Is it discriminatory to prohibit discrimination?

The 1982 Supreme Court case upon which the panel majority primarily relies — Washington v. Seattle School District No. 1 — was a convoluted 5-4 decision that did not concern affirmative action. Instead, this seldom-invoked case involved a voter initiative that limited the ability of the school district to use mandatory busing to achieve racial integration. Curiously, the one and only thing that all nine members of the Supreme Court agreed upon in Washington was that any argument like that just adopted by the Sixth Circuit would be wrongheaded. In his dissent, then-Justice Lewis Powell expressed fear that the majority opinion might one day be interpreted to prevent a state from prohibiting unpopular affirmative action plans. The majority scoffed at what they called Powell’s “parade of horribles,” and insisted that he was way off base. In doing so, they admitted that such a result would be both absurd and a misinterpretation of their intent.

One could say that the Sixth Circuit’s decision on Proposal 2 is inexplicable. The problem is that it really isn’t. We all basically get it. If Judge Cole had been a resident of Michigan, he would have voted against Proposal 2 — or at least that is what a fair reading of his opinion suggests. And Judge Daughtrey, too. Fine. Lots of perfectly respectable voters did. But a federal court is not a forum for determining whether a voter initiative is a good or bad idea. At least it is not supposed to be.

The court’s job here was to decide the very limited issue of constitutionality. Otherwise, the last word goes to the voters.

Fortunately for Michigan voters, this too shall very likely pass. There is a good chance that the full Sixth Circuit will be willing to review the panel decision en banc. If not, perhaps the Supreme Court will. The last word has not yet been spoken.

Gail Heriot is a University of San Diego law professor and member of the U.S. Commission on Civil Rights. She co-chaired the Proposition 209 campaign.