5. In the alternative, this Court should conclude that § 26 is constitutional because the Cantrell Plaintiffs failed to show that the passage of § 26 resulted from a discriminatory intent or purpose ... 34
Addendum -Designation of Joint Appendix Contents ... 39
TABLE OF AUTHORITIES
Cases
Arthur v. Toledo, 78 F.2d 565 (6th Cir. 1986) ... 35
Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423 (6th Cir. 2008) ... 7
Citizens for Equal Protection, et al v. Bruning, 455 F.3d 859 (8 Cir. 2006) ... 18
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188; 123 S. Ct. 1389; 155 L.Ed. 2d 349 (2003) ... 34
Clarke v. City of Cincinnati, 40 F.3d 807 (6th Cir. 1994) ... 35
Cmtys for Equity v. Mich. High School Athletic Ass'n., 459 F.3d 676 (6th Cir. 2006) ... 7
Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), cert den 522 US 963; 118 S Ct 397; 139 L Ed 2d 310 (1997) ... passim
Coalition to Defend Affirmative Action, et al v Board of State Canvassers, 262 Mich. App. 395; 686 N.W.2d 287 (2004) ... 1
Coalition to Defend Affirmative Action, et al. v. Granholm, et al., 473 F.3d 237 (6 Cir. 2006) ... passim
Coalition To Defendant Affirmative Action, et al v. Regents of the University of Michigan, et al, 539 F. Supp. 2d 924 (E.D. Mich. 2008) ... passim
Crawford v. Bd. of Education of City of Los Angeles, 458 U.S. 527; 102 S. Ct. 3211; 73 L. Ed. 2d 948 (1982) ... 16, 17, 27, 31
Equality Foundation of Greater Cincinnati, Inc v. Buchanan, 128 F.3d 289 (6 Cir. 1997) ... 11, 35

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Gratz v Bollinger, 539 U.S. 244; 123 S. Ct. 2411; 156 L. Ed. 2d 257 (2003) ... 21
Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325; 145 L. Ed. 2d 304 (2003) ... 21, 23, 24
Hunter v. Erickson, 393 U.S. 385; 89 S. Ct. 557; 21 L. Ed. 2d 616 (1969) ... passim
Marks v. United States, 430 U.S. 188; 97 S. Ct. 990; 51 L. Ed. 2d 260 (1977) ... 22
Michigan Civil Rights Initiative v. Board of State Canvassers, 268 Mich. App. 605; 708 N.W.2d 139 (2005) ... 1
Operation King's Dream v. Connerly, United States District Court for the Eastern District of Michigan, Case No. 06-12773; 2006 US Dist LEXIS 61323 ... 1
Operation King's Dream, et al v. Connerly, et al, 501 F.3d 584 (6th Cir. 2007) ... 1
Parents Involved in Community Schools v. Seattle School District No 7, 551 U.S. 701; 127 S. Ct. 2738; 168 L. Ed. 2d 508 (2007) ... 21, 22
Romer v. Evans, 517 U.S. 620; 116 S. Ct. 1620; 134 L Ed. 2d 855 (1996) ... 5, 9, 10, 11
Valieria v. Davis, et al, 307 F.3d 1036 (9th Cir. 2002) ... 34
Washington v. Seattle School Dist. No. 1, 458 U.S. 457; 102 S. Ct. 3187; 73 L. Ed. 2d 896 (1982) ... passim
Constitutional Provisions
Const 1963, art 12, § 2 ... 2
U.S. Const. amend. XIV, § 1 ... 27
Statement in Support of Oral Argument This case presents unique and significant issues of law challenging a state constitutional amendment, specifically, Const 1963, art. 1, § 26, adopted by Michigan voters in November 2006. Plaintiffs-Appellants (hereafter Plaintiffs or Cantrell Plaintiffs) present an equal protection political structure challenge premised on the Supreme Court's decision in Hunter v. Erickson, and its progeny.[FN1] Oral argument will assist the Court's understanding of the legal argument, and provide an opportunity to address questions on these important issues.
FN1. Hunter v. Erickson, 393 U.S. 385; 89 S. Ct. 557; 21 L. Ed. 2d 616 (1969).
Jurisdictional Statement
Intervening Defendant-Appellee Attorney General Michael A. Cox (hereafter Defendant or Defendant Cox) concurs in the Plaintiffs' Jurisdictional Statement.
Statement of Issues Presented

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I. In November 2006, the voters of the State of Michigan adopted a constitutional amendment that prohibits discrimination against or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in public University admissions, government contracting and hiring. The amendment effectively removes all discretion from the respective governing bodies of the Universities to consider race or gender as a factor in admission. Does the constitutional amendment violate the Equal Protection Clause of the Fourteenth Amendment by restructuring the political process to lodge decision-making authority over the questions of race-conscious admissions at a new and remote level of government?
Statement of the Case
On November 7, 2006, Michigan voters adopted Proposal 06-02 (Proposal 2), a state constitutional amendment prohibiting discrimination against or the granting of preferential treatment to individuals or groups based on race, sex, ethnicity, and national origin in public education, government contracting, and public employment by a margin of 57.9% to 43.1%. The day after the election, the Coalition to Defend Affirmative Action and others, filed an action against Governor Jennifer Granholm, and the governing bodies of state universities (the University Defendants), alleging that the constitutional amendment violated the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, and other federal laws. (R 1, Complaint, ¶¶ 29-37). Another group - the Cantrell Plaintiffs - brought suit on December 19, 2006, also challenging the constitutional amendment on equal protection grounds. The District Court consolidated these cases on January 5, 2007. (R 69, Order consolidating cases and granting motion to intervene) The District Court also granted Defendant Attorney General Mike Cox's motion to intervene in the consolidated cases. (R 13, Order granting motion to intervene; R 69, Order consolidating cases and granting motion to intervene).
Proposal 2 t ook effect December 23, 2006, as Const. 1963, art. 1, § 26. The District Court granted the Coalition Plaintiffs, Defendant Cox, and the University Defendants a preliminary injunction delaying the effective date of the amendment to July 1, 2007, the end of the then current university admissions cycle. Intervening defendant Eric Russell an applicant to the University of Michigan, then moved in this Court to stay that preliminary injunction. On December 29, 2006, a panel of this Court granted the motion for stay pending a full appeal regarding the injunction.[FN2] That appeal was subsequently dismissed as moot after the injunction expired of its own accord.
FN2. Coalition to Defend Affirmative Action, et al. v. Granholm, et ah, 473 F.3d 237 (6th Cir. 2006).
The Coalition Plaintiffs amended their complaint on December 17, 2006, and again on March 28, 2007. (R 24, Coalition First Amended Complaint; R 96, Coalition Second Amended Complaint) The Cantrell Plaintiffs amended their complaint on January 17, 2007. (R 73, Cantrell First Amended Complaint)
On May 15 and 16, 2007, both Plaintiffs filed motions to certify a class action. (R 121, Coalition Plaintiffs' Motion to Certify Class Action; R 107, Cantrell Plaintiffs' Motion to Certify Class Action). Those motions were argued and taken under advisement. In the interim, the parties completed fact discovery. On October 5, 2007, the Cantrell Plaintiffs filed a motion for summary judgment as to intervening defendant Eric Russell. (R 172, Cantrell Motion for Summary Judgment as to Defendant Russell). The University Defendants filed a motion to dismiss on October 17, 2007. (R 179, University Defendants' Motion to Dismiss) On November 30, 2007, Defendant Cox and Defendant Russell filed dispositive motions. (R 201, Defendant Cox's Motion to Dismiss; R 202, Russell's Motion for Summary Judgment). The Cantrell Plaintiffs filed a second dispositive motion as to the remaining defendants and substantive claims. (R 203, Cantrell Motion for Summary Judgment). The motions were submitted for decision after oral argument on February 6, 2008. On March 18, 2008, the District Court issued its decision granting in part and denying in part the University Defendants' Motion to Dismiss, denying the Cantrell Plaintiffs' Motion for Summary Judgment, granting the Attorney General's Motion for Summary Judgment, and dismissing the cases.[FN3]
FN3. Coalition To Defendant Affirmative Action, et al v. Regents of the University of Michigan, et al, 539 F. Supp. 2d 924 (E.D. Mich. 2008).

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The Coalition Plaintiffs filed an appeal on March 19, 2008. (R 249, Coalition Plaintiffs Notice of Appeal).[FN4] The Cantrell Plaintiffs filed a Motion to Alter or Amend the District Court's judgment. (R 253, Cantrell Plaintiffs Motion to Alter or Amend Judgment). The District Court denied that motion by Order entered December 11, 2008. (R 258, Order denying Motion to Alter or Amend Judgment) The Cantrell Plaintiffs filed an appeal on January 12, 2009, which was set for briefing with the Coalition Plaintiffs' appeal. (R 260, Cantrell Plaintiffs Notice of Appeal in 09-1111).
FN4. The Coalition Plaintiffs' appeal is pending in Sixth Circuit Case No. 08-1387.
Statement of Facts
On November 7, 2006, Michigan voters overwhelmingly approved passage of Proposal 2,[FN5] which amended the Michigan Constitution to prohibit the discrimination against or the granting of 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.[FN6] Proposal 2, now art. 1, § 26 of the Michigan Constitution, provides in part:
FN5. The Amendment passed with 2,141,010 citizens voting in favor of the proposal, and 1,555,691 citizens voting against the proposal, or by 57.9 % to 42.1%. See http:// miboecfr.nictusa.com/election/results/06GEN/90000002.litml.
FN6. The proposal engendered lengthy legal challenges prior to its passage. See Coalition to Defend Affirmative Action, et al v Board of State Canvassers, 262 Mich. App. 395; 686 N.W.2d 287 (2004); Michigan Civil Rights Initiative v. Board of State Canvassers, 268 Mich. App. 605; 708 N.W.2d 139 (2005); Operation King's Dream v. Connerly, United States District Court for the Eastern District of Michigan, Case No. 06-12773; 2006 US Dist LEXIS 61323; Operation King's Dream, et al v. Connerly, et al, 501 F.3d 584 (6th Cir. 2007).
(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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.
(2) The state shall 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.
(3) For the purposes of this section “state” includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in subsection 1.
This section took effect on December 23, 2006.[FN7]
FN7. See Const 1963, art 12, § 2. Although, as noted above, the parties had stipulated to a preliminary injunction enjoining the effective date of this provision until July 1, 2007, the end of the then current admissions cycle, this Court granted Defendant Russell's motion for stay of that injunction pending appeal on December 29, 2006, and the amendment was then fully implemented by the University Defendants.
On November 8, 2006, the Coalition Plaintiffs, who include the Coalition to Defend Affirmative Action, Integration

