Campbell v. Department of the Navy Commander Petition for In Banc Hearing

    No. 06-A678

In  T he

Supreme Court of tlje &lm'trb States;
C o alition  to  D efend  A ffirm a tive  A c tio n , In teg ra tion  and  
Im m igra nt  R ights and  t o  F ight  for  E q uality  by  A n y  M eans 

N ecessa ry , United  fo r  Eq ua lity  and  A ffirm a tive  Action  
Lega l  D efen se  Fu n d , R a in b o w  Push  Co a litio n , et  a l .,

Jennifer  G r a n h o lm , as G o v ern o r  of the  State  of M ic h ig a n , 
the  R egents o f  T he U n iv er sity  o f  M ich iga n , T he B o ard  of 

T rustees o f  M ichigan  State  Un iv er sity , T he B oard  of 
G o verno rs  o f  W a yne  State  U n iv er sity , 

and

M ike C o x , in his Ca pa city  as A tto rney  G eneral  of 
M ich iga n , a nd  Eric R u ssell ,

Respondents.

On M otion  to  D issolve  a  Stay  P ending  A ppeal

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF 
AMICI CURIAE THE CANTRELL PLAINTIFFS 

IN SUPPORT OF PETITIONERS

M a rk  R osen bau m  
Counsel o f Record 
ACLU F o u n da tion  of 
So uthern  Ca lifornia  
1616 Beverly Boulevard 
Los Angeles, CA 90026 
(213) 977-9500

M elvin  Butch  H o llo w ell , J r .
D etro it  B ran ch  NAACP 
A llen  B roth ers  pllc  
400 Monroe St., Suite 220 
Detroit, MI 48226 
(313)962-7777

Counsel for the Cantrell Plaintiffs 
Additional Counsel Listed On Inside Cover 
January 17, 2007 _____ ____________

Laurence  H. Tribe 
Hauser Hall 420 
1575 Massachusetts Avenue 
Cambridge, MA 02138 
(617) 495-4621

Ka rin  A. D eM asi
C ra v a th , Sw aine  & M oore  llp

Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
(212) 474-1000



T h eodore  M . Shaw  
V ictor  B o lden  
A n u r im a  B h a r g a v a  
NAACP Le g a l  D efen se  & 
E d u c a tio n a l  Fund  
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200

Erw in  C h em erin sk y  
D uke  Un iv er sity  School  of 
Law

Science Drive & Towerview Rd. 
Durham, NC 27708 
(919)613-7173

D ennis P a rk er  
A lexis A gatho cleo us  
A m erican  C iv il  L iberties 
U n io n  F o u n d a tio n  R a cial  
Justice  P rog ram  
125 Broad St., 18th Floor 
New York, NY 10004-2400 
(212)519-7832

Ka ry  L. M oss 
M ichael  J. Steinberg  
M a rk  P. Fa ncher  
A m erican  C ivil L iberties  
Un ion  Fund  of M ich iga n  
60 W. Hancock Street 
Detroit, MI 48201 
(313)578-6814

Jerom e  R. W atson

M iller , Ca n field , Pa d d o c k  and

Sto n e , p .l .c .
150 West Jefferson, Suite 2500 
Detroit, MI 48226 
(313) 963-6420

D aniel  P. Tokaji 
The Oh io  State  U n iv er sity  
M o ritz  Co llege  O f La w  
55 W. 12th Ave.
Columbus, OH 43206 
(614) 292-6566

Counsel for the Cantrell Plaintiffs



No. 06-A678

In  T he

Supreme Court of tfjc ©nttriJ i§>tatE£
C o alitio n  to  D efend  A ffirm a tive  A c tio n , In teg ra tio n  

a nd  Im m igra nt  R ights and  to  F ight  for  Eq ua lity  by  
A n y  M eans Ne cessa ry , Un ited  for  Eq ua lity  and  

A ffirm a tive  A ction  Lega l  D efen se  F u n d , R a inbo w  
Push  C o a litio n , et  a l .,

Petitioners,
v.

Jenn ifer  G ra n h o lm , as G o v ern o r  of the  State  of 
M ic h ig a n , the  R egents of Th e  Un iversity  of M ich ig a n , 
Th e  B oard  of T rustees  of M ichigan  State  Un iv er sity , 
T he B oard  o f  G overnors of W a yne  State  U n iv er sity ,

and

M ike  Cox, in his Capacity  as A tto rney  G enera l  of 
M ich iga n , and  Eric R u ssell ,

Respondents.

On  M otion  to  D issolve  a  Stay  Pending  A ppeal_____

MOTION OF AMICI CURIAE THE CANTRELL 
PLAINTIFFS FOR LEAVE TO FILE BRIEF 

IN SUPPORT OF PETITIONERS

Plaintiffs in Cantrell, et al. v. Granholm, No. 2:06-cv- 
15637 (E.D. Mich.), who represent a proposed class of all 
present and future students and faculty at the University of 
Michigan who applied to, matriculated at, or continue to be 
enrolled at or employed by the University of Michigan in 
reliance upon the University’s representation that it would 
continue to admit and enroll a diverse group of students 
consistent with the University’s former admissions policy, 
respectfully move this Court pursuant to Supreme Court Rule 
37.2 for leave to file the accompanying brief in support of 
Petitioners in Coalition to Defend Affirmative Action,



2

Integration and Immigrant Rights and To Fight For Equality 
By Any Means Necessary, et al. v. Granholm, etal..

