The U.S. Supreme Court will take a look at Michigan’s ban on affirmative action, it was announced today.
The court is already looking at the issue of race in university admissions in case out of Texas. Court watchers say the court could issue a ruling in that case this spring and still hear the Michigan case in the fall, depending on what the ruling is.
Carl Tobias, a professor at the University of Richmond School of Law, said since the justices haven’t ruled yet on the Texas case, the decision Monday could indicate the court is looking to the Michigan case to consider an even broader ruling.
“This could be a much broader ruling if the court were to decide that the (Michigan) ban was constitutional,” Tobias said. If such an admissions policy a ban were found constitutional, he said, “It would change the landscape substantially.”
Advocates on both sides of the Michigan case had expected the Supreme Court to become involved in the issue. It’s not the first time the high court has ruled on the issue of race in Michigan – it issued opinions nearly a decade ago on the use of race in admissions at the University of Michigan.
The court will be hearing an appeal of a decision by a federal appeals court handed down in November, which threw out Michigan’s voter-approved ban on affirmative action.
November’s ruling focused on university admissions, although the ballot initiative approved by Michigan voters in 2006 also banned the use of affirmative action in government contracting and hiring. Lawyers said the federal appeals court opinion only struck down what some consider the most significant piece, dealing with university admissions.
Michigan Attorney General Bill Schuette filed the appeal with U.S. Supreme Court.
“The Michigan Constitution exemplifies the fundamental premise of what America is all about: equal opportunity under the law for all citizens,” said Schuette in a press release. “Entrance to our great colleges and universities must be based upon merit, and I remain optimistic moving forward in our fight for equality, fairness and rule of law at our nation’s highest court.”
The case centers on Proposal 2, called the Michigan Civil Rights Initiative.
The appeals court said the state ban on affirmative action violated the equal protection clause of the U.S. Constitution by making it more difficult for a minority student to get a university to adopt a race-conscious admissions policy than for a white student to get a university to adopt an admissions policy that considers family alumni connections.
“Ensuring a fair political process is nowhere more important than in education,” the court said.
“We weren’t quite sure what to expect,” from Supreme Court, said ACLU of Michigan attorney Mark Fancher. “We’re hopeful they will reach the same decision that the Court of Appeals reached.”
The ballot initiative was pushed by Jennifer Gratz, who was denied admission to the University of Michigan and sued, and by Ward Connerly, a former University of California regent who backed a similar voter initiative in that state.
Michigan voters approved the ban, 58%-42%.
Nearly 10 years ago, U-M was involved in a landmark Supreme Court ruling governing race and universities in two companion lawsuits, one filed by Gratz and others over undergraduate admissions policies. The high court upheld the U-M Law School’s use of race as a consideration in admissions, as long as there were no quotas attached, but threw out the undergraduate admissions system that awarded extra points to African-American, Hispanic and Native American students.
It was considered a win for U-M, despite the ruling on undergraduate admissions.
Proposal 2 erased U-M’s court victory by banning the state’s universities and other public institutions from considering an applicant’s minority status or gender in their admissions or hiring processes.
“The Michigan Civil Rights Initiative was backed by 58% of the Michigan electorate and simply states that public institutions cannot grant preferential treatment to any group or individual on the basis of race. The Sixth Circuit Court of Appeals overturned the will of the people last November,” Gratz said in a press release “The court erred when it declared equality unconstitutional. We believe the U.S. Supreme Court is poised to overturn the Sixth Circuit’s decision.”
The 74-page appeals court ruling from November included five separate dissents, some of which included sharply worded criticism of the majority opinion.
“Proposal 2 prohibits discrimination not just on the basis of race but also on the basis of sex, ethnicity and national origin,” Judge Jeffrey Sutton said in one of the dissenting opinions. “To the extent it disadvantages anyone, it disadvantages groups that together account for a majority of Michigan’s population, not this or that racial minority.”
In the Texas case, the justices are looking at a program used to help fill the last quarter or so of the university’s incoming freshman classes. Race is one of many factors considered by admissions officers. The rest of the roughly 7,100 freshman spots automatically go to Texans who graduated in the top 8% of their high school classes.
A white Texan, Abigail Fisher, sued the university after she was denied a spot in 2008.
The challengers to the Texas affirmative action plan say they believe the university already has produced significant diversity by automatically offering about three-quarters of its spots to the top high school graduates, under state law. They say additional affirmative action isn’t needed.
In August, U-M joined with other public research institutions in filing an amicus brief in the Fisher v. Texas case.
George Washington, the attorney for the lead defendant, said he hopes to see the Supreme Court use this case to set law across the nation.
“We think the Sixth Circuit decision needs to be extended to the entire country,” he said.
He thinks this case signals the court will not overturn the use of affirmative action in the Texas case, but rather use both cases to clarify how it may be used.