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and Immigrant Rights and Fight for Equality by any means necessary (BAMN), two other organizations, several labor unions, and numerous individual plaintiffs, filed a Complaint for injunctive and declaratory relief raising a facial challenge to § 26 of the Michigan Constitution. The Complaint alleged equal protection and First Amendment challenges under the federal constitution. (R 1, Coalition Complaint, ¶¶ 32-37). The Complaint also asserted that § 26 is preempted by Titles VI and VII of the Civil Rights Act of 1964, and Title XI of the education Amendments of 1972. (R 1, Coalition Complaint, ¶¶ 29-31). Plaintiffs requested the District Court declare § 26 unconstitutional under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, permanently enjoin Defendants from eliminating any affirmative action plans in admissions to the State's three largest universities, and grant any other relief determined appropriate. (R 1, Coalition Complaint, p 8). The Complaint expressly named as defendants Governor Jennifer Granholm, in her official capacity, the Regents of the University of Michigan, the Michigan State University Board of Trustees, and the Wayne State University Board of Governors. Michigan Attorney General Mike Cox then sought and was granted permission to intervene as a defendant in this action. (R 13, Order granting motion to intervene). First and Second Amended Complaints were subsequently filed by the Coalition Plaintiffs, in which the Plaintiffs added an equal protection political process claim, but the relief sought was essentially the same as the original Complaint. The Coalition Plaintiffs also added the University presidents as Defendants. (R 24, Coalition First Amended Complaint; R 96, Coalition Second Amended Complaint). Governor Granholm was later voluntarily dismissed as a defendant in this case. (R 151, Order dismissing Governor Granholm in Coalition case).
On December 19, 2006, a second lawsuit was filed by the Cantrell Plaintiffs challenging the constitutionality of § 26 by several applicants to the University of Michigan and current University of Michigan students and faculty. They sought a declaratory ruling that § 26 violates the Equal Protection Clause because it imposes additional burdens on racial minorities when seeking to achieve beneficial legislation in their interest. This suit named only Governor Granholm as a defendant. The Cantrell Plaintiffs also amended their Complaint on January 17, 2007. (R 73, Cantrell First Amended Complaint). Defendant Cox moved and was permitted to intervene in this suit as well. (R 69, Order consolidating cases and granting motion to intervene). The Governor was subsequently dismissed from this suit as well, leaving only the Attorney General to defend the amendment. (R 163, Order dismissing Governor Granholm in Cantrell case).
The two lawsuits were consolidated by agreement of the parties and by order of the Court. (R 69, Order consolidating cases and granting motion to intervene). Discovery in these cases was bifurcated into fact and expert discovery. After the cases proceeded through fact discovery, the parties filed dispositive motions, with the exception of the Coalition Plaintiffs.
The District Court issued its decision on these motions March 18, 2008. The District Court's Opinion succinctly and accurately describes the claims asserted by the Plaintiffs; the arguments of the parties; and the facts presented in the motions.[FN8] Defendant Cox relies on the District Court's recitation for purposes of this appeal. After determining “there are no material fact issues that require a trial on any of the claims,” the District Court considered the legal issues and concluded “Proposal 2 [art.1, § 26] does not violate the United States Constitution.”[FN9] The Cantrell Plaintiffs then moved to alter or amend the judgment (R 253, Cantrell Plaintiffs Motion to Alter or Amend Judgment), which motion the Court denied on December 11, 2008. (R 258, Order denying Motion to Alter or Amend Judgment). The Cantrell Plaintiffs then appealed.
FN8. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 930-940.
FN9. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 930.
Summary of Argument
The Cantrell Plaintiffs claim that Proposal 2, now art. 1, § 26 of the Michigan Constitution, violates the Equal Protection Clause of the Fourteenth Amendment under a “political structure” Equal Protection Clause analysis.

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Pursuant to this theory, Plaintiffs assert that § 26 unconstitutionally restructures the political process because racial minorities, students or applicants from particular national origins, may not petition state universities and colleges to sustain or make changes in admissions and hiring practices that benefit or advantage these groups, outside of securing an amendment to the Michigan Constitution. Plaintiffs assert that this violates equal protection principles because other groups seeking beneficial legislation based on other characteristics do not face such an onerous political process. Plaintiffs cite the Supreme Court's decisions in Hunter v. Erickson and Washington v. Seattle School District, in support of their argument.[FN10]
FN10. Hunter, 393 U.S. 385; Washington v. Seattle School Dist. No. 1, 458 U.S. 457; 102 S. Ct. 3187; 73 L. Ed. 2d 896 (1982). See also Romer v. Evans, 517 U.S. 620; 116 S. Ct. 1620; 134 L Ed. 2d 855 (1996).
The District Court correctly rejected this claim because, although the Court determined that the amendment did alter the political process to make it more difficult for Plaintiffs to seek such benefits or advantages, the Equal Protection Clause is only offended when the process is altered to make it more difficult to obtain equal treatment or protection not preferential treatment.
Because the District Court rightly concluded that § 26 is constitutional and does not violate the Equal Protection Clause of the Fourteenth Amendment, this Court should affirm the grant of summary judgment in favor of Defendant Cox.
Argument
I. In November 2006, the voters of the State of Michigan adopted a constitutional amendment that prohibits discrimination against or granting preferential treatment to, any individual or group on the basis of race, sex,
color, ethnicity, or national origin in public University admissions, government contracting and hiring. The amendment effectively removes all discretion from the respective governing bodies of the Universities to consider race or gender as a factor in admission. The constitutional amendment does not violate the Equal Protection Clause of the Fourteenth Amendment by restructuring the political process to lodge decision-making
authority over the questions of race-conscious admissions at a new and remote level of government.
A. Standard of Review
This Court reviews a district court's grant of summary judgment de novo.[FN11] More specifically, a state law's constitutionality “is a question of law which this Court reviews de novo.”[FN12]
FN11. Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir. 2008).
FN12. Cherry Hill Vineyards, 553 F.3d at 431, citing Cmtys for Equity v. Mich. High School Athletic Ass'n., 459 F.3d 676, 680 (6th Cir. 2006).
B. Discussion
The Cantrell Plaintiffs asserted in their amended Complaint a constitutional challenge to § 26 grounded in a “political structure” equal protection analysis. (R 73, Cantrell Amended Complaint, ¶¶ 78-79). Premised on the Supreme Court's decisions in Hunter and Seattle School District, Plaintiffs argue that § 26 unconstitutionally restructures the political process because racial minorities, students or applicants from particular national origins, may not petition the faculty and administration at state universities and colleges to sustain or make changes in admissions and hiring practices that benefit or advantage these groups. Rather, they allege, racial minorities may only secure adoption of such benefits or

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advantages based on racial status by mounting an extremely costly effort to amend the state constitution - the same process the proponents of § 26 used to secure its passage in the first instance. (R 73, Cantrell Amended Complaint, ¶¶ 78-79.) In examining these allegations and the evidence presented in opposition to Defendant Cox's dispositive motion, the District Court correctly determined “there are no material fact issues that require a trial on any of the claims, and the Court must find that Proposal 2 [art. 1, § 26] does not violate the United States Constitution.”[FN13]
FN13. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 930.
1. The Supreme Court trilogy - Hunter, Seattle, and Romer.
In Hunter, the Akron city charter had been amended by the voters to provide that no ordinance regulating real estate on the basis of race, color, religion, or national origin could take effect until approved by a referendum. As a result of the charter amendment, a fair housing ordinance, adopted by the city council at an earlier date, was no longer effective. In holding the charter amendment invalid under the Fourteenth Amendment, the Supreme Court held that the charter amendment was not a simple repeal of the fair housing ordinance. The amendment “not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required the approval of the electors before any future [antidiscrimination] ordinance could take effect.”[FN14] Thus, whereas most ordinances regulating real property would take effect once enacted by the city council, ordinances prohibiting racial discrimination in housing would be forced to clear an additional hurdle. As such, the charter amendment placed an impermissible, “special [burden] on racial minorities within the governmental process.”[FN15]
FN14. Hunter, 393 U.S. at 389-390.
FN15. Hunter, 393 U.S. at 391.
Similarly, in Seattle School District, the Supreme Court invoked Hunter to strike down a Washington State initiative preventing local school boards from utilizing racially integrative busing practices. There the Court reasoned that the initiative “remove[d] authority to address a r acial problem--and only a r acial problem--from the existing decision making body, in such a way as to burden minority interests.”[FN16]
FN16. Seattle, 458 U.S. at 474.
Finally, in Romer v. Evans the Supreme Court considered an amendment to the Colorado Constitution barring all state and local governments from allowing “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” to be the basis for a claim of “minority status, quota preferences, protected status or claim of discrimination.”[FN17] The amendment invalidated certain local ordinances prohibiting discrimination on the basis of sexual orientation. The Colorado Supreme Court found the amendment unconstitutional. The Supreme Court affirmed, although based on a different rationale. The Court noted that the Colorado constitutional amendment “withdr [ew] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it f orbid[ ] reinstatement of these laws and policies.”[FN18] The Court then concluded that the amendment lacked a rational relationship to a legitimate governmental purpose since there was no factual context from which the Court could discern a relationship to legitimate state interests, but rather it was a classification of persons undertaken for its own sake, in violation of the Equal Protection Clause.[FN19]
FN17. Romer, 517 U.S. at 624. Although not technically a political structure equal protection case, Romer involved an amendment to a state constitution, as here, and discussed fundamental equal protection principles, pertinent to this case.
FN18. Romer, 517 U.S. at 627.

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FN19. Romer, 517 U.S. at 635.
2. The District Court correctly held that the Hunter, Seattle, and Romer holdings are inapplicable to art. 1, § 26 because the amendment does not create an unequal burden on racial minorities to obtaining equal treatment
or protection under the law.
The decisions in Hunter, Seattle, and Romer are inapplicable to § 26. The laws struck down in those cases prohibited or made it more difficult for minorities to seek protection from discrimination through the political process, thus, in effect using the political process to promote discrimination contrary to the Equal Protection Clause. Here, unlike the initiatives at issue in the Hunter line of cases, § 26 prohibits the State's universities and colleges from discriminating against, or in favor of, persons or groups based on their race or sex. This prohibition is not only compelled by § 26 but also by the Fourteenth Amendment's Equal Protection Clause.[FN20] The language and purpose of § 26 is to eliminate both discriminatory and preferential treatment in public contracting, public employment, and public education on account of race or sex.
FN20. See Romer, 517 U.S. at 637-640 (Scalia, J., dissenting)(“The only denial of equal treatment [the majority] contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged ‘equal protection’ violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.”) See also Equality Foundation of Greater Cincinnati, Inc v. Buchanan, 128 F.3d 289 (6th Cir. 1997)(Affirming constitutionality of local ordinance that prohibited municipality from enacting legislation or policies that would accord gays and lesbians special status, privileges, or preferential treatment).
While the District Court agreed with Plaintiffs that § 26 did alter the political structure by making it more difficult to achieve race-conscious admissions or hiring policies than other types of beneficial legislation,[FN21] the District Court concluded that neither the Hunter line of cases nor the Fourteenth Amendment prohibited such a restructuring. On this the Court was persuaded by the distinction drawn by the United States Court of Appeals for the Ninth Circuit in Coalition for Economic Equity v. Wilson, which addressed the constitutionality of California's Proposition 209, after which Proposal 2 was modeled.[FN22]
FN21. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 956.
FN22. Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), cert den 522 US 963; 118 S Ct 397; 139 L Ed 2d 310 (1997).
“[T]he distinction drawn by the Ninth Circuit in the Proposition 209 case between laws that protect against unequal treatment on the basis of race and those that seek advantageous treatment on the basis of race is one yielded by precedent.”[FN23] The District Court quoted favorably from the Ninth Circuit:
FN23. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 957.
“Plaintiffs challenge Proposition 209 not as an impediment to protection against unequal treatment but as an impediment to receiving preferential treatment. The controlling words, we must remember, are “equal” and “protection.” Impediments to preferential treatment do not deny equal protection. It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment. While the Constitution protects against obstructions to equal treatment, it erects obstructions to preferential treatment by its own terms.”[FN24]