On January 5, 2007, the District Court for the Eastern 
District of Michigan consolidated Petitioners’ case with the 
Cantrell litigation. See January 5, 2007 Order. Indeed, 
these cases raise common questions of law and fact, and the 
interests of the plaintiffs in both litigations are equally at 
stake with respect to the stay order entered by the United 
States Court of Appeals for the Sixth Circuit that Petitioners 
have asked this Court to vacate.

Amici, the Cantrell Plaintiffs, respectfully seek to 
submit their brief to further explain the extent to which the 
Sixth Circuit panel failed to recognize and uphold this 
Court’s political restructuring jurisprudence as set forth in 
Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. 
Seattle School District No. 1, 458 U.S. 457 (1982). The 
panel’s flawed discussion of Hunter and Seattle should not 
be permitted to stand, even as dicta. Moreover, the Cantrell 
Plaintiffs support Petitioners’ request that this Court vacate 
the Sixth Circuit’s opinion, which, if left to stand, would 
seriously and irreparably harm the rights of high school 
students around the country whose applications to the 
University of Michigan are being evaluated according to two 
different sets of criteria as a result of the Sixth Circuit’s 
decision. Amici, the Cantrell Plaintiffs, believe that they will 
present arguments to this Court that will not be, and have not 
been, presented in the same form by the parties.



3

For the foregoing reasons, amici, the Cantrell Plaintiffs, 
respectfully request that this Court grant their motion for 
leave to file the accompanying brief in support of Petitioners.

January 17,2007

Respectfully submitted,

Is/ Mark Rosenbaum ______.
M a rk  R osenbaum

Counsel o f Record

La urence  H.T ribe 
Hauser Hall 420 
1575 Massachusetts Avenue 
Cambridge, Mass. 02138 
(617) 495-4621

M elvin  B u tch  H o llo w ell , J r .
G eneral  C o u n sel ,
D etro it  B ran ch  NAACP
A llen  B roth ers  pllc

400 Monroe St., Suite 220 
Detroit, MI 48226 
(313) 962-7777

Ka rin  A. D eM asi
C ra v a th , Sw aine  & M oore llp 

Worldwide Plaza 
825 Eighth Avenue 
New York, NY 10019-7475 
(212) 474-1000



4

T h eodore  M. Shaw  
V ictor  B olden  
A n urim a  B hargava  
NAACP Leg a l  D efense  &  
E d u c atio na l  F und

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200

K ary  L. M oss 
M ich ael  J. Steinberg  
M a r k P. F a ncher  
A m erican  C ivil  L iberties U n ion  
Fu nd  of M ichigan

60 W. Hancock Street 
Detroit, MI 48201 
(313)578-6814

Erw in  C hem erin sky  
D u k e  Un iv er sity  School  o f  Law  

Science Drive & Towerview Rd. 
Durham, NC 27708 
(919)613-7173

Jero m e  R. W atson

M iller , Ca n field , P a dd ock  and

St o n e , p .l .c .
150 West Jefferson, Suite 2500 
Detroit, MI 48226 
(313)963-6420



5

D ennis Parker  
A lexis A gathocleous  
A m erican  C ivil  L iberties U n ion  
Foundation  Ra cial  Justice  
P rogram

125 Broad St., 18th Floor 
New York, NY 10004-2400 
(212)519-7832

D aniel  P. Tokaji 
T he O hio  State  Un iversity  
M oritz  College  O f Law  

55 W. 12th Ave.
Columbus, OH 43206 
(614) 292-6566

Counsel for the Cantrell Plaintiffs



1

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................................................ iii

INTEREST OF AMICI CURIAE..........................................1

JURISDICTION....................................................................2

SUMMARY OF ARGUMENT..............................................2

ARGUMENT........................................................................ 4

I. STANDARD FOR GRANTING RELIEF.....................4

II. THIS COURT SHOULD GRANT PETITIONERS ’ 
MOTION TO DISSOLVE THE STAY ENTERED
BY THE SIXTH CIRCUIT...............................   5

A. Petitioners’ Rights May Be Seriously And
Irreparably Injured By The Sixth Circuit’s 
Stay And This Court Could And Likely 
Would Review The Underlying Case Upon Its 
Final Disposition.............   5

B. The Sixth Circuit Is Demonstrably Wrong In
Its Application Of Accepted Standards In 
Deciding To Issue The Stay...................................7

1. This Court Held In Hunter and Seattle 
That A State May Not Selectively 
Burden The Process Of Securing 
Legislation Predominantly Advancing
The Interests Of Racial Minorities................ 7

2. Hunter and Seattle Remain Good Law
And Have Controlling Force In The 
Underlying Case.......................................... 11



11

Page

3. The Sixth Circuit Fundamentally 
Misconstrued and Misapplied This 
Court’s Political Restructuring Doctrine 
As Set Forth in Hunter and Seattle.............12

