Posted by Eugene Volokh:
Michigan's Anti-Race-Preference Amendment Back in Operation:
http://volokh.com/archives/archive_2006_12_31-2007_01_06.shtml#1167550261
Friday, [1]the Sixth Circuit vacated the federal district court
injunction that temporarily blocked the amendment's operation. It's an
interesting decision, both on the substantive constitutional questions
and on the procedural issues.
On the substance, the panel holds that "[plaintiffs] have little
likelihood of establishing that Proposal 2 violates the federal
constitution," though it doesn't definitely resolve that question.
(The preliminary injunction decision is about the likelihood of future
success on the merits, and contemplates a more detailed decision both
at the district court and eventually on appeal after a full hearing on
the merits takes place.) Michigan universities must thus adhere to
Proposal 2 right away, even though it may mean changing their
admission system in the middle of the admission process. Nonetheless,
the panel closes with this interesting procedural discussion:
Which leads us to our last point: this is an unusual way to use the
federal courts. Ordinarily, one might wonder why a court would
hesitate to delay the implementation of a state law for six months
when the State�s Governor, the State�s Attorney General and its
Universities stand together in urging its suspension. That is
particularly so when they offer reasonable administrative grounds
for the delay -� uncertainty about how the law will be interpreted
and uncertainty about applying it during this year�s enrollment
cycle. Yet none of those administrative grounds explains why the
federal courts should delay the law�s implementation on federal
grounds. And none of those administrative grounds explains why a
federal court should suspend the law while it declares the
Universities� �rights and responsibilities� under the new state law
�- given that state courts, not federal courts, have the final say
on the meaning of state laws and given that the only vehicle ever
presented in this case for such a declaration of rights was the
Universities� cross-claim, which they voluntarily dismissed.
All of this, however, strongly suggests that if an interim
injunction should be granted in this case, it is the state courts,
not the federal courts, that should grant it. The state courts
assuredly have authority to delay the law�s implementation during
this enrollment cycle -- either because the meaning of the law is
unclear or because it will be administratively onerous to apply it
immediately. If, as the state parties have maintained throughout
this litigation, a stipulated injunction accounts for the concerns
of all interested parties and the people of Michigan, one can rest
assured that the state courts will see it that way as well. But if
the state courts do not see it that way, that proves only that
there is another side to the story, one that the federal courts
should be prepared to respect.
Thanks to Jerry Wachs for the heads-up.
References
1. http://www.ca6.uscourts.gov/opinions.pdf/06a0476p-06.pdf
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