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FN24. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 957, quoting Coalition for Economic Equity, 122 F.3d at 708 (footnote omitted).
This Court in its preliminary analysis of this case on Defendant-Intervenor Russell's motion for stay also recognized this unequivocal reading of the Hunter/Seattle doctrine concluding that obstructions to gaining “protection from discrimination” and obstructions to gaining “racial preferences” implicate “fundamentally different concepts.”[FN25] The District Court clearly and properly recognized this distinction in its substantive analysis of the Plaintiffs' claim and in addressing their post-judgment motion raising this specific issue.
FN25. Granholm, 473 F.3d at 251.
Further, the District Court acknowledged the Supreme Court's ruling in Grutter v. Bollinger, in which the Supreme Court affirmed the use of narrowly tailored race-based policies or practices with respect to the University of Michigan's Law School admissions, and the more recent case of Parents Involved in Community Schools v. Seattle School Dist. 7, in which the Court struck down school resegregation policies that were not narrowly tailored, but noted that “these decisions do not change the fact that affirmative action programs not mandated by the obligation to cure past discrimination are fundamentally different than laws intended to protect against discrimination.”[FN26]
FN26. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 957.
The District Court left open the idea that if a plaintiff could demonstrate that racial preferences were required to combat discrimination in admissions or prevent resegregation, that plaintiff may have an as-applied claim, but that the Hunter line of cases do not “prohibit the State from banning programs that give an advantage on the basis of race as a remedy to combating other social disadvantages.”[FN27] Thus, the District Court held:
FN27. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 957.
[T]hat Michigan may limit the ability of discrete groups to secure an advantage based upon a r acial classification without offending the Fourteenth Amendment. Neither Hunter, Seattle, nor Romer v. Evans holds otherwise. Because the political restructuring effectuated by Proposal 2 does not offend the Equal Protection Clause by distancing racial minority groups from the means of obtaining equal protection, the plaintiffs' challenge to the measure based on these cases cannot prevail.[FN28]
FN28. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 957-958.
The District Court correctly decided this claim in the context of this significant equal protection precedent. Plaintiffs' claims on appeal are unpersuasive for the same reasons.
Indeed, this was the very reasoning applied by this Court, which drew these same distinctions and conclusions with respect to § 26 in the earlier decision on the motion for stay pending appeal in this case.[FN29] This Court noted that even if it were to consider § 26's “restrictions on racial preferences,” Plaintiffs' political process claim would not succeed. The Court observed that the challenged enactments in Hunter, Seattle, and Romer “made it more difficult for minorities to obtain protection from discrimination through the political process; here, by contrast, Proposal 2 purports to make it more difficult for minorities to obtain racial preferences through the political process.”[FN30] This Court found these concepts “fundamentally different.”[FN31] The District Court's conclusion and this Court's observation that the outcome of the process cannot be divorced from the process itself for purposes of analyzing a Hunter/Seattle equal protection claim is consistent with both the purpose of the Equal Protection Clause itself, and the Supreme Court's reasoning in this line of cases. It is equal protection, not unequal treatment that is guaranteed.
FN29. Granholm, 473 F.3d at 250-251.

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FN30. Granholm, 473 F.3d at 251.
FN31. Granholm, 473 F.3d at 251.
In Defendant-Intervenor Eric Russell's Proposed Brief on Appeal, he offers a persuasive analysis of this point that succinctly disposes of Plaintiffs' argument.[FN32] For example, in Hunter, Russell notes, the Court consistently described the housing ordinance at issue as one that burdened “those groups who sought the law's protection against racial, religious or ancestral discrimination;” that the law burdened “those who sought protection against racial bias”; that only laws to end housing discrimination were burdened by the offending ordinance; and that the offending ordinance “disadvantages those who would benefit from laws barring racial, religious, or ancestral discrimination.”[FN33] Further, in Seattle, the Court placed great weight on the fact the “District Court found that the text of the initiative was carefully tailored to interfere only with desegregative busing”; that the offending law “was enacted because of, not merely in spite of, its adverse effects upon busing for integration”; and that the offending law burdened those seeking “elimination of de facto school segregation.”[FN34] Thus, as the Ninth Circuit, the District Court and this Court have concluded, the burdened process was the search for equal treatment, not preferential treatment, which in and of itself is discriminating.
FN32. Although this Court has not ruled on Russell's motion to participate as a party or alternatively as an amicus in this appeal, he has submitted a Proposed Brief addressing this process/outcome issue raised by Plaintiffs. Significantly, this issue was not fully presented or briefed below. The Cantrell Plaintiffs did not fully argue this issue until their post-judgment motion. Defendants, including Russell, did not address it in their respective dispositive motions or responses and were not invited by the District Court to respond to the post-judgment motion. Defendant Cox urges this Court to consider Russell's well-crafted argument in its analysis of this issue to assure a complete briefing on this important constitutional claim.
FN33. Hunter, 393 U.S. at 390, 391.
FN34. Seattle, 458 US at 771, 474.
Moreover, this Court was not convinced that § 26 actually reallocated the political structure. Quoting the Supreme Court's decision in Crawford v. Bd. of Education of City of Los Angeles, this Court observed that “Proposal 2 is more akin to the ‘repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place,’ an action that does not violate the Equal Protection Clause,”[FN35] an observation entirely consistent with applicable precedent on this issue.
FN35. Granholm, 473 F.3d at 251, quoting Crawford v. Bd. of Education of City of Los Angeles, 458 U.S. 527, 538; 102 S. Ct. 3211; 73 L. Ed. 2d 948 (1982).
In Crawford, for example, the Supreme Court found constitutional an amendment to the California Constitution that prohibited state courts from ordering race-based student assignments except as a remedy for an equal protection violation. In addressing an equal protection challenge, the Court held that the amendment did not create a racial classification in violation of the Equal Protection Clause. “The simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a p resumptively invalid racial classification.”[FN36] Because the prior panel's decision is fully consistent with the law, this Court should find it persuasive, and similarly conclude that Plaintiffs' claim fails on appeal.
FN36. Crawford, 458 U.S. at 539.
Indeed, the Ninth Circuit's decision in Coalition for Economic Equity is fully instructive in this case as well. In re-

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jecting the identical political structure equal protection attack on California's Proposition 209, the Ninth Circuit asked the telling question, “Can a statewide ballot initiative deny equal protection to members of a group that constitute a majority of the electorate that enacted it?”[FN37] That Court answered, “No,” stating:
FN37. Coalition for Economic Equity, 122 F.3d at 704.
When, in contrast, a state prohibits all its instruments from discriminating against or granting preferential treatment to anyone on the basis of race or gender, it has promulgated a law that addresses in neutral-fashion race-related and gender-related matters. It does not isolate race or gender antidiscrimination laws from any specific area over which the state has delegated authority to a local entity. Nor does it treat race and gender antidiscrimination laws in one area differently from race and gender antidiscrimination laws in another. Rather it prohibits all race and gender preferences by state entities.[FN38]
FN38. Coalition for Economic Equity, 122 F.3d at 707.
The same conclusion is required regarding § 26. Like the California case, Plaintiffs here challenge § 26 not as an impediment to protection against unequal treatment but as an impediment to receiving preferential treatment. Impediments to preferential treatment do not deny equal protection.[FN39] Thus, Plaintiffs have no equal protection rights against a political obstruction to preferential treatment. As the Ninth Circuit noted, Plaintiffs have “no fundamental right to be free of the political barrier a validly enacted constitutional amendment erects.”[FN40]
FN39. Coalition for Economic Equity, 122 F.3d at 708.
FN40. Citizens for Equal Protection, et al v. Pruning, 455 F.3d 859, 868 (8th Cir. 2006).
3. The distinction drawn by the District Court between impediments to seeking “equal treatment” and impediments to seeking “preferential treatment” is supported by the law.
Plaintiffs argue that the District Court erred in drawing a distinction between demands for equal treatment and demands for preferential treatment for purposes of distinguishing the Hunter cases, particularly the Seattle decision. (Cantrell Plaintiffs' Brief, pp 24-36).
Plaintiffs assert that the District Court “[b]y insisting that the Hunter/Seattle doctrine applies only to laws that impede efforts to obtain ‘equal treatment’ in the form of protection from discrimination, [ ] has erroneously imposed an outcome-based limitation on a process-based right.” (Cantrell Plaintiffs' Brief, p 26). Plaintiffs complain that drawing this distinction is directly contrary to Supreme Court precedent in Hunter and Seattle, as well as Grutter and the Parents Involved decisions. (Cantrell Plaintiffs' Brief, pp 31-34).
Although the District Court did not address this issue in its opinion granting Defendant Cox's motion for summary judgment, the Cantrell Plaintiffs essentially raised the same issues in their motion to alter or amend the judgment. The Cantrell Plaintiffs asserted that the District Court misapplied Hunter, Seattle, and Romer “by failing to understand that those cases recognized a right to fairness in the political process, as opposed to entitlement to a particular outcome.” (R 258, Opinion and order denying Cantrell Plaintiffs' Motion to Alter or Amend Judgment, p 4). The Plaintiffs contended that “to consider differently legislation that burdens, on the one hand, a group's interest in preferential treatment and, on the other hand, its interest in equal treatment is to inject a substantive component into the analysis” that is inconsistent with the Supreme Court's holdings. (R 258, Opinion and order denying Cantrell Plaintiffs' Motion to Alter or Amend Judgment, p 4).
The District Court disagreed, soundly rejecting this argument: To acknowledge that there are limits to the Hunter/Seattle doctrine based on the nature of the legislative agenda that is

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burdened is not to tear the doctrine from its moorings; in fact, the Supreme Court's decisions placed substantial weight on this variable. [R 258, Opinion and order denying Cantrell Plaintiffs' Motion to Alter or Amend Judgment, p 3.]
The District Court's analysis on this issue is similar to that presented above and clearly denotes a distinction by the Supreme Court, as argued previously, that both focuses on the “outcome” of the process as well as its purpose, i.e., equal treatment or preferential treatment.
In its analysis of this issue presented post-judgment, the District Court again reviewed Hunter and Romer and observed that the legislation at issue in both those cases had the effect of impeding demands for equal treatment, not preferential treatment. (R 258, Opinion and order denying Cantrell Plaintiffs' Motion to Alter or Amend Judgment, pp 4-5.) With respect to Seattle and its prohibition regarding desegregative busing, the District Court agreed that it could not quite make this same distinction “[b]ecause prohibiting integration (when it is not constitutionally mandated) is not tantamount to discrimination.” (R 258, Opinion and order denying Cantrell Plaintiffs' Motion to Alter or Amend Judgment, p 5.)
However, the District Court noted that did not mean “any political restructuring with a racial focus that happens to burden minority interests is unconstitutional.” Also significant to the District Court was the fact the initiative in Seattle was “fundamentally different than Proposal 2” because racial integration programs do not presumptively offend the Equal Protection Clause while affirmative actions programs might. (R 258, Opinion and order denying Cantrell Plaintiffs' Motion to Alter or Amend Judgment, p 5.) The District Court again found persuasive the Ninth Circuit, which addressed this concept: “The district court perceived no relevant difference between the busing programs at issue in Seattle and the racial preference programs at issue here. We have recognized, however, that “ ‘stacked deck’ programs [such as race-based ‘affirmative action’] trench on Fourteenth Amendment values in ways that ‘reshuffle’ programs [such as school desegregation] do not.” Associated Gen. Contractors of Cal. v. San Francisco Unified Sch. Dist., 616 F.2d 1381, 1387 (9th Cir.), cert. denied, 449 U.S. 1061, 101 S. Ct. 783, 66 L. Ed. 2d 603 (1980). Unlike racial preference programs, school desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights. Id.” [R 258, Opinion and order denying Cantrell Plaintiffs' Motion to Alter or Amend Judgment, p 5, quoting Coalition for Economic Equity, 122 F.3d at 708 n16.]
The District Court recognized that certain aspects of the Ninth Circuit's decision had been “undermined” by the subsequent decisions in Grutter[FN41] and Parents Involved,[FN42] but that the “core principle” remained sound. (R 258, Opinion and order denying Cantrell Plaintiffs' Motion to Alter or Amend Judgment, p 6). Indeed, the Supreme Court has consistently questioned and criticized racial preferences and classifications as “odious,” “pernicious,” and “demean[ing]”and limited them to the narrowest of circumstances and compelling interests.[FN43] Indeed, in its more recent discussion of this issue in Parents Involved In Community Schools, the Supreme Court declared “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[FN44]
FN41. Grutter v. Bollinger, 539 U.S. 306; 123 S. Ct. 2325; 145 L. Ed. 2d 304 (2003).
FN42. Parents Involved in Community Schools v. Seattle School District No 7, 551 U.S. 701; 127 S. Ct. 2738; 168 L. Ed. 2d 508 (2007).
FN43. Gratz v Bollinger, 539 U.S. 244 at 270; 123 S. Ct. 2411; 156 L. Ed. 2d 257 (2003); Grutter, 539 U.S. at 326-328.
FN44. Parents Involved in Community Schools, 127 S. Ct. at 2768.
In Parents Involved in Community Schools, a plurality of the Supreme Court concluded the desegregation policies at

