                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                         File Name: 06a0476p.06

                     UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


 COALITION TO DEFEND AFFIRMATIVE ACTION, et al., X
                               Plaintiffs-Appellees, -
                                                       -
                                                       -
           v.                                          -
                                                       ,
                                                        > No. 06-2640
 JENNIFER GRANHOLM, et al.,                            -
                             Defendants-Appellees, -
                                                       -
                                                       -
                             Intervenor-Defendant, -
 MICHAEL COX, Attorney General,
                                                       -
                                                       -
 ERIC RUSSELL,
                              Intervenor-Appellant, -
                                                       -
                   Proposed Intervenor-Appellant. -
 TOWARD A FAIR MICHIGAN,

 __________________________________________ -
                                                       -
                                                       -
                                                        > No. 06-2642

                                         Petitioners. -
 ERIC RUSSELL; TOWARD A FAIR MICHIGAN,

                                                      N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                    No. 06-15024—David M. Lawson, District Judge.
                              Decided and Filed: December 29, 2006
           Before: SUHRHEINRICH, BATCHELDER, and SUTTON, Circuit Judges.
                                         _________________
                                             OPINION
                                         _________________
        SUTTON, Circuit Judge. On November 7, 2006, the people of Michigan approved a
statewide ballot initiative—Proposal 2—which amended the Michigan Constitution to prohibit
discrimination or preferential treatment based on race or gender in the operation of public
employment, public education or public contracting in the State. Under the Michigan Constitution,
the proposal was scheduled to go into effect on December 23, 2006. At stake today is whether the
federal courts should permit this state initiative to go into effect or whether we should preliminarily
enjoin it in part—in the part, that is, that applies to public universities and to all applicants to those
universities. While the Michigan state courts remain free to suspend enforcement of Proposal 2
under state law for all manner of reasons, including those urged upon us here—uncertainty about
the meaning of the law, uncertainty about the law’s impact on current admissions policies and
uncertainty about changing admissions policies in the middle of the current enrollment season—we
are unable to identify any tenable basis under federal law for suspending the law’s enforcement. The

                                                    1
Nos. 06-2640/2642             Coal. to Defend Affirmative Action,                               Page 2
                              et al. v. Granholm, et al.


First and Fourteenth Amendments to the United States Constitution, to be sure, permit States to use
racial and gender preferences under narrowly defined circumstances. But they do not mandate them,
and accordingly they do not prohibit a State from eliminating them. In the absence of any likelihood
of prevailing in invalidating this state initiative on federal grounds, we have no choice but to permit
its enforcement in accordance with the state-law framework that gave it birth.
                                                   I.
        Legal and policy debates about admissions preferences in the university setting are not new
to the people of Michigan. In 2003, the Supreme Court invalidated the University of Michigan’s
race-based admissions preferences in Gratz v. Bollinger, 539 U.S. 244, and it upheld the University
of Michigan School of Law’s race-based admissions preferences in Grutter v. Bollinger, 539 U.S.
306. In apparent response to those decisions, the Michigan Civil Rights Initiative, the executive
director of which is Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger, began a campaign to
place a proposal on the state ballot that would amend the Michigan Constitution to prohibit race-
and gender-based preferences in public employment, education and contracting. See The Michigan
Civil Rights Initiative, http://www.michigancivilrights.org (last visited Dec. 26, 2006).
                                                  A.
        On January 6, 2005, Gratz announced that her organization had obtained enough signatures
under Michigan law to place its proposal—technically named Proposal 06-2 but commonly referred
to as Proposal 2—on the statewide ballot. See http://www.michigancivilrights.org/media/JG-10605-
remarks.pdf (last visited Dec. 26, 2006). The Michigan Board of State Canvassers eventually
approved the ballot language for Proposal 2, which would amend Article I, § 26 of the Michigan
Constitution if approved.
        On November 7, 2006, the people of Michigan voted in favor of Proposal 2. Fifty-eight
percent of the voters supported it, and 42% opposed it. See Michigan Department of State, 2006
Official Michigan General Election Results, http://miboecfr.nictusa.com/election/results/
06GEN/90000002.html (last visited Dec. 26, 2006).
       The constitutional amendment contains several pertinent provisions. First: “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.” Mich. Const. art. 1,
§ 26.
        Second: “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.” Id.
        Third: “This section”—namely the amendment—“does not prohibit action that must be
taken to establish or maintain eligibility for any federal program, if ineligibility would result in a
loss of federal funds to the state.” Id.
        Fourth: “The remedies available for violations of this section shall be the same . . . as are
otherwise available for violations of Michigan anti-discrimination law.” Id.; see, e.g., Mich. Const.
art. VIII, § 2; Mich. Comp. Laws § 37.2101 et seq. (the Elliot-Larsen Civil Rights Act).
        Fifth: “This section shall be self-executing. If any part or parts of this section are found to
be in conflict with the United States Constitution or federal law, the section shall be implemented
Nos. 06-2640/2642             Coal. to Defend Affirmative Action,                             Page 3
                              et al. v. Granholm, et al.