CONCLUSION 16



Ill

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Const., Inc. v. Pena,
515 U.S. 200(1995).......................................................11

Certain Named and Unnamed Non-Citizen 
Children and Their Parents v. Texas,
448 U.S. 1327(1980)...........................................   2

Coleman, Jr. v. Paccar Inc.,
424 U.S. 1301 (1976)................................................... 2,5

Crawford v. Bd. ofEduc.,
458 U.S. 527(1982).................................................13, 15

Grutter v. Bollinger,
539 U.S. 306 (2003)............................................... .passim

Hunter v. Erickson,
393 U.S. 385 (1969)............................................... .passim

Hunter v. Underwood,
471 U.S. 222(1985).................................................11, 14

Layne & Bowler Corp. v. W. Well Works,
261 U.S. 387(1923)................................   6

Richmond v. J.A. Croson Co.,
488 U.S. 469(1989)...........   11

Washington v. Seattle Sch. Dist. No. 1,
458 U.S. 457 (1982)............................................... .passim

Statutes & Rules

Sup. Ct. R. 10(c).................................................................... 6



IV

Page(s)

28 U.S.C. § 1651 (2000)...................................................... 2

28 U.S.C. § 2101(f) Supp. Ill 2002.......................................2

Mich. Const. 1963, art. I, § 26........................................ 3, 12

Other Authorities

Amar & Caminker, “Equal Protection, Unequal 
Political Burdens, and the CCRI,” 23 Hastings 
Const. L.Q., 1019(1996)................................................ 16



INTEREST OF AMICI CURIAE1

Amici, the Cantrell Plaintiffs, represent a proposed class 
of all present and future students and faculty at the University 
of Michigan who applied to, matriculated at, or continue to 
be enrolled at or employed by the University of Michigan in 
reliance upon the University’s representation that it would 
continue to admit and enroll a diverse group of students at 
the school consistent with its former admissions policy. 
Having already described their interest in this case in their 
motion for leave to file a brief in support of Petitioners (pp. 
1-3), amici repeat here that the stay order entered below may 
have a substantial impact on thousands of students around the 
country, including amici, who already have applied to public 
universities in Michigan and who will have their applications 
assessed according to two different sets of criteria depending 
upon the sheer fortuity of when in the cycle their applications 
came up for consideration. Moreover, amici seek to have the 
Sixth Circuit’s stay dissolved so that the important 
constitutional issues at the core of the underlying 
consolidated cases might be fully developed and briefed, and 
so that the panel opinion not set this litigation on a 
fundamentally misdirected track at the very outset of these 
lawsuits.

1 Counsel for Petitioners did not author, in whole or in part, this 
brief; nor did any person or entity, other than amici and their counsel, 
make a monetary contribution to the preparation or submission of this 
brief.



2

JURISDICTION

A temporary injunction was entered by the United 
States District Court for the Eastern District of Michigan on 
December 18, 2006.2 On December 29, 2006, the United 
States Court of Appeals for the Sixth Circuit entered an 
Opinion and Order staying, pending appeal, the district 
court’s temporary injunction.3 Accordingly, the relief sought 
by Petitioners is not available from any other court or judge.

The jurisdiction of an individual Justice to vacate a stay 
order entered by a lower court pending appeal of an order 
entered by a court below is invoked under Sup. Ct. R. 22-23, 
28 U.S.C. § 1651 (2000) and 28 U.S.C. § 2101(f) (Supp. Ill 
2002). See Coleman, Jr. v. Paccar Inc., 424 U.S. 1301, 1304 
(1976) (Rehnquist, Circuit Justice) (finding that “a Circuit 
Justice has jurisdiction to vacate a stay” under certain 
circumstances); see also Certain Named and Unnamed Non- 
Citizen Children and Their Parents v. Texas, 448 U.S. 1327, 
1330 (1980) (Powell, Circuit Justice) (“The power of a 
Circuit Justice to dissolve a stay is well settled.”) (internal 
citation omitted).

SUMMARY OF ARGUMENT

This case raises the issue of the constitutionality of 
Proposal 2, an amendment to the Constitution of the State of 
Michigan which (among other things) proponents contend 
bars continuation of existing race-conscious policies and 
programs designed to achieve diversity in classrooms at

2 A copy of the district court’s Order Granting Temporary 
Injunction And Dismissing Cross-Claim In Part is attached as Exhibit B 
to Petitioners’ motion.

3 A copy of the Sixth Circuit’s opinion granting Respondents’ 
motion for a stay of the temporary injunction entered by the district court 
(“Opinion”) is attached as Exhibit A to Petitioners’ motion.



3

colleges and universities throughout Michigan, including at 
the University of Michigan. This Court affirmed just over 
three years ago that the University of Michigan may employ 
race-conscious admissions programs that are narrowly 
tailored to achieve its compelling interest in student body 
diversity. See Grutter v. Bollinger, 539 U.S. 306 (2003).