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issue there, which sought to create or maintain racially balanced or proportional K-12 school districts, violated the Equal Protection Clause because they essentially were traditional, “crude” racial classifications.[FN45] The District Court acknowledged that the implication of the holding was that “desegregation programs may deprive individuals of legal rights” a conclusion Plaintiffs fail to overcome in this appeal. (R 258, Opinion and Order denying Cantrell Plaintiffs' motion to alter or amend judgment, p 6). However, Parents Involved did not invoke or discuss the political restructuring doctrine, and cannot be seen as somehow modifying the scope of the Hunter or Seattle cases.
FN45. Parents Involved in Community Schools, 127 S. Ct. at 2757-58, 2797 (Roberts, C.J., Kennedy, J., concurring). Chief Justice Roberts wrote an opinion in which Justices Scalia, Alito and Thomas joined. Justice Kennedy filed a separate opinion concurring with the Roberts opinion on narrow grounds, thus leading to a plurality opinion. The Supreme Court has explained, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Grutter, 539 U.S. at 325 (quoting Marks v. United States, 430 U.S. 188, 193; 97 S. Ct. 990; 51 L. Ed. 2d 260 (1977).
Plaintiffs' reliance on Grutter in support of this claim is similarly misplaced. While the Grutter Court held that colleges and universities may still use racial classifications as a factor, among others, in school admissions, it continued to apply longstanding limitations. Thus, the school must establish a compelling state interest for using racial classifications as an admissions factor, and further, must establish that the classification is narrowly tailored to serve that interest.[FN46] The Supreme Court concluded that the University of Michigan law school had a compelling state interest for equal protection purposes in “attaining a diverse student body” and that the admissions practice was narrowly tailored to withstand constitutional challenge.[FN47]
FN46. Grutter, 539 U.S. at 326-328.
FN47. Grutter, 539 U.S. at 328.
Nowhere in Grutter, however, did the Supreme Court state or imply that universities and colleges must or should employ racial classifications, or that the failure to do so violates the Equal Protection Clause. Indeed, the Grutter Court specifically directed colleges and universities to look to “California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law,” to “draw upon the most promising aspects of these race-neutral alternatives as they develop,” and warned that in 25 years, the Court expected that the use of racial preferences “will no longer be necessary.”[FN48]
FN48. Grutter, 539 U.S. at 342-343 (emphasis added).
Acknowledging Parents Involved, and the import of the statements in Grutter, the District Court observed that while “desegregation is required in certain circumstances,” the Supreme Court “has never held that affirmative action is required.”[FN49] (R 258, Opinion and order denying Cantrell Plaintiffs' motion to alter or amend judgment, pp 5-6). The Court concluded that it was “reasonable to take account of this circumstance in interpreting the scope of the Hunter/Seattle doctrine.” (R 258, Opinion and order denying Cantrell Plaintiffs' motion to alter or amend judgment, p 6). Plaintiffs' argument ignores this clear distinction that is consistently maintained in equal protection Hunter/Seattle precedent. As the Ninth Circuit noted:
FN49. Grutter, 539 U.S. at 341-343.
Nothing in the Constitution suggests the anomalous and bizarre result that preferences based on the most suspect and presumptively unconstitutional classifications - race and gender - must be readily available at the lowest level of government while preferences based on any other presumptively legitimate classification - such as wealth, age, or

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disability - are at the mercy of statewide referenda.[FN50]
FN50. Coalition for Economic Equity, 122 F.3d at 708.
Plaintiffs' argument requires this Court to conclude that the Hunter/Seattle doctrine prohibits a state from limiting, even eliminating, preferential treatment based on presumptively unconstitutional classifications. In other words, a state's constitution must afford more than equal treatment, more than is guaranteed by the federal Equal Protection Clause. Acceptance of such a thesis must be rejected based on the overwhelming precedent to the contrary.
The District Court correctly rejected this thesis. Thereafter, the District Court also properly rejected Plaintiffs' arguments that its distinction drawn between legislation or initiatives that prohibit “preferential” treatment and those that deny “equal” treatment will be too difficult or too subjective for the courts to apply. Observing that courts do “not render decisions by assessing how useful they may prove to future practitioners or judges,” the Court concluded that it would not “contradict its view of the law simply because the plaintiffs perceive that this view may be difficult to apply.” (R 258, Opinion and order denying Cantrell Plaintiffs' motion to alter or amend judgment, p 6). With respect to Plaintiffs' argument that the distinction will be too subjective to apply, the District Court concluded: Courts, just like individuals, may disagree on the propriety of affirmative action in public education for a host of reasons. In cases such as this, a court's objective assessment of the legal issues may even be at odds with its subjective analysis of sound policy. But the idea that affirmative action constitutes race-based preferential treatment is well established by Supreme Court precedent. Granted it may not be so clear in other contexts whether the burdened legislative agenda calls for preferential treatment (as opposed to equal) treatment. But courts deal with tough calls on a daily basis, and there is little doubt here that they be equal to the tasks to come. [R 258, Opinion and order denying Cantrell Plaintiffs' motion to alter or amend judgment, p 7 (citation omitted).]
This Court should agree. This case does not fit neatly within any of the Supreme Court's equal protection decisions. Section 26 is fundamentally different from the initiatives at issue in Hunter, Seattle, and Romer because it prevents racial minorities and others from using the political process to obtain better or preferential treatment under the law. Consistent with the Seattle Court, upon which Plaintiffs rely so heavily, this conclusion recognizes that not every attempt to address a racial issue will give rise to an impermissible racial classification.[FN51]
FN51. Seattle, 485 U.S. at 485.
Indeed, Justice Powell's dissent in Seattle expressed concern that the majority's opinion could be seen as invalidating attempts to prohibit affirmative action or preference policies by state and local governments.[FN52] Justice Powell observed that after the Seattle decision it was “unclear” if a State could set policy regarding race relations where a local government had “done ‘more’ than the Fourteenth Amendment requires.”[FN53] Justice Powell commented that “[i]f local employment or benefits are distributed on a racial basis to the benefit of racial minorities, the State apparently may not thereafter ever intervene.”[FN54] The Seattle majority eschewed this concern as a “misunderstanding” of its decision that had “nothing to do with the ability of minorities to participate in the process of self-government.”[FN55] Thus, the Seattle Court did not intend to foreclose the ability of States to discontinue or repeal the use of racial preferences at a statewide level, as Michigan did here.[FN56]
FN52. Intervening Defendant Eric Russell raised this point below in support of his motion for summary judgment. (R 202, Russell's Motion for Summary Judgment, pp 5-6).
FN53. Seattle, 485 U.S. at 498 n. 14 (Powell, J., dissenting).
FN54. Seattle, 485 U.S. at 498 n. 14 (Powell, J., dissenting).
FN55. Seattle, 485 U.S. at 480 n 23.

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FN56. This point is further bolstered by the fact that the author of Seattle, Justice Blackmun, expressly stated in Crawford that he could not “[r]ule for petitioners on a Hunter theory [because it] seemingly would mean that statutory affirmative-action or antidiscrimination programs could never be repealed.” Crawford, 458 U.S. at 546-547 (Blackmun, J., concurring).
The Equal Protection Clause does not guarantee a right to better treatment based on race or gender - it mandates “equal protection of the laws.”[FN57] Where a State is not constitutionally obligated to offer affirmative action programs or similar policies, it may, as the people of Michigan did, choose to prohibit the use of such policies without violating equal protection principles. This is the clear import of the Grutter decision, which contains the Supreme Court's most recent express pronouncements with respect to affirmative action or preference policies. The logical progression then is that if the State can prohibit outright the use of such policies, it can certainly impede the political process being used to obtain a reversal of that decision without offending the Equal Protection Clause.
FN57. U.S. Const. amend. XIV, § 1 (emphasis added).
The District Court's decision that Plaintiffs' equal protection political process claim failed is consistent with the law, and the Court properly granted summary judgment in favor of Defendant Cox. This Court should find that decision persuasive and affirm.
4. Additionally, this Court should conclude that § 26 is constitutional because the university admissions process is not a political process for purposes of applying Hunter and its progeny.
The District Court and Plaintiffs presumed for purposes of this case, that a public university admissions process, more specifically, the development of admissions factors, is a political process subject to the Hunter/Seattle equal protection analysis. Defendant argued below, the development of admissions factors, and the ability of individuals and groups to submit requests to university officials for consideration of specific criteria and/or factors is not a “political process” within the meaning of this narrow equal protection claim. The District Court summarily rejected this argument yet provided no substantive analysis to support its conclusion.[FN58] Defendant Cox maintains that the university admissions process is not a political process as contemplated in the Hunter line of cases.
FN58. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 955-956.
Significantly, the consideration and development of admissions factors to public universities or colleges does not involve the legislative process; does not have the force of law; involves a mix of faculty, administrators and Board members; is limited to the specific university or college; and is generally not open to public scrutiny. For example, at the Wayne State University Law School, a faculty committee develops the “Discretionary Admissions Criteria” and the ultimate decision to adopt or change admissions criteria rests with the faculty. Students who are not on the student board, prospective students and the public are not eligible to vote on admissions criteria. The public may attend meetings at which admissions criteria are discussed and may comment if they provide advance notice by submitting a card requesting that opportunity. (R 201, Defendant Cox's Memorandum in Support of Motion to Dismiss; R 205, Exhibits to Cox Motion, Ex 1; Wu dep, pp 8, 30-32, 188-191) The admissions goal of the law school is to continue its commitment to achieving a substantial representation of qualified minority persons and qualified persons from a disadvantaged background. (R 201, Defendant Cox's Memorandum in Support of Motion to Dismiss; R 205, Exhibits to Cox Motion, Ex 1; Wu dep, p 31).
Similarly, the University of Michigan's (U of M) one goal of the undergraduate admissions policy for the LS&A and Engineering Colleges is diversity. (R 201, Defendant Cox's Memorandum in Support of Motion to Dismiss; R 205, Exhibits to Cox Motion Ex 2; Spencer dep, p 225). The faculty are the primary architects of all the admissions criteria and protocols. (R 201, Defendant Cox's Memorandum in Support of Motion to Dismiss; R 205, Exhibits to Cox Mo-

