RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 11a0174p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ Nos. 08-1387/1534 X COALITION TO DEFEND AFFIRMATIVE - - ACTION, INTEGRATION AND IMMIGRANT - Nos. 08-1387/1389/1534; RIGHTS AND FIGHT FOR EQUALITY BY ANY - 09-1111 > MEANS NECESSARY (BAMN), et al., , Plaintiffs-Appellants (08-1387)/ - Cross-Appellees, - - v. - REGENTS OF THE UNIVERSITY OF MICHIGAN, - BOARD OF TRUSTEES OF MICHIGAN STATE - UNIVERSITY; BOARD OF GOVERNORS OF - - WAYNE STATE UNIVERSITY; MARY SUE - COLEMAN; IRVIN D. REID; LOU ANNA K. - SIMON, - Defendants-Appellees/Cross-Appellants - - (08-1534), - MICHAEL COX, Michigan Attorney General, - Intervenor-Defendant-Appellee. - - - No. 08-1389 - COALITION TO DEFEND AFFIRMATION - ACTION, INTEGRATION AND IMMIGRANT - RIGHTS AND FIGHT FOR EQUALITY BY ANY - MEANS NECESSARY (BAMN), et al., - - Plaintiffs, - CHASE CANTRELL, et al., - Plaintiffs-Appellees, - v. - - REGENTS OF THE UNIVERSITY OF MICHIGAN, - BOARD OF TRUSTEES OF MICHIGAN STATE - UNIVERSITY; BOARD OF GOVERNORS OF - WAYNE STATE UNIVERSITY; MARY SUE - - COLEMAN; IRVIN D. REID; LOU ANNA K. - SIMON, - Defendants, - ERIC RUSSELL, - - Intervenor-Defendant-Appellant, - JENNIFER GRATZ, - Proposed Intervenor-Appellant. - - 1 Nos. 08-1387/1389/ Coalition to Defend Affirmative Action, et al. v. Page 2 1534; 09-1111 Regents of the Univ. of Mich., et al. No. 09-1111 - COALITION TO DEFEND AFFIRMATION - - ACTION, INTEGRATION AND IMMIGRANT - RIGHTS AND FIGHT FOR EQUALITY BY ANY - MEANS NECESSARY (BAMN), et al., - Plaintiffs, - - CHASE CANTRELL, et al., - Plaintiffs-Appellants, - v. - REGENTS OF THE UNIVERSITY OF MICHIGAN, - - BOARD OF TRUSTEES OF MICHIGAN STATE - UNIVERSITY; BOARD OF GOVERNORS OF - WAYNE STATE UNIVERSITY; MARY SUE - COLEMAN; IRVIN D. REID; LOU ANNA K. - - SIMON, - Defendants, - MICHAEL COX, Michigan Attorney General, - Intervenor-Defendant-Appellee. - - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-15024—David M. Lawson, District Judge. Argued: November 17, 2009 Decided and Filed: July 1, 2011 Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges. _________________ COUNSEL ARGUED: George Boyer Washington, Shanta Driver, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, Karin A. DeMasi, CRAVATH, SWAINE & MOORE LLP, New York, New York, Mark D. Rosenbaum, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, Los Angeles, California, for Plaintiffs. Margaret A. Nelson, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Leonard M. Niehoff, LEN NIEHOFF & ASSOCIATES, Chelsea, Michigan, Jesse Panuccio, COOPER & KIRK, PLLC, Washington, D.C., for Defendants. ON BRIEF: George Boyer Washington, Shanta Driver, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, Karin A. DeMasi, CRAVATH, SWAINE & MOORE LLP, New York, New York, Mark D. Rosenbaum, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, Los Angeles, California, Kary L. Moss, Michael J. Steinberg, Mark P. Nos. 08-1387/1389/ Coalition to Defend Affirmative Action, et al. v. Page 3 1534; 09-1111 Regents of the Univ. of Mich., et al. Fancher, ACLU FUND OF MICHIGAN, Detroit, Michigan, Joshua I. Civin, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., Washington, D.C., for Plaintiffs. Margaret A. Nelson, Heather S. Meingast, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Leonard M. Niehoff, LEN NIEHOFF & ASSOCIATES, Chelsea, Michigan, Jesse Panuccio, Charles J. Cooper, David H. Thompson, COOPER & KIRK, PLLC, Washington, D.C., Kerry L. Morgan, PENTIUK, COUVEREUR & KOBILJAK, Wyandotte, Michigan, Michael E. Rosman, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., for Defendants. Daniel M. Levy, MICHIGAN DEPARTMENT OF CIVIL RIGHTS, Detroit, Michigan, for Amicus Curiae. Sharon L. Browne, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amicus Curiae. COLE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. GIBBONS, J. (pp. 41–59), delivered a separate opinion concurring in part and dissenting in part. _________________ OPINION _________________ COLE, Circuit Judge. Proposal 2 is a successful voter-initiated amendment to the Michigan Constitution. In relevant part, it prohibits Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity, or national origin.” Mich. Const. art. I, § 26. Our task is to determine whether Proposal 2 is constitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Fortunately, the slate is not blank. The Supreme Court has twice held that equal protection does not permit the kind of political restructuring that Proposal 2 effected. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); Hunter v. Erickson, 393 U.S. 385 (1969). Applying Hunter and Seattle, we find that Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities. Accordingly, we REVERSE the district court’s grant of summary judgment for the Defendants-Appellees and order the court to enter summary judgment in favor of the Plaintiffs-Appellants. Also, we AFFIRM the district court’s decision granting the Cantrell Plaintiffs’ motion for summary judgment as to Eric Russell, and AFFIRM the Nos. 08-1387/1389/ Coalition to Defend Affirmative Action, et al. v. Page 4 1534; 09-1111 Regents of the Univ. of Mich., et al. district court’s decision denying the University Defendants’ motion to be dismissed as parties. I. BACKGROUND A. Factual Background These appeals are the latest chapter in the battle over the use of race-conscious admissions policies at Michigan’s public colleges and universities. This saga began during the 1960s and 1970s, when African-American and other minority students and citizens first successfully lobbied for the adoption of these policies. The policies remained largely in place until challenges to them in the late 1990s, culminating in the Supreme Court’s decisions in Gratz v. Bollinger, 539 U.S. 244 (2003), and Grutter v. Bollinger, 539 U.S. 306 (2003), which held that “universities cannot establish quotas for members of certain racial groups” or treat their applications uniquely. Grutter, 539 U.S. at 334. But the universities may “consider race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration,” along with other relevant factors. Id. Following these decisions, Ward Connerly, a former University of California Regent who had championed a proposition in California similar to the one at issue here, and Jennifer Gratz, the lead plaintiff in Gratz, mobilized to place on Michigan’s November 2006 statewide ballot a proposal to amend the Michigan Constitution “to prohibit all sex- and race-based preferences in public education, public employment, and public contracting.” Operation King’s Dream v. Connerly, 501 F.3d 584, 586 (6th Cir. 2007). The initiative—officially designated Proposal 06-2 but commonly known as “Proposal 2”—was characterized as a proposal “to amend the State Constitution to ban affirmative action programs.” See Notice of State Proposals for November 7, 2006 General Election, http://www.michigan.gov/documents/sos/ED-138_State_Prop_11- 06_174276_7.pdf, at 5 (last visited June 24, 2011). Though Proposal 2 “found its way on the ballot through methods that undermine[d] the integrity and fairness of our democratic processes,” Operation King’s Dream, 501 F.3d at 591, once there it garnered Nos. 08-1387/1389/ Coalition to Defend Affirmative Action, et al. v. Page 5 1534; 09-1111 Regents of the Univ. of Mich., et al. enough support among Michigan voters to pass, on November 7, 2006, by a margin of 58% to 42%, see Mich. Dep’t of State, 2006 Official Michigan General Election Results, http://miboecfr.nicusa.com/election/results/06GEN/90000002.html (last visited June 24, 2011). Proposal 2 amended the Michigan Constitution by adding the following pertinent provisions to Article I—titled “Affirmative action”: (1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting. (2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (3) For the purposes of this section “state” includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1. Mich. Const. art. I, § 26. It took effect in December 2006 and wrought two significant changes to the admissions policies at Michigan’s public colleges and universities. First, it forced them to modify the policies they had in place for nearly a half-century to remove consideration of “race, sex, color, ethnicity, or national origin” in admissions decisions. No other admissions criteria—for example, grades, athletic ability, or family alumni connections—suffered the same fate. Second, Proposal 2 entrenched this prohibition at the state constitutional level, thus preventing the public colleges and universities or their boards from revisiting this issue without repeal or modification of Proposal 2. We review these changes later in greater detail, and there discuss their significance. Nos. 08-1387/1389/ Coalition to Defend Affirmative Action, et al. v. Page 6 1534; 09-1111 Regents of the Univ. of Mich., et al. B. Procedural Background The litigation surrounding Proposal 2 has been lengthy and complicated. On November 8, 2006, the day after Proposal 2’s approval, a collection of interest groups and individuals, including the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary (“Coalition Plaintiffs”), filed suit in the United States District Court for the Eastern District of Michigan. They named as defendants then-Governor Jennifer Granholm, the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University (“University Defendants”) and alleged that the provisions of Proposal 2 affecting public colleges and universities violated the United States Constitution and federal statutory law. About one month later, the Michigan Attorney General (“Attorney General”) filed a motion to intervene as a defendant; the court granted his motion the same day. On December 19, 2006, a group of faculty members and prospective and current students at the University of Michigan (“the Cantrell Plaintiffs”) filed a similar suit in the United States District Court for the Eastern District of Michigan against then Governor Granholm. Eric Russell, then an applicant to the University of Michigan Law School, and Toward A Fair