An emergency motions panel of the Sixth Circuit, 
without benefit of full and deliberate briefing or any 
evidentiary record, stayed a limited injunction entered by the 
district court that enforced a stipulation among the state 
entities involved in the litigation,4 including the Governor of 
the State of Michigan, the Attorney General, and the 
University of Michigan, Michigan State and Wayne State 
(“State Universities”), which would have kept in place 
existing programs only until July 1, 2007, so as not to disrupt 
the ongoing admissions cycle. No party had more than 
48 hours to prepare and file papers, and all principal briefing 
was ordered to be filed on December 28, 2006.

The emergency panel issued its opinion on 
December 29, 2006, staying the injunction and extinguishing 
the stipulation. Although stating that “the merits of the 
appeal of the order granting the preliminary injunction . . . 
[is] not before this panel” (Opinion at 5), the Opinion issued 
is breathtaking in its aggressive scope and sweep as to the

4 The stipulation, a copy of which is attached as Exhibit C to 
Petitioners’ motion, states in relevant part:

“It is hereby stipulated, by and between the parties that 
this Court may order as follows:

(1) that the application of Const[.] 1963, art[.] 1, § 26 to 
the current admissions and financial aid policies of the 
University parties is enjoined through the end of the current 
admissions and financial aid cycles and no later than 12:01 
a.m. on July 1, 2007, at which time this Stipulated Injunction 
will expire[.]”



4

underlying constitutional issues in the case.5 More 
particularly, the panel devoted barely a page of its decision to 
this Court’s political restructuring doctrine under the 
Fourteenth Amendment as set forth in Hunter v. Erickson, 
393 U.S, 385 (1969) and Washington v. Seattle School 
District No. 1, 458 U.S. 457 (1982). In fact, the 
Hunter/Seattle claim was never even presented to the district 
court as grounds for a stay or approval of the stipulation. 
Perhaps as a consequence, the panel, in its few-paragraph 
discussion of the issue, got this Court’s jurisprudence 
fundamentally wrong. The panel failed to recognize and 
uphold the Hunter/Seattle principle that a state may not 
selectively burden the process of securing legislation 
predominantly advancing the interests of racial minorities. 
Accordingly, the stay of the stipulation should be dissolved 
to avoid serious and irreparable injury to the rights of the 
parties to the underlying action, and so that the important 
constitutional issues at the core of this case might be fully 
developed and briefed such that the panel opinion not set this 
litigation on a fundamentally misdirected track, derailing it 
with so weighty a misguided precedent at the very outset of 
the lawsuit.

ARGUMENT

I, STANDARD FOR GRANTING RELIEF

Former Chief Justice William Rehnquist, deciding a 
motion addressed to him individually to vacate a stay order

5 It seems highly irregular, if not jurisdictionally improper, that the 
Sixth Circuit panel asked the parties to brief and then ruled upon the 
likelihood of success for all of the claims filed by all parties to the action, 
rather than limiting itself to the single claim advanced in support of a stay 
in the district court below. Moreover, the purported reason for the stay— 
that the district court no longer had jurisdiction over the matter once the 
stipulation was entered—is a dubious one because the stipulation did not 
extinguish the action.



5

entered by the United States Court of Appeals for the Ninth 
Circuit in a case then pending before that court, found that “a 
Circuit Justice has jurisdiction to vacate a stay where it 
appears that the rights of the parties to a case pending in the 
court of appeals, which case could and very likely would be 
reviewed here upon final disposition in the court of appeals, 
may be seriously and irreparably injured by the stay, and the 
Circuit Justice is of the opinion that the court of appeals is 
demonstrably wrong in its application of accepted standards 
in deciding to issue the stay.” See Paccar Inc., 424 U.S. at 
1304.

Accordingly, an individual Justice has jurisdiction to 
vacate a stay entered by a lower court if the petitioners can 
demonstrate that (1) their rights “may be seriously and 
irreparably injured by the stay,” provided that the underlying 
case to which they are a party “could and very likely would 
be reviewed [by this Court] upon final disposition” and (2) 
the lower court “is demonstrably wrong in its application of 
accepted standards in deciding to issue the stay.” Id.

II. THIS COURT SHOULD GRANT PETITIONERS’
MOTION TO DISSOLVE THE STAY ENTERED
BY THE SIXTH CIRCUIT.

A. Petitioners’ Rights May Be Seriously And 
Irreparably Injured By The Sixth Circuit’s 
Stay And This Court Could And Likely Would 
Review The Underlying Case Upon Its Final 
Disposition.

Reinstating the district court’s temporary injunction to 
preserve the status quo is necessary to avoid serious and 
irreparable injury to thousands of students who already have 
applied to the State Universities, and perhaps not applied 
elsewhere, with the justifiable expectation that current 
admissions policies would provide the basis for evaluating 
their applications and determining their educational future.



6

As it stands now under Proposal 2—and with the injunction 
stayed—high school students around the country are having 
their applications assessed according to two different sets o f 
criteria depending upon the sheer fortuity of when in the 
cycle their applications came up for consideration. That is 
plainly unfair.

In addition to the unfairness that will result if the Sixth 
Circuit’s stay is not lifted, Petitioners seek relief from this 
Court to avoid the irreparable injury that so misguided a 
precedent will cause if left in place at this early stage in the 
underlying litigation. As Petitioners themselves set forth in 
their brief, Proposal 2 poses a serious threat to the interests of 
both present and future applicants to colleges and universities 
throughout Michigan. These interests will suffer irreparable 
harm if this Court blesses the Sixth Circuit’s hasty disposal 
of the constitutional issues at stake in these consolidated 
cases by declining to lift the stay.