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tion Ex 2, p 235). These colleges have adopted a holistic review process that involves multiple reviews looking at many different factors. (R 201, Defendant Cox's Memorandum in Support of Motion to Dismiss; R 205, Exhibits to Cox Motion Ex 2, pp 17, 38) There is no process by which members of the public, prospective students or others who are not faculty or part of the college, can comment or submit suggestions for admissions criteria. (R 201, Defendant Cox's Memorandum in Support of Motion to Dismiss; R 205, Exhibits to Cox Motion Ex 2, pp 234-235). The same practices are also followed at U of M's Law School and U of M's Medical School. That is, the faculty develop and adopt the admissions criteria and there is no formal process by which the public “petitions” or submits suggestions for consideration. (R 201, Defendant Cox's Memorandum in Support of Motion to Dismiss; R 205, Exhibits to Cox Motion Ex 3, Zeafross dep, pp 13-14; 208-213; Ex 4, Ruiz dep, pp 13-17, 85-86, 89-94). Thus, the selection criteria and methodology for reviewing and adopting changes to the admissions process, and criteria that defendant universities use in selecting its students is not itself a political process, but rather, is an academic one. The mere fact a public university is engaged in the process should not elevate it to the level of a “political process.”
Axiomatically, limitations imposed by the State through its Constitution on the granting of preferential treatment by these public universities through their admissions criteria does not alter or reallocate the political process. The Ninth Circuit concluded as much in the Coalition for Economic Equity case when it observed: When, in contrast, a state prohibits all its instruments from discriminating against or granting preferential treatment to anyone on the basis of race or gender, it has promulgated a law that addresses in neutral-fashion race-related and gender-related matters. It does not isolate race or gender antidiscrimination laws from any specific area over which the state has delegated authority to a local entity. Nor does it treat race and gender antidiscrimination laws in one area differently from race and gender antidiscrimination laws in another. Rather it prohibits all race and gender preferences by state entities.[FN59]
FN59. Coalition for Economic Equity, 122 F3d at 707.
Moreover, as noted above, this Court was not convinced that § 26 actually reallocated the political structure in examining the issue in the context of the stay motion. Quoting from the Supreme Court's decision in Crawford v Bd. of Education of City of Los Angeles, this Court observed that “Proposal 2 is more akin to the ‘repeal of race-related legislation or policies that were not required by the Federal constitution in the first place,’ an action that does not violate the Equal Protection Clause.”[FN60]
FN60. Granholm, 473 F3d at 251, quoting Crawford, 485 U.S. at 538.
Also critical to this analysis is the fact the reallocation of political power must impose an impermissible burden on a unique minority constituency. Thus, an objectionable reallocation of power must involve more than simply elevating the decision-making authority to a higher level of government. The reallocation of power must be specifically structured “in such a way to burden minority interests.”[FN61] Again, the District Court concluded in summary fashion that § 26 did impose such a burden on racial minorities in the State contrary to this Court's earlier conclusion on this very issue.
FN61. Hunter, 393 U.S. at 392-393; Seattle, 458 U.S. at 474.
In its earlier decision on the stay motion, this Court recognized that § 26 does not create an unequal political burden on minorities or women. “No matter how one chooses to characterize the individuals and classes benefited or burdened by this law, the classes burdened . . . according to plaintiffs - women and minorities - make up a majority of the Michigan population.”[FN62] The Hunter Court specifically observed that the “majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that.”[FN63] Thus, this Court determined that “unlike the Hunter line of cases . . . Proposal 2 does not single out minority interests for this alleged burden but extends it to a majority of the people of the State.”[FN64] The Ninth Circuit also accepted this premise in its analysis of California's Proposition 209.[FN65]

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FN62. Granholm, 473 F.3d at 251.
FN63. Hunter, 393 U.S. at 391.
FN64. Granholm, 473 F.3d at 251.
FN65. Coalition for Economic Equity, 122 F.3d at 705.
In an effort to circumvent this substantial burden, Plaintiffs instead attempt to show that the referendum process those who seek to amend or repeal § 26 must now engage in, imposes a “unique burden” on the proponents of racial preferences. Yet, § 26 does not prohibit racial minorities and women from advocating or urging colleges and universities to create practices promoting diversity within the admissions or hiring process. These individuals are free to support race-neutral nondiscrimination policies. In fact, such nondiscrimination policies are entirely consistent with § 26. Section 26 prohibits the State from discriminating, unlike the laws and policy in the Hunter line of cases, which eliminated or inhibited government protection against discrimination. Moreover, Plaintiffs may also seek to repeal § 26 through the petition process - the same process the proponents used to secure its passage. The fact that such a process is challenging does not make it any less available to these Plaintiffs than it is for any other group desiring to effect beneficial change at a statewide level. Further, as argued by Intervenor Russell, in his proposed brief, the referendum process is not as daunting and onerous as asserted.
First, the fact that poling data in this area is unreliable, as asserted by Plaintiffs, is irrelevant, as such data would be equally unreliable for opponents and proponents alike. Second, Plaintiffs' claim financial backing would be difficult to secure is also suspect given the amount of contributions from a wide-array of interests and business made in opposition to Proposal 2. The remaining issues raised by Plaintiffs are nothing more than mere speculation. (Russell Proposed Brief, pp 38, 39). Thus, Plaintiffs' argument fails and it was properly rejected by the District Court, which correctly granted summary judgment for Defendant Cox on this political process challenge.
5. In the alternative, this Court should conclude that § 26 is constitutional because the Cantrell Plaintiffs failed to show that the passage of § 26 resulted from a discriminatory intent or purpose.
Although the District Court rejected this argument, Defendant maintains that in order to succeed on their political structure theory equal protection claim, Plaintiffs had to show that § 26 was passed for a discriminatory purpose.
Under a political structure analysis, reallocation of political decision-making violates equal protection only when there is evidence of purposeful racial discrimination, similar to a conventional equal protection analysis.[FN66] Indeed, the Supreme Court has observed that “proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”[FN67] It is no different for political structure claims. In Seattle, the Court expressly stated that the challenged initiative “was effectively drawn for racial purposes” and was enacted “ ‘because of,’ not merely ‘in spite of,’ its adverse effects upon busing for integration.”[FN68] Reviewing Seattle, the Court effectively required a showing that the initiative was “drawn for racial purposes,” and that “the practical effect of [the initiative] [was] to work a reallocation of power of the kind condemned in Hunter.”[FN69]
FN66. Seattle, 458 U.S. at 484-485; Valieria v. Davis, et al, 307 F.3d 1036, 1040 (9th Cir. 2002).
FN67. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194; 123 S. Ct. 1389; 155 L. Ed. 2d 349 (2003).
FN68. Seattle, 458 U.S. at 471 (quoting Feeney, 442 U.S. at 279).

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FN69. Seattle, 458 U.S. at 471, 474. See also Buckeye, 538 U.S. at 196, 197 (Observing that both Hunter and Seattle relied on findings of “discriminatory intent in a challenge to an [ ] enacted initiative.”).
With respect to showing discriminatory intent or purpose in the context of facially neutral referendums or initiatives, such as § 26, this Court held in Arthur v. Toledo that such an initiative only violates equal protection if racial discrimination was “the only possible rationale” behind its passage.[FN70] Accordingly, Plaintiffs need to demonstrate that the only possible rationale behind § 26 was race discrimination, which they did not and could not do here.
FN70. Arthur v. Toledo, 78 F.2d 565, 573-574 (6th Cir. 1986); Equality Found., 128 F3.d at 294 n.4; Clarke v. City of Cincinnati, 40 F.3d 807, 815 (6th Cir. 1994) (rejecting equal protection challenge to a referendum based on Arthur). This Court has indicated that Arthur is still good law. See Buckeye Cmty. Hope Found., 263 F.3d 627, 637 n.2. (6th Cir. 2001), rev'd 538 U.S. 188 (2003).
As the District Court concluded with respect to the Coalition Plaintiffs' conventional equal protection claim, it could not say under Arthur “that the only purpose of Proposal 2 is to discriminate against minorities,” since both the sponsor of Proposal 2, Ward Connerly, and one of its leading proponents, Jennifer Gratz, posited nondiscriminatory purposes for the amendment.[FN71]
FN71. Coalition To Defend Affirmative Action, 539 F. Supp. 2d at 951-952.
Thus, Plaintiffs in fact could not make any showing of purposeful discrimination in support of their claim. Indeed, no such showing is possible as § 26 does not obstruct minorities or women from seeking protection against unequal treatment unlike the ordinance reviewed in Hunter or the student assignment and desegregation policy at issue in Seattle. The language and purpose of § 26 is to eliminate preferential treatment in public contracting, public employment, and public education. Without a showing of discriminatory intent as required by Hunter and Seattle, Plaintiffs' political structure claim fails, and this Court may affirm the District Court's grant of summary judgment on this basis as well.
Conclusion and Relief Sought
For the reasons set forth above, Intervening Defendant-Appellee Attorney General Michael A. Cox respectfully requests that this Honorable Court affirm the District Court's grant of summary judgment in favor of Defendant.
Appendix not available.
Chase CANTRELL, et al, Plaintiffs-Appellants, v. Michael COX, Michigan Attorney General, Intervenor-Defendant-Appellee. 2009 WL 2390019 (C.A.6 ) (Appellate Brief )
END OF DOCUMENT

