Sixth Circuit: Wonderland To Be Revisited

“By a 2-1 vote,” I wrote on July 1 in Judges In Wonderland,

a panel of the Sixth Circuit has decided that Proposal 2, the Michigan Civil Rights Initiative, an initiative approved by 58% of Michigan voters that amended the state constitution to prohibit state agencies from discriminating against or granting preferential treatment to anyone based on race, violates the 14th Amendment’s requirement of equal protection.

Really. The two-judge majority (both appointed by a Democratic president, with the dissent by a Republican appointee) actually held that depriving a racial minority of the ability to receive preferential treatment based on race discriminates against that minority based on race.

On Friday the full Sixth Circuit decided to revisit Wonderland and review the decision of its panel, with briefs to be filed in mid-October and argument next year.

The decision to review the two-judge panel majority’s weird conclusion that a state constitutional amendment (adopted with 58% of the vote) barring the state from discriminating on the basis of race discriminates on the basis of race doesn’t necessarily mean the panel decision will be reversed. But the dissenter on that panel has much more reason to be happy today than he did last Thursday.

Inside Higher Ed has a long discussion here.

Say What?