to the maximum extent that the United States Constitution and federal law permit. Any provision
held invalid shall be severable from the remaining portions of this section.” Mich. Const. art. I,
§ 26.
        Sixth: “This section does not invalidate any court order or consent decree that is in force as
of the effective date of this section.” Id.
        Seventh: In accordance with the Michigan Constitution, the amendment was scheduled to
go into effect 45 days after the election, which is to say December 23, 2006. See Mich. Const. art.
XII, § 2.
        On November 8, 2006, one day after the election, the Coalition to Defend Affirmative
Action, Integration and Immigrant Rights, and Fight for Equality By Any Means Necessary, along
with other organizations and individuals opposed to Proposal 2 (collectively, the “plaintiffs”), filed
a lawsuit against (1) Jennifer Granholm, the Governor of Michigan, and (2) the Regents of the
University of Michigan, the Board of Trustees of Michigan State University and the Board of
Governors of Wayne State University (collectively, the “Universities”), seeking a declaratory
judgment that the amendment was invalid and a permanent injunction against its enforcement. They
filed the lawsuit in the Southern Division of the Eastern District of Michigan. In their amended
complaint, plaintiffs contended that Proposal 2 violates two federal constitutional provisions (the
First and Fourteenth Amendments), three federal civil rights statutes (Title VI, Title VII and Title
IX) and one presidential order (Executive Order 11246). To date, plaintiffs have not independently
filed a motion for a preliminary injunction or a temporary restraining order against enforcement of
Proposal 2.
        On December 11, the Universities filed a cross-claim against Governor Granholm, seeking
(1) a declaratory judgment “that under federal law the Universities may continue to use their existing
admissions and financial aid policies through the end of the current [enrollment] cycle” and (2) a
preliminary injunction that “allows the Universities to continue to use their existing admissions and
financial aid policies through the end of the current cycle.” In support of their requests, the
Universities noted that: (1) “[s]erious controversies exist regarding the validity, meaning, impact,
and application of the Amendment”; (2) “[t]he Governor has requested an interpretation of the
Amendment from the [state] Civil Rights Commission” in 90 days, but they cannot await the
Commission’s decision given the effective date (December 23) of the law; (3) “[t]he Amendment
becomes effective in the midst of the Universities’ current admission and financial aid cycle,” which
generally “run[s] from the early fall through the spring”; and (4) “[f]orcing the Universities to
abandon their existing admissions and financial aid policies in the midst of this cycle would require
them to apply different policies to applicants within the same cycle and different policies than they
have announced” to the public.
        In further support of their requests for declaratory and injunctive relief, the Universities
argued that “[t]he Amendment implicates federal law.” “It incorporates,” they noted, “whole bodies
of federal law by reference, including ‘federal programs,’ ‘federal law,’ and the ‘United States
Constitution.’” The Universities, they added, “put their admissions and financial aid policies in
place in reliance on the Supreme Court’s reaffirmation in Grutter v. Bollinger, 539 U.S. 306 (2003),
that they have an academic freedom right, based in the First Amendment to the Constitution of the
United States, to select their students and that they may, in the course of doing so, give some
consideration to such factors . . . as race.” On the same day, they filed a motion for a preliminary
injunction, seeking the same thing—to enjoin the enforcement of Proposal 2 through the end of the
current admissions cycle.
Nos. 06-2640/2642              Coal. to Defend Affirmative Action,                                  Page 4
                               et al. v. Granholm, et al.