 
 473 F.3d 237 (2006)
COALITION TO DEFEND AFFIRMATIVE ACTION, et al., Plaintiffs-Appellees, v.
Jennifer GRANHOLM, et al., Defendants-Appellees, Michael Cox, Attorney General, Intervenor Defendant,
Eric Russell, Intervenor-Appellant. Toward a Fair Michigan, Proposed Intervenor-Appellant.
Eric Russell; Toward A Fair Michigan, Petitioners.
Nos. 06-2640, 06-2642.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: December 29, 2006.
2389 *238 *239 George B. Washington, Scheff & Washington, Detroit, MI, for Plaintiffs-Appellees.
James E. Long, Asst. Atty. General, Office of the Attorney General Tort Defense Division, Lansing, MI, for Defendants-Appellees.
Center for Individual Rights, Washington, DC, Kerry L. Morgan, Pentiuk, Couvreue & Kobiljal, Wyandotte, MI, Michael E. Rosman, Kerry L. Morgan, for Proposed Intervenors-Appellants/Petitioners.
Before SUHRHEINRICH, BATCHELDER, and SUTTON, Circuit Judges.
OPINION
SUTTON, Circuit Judge.
On November 7, 2006, the people of Michigan approved a statewide ballot initiative 0907 Proposal 2 0907 which amended the Michigan Constitution to prohibit discrimination or preferential treatment based on race or gender in the operation of public employment, public education or public contracting in the State. Under the Michigan 240 Constitution, the proposal was scheduled *240 to go into effect on December 23, 2006. At stake today is whether the federal courts should permit this state initiative to go into effect or whether we should preliminarily enjoin it in part0907in the part, that is, that applies to public universities and to all applicants to those universities. While the Michigan state courts remain free to suspend enforcement of Proposal 2 under state law for all manner of reasons, including those urged upon us here0907uncertainty about the meaning of the law, uncertainty about the law's impact on current admissions policies and uncertainty about changing admissions policies in the middle of the current enrollment season0907 we are unable to identify any tenable basis under federal law for suspending the law's enforcement. The First and Fourteenth Amendments to the United States Constitution, to be sure, permit States to use racial and gender preferences under narrowly defined circumstances. But they do not mandate them, and accordingly they do not prohibit a State from eliminating them. In the absence of any likelihood of prevailing in invalidating this state initiative on federal grounds, we have no choice but to permit its enforcement in accordance with the state-law framework that gave it birth.
I.
Legal and policy debates about admissions preferences in the university setting are not new to the people of Michigan. In 2003, the Supreme Court invalidated the University of Michigan's race-based admissions preferences in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257, and it upheld the University of Michigan School of Law's race-based admissions preferences in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304. In apparent response to those decisions, the Michigan Civil Rights Initiative, the

executive director of which is Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger, began a campaign to place a proposal on the state ballot that would amend the Michigan Constitution to prohibit race-and gender-based preferences in public employment, education and contracting. See The Michigan Civil Rights Initiative, http:// www.michigancivilrights.org (last visited Dec. 26, 2006).
A.
On January 6, 2005, Gratz announced that her organization had obtained enough signatures under Michigan law to place its proposal0907technically named Proposal 06-2 but commonly referred to as Proposal 2 on 0907 the statewide ballot. See http:// www.michigancivilrights.org/media/JG-10605-remarks.pdf (last visited Dec. 26, 2006). The Michigan Board of State Canvassers eventually approved the ballot language for Proposal 2, which would amend Article I, § 26 of the Michigan Constitution if approved.
On November 7, 2006, the people of Michigan voted in favor of Proposal 2. Fifty-eight percent of the voters supported it, and 42% opposed it. See Michigan Department of State, 2006 Official Michigan General Election Results, http://miboecfr. nictusa.com/election/results/06GEN/ 90000002.html (last visited Dec. 26, 2006).
The constitutional amendment contains several pertinent provisions. First: "The University of Michigan, Michigan State University, Wayne State University and any other public college or university, community college, or school district shall 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." Mich. Const. art. I, § 26.
241 *241 Second: "The state shall 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." Id.
Third: "This section" 0907 namely the amendment 0907 "does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state." Id.
Fourth: "The remedies available for violations of this section shall be the same . . . as are otherwise available for violations of Michigan anti-discrimination law." Id.; see, e.g., Mich. Const. art. VIII, § 2; Mich. Comp. Laws § 37.2101 et seq. (the Elliot-Larsen Civil Rights Act).
Fifth: "This section shall be self-executing. If any part or parts of this section are found to be in conflict with the United States Constitution or federal law, the section shall be implemented to the maximum extent that the United States Constitution and federal law permit. Any provision held invalid shall be severable from the remaining portions of this section." Mich. Const. art. I, § 26.
Sixth: "This section does not invalidate any court order or consent decree that is in force as of the effective date of this section." Id.
Seventh: In accordance with the Michigan Constitution, the amendment was scheduled to go into effect 45 days after the election, which is to say December 23, 2006. See Mich. Const. art. XII, § 2.
On November 8, 2006, one day after the election, the Coalition to Defend Affirmative Action, Integration and Immigrant Rights, and Fight for Equality By Any Means Necessary, along with other organizations and individuals opposed to Proposal 2 (collectively, the "plaintiffs"), filed a lawsuit against (1) Jennifer Granholm, the Governor of Michigan, and (2) the Regents of the University of Michigan, the Board of Trustees of Michigan State University and the Board of Governors of Wayne State University (collectively, the "Universities"), seeking a declaratory judgment that the amendment was invalid and a permanent injunction against its enforcement. They filed the lawsuit in the Southern Division of the Eastern District of Michigan. In their amended complaint, plaintiffs contended that Proposal 2 violates two federal constitutional provisions (the First and Fourteenth Amendments), three federal civil rights statutes (Title VI, Title VII and Title IX) and one presidential order (Executive Order 11246). To date, plaintiffs have not independently filed a motion for a preliminary injunction or a temporary restraining order against enforcement of Proposal 2.

On December 11, the Universities filed a cross-claim against Governor Granholm, seeking (1) a declaratory judgment "that under federal law the Universities may continue to use their existing admissions and financial aid policies through the end of the current [enrollment] cycle" and (2) a preliminary injunction that "allows the Universities to continue to use their existing admissions and financial aid policies through the end of the current cycle." In support of their requests, the Universities noted that: (1) "[s]erious controversies exist regarding the validity, meaning, impact, and application of the Amendment"; (2) "[t]he Governor has requested an interpretation of the Amendment from the [state] Civil Rights Commission" in 90 days, but they cannot await the Commission's decision given the effective date (December 23) of the law; (3) "[t]he Amendment becomes effective in the midst 242 of the Universities' current admission and financial aid cycle," *242 which generally "run[s] from the early fall through the spring"; and (4) "[f]orcing the Universities to abandon their existing admissions and financial aid policies in the midst of this cycle would require them to apply different policies to applicants within the same cycle and different policies than they have announced" to the public.
In further support of their requests for declaratory and injunctive relief, the Universities argued that "[t]he Amendment implicates federal law." "It incorporates," they noted, "whole bodies of federal law by reference, including `federal programs,' `federal law,' and the `United States Constitution.'" The Universities, they added, "put their admissions and financial aid policies in place in reliance on the Supreme Court's reaffirmation in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), that they have an academic freedom right, based in the First Amendment to the Constitution of the United States, to select their students and that they may, in the course of doing so, give some consideration to such factors . . . as race." On the same day, they filed a motion for a preliminary injunction, seeking the same thing 0907 to enjoin the enforcement of Proposal 2 through the end of the current admissions cycle.
On December 14, three days after the Universities filed their cross-claim, the Michigan Attorney General, Michael Cox, filed a motion to intervene in the lawsuit. See Fed.R.Civ.P. 24. The district court granted the Attorney General's motion to intervene that same day.
On December 18, the three sets of parties to the cross-claim 0907 the Governor, the Attorney General, the Universities 0907 and the plaintiffs in the underlying action filed a stipulation with the district court, which reads in part:
It is hereby stipulated, by and between the parties that this Court may order as follows:
(1) that the application of Const[.] 1963, art[.][I], § 26 to the current admissions and financial aid policies of the University parties is enjoined through the end of the current admissions and financial aid cycles and no later than 12:01 a.m. on July 1, 2007, at which time this Stipulated Injunction will expire;
(2) that, pursuant to Fed.R.Civ.P. 41(a)(1) and 41(c), the Universities' cross-claim shall be and hereby is dismissed in its entirety, with prejudice only as to the specific injunctive relief requested in the cross-claim . . .
. . .
Stipulation at 3.
That same day, matters grew more complicated when an individual and an interest group sought to intervene in the case. The individual was Eric Russell, a white male who has applied to the University of Michigan School of Law for admission in the fall of 2007, Affidavit of Eric Russell, at 1; the organization was Toward A Fair Michigan ("TAFM"), a non-profit entity "whose mission is to further understanding of equal opportunity issues involved in guaranteeing civil rights for all citizens," Affidavit of William Allen, at 1.
On December 19, the district court issued what it labeled a "temporary injunction." Consistent with the stipulation entered into by the Governor, the Attorney General, the Universities and the plaintiffs, the court enjoined application of Proposal 2 to the Universities' admissions and financial-aid policies until July 1, 2007, and dismissed the Universities' cross-claim. Dist. Ct. Order at 3. In essence, then, the cross-claimants dismissed their

claim for an ordinary preliminary injunction in exchange for the stipulated 194-day injunction. However the 243 injunction is labeled, it remains *243 a preliminary injunction, albeit one of finite duration.
That same day, Russell and TAFM filed a motion urging the district court to rule on their motion to intervene by December 21 and requesting a stay of the order enjoining enforcement of Proposal 2 before its effective date 0907 December 23.
B.
On December 21, having heard nothing from the district court on their intervention or stay motions, Russell and TAFM filed a notice of appeal to this court. The next day, they filed in this court an "Emergency Motion for a Stay Pending Appeal" of the district court's preliminary injunction and a Petition for a Writ of Mandamus directing the district court to grant their motion to intervene and to vacate its preliminary injunction.
On December 26, we issued an order giving the parties to the cross-claim (the Governor, the Attorney General, the Universities) as well as the plaintiffs in the underlying action an opportunity to file responses to the motions by December 28. The order also gave Russell and TAFM an opportunity to file a reply brief by December 29. The City of Lansing, the American Civil Rights Foundation and the Michigan Civil Rights Initiative Committee each moved this court for leave to respond to Russell's motion and attached briefs to their motions. Because the district court has now denied their motions to intervene, and the denials have not been resolved on appeal, these entities are not parties to this action. Nonetheless, we have considered their filings as we would the filings of amici curiae.
On December 27, the district court ruled on the motions to intervene. It granted Russell's motion and denied TAFM's motion both as of right and by permission. At the same time, it denied motions to intervene filed by the City of Lansing (Michigan), the American Civil Rights Foundation and the Michigan Civil Rights Initiative Committee. The district court has not ruled on Russell's motion for a stay pending appeal.
On December 28, Russell and TAFM filed an amended notice of appeal with respect to the preliminary injunction issued by the district court on December 19. TAFM also appealed the denial of its motion to intervene (No. 06-2656), as did the American Civil Rights Foundation and the Michigan Civil Rights Initiative Committee (No. 06-2653) and the City of Lansing (No. 06-2658).
C.
Let us be clear that the merits of the appeal of the order granting the preliminary injunction and the appeals of the orders denying the motions to intervene are not before this panel. In addition to the Petition for a Writ of Mandamus, the only matter presently before this panel is the motion filed by Eric Russell under his previously filed appeal, titled "Emergency Motion for a Stay Pending Appeal," asking us to stay the district court's preliminary injunction 0907 in other words, to allow article I, section 26 of the Michigan Constitution to take immediate effect 0907 until such time as Russell's appeal can be decided on the merits.
II.
As an initial matter, Russell plainly may challenge the validity of the preliminary injunction. He has standing to participate in the case because he has applied for admission to the University of Michigan School of Law for matriculation in 2007 and accordingly has a direct interest in whether Proposal 2 applies to the Law School's 244 admissions decisions this year. *244 And he may intervene as of right in the case for one of two reasons. Either the district court's failure to address his meritorious intervention motion before the effective date of Proposal 2 on December 23 amounted to an effective denial of the motion, which we may correct on appeal (and indeed have done so before in a similar setting), see Americans United for Separation of Church & State v. City of Grand Rapids, 922 F.2d 303, 306 (6th Cir.1990), and which we may review on an interlocutory basis, see Sales v. Marshall, 873 F.2d 115, 120 (6th Cir.1989). Or the district court's order granting the intervention motion on

