Author: David B. Weisenfeld, XpertHR Legal Editor

The 6th Circuit Court of Appeals has overturned a Michigan law that banned preferential treatment based on race, sex or national origin in public employment, public education or public contracting. The ruling defeats the 2006 voter-approved affirmative action ban on the grounds that it violates the Constitution's Equal Protection Clause.

The decision in Coalition to Defend Affirmative Action v. University of Michigan did not comment directly on the portion of the state law that dealt with government hiring. However, the opinion took proponents of the ban to task for what the appeals court viewed as an attempted "end-run" around the Supreme Court's 2003 ruling in Grutter v. Bollinger, +539 U.S. 306 (2003), which held that universities could use race or ethnicity as a "plus factor" in considering candidates.

The 6th Circuit's 8-7 vote to strike down the Michigan affirmative action ban signals the deep divide over the issue. Supreme Court review is possible as Michigan's Attorney General Bill Schuette has vowed to appeal.

The Supreme Court heard arguments last month in another affirmative action dispute, Fisher v. University of Texas. A decision in that case, which did not involve a voter-approved racial or gender preference ban, is expected before the end of the Court's term in June 2013.

Additional Resources

Supreme Affirmative Action Battle Is Big Deal for Employers

Affirmative Action Blockbuster Has Employment Implications - Podcast

Employee Management > EEO - Affirmative Action: Michigan