       On December 14, three days after the Universities filed their cross-claim, the Michigan
Attorney General, Michael Cox, filed a motion to intervene in the lawsuit. See Fed. R. Civ. P. 24.
The district court granted the Attorney General’s motion to intervene that same day.
         On December 18, the three sets of parties to the cross-claim—the Governor, the Attorney
General, the Universities—and the plaintiffs in the underlying action filed a stipulation with the
district court, which reads in 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[.] [I], § 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;
        (2) that, pursuant to Fed. R. Civ. P. 41(a)(1) and 41(c), the Universities’ cross-claim
        shall be and hereby is dismissed in its entirety, with prejudice only as to the specific
        injunctive relief requested in the cross-claim . . .
        ...
Stipulation at 3.
         That same day, matters grew more complicated when an individual and an interest group
sought to intervene in the case. The individual was Eric Russell, a white male who has applied to
the University of Michigan School of Law for admission in the fall of 2007, Affidavit of Eric
Russell, at 1; the organization was Toward A Fair Michigan (“TAFM”), a non-profit entity “whose
mission is to further understanding of equal opportunity issues involved in guaranteeing civil rights
for all citizens,” Affidavit of William Allen, at 1.
        On December 19, the district court issued what it labeled a “temporary injunction.”
Consistent with the stipulation entered into by the Governor, the Attorney General, the Universities
and the plaintiffs, the court enjoined application of Proposal 2 to the Universities’ admissions and
financial-aid policies until July 1, 2007, and dismissed the Universities’ cross-claim. Dist. Ct.
Order at 3. In essence, then, the cross-claimants dismissed their claim for an ordinary preliminary
injunction in exchange for the stipulated 194-day injunction. However the injunction is labeled, it
remains a preliminary injunction, albeit one of finite duration.
       That same day, Russell and TAFM filed a motion urging the district court to rule on their
motion to intervene by December 21 and requesting a stay of the order enjoining enforcement of
Proposal 2 before its effective date—December 23.
                                                   B.
        On December 21, having heard nothing from the district court on their intervention or stay
motions, Russell and TAFM filed a notice of appeal to this court. The next day, they filed in this
court an “Emergency Motion for a Stay Pending Appeal” of the district court’s preliminary
injunction and a Petition for a Writ of Mandamus directing the district court to grant their motion
to intervene and to vacate its preliminary injunction.
       On December 26, we issued an order giving the parties to the cross-claim (the Governor, the
Attorney General, the Universities) as well as the plaintiffs in the underlying action an opportunity
Nos. 06-2640/2642             Coal. to Defend Affirmative Action,                               Page 5
                              et al. v. Granholm, et al.


to file responses to the motions by December 28. The order also gave Russell and TAFM an
opportunity to file a reply brief by December 29. The City of Lansing, the American Civil Rights
Foundation and the Michigan Civil Rights Initiative Committee each moved this court for leave to
respond to Russell’s motion and attached briefs to their motions. Because the district court has now
denied their motions to intervene, and the denials have not been resolved on appeal, these entities
are not parties to this action. Nonetheless, we have considered their filings as we would the filings
of amici curiae.
       On December 27, the district court ruled on the motions to intervene. It granted Russell’s
motion and denied TAFM’s motion both as of right and by permission. At the same time, it denied
motions to intervene filed by the City of Lansing (Michigan), the American Civil Rights Foundation
and the Michigan Civil Rights Initiative Committee. The district court has not ruled on Russell’s
motion for a stay pending appeal.
        On December 28, Russell and TAFM filed an amended notice of appeal with respect to the
preliminary injunction issued by the district court on December 19. TAFM also appealed the denial
of its motion to intervene (No. 06-2656), as did the American Civil Rights Foundation and the
Michigan Civil Rights Initiative Committee (No. 06-2653) and the City of Lansing (No. 06-2658).
                                                  C.
        Let us be clear that the merits of the appeal of the order granting the preliminary injunction
and the appeals of the orders denying the motions to intervene are not before this panel. In addition
to the Petition for a Writ of Mandamus, the only matter presently before this panel is the motion
filed by Eric Russell under his previously filed appeal, titled “Emergency Motion for a Stay Pending
Appeal,” asking us to stay the district court’s preliminary injunction—in other words, to allow
article I, section 26 of the Michigan Constitution to take immediate effect—until such time as
Russell’s appeal can be decided on the merits.
                                                  II.
         As an initial matter, Russell plainly may challenge the validity of the preliminary injunction.
He has standing to participate in the case because he has applied for admission to the University of
Michigan School of Law for matriculation in 2007 and accordingly has a direct interest in whether
Proposal 2 applies to the Law School’s admissions decisions this year. And he may intervene as of
right in the case for one of two reasons. Either the district court’s failure to address his meritorious
intervention motion before the effective date of Proposal 2 on December 23 amounted to an effective
denial of the motion, which we may correct on appeal (and indeed have done so before in a similar
setting), see Americans United for Separation of Church & State v. City of Grand Rapids, 922 F.2d
303, 306 (6th Cir. 1990), and which we may review on an interlocutory basis, see Sales v. Marshall,
873 F.2d 115, 120 (6th Cir. 1989). Or the district court’s order granting the intervention motion on
December 27 permitted Russell to file a new notice of appeal, which he did on December 28 and
which allowed him to seek immediate review of the preliminary injunction. Either way, Russell is
now a party in the case; he has filed a notice of appeal with respect to the preliminary injunction;
we have jurisdiction over an interlocutory appeal from a preliminary injunction, 28 U.S.C.
§ 1292(a); he has filed a Motion for an Emergency Stay Pending Appeal; and we may review the
stay motion in connection with our authority over the appeal of the preliminary injunction.
                                                 III.
        Our standard for reviewing a motion for a stay pending appeal is a familiar one. Much like
the standard for determining whether to issue a preliminary injunction, Baker v. Adams County/Ohio
Nos. 06-2640/2642              Coal. to Defend Affirmative Action,                                Page 6
                               et al. v. Granholm, et al.


Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir. 2002) (per curiam), we consider “(1) the likelihood that
the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving
party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court
grants the stay; and (4) the public interest in granting the stay.” Mich. Coal. of Radioactive Material
Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). All four factors are not prerequisites
but are interconnected considerations that must be balanced together. Id.
                                                   A.
         There are several ways to look at the likelihood that the district court’s preliminary
injunction order will be upheld on appeal, and each of them holds little promise that we will be able
to uphold the order. First, the order itself does not contain a sufficient ground for prohibiting
Proposal 2 from going into effect. By its terms, the order rests on two grounds: (1) “a stipulation
from all parties to the case”—which at that time included the plaintiffs in the underlying action, the
Universities, the Governor and the Attorney General—“consenting” to the preliminary injunction
sought by the Universities, and (2) the court’s conclusion “that the interests of all parties and the
public are represented adequately” by these parties. Order at 3. The order does not contain any
discussion of the federal-law grounds for granting an injunction. It does not contain any evidentiary
findings concerning the need for immediate relief. And it does not address the four factors for
granting a preliminary injunction: the Universities’ likelihood of success on the merits of their
cross-claim; the risk of irreparable injury to affected parties with or without the preliminary
injunction; and the public interest. See Six Clinic Holding Corp. II v. Cafcomp Sys., Inc., 119 F.3d
393, 399 (6th Cir. 1997) (“requir[ing]” a district court “to make specific findings concerning each
of the four factors”); United States v. Sch. Dist. of Ferndale, Mich., 577 F.2d 1339, 1352 (6th Cir.
1978) (vacating district court’s preliminary-injunction ruling because among other reasons the
district court “failed to make an express finding as to probability of success on the merits”).
        Whether stipulated injunctions concerning the federal constitutionality of a state law—indeed
a state constitutional amendment—are a good idea, bad idea or even a permissible idea need not
detain us in gauging the merits of this stay motion. See Evans v. City of Chicago, 10 F.3d 474, 479
(7th Cir. 1993) (en banc) (plurality opinion) (“[T]he court must ensure that there is a substantial
federal claim, not only when the decree is entered but also when it is enforced, and that the
obligations imposed by the decree rest on this rule of federal law rather than the bare consent of the
office holder.”); League of United Latin American Citizens v. Clements, 999 F.2d 831, 846 (5th Cir.
1993) (en banc) (“Courts must be especially cautious when [state officials] seek to achieve by
consent decree what they cannot achieve by their own authority.”); Williams v. Vukovich, 720 F.2d
909, 920 (6th Cir. 1983) (“Judicial approval . . . may not be obtained for an agreement which is . . .
contrary to the public interest.”). The fact remains that this stipulated injunction was flawed on its
own terms. From the day it was entered (December 19), it could not be said that the injunction
furthered “the interests of all parties and the public.” By December 18, it was clear that at least one
member of the public (Eric Russell) did not support the suspension of Proposal 2 because by then
he (and others) had filed a motion to intervene as of right in the lawsuit precisely because he (and
others) disagreed with the parties’ stipulated injunction—in his case because it would jeopardize his
efforts to gain admission to the Law School in the 2007 first-year class.
         Subsequent events confirm that the stipulated injunction did not account for the concerns of
all interested parties—namely, the district court’s December 27 order granting Russell intervention
as of right. Intervention Order at 15; see Fed. R. Civ. P. 24(a) (requiring intervention as of right
when the individual has “an interest” in the case and “is so situated that the disposition of the action
may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the
applicant’s interest is adequately represented by existing parties”). In permitting Russell to
intervene as a party in the case, the trial court concluded that his “individual interest . . . may not be
Nos. 06-2640/2642             Coal. to Defend Affirmative Action,                               Page 7
                              et al. v. Granholm, et al.