December 27 permitted Russell to file a new notice of appeal, which he did on December 28 and which allowed him to seek immediate review of the preliminary injunction. Either way, Russell is now a party in the case; he has filed a notice of appeal with respect to the preliminary injunction; we have jurisdiction over an interlocutory appeal from a preliminary injunction, 28 U.S.C. § 1292(a); he has filed a Motion for an Emergency Stay Pending Appeal; and we may review the stay motion in connection with our authority over the appeal of the preliminary injunction.
III.
Our standard for reviewing a motion for a stay pending appeal is a familiar one. Much like the standard for determining whether to issue a preliminary injunction, Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir.2002) (per curiam), we consider "(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay." Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). All four factors are not prerequisites but are interconnected considerations that must be balanced together. Id.
A.
There are several ways to look at the likelihood that the district court's preliminary injunction order will be upheld on appeal, and each of them holds little promise that we will be able to uphold the order. First, the order itself does not contain a sufficient ground for prohibiting Proposal 2 from going into effect. By its terms, the order rests on two grounds: (1) "a stipulation from all parties to the case" 0907 which at that time included the plaintiffs in the underlying action, the Universities, the Governor and the Attorney General 0907 "consenting" to the preliminary injunction sought by the Universities, and (2) the court's conclusion "that the interests of all parties and the public are represented adequately" by these parties. Order at 3. The order does not contain any discussion of the federal-law grounds for granting an injunction. It does not contain any evidentiary findings concerning the need for immediate relief. And it does not address the four factors for granting a preliminary injunction: the Universities' likelihood of success on the merits of their cross-claim; the risk of irreparable injury to affected parties with or without the preliminary injunction; and the public interest. See Six Clinics Holding Corp. II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir.1997) ("requir[ing]" a district court "to make specific findings concerning each of the four factors"); United States v. Sch. Dist. of Ferndale, Mich., 577 F.2d 1339, 1352 (6th Cir.1978) (vacating district court's preliminary-injunction ruling because among other reasons the district court "failed to make an express finding as to probability of success on the merits").
245 *245 Whether stipulated injunctions concerning the federal constitutionality of a state law 0907 indeed a state constitutional amendment 0907 are a good idea, bad idea or even a permissible idea need not detain us in gauging the merits of this stay motion. See Evans v. City of Chicago, 10 F.3d 474, 479 (7th Cir.1993) (en banc) (plurality opinion) ("[T]he court must ensure that there is a substantial federal claim, not only when the decree is entered but also when it is enforced, and that the obligations imposed by the decree rest on this rule of federal law rather than the bare consent of the office holder."); League of United Latin American Citizens v. Clements, 999 F.2d 831, 846 (5th Cir.1993) (en banc) ("Courts must be especially cautious when [state officials] seek to achieve by consent decree what they cannot achieve by their own authority."); Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983) ("Judicial approval . . . may not be obtained for an agreement which is . . . contrary to the public interest."). The fact remains that this stipulated injunction was flawed on its own terms. From the day it was entered (December 19), it could not be said that the injunction furthered "the interests of all parties and the public." By December 18, it was clear that at least one member of the public (Eric Russell) did not support the suspension of Proposal 2 because by then he (and others) had filed a motion to intervene as of right in the lawsuit precisely because he (and others) disagreed with the parties' stipulated injunction 0907 in his case because it would jeopardize his efforts to gain admission to the Law School in the 2007 first-year class.
Subsequent events confirm that the stipulated injunction did not account for the concerns of all interested parties 0907 namely, the district court's December 27 order granting Russell intervention as of right. Intervention Order at 15; see Fed.R.Civ.P. 24(a) (requiring intervention as of right when the individual has "an interest" in the case and

"is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties"). In permitting Russell to intervene as a party in the case, the trial court concluded that his "individual interest . . . may not be taken into account by the present parties." Intervention Order at 15 (emphasis added). That seems to be an understatement. The parties knew of Russell's opposition to the stipulated injunction, to say nothing of the opposition to the injunction by other interested groups seeking to intervene in the case (including the proponent of Proposal 2), and nonetheless proceeded to seek its entry. Even now, the closest they have come to accounting for his interests in the case is to say that "he is free to reapply" if the Law School denies him admission this year. Universities' Br. at 38. In the final analysis, the only articulated basis provided for the injunction 0907 that it furthered "the interests of all parties and the public" 0907 is not true and thus does not suffice to sustain the injunction.
Second, even if we look behind the court's December 19 order to the Universities' cross-claim and motion for a preliminary injunction, these filings do not supply a basis for enjoining the law on the ground that it violates federal constitutional or statutory law. Most of these pleadings deal with irreparable-harm and public-interest arguments: the difficulty of changing admissions and financial-aid policies in the midst of an enrollment cycle, uncertainty over the meaning of the amendment under state law and the delay that will occur before the Michigan Civil Rights Commission acts on the Governor's request to interpret the amendment within 90 days 0907 all good246 faith reasons for seeking *246 delay, to be sure, but none of them pertinent to establishing a federal ground for suspending the law. As to that point, the Universities' request for a preliminary injunction says just one thing 0907 that they have a First Amendment right to continue using race- and gender-based preferences. (More on that argument later.) The salient point, however, is that the request for a stipulated injunction was not premised on any agreement, or even suggestion, that Proposal 2 violated any federal law 0907 constitutional or otherwise. That of course is because the Attorney General has taken the position that Proposal 2 is perfectly constitutional and the Governor has not yet taken any position on the issue.
Also unhelpful is the Universities' position that the federal courts should "determin[e] their rights and responsibilities under the Amendment" and delay the effective date of the law until that task has been completed. Cross-Claim at 5. This suggestion looks at the problem through the wrong end of the lens. State courts and state agencies (such as the Michigan Civil Rights Commission) generally get the first (and ultimately the last) crack at interpreting a state law 0907 which is why uncertainty over the meaning of a state law often counsels in favor of a federal court staying its hand until the state courts have had a chance to construe the law. See R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 85 L.Ed. 971 (1941). We know of no authority (and none has been supplied to us) saying that uncertainty over the meaning of a state law by itself supplies a basis for a federal court to suspend the law's effective date.
That the meaning of the amendment could be affected by the meaning of certain federal statutes, as the Universities also complained, does not change matters. Cross-Claim at 4. The Universities never explained what those federal laws were or exactly how they would affect the meaning of the amendment. But even if the Universities had suggested, say, that Title VI of the Civil Rights Act of 1964 might conflict with Proposal 2 under certain constructions of the amendment and certain constructions of Title VI, that would not give a federal court license to suspend the amendment. One would first want to know how the State was implementing the amendment before undertaking the task of determining whether that interpretation conflicted with some yet-to-bedetermined construction of Title VI.
All of this is prelude to the most unusual feature of the stipulated injunction: the premise for granting it no longer exists. The Universities filed a cross-claim against the Governor (and effectively the Attorney General once he had intervened) seeking a declaration of "their rights and responsibilities" under Proposal 2 and a preliminary injunction until that had been done. But in return for the Attorney General's and Governor's stipulating to a preliminary injunction, the Universities agreed to dismiss the request for declaratory relief. So while the district court has suspended the effective date of the law, it no longer has the Universities' request (or any other request) before it for declaring the Universities' "rights and responsibilities" under the amendment 0907 or for that matter any other explanation for enjoining the law, save for the fact that some interested parties want it stayed.
In view of this point, it puzzles us that the Attorney General, who stipulated to the entry of the preliminary injunction, now contends that we lack jurisdiction to entertain a motion to stay it. Why? Because, he says, the

Universities' underlying cross-claim has now been dismissed and because the district court did not permit Russell 247 to become a party to the case until *247 after that dismissal. But of course Russell was allowed to intervene in
the "action," Fed.R.Civ.P. 24(a), not a cross-claim, and that action is alive and well. The Attorney General, moreover, seems to ignore what would seem to be a corollary to his proposed interpretation of this sequence of events 0907 namely that if the cross-claim had already been dismissed, there would no longer be any basis for a preliminary injunction, see supra, and the district court could not have undertaken the necessary inquiry into the parties' likelihood of success on the cross-claim, much less found that any such probability of success existed.
Third, the responses to the stay motion filed in our court by the four sets of parties to the stipulated injunction 0907 the Governor, the Attorney General, the Universities and the plaintiffs in the underlying action 0907 also do not support the injunction. While all four of them argue extensively about the hardships of complying with the law in the middle of the 2006-2007 admissions cycle, they do not offer tenable explanations for suspending Proposal 2 on the basis of federal law.
Far from raising doubts about the validity of the amendment under federal law, the Attorney General thoroughly explains why it does not violate the Federal Constitution or any federal statutes. While the Governor does not expressly defend the validity of the amendment in her appellate papers, neither does she say that it violates any federal law.
The First Amendment. In their response to the stay motion, the Universities argue that the amendment violates the First Amendment, specifically the Universities' right to select a diverse student body in the name of academic freedom. But it is one thing to defer to a state university's judgment in deciding who may attend that university 0907 and to defer in the process to the university's academic freedom that "long has been viewed as a special concern of the First Amendment," Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.) 0907 in determining whether the university has run the gauntlet of defending presumptively unconstitutional racial classifications. It is quite another to say that the First Amendment in general and academic freedom in particular prohibit a State from eliminating racial preferences. Were it otherwise, as Russell points out, "state laws requiring colleges to give preferences to state residents or to admit those in the top 10% of their high school classes" would routinely violate the First Amendment. Stay Motion at 17.
The Universities mistake interests grounded in the First Amendment 0907 including their interests in selecting student bodies 0907 with First Amendment rights. It is not clear, for example, how the Universities, as subordinate organs of the State, have First Amendment rights against the State or its voters. See, e.g., Trs. of Dartmouth Coll. v. Woodward, 4 Wheat. 518, 17 U.S. 518, 629, 4 L.Ed. 629 (1819). One does not generally think of the First Amendment as protecting the State from the people but the other way around 0907 of the Amendment protecting individuals from the State. After all, Bakke, Grutter and Gratz 0907 the lead cases upon which the Universities rely in claiming that Proposal 2 violates the First Amendment 0907 involved constitutional challenges by individuals against States (or at least state officials). Even then, the States' invocation of the First Amendment in those cases hardly shows that the First Amendment trumps the Fourteenth. In Bakke and Gratz, the Court invalidated the racial 248 preferences contained in the schools' admissions programs under the Equal Protection Clause. *248 And while Grutter upheld the School of Law's use of racial classifications in making its admissions decisions, that was not because the First Amendment compelled it to do so. Grutter addresses academic freedom in the context of asking whether "the Law School's use of race is justified by a compelling state interest," 539 U.S. at 327, 123 S.Ct. 2325, a question it answers by saying that its decision is "in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits." Id. at 328, 123 S.Ct. 2325 (emphasis added); see Bakke, 438 U.S. at 311-12, 98 S.Ct. 2733 (opinion of Powell, J.) (stating that "the attainment of a diverse student body" is "a constitutionally permissible goal for an institution of higher education"). One of those "constitutionally prescribed limits," however, is the separate requirement of narrow tailoring 0907 an inquiry that no one maintains may be satisfied simply by invoking a university's legitimate, but hardly dispositive, interest in academic freedom.
In discussing the narrow-tailoring requirement, moreover, Grutter urged universities to look to States that had eliminated the use of race in making admissions decisions to determine whether race-neutral ways of furthering the universities' interests in a diverse student body existed. See 539 U.S. at 342, 123 S.Ct. 2325 ("Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are

currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop."). If, as the Universities maintain, the First Amendment prohibits States from eliminating racial preferences in admissions, one would not expect the Court to urge universities to consider the efficacy of state laws doing just that. No less strange, Grutter ends by explaining that affirmative action programs may not exist in perpetuity. Noting that it has been 25 years since Bakke, it remarked that "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Id. at 343, 123 S.Ct. 2325. The First Amendment, by contrast, has no termination point, whether in 25, 50 or 250 years, making it improbable that the same Court that decided Grutter would hold that state universities have a First Amendment right to maintain racial preferences.
The Equal Protection Clause. The plaintiffs in the underlying action offer a host of other arguments for sustaining the preliminary injunction. In addition to invoking the First Amendment, they claim that the amendment likely violates the Equal Protection Clause of the Fourteenth Amendment. We do not agree.
In contending that the Equal Protection Clause compels what it presumptively prohibits, plaintiffs face a steep climb. The Clause prevents "official conduct discriminating on the basis of race," Washington v. Davis, 426 U.S. 229, 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and on the basis of sex, United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996), not official conduct that bans "discriminat[ion] against" or "preferential treatment to" individuals on the basis of race or sex 0907 as Proposal 2 does.
If "[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality," Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), and if racial distinctions "threaten to stigmatize individuals by reason of their 249 membership in a racial *249 group and to incite racial hostility," Shaw v. Reno, 509 U.S. 630, 643, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (citations omitted), a state constitutional amendment designed to eliminate such "distinctions" in state government would seem to be an equal-protection virtue, not an equal-protection vice. After all, the "color-blind" goal of the Equal Protection Clause, Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan, J., dissenting), is "to do away with all governmentally imposed discrimination based on race," Palmore v. Sidoti, 466 U.S. 429, 432, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984) (citation and footnote omitted), making it difficult to understand how the same constitutional provision could prohibit a State from doing away with race- and sex-based classifications sooner rather than later. See Crawford v. Bd. of Educ. of the City of Los Angeles, 458 U.S. 527, 538-39, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982) ("[T]he Equal Protection Clause is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place.").
Grutter, it is true, says that States still may use racial classifications as a factor in school admissions when they can establish a compelling interest for doing so and when they can satisfy the demanding requirements of narrow tailoring. But Grutter never said, or even hinted, that state universities must do what they narrowly may do. Otherwise: the Court would not have directed state universities to look to "[u]niversities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law," to "draw on the most promising aspects of these race-neutral alternatives as they develop," 539 U.S. at 342, 123 S.Ct. 2325; it would not have quoted in the next line of the opinion Justice Kennedy's concurrence in United States v. Lopez, 514 U.S. 549, 581, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), to the effect that "the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear" 0907 such as looking for race-neutral methods of seeking diverse student bodies, Grutter, 539 U.S. at 343, 123 S.Ct. 2325; and it would not have said that "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," id. Surely a State may offer more equal protection than the Fourteenth Amendment requires, see Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) ("a State is free as a matter of its own law to impose greater restrictions . . . than those this Court holds to be necessary upon federal constitutional standards"), and surely a State may end racial preferences some years before they must do so. In the end, a law eliminating presumptively invalid racial classifications is not itself a presumptively invalid racial classification.

Much the same is true of classifications based on gender. "Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court . . . has carefully inspected official action that closes a door or denies opportunity to women (or to men)." United States v. Virginia, 518 U.S. 515, 532, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (internal footnote and citation omitted); see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ("[O]ur Nation has had a long and unfortunate history of sex discrimination, a history which warrants the heightened scrutiny we afford all gender-based classifications today.") (internal quotation marks omitted). If the Equal Protection Clause gives "heightened" scrutiny to such 250 distinctions, a State acts well within the letter and spirit of the Clause when it *250 eliminates the risk of any such scrutiny by removing gender classifications altogether in its admissions programs.
In taking this path, we do not walk alone. In 1997, the Ninth Circuit rejected an Equal Protection challenge to a similar proposition passed by the people of California. See Coal. for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir.1997). Like Proposal 2, Proposition 209 outlawed discrimination or preferential treatment "on the basis of race, sex, color, ethnicity, or national origin" in the realms of public employment, education and contracting. Cal. Const. art. I, § 31(a). Like the plaintiffs in our case, the plaintiffs in the Ninth Circuit case argued that the state initiative denied them equal protection of the laws by burdening their right to seek the benefits of existing affirmative action programs. See Coal. for Econ. Equity, 122 F.3d at 705. And like the Ninth Circuit, we find these arguments unpersuasive. See id. at 702 ("A law that prohibits the State from classifying individuals by race or gender a fortiori does not classify individuals by race or gender."); see id. at 708 ("The controlling words, we must remember, are `equal' and `protection.' Impediments to preferential treatment do not deny equal protection.").
Attempting to head off this conclusion, plaintiffs contend that Proposal 2 violates their equal protection rights by placing an unfair political burden on women and minorities who "may now seek relief" in the form of the reinstitution of race- and gender-based admissions preferences "only by mounting a statewide campaign to amend" the Michigan Constitution. Complaint at 17. Three Supreme Court cases, they argue, demonstrate that state and local governments may not restructure the political process to disadvantage or discriminate against minorities. See Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982); Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
In all three cases, however, the Court determined that the laws at issue burdened minority interests in the political process in a way that Proposition 2 does not. Hunter addressed an amendment to Akron's city charter requiring Akron's city council to obtain majority approval by the city before implementing housing ordinances dealing with racial, religious or ancestral discrimination. Although the provision purported on its face to treat all races equally, in "reality," the Court held, "the law's impact falls on the minority" because the "majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that." 393 U.S. at 391, 89 S.Ct. 557. Seattle invoked Hunter to strike down a Washington State initiative preventing local school boards from using racially integrative busing. There the Court reasoned that the initiative "remove[d] authority to address a racial problem 0907 and only a racial problem 0907 from the existing decisionmaking body, in such a way as to burden minority interests." 458 U.S. at 474, 102 S.Ct. 3187. Romer struck down an amendment to the Colorado constitution that prohibited local governments from acting to protect homosexuals from discrimination, an amendment that "impose[d] a special disability upon [homosexuals] alone." 517 U.S. at 631, 116 S.Ct. 1620.
Unlike the laws invalidated in Hunter, Seattle and Romer, Proposal 2 does not burden minority interests and minority interests alone. The proposal prohibits the State from discriminating against or granting preferential 251 treatment to individuals on the basis of "race, sex, color, ethnicity, or *251 national origin." Mich. Const. art. I, § 26. No matter how one chooses to characterize the individuals and classes benefitted or burdened by this law, the classes burdened by the law according to plaintiffs 0907 women and minorities 0907 make up a majority of the Michigan population. As Hunter indicates, the "majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that." 393 U.S. at 391, 89 S.Ct. 557. Unlike the Hunter line of cases, then, Proposal 2 does not single out minority interests for this alleged burden but extends it to a majority of the people of the State.
Even were we to consider only the law's restrictions on racial preferences, this political-process claim still would not be likely to succeed. The challenged enactments in Hunter, Seattle and Romer made it more difficult for

minorities to obtain protection from discrimination through the political process; here, by contrast, Proposal 2 purports to make it more difficult for minorities to obtain racial preferences through the political process. These are fundamentally different concepts. The Hunter, Seattle and Romer decisions, moreover, objected to a State's impermissible attempt to reallocate political authority. See Seattle, 458 U.S. at 470, 102 S.Ct. 3187 (prohibiting a government from "explicitly using the racial nature of a decision to determine the decisionmaking process"). Instead of reallocating the political structure in the State of Michigan, Proposal 2 is more akin to the "repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place," Crawford, 458 U.S. at 538, 102 S.Ct. 3211, an action that does not violate the Equal Protection Clause. See generally Coal. for Econ. Equity, 122 F.3d at 708 (reasoning that "[i]mpediments to preferential treatment do not deny equal protection").
Title VI. Plaintiffs next argue that Title VI of the Civil Rights Act of 1964 preempts Proposal 2. But they face several obstacles in bringing the claim. For one, the Civil Rights Act says that it may not be "construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof." 42 U.S.C. § 2000h-4. That means plaintiffs must establish a form of "conflict preemption," which is to say they must show either that "compliance with both federal and state regulations is a physical impossibility" or that "state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 281, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987)(plurality) (internal quotation marks omitted).
For another, Proposal 2 by its terms eliminates any conflict between it and federal-funding statutes like Title VI. "This section," the proposal says, "does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state." Mich. Const. art. I, § 26 (4). And Title VI in turn says that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. What Title VI requires, in other words, Proposal 2 expressly allows 0907 eliminating any conflict between the two laws.
Nor does Proposal 2 thwart the purposes of Title VI 0907 "prevent[ing] discrimination in federally assisted programs." 252 Pub.L. No. 88-352, 78 Stat. 241 (1964). Proposal 2 reinforces that goal by prohibiting *252 state universities from
discriminating, or granting preferential treatment, on the basis of race.
Title IX. Plaintiffs further contend that Title IX of the Education Amendments of 1972 preempts Proposal 2. This claim, too, holds little promise. Proposal 2, as shown, expressly avoids conflicts with federal-funding statutes like this one. Mich. Const. art. I, § 26(4). And by preventing discrimination on the basis of sex, Proposal 2 directly serves Title IX's objectives. See 20 U.S.C. § 1681 ("No person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."). (In their complaint, plaintiffs also relied on Title VII and an Executive Order, but they have not invoked these provisions in seeking to uphold the preliminary injunction.)
B.
Having determined that Russell has a strong likelihood of reversing the district court's preliminary injunction, we must consider whether the other stay factors militate against granting a stay. They do not. The irreparable-injury factors do not meaningfully favor one set of parties over the other. To the extent plaintiffs and the Universities maintain that irreparable harm will occur to them because Proposal 2 violates their federal constitutional rights, that does not help them. As we have shown, they have little likelihood of establishing that Proposal 2 violates the Federal Constitution.
What we have instead is a situation in which irreparable harm will befall one side or the other of the dispute no matter what we do. To respect university applicants who favor preferences this year is necessarily to slight those who oppose them 0907 putting both equally at risk of disappointment when admissions decisions are made this year. And to respect the Universities' interest in preserving their current admissions and financial-aid programs during this enrollment cycle is necessarily to slight the public interest in permitting a statewide initiative to go into effect

on the date that the Michigan Constitution requires. In short, "either party will suffer an irreparable injury if we rule against it." Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458, 460 (6th Cir.1991). Nor can it fairly be said that Proposal 2 came as a sudden surprise to anyone. Efforts to pass the initiative began soon after the Supreme Court's decisions in Grutter and Gratz, and the initiative was passed near the beginning of the 2006-2007 admissions cycle after a long debate about the merits of it. The irreparable-harm inquiry in the end does not strongly favor one party or another.
With respect to the fourth factor, "the public interest lies in a correct application" of the federal constitutional and statutory provisions upon which the claimants have brought this claim, id., and ultimately (in view of our interpretation of those provisions) upon the will of the people of Michigan being effected in accordance with Michigan law. All of this said, our decision ultimately "turn[s] on the likelihood of success on the merits," id., and our conviction that these are weak federal claims. If we saw the merits differently, we would likely treat the stay motion differently as well. See Americans United, 922 F.2d at 306.
* * * * *
Which leads us to our last point: this is an unusual way to use the federal courts. Ordinarily, one might wonder 253 why a court would hesitate to delay the implementation of a state law for six months when *253 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 0907 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 0907 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 0907 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.
IV.
For these reasons, the motion for a stay pending appeal of the district court's preliminary injunction is granted, and the petition for a writ of mandamus is dismissed as moot.
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