By Terry Baynes
(Reuters) - A Michigan law that bans affirmative action in public college admissions violates the Constitution, a federal appeals court ruled on Thursday, adding to a growing debate on preferential treatment for minorities.
A sharply divided U.S. Court of Appeals for the 6th Circuit in Cincinnati found that a 2006 amendment to the Michigan Constitution imposed burdens on racial minorities in violation of the U.S. Constitution's guarantee of equal protection.
The decision comes as the U.S. Supreme Court is considering whether colleges and universities can continue to give special preference to minority candidates in admissions policies, specifically in a case involving the University of Texas.
In Thursday's ruling, the 6th Circuit said that, unlike the Supreme Court, it was not considering whether race-conscious admissions policies were constitutional or worthwhile.
Rather, the only issue before the court was whether the Michigan law violated the constitution by barring university officials from considering race as a factor in admissions decisions, Judge Guy Cole wrote for the 8-7 majority.
Michigan voters passed the measure, known as Proposition 2, in 2006, prohibiting public educational institutions from giving a preference to any applicant based on race.
A coalition of supporters of affirmative action sued that same year, saying the change harmed racial minorities in violation of the 14th Amendment's Equal Protection Clause.
A district court upheld the law in 2008, ruling for Michigan's attorney general. The affirmative action supporters appealed and a divided three-judge panel of the 6th Circuit reversed that decision last year. At the request of the state, the full appeals court reheard the case.
The majority of the court on Thursday said the Equal Protection Clause does more than guarantee equal treatment under the law. It also prevents laws from being passed that change the political process to impose extra burdens on minorities, the court said.
A child of alumni trying to get a school to adopt a policy that favors legacy applicants could lobby the admissions committee or petition the school's leadership, the court said. In contrast, a black student advocating for a race-conscious admissions policy would have to amend the state's constitution.
"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," wrote Cole.
Seven judges dissented, with Judge Richard Griffin calling the majority's decision the "antithesis" of the Equal Protection Clause.
"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," Griffin wrote.
Michigan Attorney General Bill Schuette said he would appeal the 6th Circuit's decision to the Supreme Court.
"Entrance to our great universities must be based upon merit. We are prepared to take the fight for equality, fairness and the rule of law to the U.S. Supreme Court," he said in a statement.
George Washington, a lawyer for the affirmative action supporters, welcomed the ruling as a victory for black, Latino and Native American students.
He said numerous other states, including California, have adopted bans on affirmative action, which have caused "tremendous drops" in minority enrollment.
The Michigan Department of Civil Rights, which had filed a brief against the ban, applauded the decision for allowing public universities to promote diversity for the benefit of their students and society.
The Supreme Court is expected to rule on the Texas case by the end of June 2013.
The case is Coalition to Defend Affirmative Action et al v. Regents of the University of Michigan et al, 6th U.S. Circuit Court of Appeals, No. 08-1387.
(Reporting by Terry Baynes in New York; editing by Dan Grebler, G Crosse)
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