taken into account by the present parties.” Intervention Order at 15 (emphasis added). That seems
to be an understatement. The parties knew of Russell’s opposition to the stipulated injunction, to
say nothing of the opposition to the injunction by other interested groups seeking to intervene in the
case (including the proponent of Proposal 2), and nonetheless proceeded to seek its entry. Even
now, the closest they have come to accounting for his interests in the case is to say that “he is free
to reapply” if the Law School denies him admission this year. Universities’ Br. at 38. In the final
analysis, the only articulated basis provided for the injunction—that it furthered “the interests of all
parties and the public”—is not true and thus does not suffice to sustain the injunction.
        Second, even if we look behind the court’s December 19 order to the Universities’ cross-
claim and motion for a preliminary injunction, these filings do not supply a basis for enjoining the
law on the ground that it violates federal constitutional or statutory law. Most of these pleadings
deal with irreparable-harm and public-interest arguments: the difficulty of changing admissions and
financial-aid policies in the midst of an enrollment cycle, uncertainty over the meaning of the
amendment under state law and the delay that will occur before the Michigan Civil Rights
Commission acts on the Governor’s request to interpret the amendment within 90 days—all good-
faith reasons for seeking delay, to be sure, but none of them pertinent to establishing a federal
ground for suspending the law. As to that point, the Universities’ request for a preliminary
injunction says just one thing—that they have a First Amendment right to continue using race- and
gender-based preferences. (More on that argument later.) The salient point, however, is that the
request for a stipulated injunction was not premised on any agreement, or even suggestion, that
Proposal 2 violated any federal law—constitutional or otherwise. That of course is because the
Attorney General has taken the position that Proposal 2 is perfectly constitutional and the Governor
has not yet taken any position on the issue.
        Also unhelpful is the Universities’ position that the federal courts should “determin[e] their
rights and responsibilities under the Amendment” and delay the effective date of the law until that
task has been completed. Cross-Claim at 5. This suggestion looks at the problem through the wrong
end of the lens. State courts and state agencies (such as the Michigan Civil Rights Commission)
generally get the first (and ultimately the last) crack at interpreting a state law—which is why
uncertainty over the meaning of a state law often counsels in favor of a federal court staying its hand
until the state courts have had a chance to construe the law. See R.R. Comm’n of Tex. v. Pullman
Co., 312 U.S. 496, 501 (1941). We know of no authority (and none has been supplied to us) saying
that uncertainty over the meaning of a state law by itself supplies a basis for a federal court to
suspend the law’s effective date.
        That the meaning of the amendment could be affected by the meaning of certain federal
statutes, as the Universities also complained, does not change matters. Cross-Claim at 4. The
Universities never explained what those federal laws were or exactly how they would affect the
meaning of the amendment. But even if the Universities had suggested, say, that Title VI of the
Civil Rights Act of 1964 might conflict with Proposal 2 under certain constructions of the
amendment and certain constructions of Title VI, that would not give a federal court license to
suspend the amendment. One would first want to know how the State was implementing the
amendment before undertaking the task of determining whether that interpretation conflicted with
some yet-to-be-determined construction of Title VI.
        All of this is prelude to the most unusual feature of the stipulated injunction: the premise
for granting it no longer exists. The Universities filed a cross-claim against the Governor (and
effectively the Attorney General once he had intervened) seeking a declaration of “their rights and
responsibilities” under Proposal 2 and a preliminary injunction until that had been done. But in
return for the Attorney General’s and Governor’s stipulating to a preliminary injunction, the
Universities agreed to dismiss the request for declaratory relief. So while the district court has
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                              et al. v. Granholm, et al.


suspended the effective date of the law, it no longer has the Universities’ request (or any other
request) before it for declaring the Universities’ “rights and responsibilities” under the
amendment—or for that matter any other explanation for enjoining the law, save for the fact that
some interested parties want it stayed.
        In view of this point, it puzzles us that the Attorney General, who stipulated to the entry of
the preliminary injunction, now contends that we lack jurisdiction to entertain a motion to stay it.
Why? Because, he says, the Universities’ underlying cross-claim has now been dismissed and
because the district court did not permit Russell to become a party to the case until after that
dismissal. But of course Russell was allowed to intervene in the “action,” Fed. R. Civ. P. 24(a), not
a cross-claim, and that action is alive and well. The Attorney General, moreover, seems to ignore
what would seem to be a corollary to his proposed interpretation of this sequence of events—namely
that if the cross-claim had already been dismissed, there would no longer be any basis for a
preliminary injunction, see supra, and the district court could not have undertaken the necessary
inquiry into the parties’ likelihood of success on the cross-claim, much less found that any such
probability of success existed.
        Third, the responses to the stay motion filed in our court by the four sets of parties to the
stipulated injunction—the Governor, the Attorney General, the Universities and the plaintiffs in the
underlying action—also do not support the injunction. While all four of them argue extensively
about the hardships of complying with the law in the middle of the 2006-2007 admissions cycle,
they do not offer tenable explanations for suspending Proposal 2 on the basis of federal law.
        Far from raising doubts about the validity of the amendment under federal law, the Attorney
General thoroughly explains why it does not violate the Federal Constitution or any federal statutes.
While the Governor does not expressly defend the validity of the amendment in her appellate papers,
neither does she say that it violates any federal law.
        The First Amendment. In their response to the stay motion, the Universities argue that the
amendment violates the First Amendment, specifically the Universities’ right to select a diverse
student body in the name of academic freedom. But it is one thing to defer to a state university’s
judgment in deciding who may attend that university—and to defer in the process to the university’s
academic freedom that “long has been viewed as a special concern of the First Amendment,”
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (opinion of Powell, J.)—in
determining whether the university has run the gauntlet of defending presumptively unconstitutional
racial classifications. It is quite another to say that the First Amendment in general and academic
freedom in particular prohibit a State from eliminating racial preferences. Were it otherwise, as
Russell points out, “state laws requiring colleges to give preferences to state residents or to admit
those in the top 10% of their high school classes” would routinely violate the First Amendment.
Stay Motion at 17.
        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., Trs. of Dartmouth Coll. 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. After all, Bakke, Grutter and
Gratz—the lead cases upon which the Universities rely in claiming that Proposal 2 violates the First
Amendment—involved constitutional challenges by individuals against States (or at least state
officials). Even then, the States’ invocation of the First Amendment in those cases hardly shows that
the First Amendment trumps the Fourteenth. In Bakke and Gratz, the Court invalidated the racial
preferences contained in the schools’ admissions programs under the Equal Protection Clause. And
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                              et al. v. Granholm, et al.