For these reasons, among others, the underlying case in 
this matter could and likely would be reviewed by this Court 
upon final disposition on the merits. Pursuant to Supreme 
Court Rule 10(c), this Court has the discretion to grant a 
petition for a writ of certiorari if a lower court “has decided 
an important question of federal law that has not been, but 
should be, settled by this Court, or has decided an important 
federal question in a way that conflicts with relevant 
decisions of this Court.” As this Court has made clear, it 
seeks to “be consistent in not granting the writ of certiorari 
except in cases involving principles the settlement o f which is 
o f importance to the public, as distinguished from that of the 
parties.” Layne & Bowler Corp. v. W. Well Works, 261 U.S.
387, 393 (1923) (emphasis added).

Of obvious concrete importance to the public is the fact )
that high school students around the country are having their 
applications assessed according to two different sets of 
criteria as a result of Proposal 2’s enactment. Moreover, at



7

the core of the underlying litigation are principles 
inextricably tied to questions that this Court already has 
found to be of “national importance.” See Grutter v. 
Bollinger, 539 U.S. 306, 322 (2003) (“Whether diversity is a 
compelling interest that can justify the narrowly tailored use 
of race in selecting applicants for admission to public 
universities” is a “question of national importance.”). If this 
Court considered the question of whether it is constitutional 
for a public college or graduate school to use race as a factor 
in its admissions process “a question of national importance,” 
id., certainly the important federal question of whether it is 
constitutional for a state to amend its constitution to make 
such a consideration impermissible must be of equal national 
importance.

B. The Sixth Circuit Is Demonstrably Wrong In 
Its Application Of Accepted Standards In 
Deciding To Issue The Stay.

1. This Court Held In Hunter and Seattle 
That A State May Not Selectively Burden 
The Process Of Securing Legislation 
Predominantly Advancing The Interests 
Of Racial Minorities.

Nearly four decades ago, this Court held that a state law 
violates the Equal Protection Clause when it “mak[es] it 
more difficult for certain racial. .. minorities [than for other 
members of the community] to achieve legislation that is in 
their interest.” Hunter, 393 U.S. at 395 (Harlan, J., 
concurring). In Hunter, this Court invalidated a referendum 
adopted by a majority of voters of the City of Akron, Ohio 
that amended the city charter to require popular approval of 
any ordinance regulating real estate transactions “on the basis 
of race, color, religion, national origin or ancestry.” Id. at 
387. The charter amendment thus not only repealed a fair 
housing ordinance previously enacted by the city council, 
“but also required the approval of the electors before any



8

future [housing discrimination] ordinance could take effect.” 
Id. at 389-90.

This Court, by a vote of 8-1, struck down the Akron 
amendment, finding that it “drew a distinction between those 
groups who sought the law’s protection against racial, 
religious, or ancestral discriminations in the sale and rental of 
real estate and those who sought to regulate real property 
transactions in the pursuit of other ends.” Id. at 390. This 
Court readily discounted the facial neutrality of the charter 
amendment, which “dr[ew] no distinctions among racial and 
religious groups,” finding that it would nonetheless uniquely 
disadvantage those principally benefiting from race­
conscious fair housing laws—i.e., minorities—by forcing 
them to run a legislative “gantlet” of popular approval that 
other laws were spared. Id. at 390-91. As this Court 
concluded, “the reality is that the law’s impact falls on the 
minority.” See id. at 391.

In Seattle, 458 U.S. at 467-71, this Court reaffirmed its 
holding in Hunter, upholding once again the principle that, 
while the state may make it more difficult for everyone 
across the board to enact or enforce laws on a particular 
subject matter, it may not make it selectively more difficult 
to secure legislation predominantly advancing the interests of 
racial minorities. Specifically, Seattle invalidated Initiative 
350, a statewide measure that provided in a facially neutral 
fashion (it made no mention whatsoever of race or of racial 
minorities) that “‘no school board . . . shall directly or 
indirectly require any student to attend a school other than 
the school which is geographically nearest or next nearest the 
student’s place of residence.”4 458 U.S. at 462. The 
initiative, however, contained so many exceptions to this 
general prohibition that its sole (and clearly intended) 
practical effect was to bar race-conscious busing to respond 
to de facto segregation, while permitting busing for any other 
reason. See id. at 462-63. After Initiative 350, it became



9

politically and legally pointless for advocates of race­
conscious busing ever to approach their local or state school 
boards to seek such measures, no matter the relative strength 
of their pleas. While this Court expressly recognized that of 
course both minority and non-minority citizens might well 
favor busing programs, it concluded nonetheless that 
Initiative 350 “allocate[d] governmental power nonneutrally, 
by explicitly using the racial nature of a decision to 
determine the decisionmaking process” in flat violation of the 
Hunter principle. See id. at 470. More particularly, “by 
specifically exempting from Initiative 350’s proscriptions 
most nonracial reasons for assigning students away from 
their neighborhood schools, the initiative expressly requires 
those championing school integration to surmount a 
considerably higher hurdle than persons seeking comparable 
legislative action.” Id. at 474; see also id. at 483 (“[Initiative 
350] burdens all future attempts to integrate Washington 
schools in districts throughout the State, by lodging 
decisionmaking authority over the question at a new and 
remote level of government.”).

