Sixth Circuit case
A Sixth Circuit decision came out yesterday -- on a very quick timeline -- reversing a district court decision to allow the University of Michigan, the Governor, and pro-affirmative action plaintiffs to stipulate to a federal court injunction blocking the enforcement of the Michigan constitutional ban on racial preferences. A nice line about the bizarre argument that the First Amendment somehow protects state entities from having to obey the state constitution:
The Universities mistake interests grounded in the First Amendment—including their interests in selecting student bodies—with First Amendment rights. It is not clear, for example, how the Universities, as subordinate organs of the State, have First Amendment rights against the State or its voters. See, e.g., Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 629 (1819). One does not generally think of the First Amendment as protecting the State from the people but the other way around—of the Amendment protecting individuals from the State.Also, I was very surprised to see that the federal district court had actually enjoined a state constitutional provision based solely on a stipulation, without even bothering to identify any federal issue in the case (let alone going through the usual 4-part analysis as to injunctive relief). Whatever you think of the merits of affirmative action, it is a very bad idea for plaintiffs to be able to "sue" a friendly politician, and then collude in a stipulation that allows a federal court to override state law based on nothing. As a lawyer, I cannot imagine a circumstance in which I would ask a federal court to do such a ridiculous thing.