The U.S. Supreme Court is being urged to add another major affirmative-action case to its docket, with proponents of Michigan’s voter-passed ban on race-conscious college admissions asking the court to decide whether such a ban is constitutional.
The court is already weighing a lawsuit challenging race-conscious admissions elsewhere, in Fisher v. University of Texas at Austin, with a ruling in that case expected this spring.
In the Michigan case, supporters of the ban, a ballot measure that the state’s voters approved in 2006, are appealing a November decision of the U.S. Court of Appeals for the Sixth Circuit, which narrowly struck down the measure.
The measure, known as the Michigan Civil Rights Initiative, or Proposal 2, had amended the state’s Constitution to bar public colleges from operating programs that give preferences based on race, ethnicity, national origin, or gender. But the Sixth Circuit’s ruling, with eight judges in the majority and seven dissenting, found the measure to violate the equal-protection clause of the U.S. Constitution’s 14th Amendment, because it placed members of racial-minority groups at a legal disadvantage in seeking from public colleges the same preferential treatment that other categories of students enjoy.
Petitioning the Court
Bill Schuette, Michigan’s attorney general, has asked the Supreme Court to review the decision.
The November ruling, Mr. Schuette wrote in a petition to the court, creates a divide between two federal appeals courts. The Sixth Circuit’s reasoning contradicts that of the U.S. Court of Appeals for the Ninth Circuit, he said, which last year upheld a similar voter-approved amendment to California’s Constitution that bans race-conscious admissions practices.
“It is intolerable that California voters can pass laws guaranteeing the protection of equal treatment in higher education but Michigan voters cannot,” Mr. Schuette wrote.
The split between the circuits puts pressure on the Supreme Court to mediate, said Mark C. Rahdert, a professor at Temple University’s Beasley School of Law. Not counting Michigan, seven states—Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma, and Washington—have adopted laws or policies that require race-neutral university-admissions decisions.
The attorneys general of Arizona and Oklahoma, joined by the attorneys general in Alabama and Georgia, and a number of state organizations have filed “friend of the court” briefs supporting Mr. Schuette’s petition.
“One of the primary benefits of the federal system is that it allows states to be ‘laboratories for experimentation to devise various solutions where the best solution is far from clear,’” states a brief filed by the four attorneys general. “The Sixth Circuit’s decision ... threatens to chill the experimentation that is crucial to developing creative solutions and working toward the time when race-based college-admissions policies reach their ‘logical end point.’”
The plaintiff in the Michigan case, the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, often called BAMN, has welcomed the challenge. The group wants the Supreme Court to affirm the Sixth Circuit’s ruling so that it becomes a national precedent and can pave the way for other states to do away with bans on preferences.
George B. Washington, a lawyer for BAMN, said in a news release that state laws banning race-conscious admissions have turned members of racial-minority groups into “second-class citizens.” He said they are the only groups unable to petition the state for admissions programs that make it possible for their children to attend state universities.
In Michigan, Mr. Washington said, Proposal 2 affected the rates of minority admissions during the six years it was in place. The share of black, Hispanic, and Native American students entering Michigan’s undergraduate classes was slashed by one-third, he wrote. The share of minority students entering the law, dental, and medical schools fell even more drastically, he said.
Effect of the ‘Fisher’ Case
Whether the court will hear the Michigan case, or how it rules on the lawsuit if it does, may hinge on its decision in the Fisher case, said Mr. Rahdert, who once served as a clerk to a U.S. Supreme Court justice, Harry A. Blackmun. Fisher v. University of Texas at Austin was filed in 2008 by a white female student who contended that she had been denied entry to the flagship university because of what she called a system of “blatant racial balancing.”
The Supreme Court could agree to take up the Michigan case but schedule it for the court’s next term, which starts in October, so it can be considered in view of the outcome of the Fisher case.
If the Supreme Court’s decision in the Fisher case continues to allow some room for race-conscious admissions but changes current legal precedent, then the court may send the Michigan case back to the Sixth Circuit for reconsideration in light of the Fisher decision, Mr. Rahdert said. “Depending on what the Sixth Circuit says at that point, it could then come back to the Supreme Court, and, potentially, the court would take the case.”
If the ruling in Fisher strikes down the use of affirmative action in admissions entirely, which legal experts say is unlikely, then the door would probably be shut on the Michigan case, said Paul F. Rothstein, a professor at the Georgetown University Law Center.
If the court did go that far, Mr. Rothstein said, it would probably not bother to weigh in on the fate of Proposal 2 because the Fisher ruling itself would have put an end to race-conscious admissions policies at the state level.
But only time will tell, he said. “You can never really predict what the Supreme Court is going to do.”
Correction (2/7/2013, 11:26 a.m.): This article originally mischaracterized the nature of Florida’s requirement of race-neutral university admissions. The requirement was not a law passed by the Legislature but a policy instituted by the state’s university system. The article has been updated to reflect this correction.