Seattle therefore held that the Equal Protection Clause 
prohibits any law that “subtly distorts governmental 
processes in such a way as to place special burdens on the 
ability of minority groups to achieve beneficial legislation”. 
See id. at 467. Precisely like Hunter, Seattle barred a state 
from selectively burdening attempts to secure programs that 
“inure[ ] primarily to the benefit of the minority.” See id. at 
472; see also Hunter, 393 U.S. at 390-91. This constitutional 
rule remains the law today, and neither this Court nor any 
Justice has ever intimated that it should be otherwise.

Proposal 2 works precisely the same sort of 
fundamental change in the rules of political engagement that 
this Court condemned in Seattle. Here, just as in Seattle, the 
political process prior to the initiative gave discretion to state 
agencies (state universities, graduate and professional



10

schools) over the matters (race-conscious affirmative action 
admissions programs) reached by the initiative. Here, as in 
Seattle, that prior political discretion included the power to 
adopt constitutionally permissible measures to promote racial 
integration and the benefits of a diverse student body. Here, 
as in Seattle, the initiative leaves that discretion in place— 
such that state universities and their constituent 
undergraduate, graduate and professional schools may 
consider and adopt as part of their admissions process 
“preferences”6 in favor of any group or criteria (e.g., 
geographical, legacy, athletic)—with the exception of race- 
based “preferences” that, like the particular busing measures 
barred by the Seattle initiative, inure to the primary benefit of 
racial minorities. And here, as in Seattle, the political 
restructuring effected made it as difficult as any state 
measure could for minorities to achieve legislation on their 
behalf, requiring enactment of a new constitutional 
amendment as the only possible means of restoring 
admissions criteria previously put in place at the university 
level.

Thus, as applied here, Proposal 2 imposes, just as 
Initiative 350 had in Seattle, a “comparative” burden on 
minority interests by its reconstructing of the political 
process in “remov[ing] the authority to address a racial 
problem—and only a racial problem—from the existing 
decisionmaking body.” Id. at 474, 475 n.17. Proposal 2 
leaves the political process untouched with respect to the 
permissibility' of state university officials to determine 
admissions policies by weighing the interests of those 
seeking “preferences” other than race, no matter the weight 
sought to be accorded all such “preferences,” their manifest

6 By the use of the term “preference” in this brief, the Cantrell 
Plaintiffs do not adopt the definition of that term advocated by 
proponents of Proposal 2.



11

unfairness, or their lack of any relationship whatsoever to 
merit-based outcomes.7

2. Hunter and Seattle Remain Good Law And 
Have Controlling Force In The Underlying 
Case.

Hunter and Seattle remain good law. If anything, this 
Court’s recent decision in Grutter underscores the controlling 
force of Seattle as to this case. It was perhaps the most 
natural counter-argument prior to Grutter that post-Seattle 
developments in this Court’s jurisprudence—notably, 
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), and 
Adarand Construction, Inc. v. Pena, 515 U.S. 200 (1995}— 
raised a concern that “race-preferential” treatment in public 
higher education (as well as elsewhere) would be deemed 
subject to and then fail strict scrutiny, thereby becoming 
racially discriminatory measures barred by federal equal 
protection norms. Although the racial restructuring principle 
underlying Seattle had never been questioned, the argument 
could have been at least colorably made that a measure like 
Proposal 2 was defensible as a means of avoiding what 
imminently would be viewed as a violation of the Fourteenth 
Amendment.

After Grutter, however, no such “neutral” concern 
could even plausibly be advanced to support Proposal 2. 
This is of course so because, as the state has been 
authoritatively informed in Grutter, the very race-based 
“preferences” that proponents of Proposal 2 claim are barred 
(or at least elevated to a different decision-making unit and

7 As discussed infra, the racial nature of Proposal 2 is no less 
simply because “preferential treatment” based on gender is also 
purportedly banned. See infra at p. 14; Hunter v. Underwood, 471 U.S. 
222, 231-32 (1985) (observing that measures discriminating along racial 
lines are not constitutional simply because they also discriminate along 
lines that do not trigger strict scrutiny).



12

process) by this initiative, if properly designed to promote a 
diverse student body, are fully consistent with equal 
protection norms. See Grutter, 539 U.S. at 343 (“the Equal 
Protection Clause does not prohibit the Law School’s 
narrowly tailored use of race in admissions decisions to 
further a compelling interest in obtaining the educational 
benefits that flow from a diverse student body.”). Indeed, 
Grutter makes the case against Proposal 2 stronger 
constitutionally than the case against the measures 
invalidated in either Hunter or Seattle', the racial matters 
subject to the political restructuring in those earlier cases 
were legitimate interests for individuals to champion but they 
were not then (and are not now) held to be compelling state 
interests satisfying strict scrutiny analysis.