while Grutter upheld the School of Law’s use of racial classifications in making its admissions
decisions, that was not because the First Amendment compelled it to do so. Grutter addresses
academic freedom in the context of asking whether “the Law School’s use of race is justified by a
compelling state interest,” 539 U.S. at 327, a question it answers by saying that its decision is “in
keeping with our tradition of giving a degree of deference to a university’s academic decisions,
within constitutionally prescribed limits.” Id. at 328 (emphasis added); see Bakke, 438 U.S. at
311–12 (opinion of Powell, J.) (stating that “the attainment of a diverse student body” is “a
constitutionally permissible goal for an institution of higher education”). One of those
“constitutionally prescribed limits,” however, is the separate requirement of narrow tailoring—an
inquiry that no one maintains may be satisfied simply by invoking a university’s legitimate, but
hardly dispositive, interest in academic freedom.
        In discussing the narrow-tailoring requirement, moreover, Grutter urged universities to look
to States that had eliminated the use of race in making admissions decisions to determine whether
race-neutral ways of furthering the universities’ interests in a diverse student body existed. See 539
U.S. at 342 (“Universities in California, Florida, and Washington State, where racial preferences in
admissions are prohibited by state law, are currently engaged in experimenting with a wide variety
of alternative approaches. Universities in other States can and should draw on the most promising
aspects of these race-neutral alternatives as they develop.”). If, as the Universities maintain, the
First Amendment prohibits States from eliminating racial preferences in admissions, one would not
expect the Court to urge universities to consider the efficacy of state laws doing just that. No less
strange, Grutter ends by explaining that affirmative action programs may not exist in perpetuity.
Noting that it has been 25 years since Bakke, it remarked that “[w]e expect that 25 years from now,
the use of racial preferences will no longer be necessary to further the interest approved today.” Id.
at 343. The First Amendment, by contrast, has no termination point, whether in 25, 50 or 250 years,
making it improbable that the same Court that decided Grutter would hold that state universities
have a First Amendment right to maintain racial preferences.
       The Equal Protection Clause. The plaintiffs in the underlying action offer a host of other
arguments for sustaining the preliminary injunction. In addition to invoking the First Amendment,
they claim that the amendment likely violates the Equal Protection Clause of the Fourteenth
Amendment. We do not agree.
        In contending that the Equal Protection Clause compels what it presumptively prohibits,
plaintiffs face a steep climb. The Clause prevents “official conduct discriminating on the basis of
race,” Washington v. Davis, 426 U.S. 229, 229 (1976), and on the basis of sex, United States v.
Virginia, 518 U.S. 515 (1996), not official conduct that bans “discriminat[ion] against” or
“preferential treatment to” individuals on the basis of race or sex—as Proposal 2 does.
       If “[d]istinctions between citizens solely because of their ancestry are by their very nature
odious to a free people whose institutions are founded upon the doctrine of equality,” Hirabayashi
v. United States, 320 U.S. 81, 100 (1943), and if racial distinctions “threaten to stigmatize
individuals by reason of their membership in a racial group and to incite racial hostility,” Shaw v.
Reno, 509 U.S. 630, 643 (1993) (citations omitted), a state constitutional amendment designed to
eliminate such “distinctions” in state government would seem to be an equal-protection virtue, not
an equal-protection vice. After all, the “color-blind” goal of the Equal Protection Clause, Plessy v.
Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), is “to do away with all governmentally
imposed discrimination based on race,” Palmore v. Sidoti, 466 U.S. 429, 432 (1984) (citation and
footnote omitted), making it difficult to understand how the same constitutional provision could
prohibit a State from doing away with race- and sex-based classifications sooner rather than later.
See Crawford v. Bd. of Educ. of the City of Los Angeles, 458 U.S. 527, 538–39 (1982) (“[T]he Equal
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                               et al. v. Granholm, et al.


