Published Online: October 21, 2013
Published in Print: October 23, 2013, as Appeal Argued on Affirmative-Action Ban

High Court Weighs Mich. Affirmative-Action Ban

Nakia Wallace, center, a Detroit high school student, protests at the U.S. Supreme Court in support of affirmative action. The high court is weighing a Michigan law barring its use in higher education.
—Susan Walsh/AP

Conservatives on the U.S. Supreme Court appeared skeptical last week that Michigan’s voter-enacted prohibition on affirmative action in higher education violates the 14th Amendment’s equal-protection principles.

The 2006 ballot measure known as Proposal 2 was not a “racial classification,” as its opponents suggest, Justice Antonin Scalia said during the Oct. 15 oral arguments in Schuette v. Coalition to Defend Affirmative Action (Case No. 12-682). “It’s a prohibition of racial classifications.”

The Michigan ballot initiative also bars race preferences in K-12 public schools and other areas of state government, but the case before the high court concerns the measure’s prohibition of race preferences in college admissions. Nevertheless, the Supreme Court’s decision could have wide implications.

Chief Justice John G. Roberts Jr., another of the court’s conservatives on race issues, said one way to look at the equal-protection clause was that it takes “race off the table.”

“Is it unreasonable for the state to say, ‘Look, race is a lightning rod.’ … So why don’t we say we want [colleges] to do everything [they] can without having racial preferences?”

Paths to Diversity

The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year that the ballot measure made it more difficult for racial minorities to achieve a race-conscious admissions policy. That was a significant change in the ordinary political process and a racial classification that violates the Supreme Court’s “political restructuring” doctrine, the appellate court said.

The doctrine stems from two Supreme Court precedents. In Hunter v. Erickson, the high court in 1969 invalidated an Akron, Ohio, ballot measure that had overturned a local fair-housing ordinance. In Washington v. Seattle School District No. 1, the court in 1982 struck down a ballot-initiated state law that prohibited busing for school desegregation.

Those cases, especially the Seattle busing case, figured prominently in oral arguments.

“There’s no way to distinguish Seattle from this case, nor the Hunter case,” said the American Civil Liberties Union’s Mark D. Rosenbaum, one of two lawyers arguing against the Michigan measure. Both cases would have to be overruled for the Supreme Court to be able to reinstate the ballot measure, he said.

The Proposal 2 opponents found strong allies in two of the court’s more liberal members.

“The rationale of Seattle is that notion that we can’t put hurdles in the way of a disadvantaged minority,” said Justice Ruth Bader Ginsburg, one of the court’s liberals who seemed more sympathetic to the group challenging Proposal 2.

Justice Sonia Sotomayor, who has discussed the role that affirmative action played in her own Ivy League educational career, aggressively challenged the state’s arguments.

“This amendment is stopping the political process,” she said. “It’s saying the board of regents can do everything else in the field of education” but adopt affirmative action.

John J. Bursch, Michigan’s solicitor general, said, “It does not violate equal protection to require equal treatment” of race. He offered the court several narrow legal paths under which the Michigan initiative could be upheld.

A Political Process

Justice Elena Kagan is not participating in the case, presumably because she worked on it when she was U.S. solicitor general. Michigan must attract five votes on the court to overturn the 6th Circuit ruling striking down Proposal 2. (A 4-4 tie on the court would result in the appeals court ruling being affirmed without an opinion.)

Justice Anthony M. Kennedy, who is usually the pivotal vote in cases about race, told Mr. Bursch that he had trouble distinguishing the 1982 Seattle decision from the Michigan case.

But he pressed the lawyers attacking Proposal 2 about why the equal-protection concern should kick in with a ballot initiative eliminating affirmative action in admissions, but not if the board of regents or other state officials make such a decision.

Noting that Michigan’s regents had delegated the decisions about whether to have race-conscious admissions policies to state university faculties, Justice Kennedy said, “Why is ... a faculty decision any less outcome-determinative than what the voters would say?”

Related Blog

“That’s part of the ordinary political process,” said Mr. Rosenbaum. But he and Shanta Driver, the lawyer representing the Coalition to Defend Affirmative Action, stressed that putting the question to voters put the issue on “a separate and unequal political track,” as Mr. Rosenbaum put it.

A decision in the case is expected by late June.

What Shutdown?

Separately, as the Supreme Court carried on business as usual last week despite the shutdown of much of the rest of the federal government, the justices:

• Declined without comment to hear an appeal from black parents that a student-assignment plan for the Metropolitan Nashville school district led to unconstitutional resegregation of the schools. The appeal was Spurlock v. Fox (No. 13-196).

• Dismissed a case about age-discrimination claims by public employees that was being watched closely by groups representing teachers and school boards. The Oct. 7 oral arguments in Madigan v. Levin (No. 12-872) had revealed procedural problems with the case, so the high court’s dismissal did not come as a surprise.

Vol. 33, Issue 09, Page 15

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