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.
It would be much fairer for supporters and opponents to debate affirmative action through the governing boards of each public university, the court said, instead of cementing a ban in the constitution -- "the highest level."
The court did not comment on part of the amendment that deals with government hiring.
This is the second time that the appeals court has examined the affirmative action issue. A three-judge panel last year also found the ban unconstitutional for similar reasons. But after a plea from Attorney General Bill Schuette, the entire court decided to take a fresh look at the matter, with new filings and arguments leading to the new ruling Thursday.
In dissent, Judge Danny Boggs said the majority relied on an "extreme extension" of two Supreme Court cases to justify its decision.
"We have the citizens of the entire state establishing a principle that would in general have seemed laudable," Boggs said.
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