Michigan (“TAFM”), a non-profit corporation formed to ensure implementation of Proposal 2, intervened in the litigation as defendants soon thereafter. The district court consolidated the two cases on January 5, 2007, and the Attorney General was permitted to intervene in the Cantrell lawsuit as part of the consolidation order. Because the Attorney General effectively replaced then-Governor Granholm as the representative of Michigan in this litigation, both Plaintiffs’ groups later stipulated to her dismissal as a party. On December 19, 2006, the district court issued what was, in effect, a preliminary injunction, postponing application of Proposal 2 to the universities’ admissions and financial-aid policies until July 1, 2007, the conclusion of the 2006-2007 admissions and financial-aid cycle. The district court’s order stemmed from a stipulation Nos. 08-1387/1389/ Coalition to Defend Affirmative Action, et al. v. Page 7 1534; 09-1111 Regents of the Univ. of Mich., et al. among the University Defendants, Coalition Plaintiffs, Granholm, and the Attorney General consenting to the injunction. (Amended Order Granting Temporary Injunction and Dismissing Cross-Claim, Dist. Ct. Docket No. 39 (“Coal. I”).) Russell and TAFM, while awaiting approval as intervenors, opposed the Attorney General’s stipulation and sought a stay of the injunction from the district court. When two days had passed without a ruling on their motions, Russell and TAFM filed with us an “Emergency Motion for a Stay Pending Appeal.” We granted their motion. Coal. to Defend Affirmative Action v. Granholm (Coal. II), 473 F.3d 237, 252 (6th Cir. 2006), application to vacate stay denied, 549 U.S. 1176 (2007). Meanwhile, we approved the district court’s decision to allow solely Russell and TAFM to intervene in the Proposal 2 litigation. Coal. to Defend Affirmative Action v. Granholm (Coal. III), 501 F.3d 775 (6th Cir. 2007). On October 5, 2007, the Cantrell Plaintiffs filed a motion for summary judgment as to intervening defendant Russell, arguing that he should be dismissed from the litigation because he no longer represented an interest distinct from that of the Attorney General. On October 17, 2007, the University Defendants filed a motion asking to be dismissed as parties. On November 30, 2007, the Attorney General filed a motion to dismiss for lack of standing or, in the alternative, a motion for summary judgment on the merits as to all Plaintiffs. Russell and the Cantrell Plaintiffs likewise filed motions for summary judgment the same day. On March 18, 2008, the district court issued two orders addressing these motions. In the first order, the court denied the University Defendants’ request to be dismissed as parties and the Cantrell Plaintiffs’ motion for summary judgment and granted the Attorney General’s motion for summary judgment, rejecting the Plaintiffs’ arguments that Proposal 2 violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. IV), 539 F. Supp. 2d 924, 950-58 (E.D. Mich. 2008). In the second order, the court granted the Cantrell Plaintiffs’ motion for summary judgment, dismissing Russell as an intervenor. Coal. to Defend Affirmative Action v. Nos. 08-1387/1389/ Coalition to Defend Affirmative Action, et al. v. Page 8 1534; 09-1111 Regents of the Univ. of Mich., et al. Regents of the Univ. of Mich. (Coal. V), 539 F. Supp. 2d 960 (E.D. Mich. 2008). The Cantrell Plaintiffs subsequently moved the court to reconsider the first order, but the court denied the motion. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VI), 592 F. Supp. 2d 948 (E.D. Mich. 2008). These appeals followed. The University Defendants appeal the court’s denial of their motion to be dismissed as parties. Russell appeals the court’s grant of the Cantrell Plaintiffs’ motion for summary judgment dismissing him as a party to the action. The Cantrell Plaintiffs appeal the court’s grant of the Attorney General’s motion for summary judgment and its denial of their motion for reconsideration. Similarly, the Coalition Plaintiffs appeal the court’s grant of the Attorney General’s motion for summary judgment. II. ANALYSIS A. Proposal 2’s Constitutionality The Equal Protection Clause provides that no state shall “deny to any person . . . the equal protection of the laws.” U.S. Const. amend. XIV. The Plaintiffs argue that Proposal 2 violates this provision in two distinct ways. Both Plaintiffs groups argue that Proposal 2 violates the Equal Protection Clause by impermissibly restructuring the political process along racial lines (the “political process” argument), and the Coalition Plaintiffs contend that Proposal 2 violates the Equal Protection Clause also by impermissibly classifying individuals on the basis of race (the “traditional” argument). We review de novo a district court’s grant of summary judgment and denial of a motion for reconsideration of that decision. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1047 (6th Cir. 2001). Whether a state’s constitution violates the federal constitution is a question of law, which we also review de novo. Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir. 2008). Nos. 08-1387/1389/ Coalition to Defend Affirmative Action, et al. v. Page 9 1534; 09-1111 Regents of the Univ. of Mich., et al. 1. “Political Process” Equal Protection Analysis The Equal Protection Clause “guarantees racial minorities the right to full participation in the political life of the community. It is beyond dispute . . . that given racial or ethnic groups may not be denied the franchise, or precluded from entering into 1 the political process in a reliable and meaningful manner.” Seattle, 458 U.S. at 467. But the Equal Protection Clause reaches even further, and prohibits “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Id. (internal quotation marks and citation omitted). “[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” Hunter, 393 U.S. at 393. The Supreme Court’s statements in Hunter and Seattle clarify that equal protection of the laws is more than a guarantee of equal treatment under the law substantively. It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities. In effect, the political process theory hews to the unremarkable belief that, when two competitors are running a race, one may not require the other to run twice as far, or to scale obstacles not present in the first runner’s course. Ensuring the fairness 1 For this reason, the Supreme Court has repeatedly held that legislative enactments that burden racial minorities’ ability to participate in the political process may violate the Constitution. See, e.g., White v. Regester, 412 U.S. 755 (1973) (invalidating “multimember” electoral districts that minimized the voting strength of resident Mexican-Americans); Harman v. Forssenius, 380 U.S. 528 (1965) (holding unconstitutional a statute that required voters either to file an annual certificate of residence or pay a poll tax “born of a desire to disenfranchise the Negro”); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that political redistricting that redefined municipal borders to exclude black residents would violate the Equal Protection Clause); Smith v. Allwright, 321 U.S. 649 (1944) (requiring the state Democratic party to admit black members in order that they be allowed to vote in the party primary election); Lane v. Wilson, 307 U.S. 268 (1939) (holding unconstitutional a statute having the effect of requiring all black citizens to apply for voting registration within a ten-day period or be forever barred from registering, but subjecting virtually no white citizens to the same requirement); Nixon v. Herendon, 273 U.S. 536 (1927) (holding unconstitutional a statute prohibiting black citizens from participating in primary elections for the state Democratic Party); Guinn v. United States, 238 U.S. 347 (1915) (holding unconstitutional a statute having the effect of subjecting all black citizens, but virtually no white citizens, to a literacy test in order to vote in state elections). In all these cases, the Court invalidated procedural hurdles that impeded racial minorities’ political participation by either making it more difficult for these minorities to vote or diluting their voting power. Nos. 08-1387/1389/ Coalition to Defend Affirmative Action, et al. v. Page 10 1534; 09-1111 Regents of the Univ. of Mich., et al. of political processes, in particular, is essential, because an electoral minority is by definition disadvantaged in its attempts to pass legislation; and “discrete and insular minorities” are especially so given the unique hurdles they face. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). Ensuring a fair political process is nowhere more important than in education. Education is the bedrock of equal opportunity and “the very foundation of good citizenship.” Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). Safeguarding the guarantee “that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” Grutter, 539 U.S. at 331-32 (quoting Br. for United States as Amicus Curiae 13). “Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. . . . [T]o cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Id. at 332 (citation omitted). Therefore, in the context of education, we must apply the “political process” protection with the utmost rigor given the high stakes. Of course, the Constitution does not protect minorities from political defeat: Politics necessarily produces winners and losers. We must therefore have some way to differentiate between the constitutional and the impermissible. And Hunter and Seattle do just that. They provide the benchmark for when the majority has not only won, but also rigged the game to reproduce its success indefinitely. i. Hunter and Seattle a. Hunter The Supreme Court in Hunter addressed a situation where the citizens of Akron, Ohio overturned a fair housing ordinance enacted by the City Council. 393 U.S. at 386. The citizenry did more than merely repeal the ordinance, however. It amended the city charter through a referendum to require the approval of a majority of the electorate