In November, Michigan’s “Proposition 2” passed, amending the state constitution to bar government sponsored affirmative action programs, including in admissions programs in the state’s university system. In December, a Michigan district court approved an agreement by Michigan’s governor and its Attorney General to allow three state universities to finish their admissions cycle using an affirmative action plan that was consistent with principles upheld by the Supreme Court. But in an opinion written by Judge Jeffrey Sutton, the Sixth Circuit Court of Appeals refused to allow the agreement to go into effect – thereby forcing the Michigan schools to change their admission criteria midstream. Judge Sutton, one of President Bush’s appointees, was opposed by NWLC and other groups, in part because of his extreme use of principles of “federalism,” or deference to states, to prevent individuals from getting relief under federal civil rights laws. The other two judges, who joined the opinion, were appointed by the first President Bush. Judge Sutton cited federalism considerations here – finding that the state’s interest in not changing the rules in the middle of the admissions cycle should be considered by the state courts, not the federal courts. Yet again, he used these arguments in a way that frustrated civil rights principles – and in a way that was particularly ironic given that he, as a federal judge, was overriding what state officials wanted to do.
