People line up in hope of getting audience seats at the Supreme Court. Most… (Bill Clark / CQ Roll Call )
WASHINGTON — The Supreme Court agreed to weigh in on college affirmative action for a second time in a year and decide whether Michigan's voters can forbid "preferential treatment" based on race in their state universities.
The justices are closely split on whether school officials may ever use race as a factor for deciding who is admitted. A decade ago, the high court, by a 5-4 vote, upheld a limited use of race as a means to achieve classroom diversity in a case from the University of Michigan Law School. But that victory for liberal advocates of affirmative action was soon overturned by Michigan's voters.
They adopted Proposal 2 in 2006, forbidding university officials from discriminating against or granting preferential treatment to students based on their race, ethnicity or gender. It was patterned after a similar ballot measure in California in 1996 that also prohibited race-based admissions policies at the state's colleges and universities.
But the defenders of affirmative action in Michigan took their fight to the federal courts and won a surprising 8-7 decision last year from the U.S. 6thCircuit Court of Appeals that struck down the state ballot measure as unconstitutional. The judges in the majority, all Democrats, said the ban on affirmative action wrongly took away a civil rights provision that had benefited minorities. The dissenters, all Republicans, said forbidding discrimination based on race does not violate the "equal protection" clause in the Constitution.
Few doubted that the justices would hear Michigan's defense of its ban on race-based affirmative action. The only surprise was that the justices announced Monday they would hear the appeal before they ruled on a pending affirmative action case involving the University of Texas.
In the Texas case, lawyers for a rejected white student urged the court to rule that giving preferences to applicants based on their race violates the Constitution and the guarantee of equal protection of the laws. A decision in that case, Fisher vs. University of Texas, is expected this spring.
The justices may well limit affirmative action in the Texas case, but they are not likely to forbid it entirely.
Michigan Atty. Gen. Bill Schuette appealed the 6thCircuit ruling to the Supreme Court, and said his state's voters had adopted a race-neutral admissions policy that many of the justices favored. It told the state universities to admit students without regard to their race or ethnicity. He argued it made no sense to say that a state provision forbidding race-based discrimination is unconstitutional.
But the defenders of the race-based policies could point to Supreme Court rulings from the late 1960s that faulted state and local governments for repealing civil rights provisions in actions that appeared to target minorities.
Lawyers for the Legal Defense Fund of the National Assn. for the Advancement of Colored People said the Michigan case "raises an entirely distinct issue" from the challenge to affirmative action in the Texas case. They said the ballot proposition amended the state constitution and thereby barred citizens from working in the Legislature or at the university in favor of diversity policies.
"We trust that the U.S. Supreme Court will reaffirm the bedrock constitutional principle that our democratic processes must be open and accessible to all citizens," said Sherrilyn Ifill, the defense fund's president. She said the percentage of African American undergraduates at the University of Michigan had fallen from 6.7% in 2006 to 4.5% in 2010 after the enactment of Proposal 2.
If the high court were to uphold the 6thCircuit and strike down the Michigan ban on affirmative action, it would raise doubts about the constitutionality of California's ban as well.
Lawyers for the Pacific Legal Foundation called the 6thCircuit's decision "jaw-dropping" and welcomed the Supreme Court's decision to review it. "Through Proposal 2, Michigan voters struck a blow for equal rights by barring government from discriminating or granting preferences by people's skin color or sex," said Joshua Thompson, an attorney for the group.
The court said it would hear the Michigan case, Schuette vs. Coalition to Defend Affirmative Action, in the fall. Justice Elena Kagan is not taking part in the case, apparently because she worked on it as solicitor general.