Affirmative Action Review Expanded by U.S. Supreme Court

U.S. Supreme Court Expands Affirmative Action Review
Students walk on campus at the University of Texas in Austin. Photographer: Greg Stohr/Bloomberg

The U.S. Supreme Court expanded its scrutiny of affirmative action in higher education, agreeing to review a Michigan law that would bar public universities from considering race or gender as an admissions factor.

The high court already is considering whether the University of Texas is violating the constitutional guarantee of equal protection with its affirmative action program.

The justices now will review a federal appeals court’s conclusion that a voter-approved amendment to Michigan’s constitution impermissibly limits the political rights of racial minorities. The initiative was a response to a 2003 Supreme Court decision that allowed race-based admissions in a case involving the University of Michigan Law School.

At stake are policies that have been a fixture on U.S. campuses since the 1960s. All but a handful of the nation’s selective colleges and professional schools consider race as they seek to ensure a diverse student body.

The decision to take up the Michigan case at this stage marks an unusual move for the court. Litigants on both sides had been poised for a ruling in the Texas case in the next three months. Typically, when the court is preparing to rule on an issue, it defers action on appeals that raise similar questions.

Next Term

Under its normal scheduling practices, the court wouldn’t take up the Michigan case until at least October, when it starts a new, nine-month term. One possibility is that the court might hold off ruling in the Texas case and consider the two cases together in the next term.

Michigan voters approved the 2006 measure 58 percent to 42 percent. The law also bars racial preferences in contracting, although that issue isn’t before the high court.

The law was immediately challenged in court by a civil rights advocacy group, known as the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary.

The group argued in court papers that the Cincinnati-based 6th U.S. Circuit Court of Appeals correctly concluded that racial minorities had been put at a disadvantage compared with other groups. The 6th Circuit struck down the measure on an 8-7 vote.

“The universities may now adopt any factors authorizing departures from their baseline criteria of grades and test scores for any purpose -- except that they may not consider race for the purpose of admitting black, Latina/o or Native American applicants,” the group argued.

Voter Choice

Michigan’s attorney general, Bill Schuette, argued in his appeal that “more than two million Michigan voters have now been disenfranchised of their choice to eliminate considerations of race in education.”

Justice Elena Kagan didn’t take part in the Supreme Court’s decision to take up the case and isn’t participating in the Texas dispute. Although she didn’t give reasons, she may have been involved in the litigation while serving as President Barack Obama’s solicitor general.

In the Texas case, the question is whether the university can use race as a factor in admitting about a quarter of its class. The university admits most of its freshman class each year on the basis of high school class rank under a system known as the “top 10 percent rule.”

The court’s Republican-appointed majority voiced skepticism about the program during arguments on Oct. 10.

The case is Schuette v. Coalition to Defend, 12-682.

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