Protection Clause is not violated by the mere repeal of race-related legislation or policies that were
not required by the Federal Constitution in the first place.”).
        Grutter, it is true, says that States still may use racial classifications as a factor in school
admissions when they can establish a compelling interest for doing so and when they can satisfy the
demanding requirements of narrow tailoring. But Grutter never said, or even hinted, that state
universities must do what they narrowly may do. Otherwise: the Court would not have directed
state universities to look to “[u]niversities in California, Florida, and Washington State, where racial
preferences in admissions are prohibited by state law,” to “draw on the most promising aspects of
these race-neutral alternatives as they develop,” 539 U.S. at 342; it would not have quoted in the
next line of the opinion Justice Kennedy’s concurrence in United States v. Lopez, 514 U.S. 549, 581
(1995), to the effect that “the States may perform their role as laboratories for experimentation to
devise various solutions where the best solution is far from clear”—such as looking for race-neutral
methods of seeking diverse student bodies, Grutter, 539 U.S. at 343; and it would not have said that
“[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to
further the interest approved today,” id. Surely a State may offer more equal protection than the
Fourteenth Amendment requires, see Oregon v. Hass, 420 U.S. 714, 719 (1975) (“a State is free as
a matter of its own law to impose greater restrictions . . . than those this Court holds to be necessary
upon federal constitutional standards”), and surely a State may end racial preferences some years
before they must do so. In the end, a law eliminating presumptively invalid racial classifications is
not itself a presumptively invalid racial classification.
        Much the same is true of classifications based on gender. “Without equating gender
classifications, for all purposes, to classifications based on race or national origin, the Court . . . has
carefully inspected official action that closes a door or denies opportunity to women (or to men).”
United States v. Virginia, 518 U.S. 515, 532 (1996) (internal footnote and citation omitted); see
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994) (“[O]ur Nation has had a long and
unfortunate history of sex discrimination, a history which warrants the heightened scrutiny we afford
all gender-based classifications today.”) (internal quotation marks omitted). If the Equal Protection
Clause gives “heightened” scrutiny to such distinctions, a State acts well within the letter and spirit
of the Clause when it eliminates the risk of any such scrutiny by removing gender classifications
altogether in its admissions programs.
         In taking this path, we do not walk alone. In 1997, the Ninth Circuit rejected an Equal
Protection challenge to a similar proposition passed by the people of California. See Coal. for Econ.
Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997). Like Proposal 2, Proposition 209 outlawed
discrimination or preferential treatment “on the basis of race, sex, color, ethnicity, or national origin”
in the realms of public employment, education and contracting. Cal. Const. art. I, § 31(a). Like the
plaintiffs in our case, the plaintiffs in the Ninth Circuit case argued that the state initiative denied
them equal protection of the laws by burdening their right to seek the benefits of existing affirmative
action programs. See Coal. for Econ. Equity, 122 F.3d at 705. And like the Ninth Circuit, we find
these arguments unpersuasive. See id. at 702 (“A law that prohibits the State from classifying
individuals by race or gender a fortiori does not classify individuals by race or gender.”); see id. at
708 (“The controlling words, we must remember, are ‘equal’ and ‘protection.’ Impediments to
preferential treatment do not deny equal protection.”).
         Attempting to head off this conclusion, plaintiffs contend that Proposal 2 violates their equal
protection rights by placing an unfair political burden on women and minorities who “may now seek
relief” in the form of the re-institution of race- and gender-based admissions preferences “only by
mounting a statewide campaign to amend” the Michigan Constitution. Complaint at 17. Three
Supreme Court cases, they argue, demonstrate that state and local governments may not restructure
the political process to disadvantage or discriminate against minorities. See Hunter v. Erickson, 393
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                              et al. v. Granholm, et al.