3. The Sixth Circuit Fundamentally
Misconstrued and Misapplied This Court’s 
Political Restructuring Doctrine As Set 
Forth in Hunter and Seattle.

In the extreme haste of its decisionmaking, the panel not 
only reached the wrong result, but also relied upon a 
purported distinction from Hunter immaterial to the holding, 
and misapprehended Seattle so radically as to require that 
decision to have come out the other way. This is how the 
panel sought to distinguish Proposal 2 from this Court’s 
political restructuring jurisprudence:

“Unlike the laws invalidated in Hunter [and] 
Seattle . . . , Proposal 2 does not burden minority 
interests and minority interests alone. The 
proposal prohibits the State from discriminating 
against or granting preferential treatment to 
individuals on the basis of “race, sex, color, 
ethnicity, or national origin.” Mich. Const, art. I,
§ 26. No matter how one chooses to characterize 
the individuals and classes benefitted or burdened 
by this law, the classes burdened by the law



13

according to the plaintiffs—women and
minorities—make up a majority of the Michigan 
population. As Hunter indicates, the “majority 
needs no protection against discrimination and if it 
did, a referendum might be bothersome but no 
more than that.” 393 U.S. at 391. Unlike the 
Hunter line of cases, then, Proposal 2 does not 
single out minority interests for this alleged burden 
but extends it to a majority of the people of the 
State.

Even were we to consider only the law’s 
restrictions on racial preferences, this political- 
process claim still would not be likely to succeed.
The challenged enactments in Hunter [and] 
Seattle . . . made it more difficult for minorities to 
obtain protection from discrimination through the 
political process; here, by contrast, Proposal 2 
purports to make it more difficult for minorities to 
obtain racial preferences through the political 
process. These are fundamentally different 
concepts. The Hunter [and] Seattle . . . decisions, 
moreover, objected to a State’s impermissible 
attempt to reallocate political authority. See 
Seattle, 458 U.S. at 470 (prohibiting a government 
from ‘explicitly using the racial nature of a 
decision to determine the decisionmaking 
process’). Instead of reallocating the political 
structure in the State of Michigan, Proposal 2 is 
more akin to the ‘repeal of race-related legislation 
or policies that were not required by the Federal 
Constitution in the first place f  Crawford, 458 U.S. 
at 538, an action that does not violate the Equal 
Protection Clause.” (Opinion at 11.)

With respect to the first assertion that Proposal 2’s 
coupling of minorities and women somehow undoes this



14

Court’s restructuring doctrine, the panel negates the holdings 
in Hunter and Seattle in two ways. First, it treats the 
interests of minorities and women as if they were one and the 
same. Beyond the conspicuous absence of any empirical 
basis for this far-fetched (and, we think, unsustainable) 
claim, the rights implicated, as in all Fourteenth Amendment 
race cases, are personal to members of separate minority 
groups. See, e.g., Seattle, 458 U.S. at 474 (“For present 
purposes, it is enough that minorities may consider busing 
for integration to be ‘legislation that is in their interest.’ . . . 
Given the racial focus of Initiative 350, this suffices to 
trigger application of the Hunter doctrine.. . .  The initiative 
removes the authority to address a racial problem . . .  in such 
a way as to burden minority interests.”) (internal citations 
omitted); see also Hunter, 393 U.S. at 391 (“although the law 
on its face treats Negro and white, Jew and gentile in an 
identical manner, the reality is that the law’s impact falls on 
the minority.”). That Proposal 2 is still more draconian in its 
reach than either Initiative 350 or the Akron ordinance does 
not annul the constitutional violation; if anything it multiplies 
the restructuring problem as to members of each 
classification who must “surmount a considerably higher 
hurdle” politically. See Seattle, 458 U.S. at 474. See also 
Hunter v. Underwood, 471 U.S. 222, 232 (1985) (holding 
that an additional purpose to discriminate against a group not 
subject to strict scrutiny “would not render nugatory the 
purpose to discriminate against all blacks.”).

Nor does the restructuring principle established by this 
Court depend one whit upon whether “[t]he challenged 
enactments . . . ma[ke] it more difficult for minorities to 
obtain protection from discrimination” as opposed to “racial 
preferences through the political process.” (Opinion at 11) 
(emphasis in original). While this distinction may describe 
the facts of Hunter, it was irrelevant to the holding. See 391 
U.S. at 392-93 (“the State may no more disadvantage any 
particular group by making it more difficult to enact



15

legislation in its behalf than it may dilute any person’s vote 
or give any group a smaller representation than another of 
comparable size.”). And this proposed distinction is defeated 
by both the facts and the holding of Seattle. Initiative 350 
had nothing to do with “protection from discrimination”; the 
busing at issue was not designed to remedy or forestall any 
discriminatory treatment through de jure segregation, but 
rather concerned voluntary busing to integrate schoolchildren 
otherwise separated by de facto housing segregation. As this 
Court observed, while the nullified busing program was not 
an anti-discrimination program, Hunter governed the case 
because it involved legislation “inur[ing] primarily to the 
benefit of the minority.” See Seattle, 458 U.S. at 472.8 
Indeed, were the touchstone of the restructuring doctrine, as 
the panel would have it, a strict requirement that the 
contested legislation impact “protection from discrimination” 
as opposed to simply benefiting minorities, Initiative 350 
would not have qualified for its application.9

Significantly, the dissent by Justice Powell did not identify the 
panel’s purported distinction as a basis for its disagreement with the 
majority opinion.

