The decision is limited to states in the 6th Circuit, which includes Kentucky, Ohio and Tennessee. But it also raises the odds that the U.S. Supreme Court may get involved. A very similar law in California was upheld by a San Francisco-based appeals court, and the Supreme Court could choose to resolve the conflicting decisions of the 9th Circuit and the 6th Circuit on voter-approved bans.
Michigan’s ban on affirmative action in college admissions was declared unconstitutional Thursday by a deeply divided federal appeals court, six years after state voters said race could not be an issue in choosing students.
In an 8-7 decision, the court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action.
That burden “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change,” said Judge R. Guy Cole Jr., writing for the majority at the 6th U.S. Circuit Court of Appeals in Cincinnati.
The court said having supporters and opponents debate affirmative action through the governing boards of each public university would be much fairer than cementing a ban in the constitution, which it referred to as home of “the highest level” of public policy.
The court did not comment on a portion of the amendment that deals with government hiring.
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