U.S. 385 (1969); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); Romer v. Evans, 517
U.S. 620 (1996).
        In all three cases, however, the Court determined that the laws at issue burdened minority
interests in the political process in a way that Proposition 2 does not. Hunter addressed an
amendment to Akron’s city charter requiring Akron’s city council to obtain majority approval by
the city before implementing housing ordinances dealing with racial, religious or ancestral
discrimination. Although the provision purported on its face to treat all races equally, in “reality,”
the Court held, “the law’s impact falls on the minority” because 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. Seattle invoked Hunter to strike down a Washington State initiative preventing local
school boards from using racially integrative busing. There the Court reasoned that the initiative
“remove[d] authority to address a racial problem—and only a racial problem—from the existing
decisionmaking body, in such a way as to burden minority interests.” 458 U.S. at 474. Romer
struck down an amendment to the Colorado constitution that prohibited local governments from
acting to protect homosexuals from discrimination, an amendment that “impose[d] a special
disability upon [homosexuals] alone.” 517 U.S. at 631.
        Unlike the laws invalidated in Hunter, Seattle and Romer, 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 according
to 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, Seattle and
Romer 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, Seattle and Romer 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,” Crawford, 458 U.S. at 538, an action that does not violate the Equal Protection Clause. See
generally Coal. for Econ. Equity, 122 F.3d at 708 (reasoning that “[i]mpediments to preferential
treatment do not deny equal protection”).
        Title VI. Plaintiffs next argue that Title VI of the Civil Rights Act of 1964 preempts
Proposal 2. But they face several obstacles in bringing the claim. For one, the Civil Rights Act says
that it may not be “construed as invalidating any provision of State law unless such provision is
inconsistent with any of the purposes of this Act, or any provision thereof.” 42 U.S.C. § 2000h-4.
That means plaintiffs must establish a form of “conflict preemption,” which is to say they must show
either that “compliance with both federal and state regulations is a physical impossibility” or that
“state law stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.” Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 281 (1987)
(plurality) (internal quotation marks omitted).
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                              et al. v. Granholm, et al.


        For another, Proposal 2 by its terms eliminates any conflict between it and federal-funding
statutes like Title VI. “This section,” the proposal says, “does not prohibit action that must be taken
to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of
federal funds to the state.” Mich. Const. art. I, § 26(4). And Title VI in turn says that “[n]o person
in the United States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. What Title VI requires, in other
words, Proposal 2 expressly allows—eliminating any conflict between the two laws.
        Nor does Proposal 2 thwart the purposes of Title VI—“prevent[ing] discrimination in
federally assisted programs.” Pub. L. No. 88-352, 78 Stat. 241 (1964). Proposal 2 reinforces that
goal by prohibiting state universities from discriminating, or granting preferential treatment, on the
basis of race.
        Title IX. Plaintiffs further contend that Title IX of the Education Amendments of 1972
preempts Proposal 2. This claim, too, holds little promise. Proposal 2, as shown, expressly avoids
conflicts with federal-funding statutes like this one. Mich. Const. art. I, § 26(4). And by preventing
discrimination on the basis of sex, Proposal 2 directly serves Title IX’s objectives. See 20 U.S.C.
§ 1681 (“No person in the United States shall, on the basis of sex, be excluded from participation
in, denied the benefits of, or be subjected to discrimination under any education program or activity
receiving Federal financial assistance.”). (In their complaint, plaintiffs also relied on Title VII and
an Executive Order, but they have not invoked these provisions in seeking to uphold the preliminary
injunction.)
                                                  B.
        Having determined that Russell has a strong likelihood of reversing the district court’s
preliminary injunction, we must consider whether the other stay factors militate against granting a
stay. They do not. The irreparable-injury factors do not meaningfully favor one set of parties over
the other. To the extent plaintiffs and the Universities maintain that irreparable harm will occur to
them because Proposal 2 violates their federal constitutional rights, that does not help them. As we
have shown, they have little likelihood of establishing that Proposal 2 violates the Federal
Constitution.
         What we have instead is a situation in which irreparable harm will befall one side or the other
of the dispute no matter what we do. To respect university applicants who favor preferences this
year is necessarily to slight those who oppose them—putting both equally at risk of disappointment
when admissions decisions are made this year. And to respect the Universities’ interest in
preserving their current admissions and financial-aid programs during this enrollment cycle is
necessarily to slight the public interest in permitting a statewide initiative to go into effect on the
date that the Michigan Constitution requires. In short, “either party will suffer an irreparable injury
if we rule against it.” Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458, 460 (6th Cir.
1991). Nor can it fairly be said that Proposal 2 came as a sudden surprise to anyone. Efforts to pass
the initiative began soon after the Supreme Court’s decisions in Grutter and Gratz, and the initiative
was passed near the beginning of the 2006-2007 admissions cycle after a long debate about the
merits of it. The irreparable-harm inquiry in the end does not strongly favor one party or another.
        With respect to the fourth factor, “the public interest lies in a correct application” of the
federal constitutional and statutory provisions upon which the claimants have brought this claim,
id., and ultimately (in view of our interpretation of those provisions) upon the will of the people of
Michigan being effected in accordance with Michigan law. All of this said, our decision ultimately
“turn[s] on the likelihood of success on the merits,” id., and our conviction that these are weak
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                               et al. v. Granholm, et al.


federal claims. If we saw the merits differently, we would likely treat the stay motion differently
as well. See Americans United, 922 F.2d at 306.
                                                *****
        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.
                                                   IV.
        For these reasons, the motion for a stay pending appeal of the district court’s preliminary
injunction is granted, and the petition for a writ of mandamus is dismissed as moot.