9 The panel’s one-sentence treatment of this Court’s decision in 
Crawford v. Board o f Education, 458 U.S. 527 (1982), is also exactly 
wrong. Crawford upheld Proposition 1, a popularly-enacted amendment 
to the California constitution that overrode an unusually broad judicial 
interpretation of the state constitution’s equal protection clause permitting 
racial busing to redress de facto segregation. See id. at 530-36 & n.12 
(noting that “[i]n this respect this case differs from the situation presented 
in [Seattle].''). Proposition 1 thus effected a “mere repeal” of the 
California Supreme Court’s busing order which stemmed from a finding 
that the state constitution not only permitted but required state school 
boards “to take reasonable steps to alleviate segregation in the public 
schools.” See id. at 530 (internal citations omitted). Unlike Proposal 2, 
the “mere repeal” in Crawford did not fundamentally alter the political 
process for racial minorities.



16

It also appears that the panel did not grasp the nature or 
extent of the restructuring of the political process that 
Proposal 2 imposes if the affected institutions, and the people 
of Michigan, are to maintain the admissions policies upheld 
in Grutter. The panel’s assertion that “reallocating the 
political structure in the State of Michigan” is not what 
Proposal 2 requires if those policies are to be restored 
suggests, at a minimum, that the panel neither saw nor 
appreciated that what was previously the domain of 
universities’ administrations and admissions committees is 
achievable in the wake of Proposal 2 only by constitutional 
amendment at a statewide level. See Amar & Caminker, 
“Equal Protection, Unequal Political Burdens, and the 
CCRI,” 23 Hastings Const. L.Q., 1019, 1049-53 (1996).

CONCLUSION

The state entities in this case stipulated to a preservation 
of the status quo in order that the State Universities and 
thousands of students could complete the current admissions 
cycle in reliance upon the entirely justifiable expectations 
with which they went forward. With barely a wink at these 
interests, an emergency motions panel extinguished them on 
the basis of a wholesale reconfiguration of this Court’s 
political restructuring doctrine in the area of race, so 
mistaken as to make that jurisprudence unsupportable on its 
own terms. It effected this alteration, moreover, without any 
evidentiary record, and without the benefit of consideration 
by the district court and upon but two days for briefing by the 
parties.

This case may well find its way to this Court. If and 
when it does, it should be upon a properly developed and 
briefed record. Until then, a premature and badly flawed 
construction of this Court’s rulings in Hunter and Seattle 
should not be permitted to quell the reasonable expectations 
of applicants to the University of Michigan and require 
respected universities to invent a brand new admissions



17

process overnight so as to create two sets of criteria by which 
applicants will be admitted or denied, based on nothing more 
than the dates on which they submitted their applications.

January 17, 2007

Respectfully submitted,

/s/ Mark Rosenbaum__________
M a rk  R osenbaum

Counsel o f Record

La urence  H. Tribe 
Hauser Hall 420 
1575 Massachusetts Avenue 
Cambridge, MA 02138 
(617) 495-4621

M elvin  Butch  H o llo w ell , Jr . 
G eneral  C o u n sel , D etroit  
B ranch  NAACP 
A llen  B rothers  pllc

400 Monroe St., Suite 220 
Detroit, MI 48226 
(313)962-7777

Ka r in  A. D eM asi 
C ra v a th , Sw a in e  & M oore  llp 

Worldwide Plaza 
825 Eighth Avenue 
New York, NY 10019-7475 
(212) 474-1000



18

T heodore  M. Sh aw  
V ictor  B olden  
A n urim a  B harga va  
NAACP Legal  D efen se  &  
Ed u c atio na l  Fund

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200

Ka r y  L. M oss 
M ich ael  J. Steinberg  
M a r k  P. Fa ncher  
A m erican  C ivil L iberties U n ion  
Fu nd  of M ichigan

60 W. Hancock Street 
Detroit, MI 48201 
(313) 578-6814

Erw in  Ch em erin sky  
D u ke  U n iv ersity  Sc ho ol  o f  La w  

Science Drive & Towerview Rd. 
Durham, NC 27708 
(919)613-7173

Jerom e  R. W atson

M iller , C a n field , P a d d o c k  a nd
Sto n e , p .l .c .

150 West Jefferson, Suite 2500 
Detroit, MI 48226 
(313) 963-6420



19

D ennis Parker  
A lexis A gathocleous 
A m erican  C ivil L iberties U nion  
Foun da tion  Racial  Justice  
P rogram

125 Broad St., 18th Floor 
New York, NY 10004-2400 
(212)519-7832

D a n iel  P. T okaji 
T he O hio  State  University  
M o ritz  College  O f Law  

55 W. 12th Ave.
Columbus, OH 43206 
(614) 292-6566

Counsel for the Cantrell Plaintiffs



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