Affirmative Action Ban Gets Support at High Court Hearing

U.S. Supreme Court justices indicated they are poised to deliver a fresh blow to affirmative action, hinting they will uphold a voter-approved ban on racial preferences at Michigan’s state-run universities.

Hearing arguments today in Washington, the court’s Republican-appointed justices suggested they saw the measure as a legitimate ban on racial discrimination. A federal appeals court said the opposite, ruling that the affirmative action ban unconstitutionally stripped racial minorities of their rights.

“Is it unreasonable for the state to say, ‘Look, race is a lightning rod’?” Chief Justice John Roberts said. He asked why a state couldn’t take racial classifications “off the table” and try to achieve diversity through other means.

A decision backing the initiative would have symbolic as well as substantive importance. A decade ago the University of Michigan won a Supreme Court decision that let institutions across the country continue to use race as an admissions factor.

Three years later, the Michigan ballot initiative amended the state constitution to block race-based admissions at state schools, nullifying the Supreme Court decision for the very university that secured it. Black enrollment is down about 30 percent at the undergraduate and law schools since the measure took effect, according to the university’s figures.

Justice Sonia Sotomayor, the court’s lone Hispanic, said that one of the sponsors of the measure had said the goal was to “bring back” segregation. “And it appears to have done just that,” she said.

Color-Blind Approach

As the justices heard arguments, about 200 affirmative action supporters gathered on the sidewalk in front of the court building, displaying signs and listening to speakers. Most members of the group were college-age or younger.

Justice Elena Kagan didn’t take part in the argument. Although she didn’t give a reason, she was President Barack Obama’s solicitor general when the administration had a chance to get involved in the litigation.

Roberts has sought to steer the court toward a color-blind approach to the Constitution. The justices last year overturned a core part of the Voting Rights Act, the law designed to protect minorities at the polls. The court also issued a compromise ruling that ordered tougher judicial scrutiny of university affirmative action programs.

Past Cases

The latest case involves different legal issues from those in past affirmative action disputes. Rather than debating whether universities violate the rights of white students with affirmative action programs, the court is considering whether state bans on racial preferences amount to discrimination against minorities.

Michigan is one of 10 states where race-conscious admissions are barred as a matter of law.

A federal appeals court said the Michigan measure put racial minorities at a unique disadvantage. The 8-7 decision said minorities are barred from asking universities for special preferences -- something athletes, band members and children of alumni could still do.

The measure “singles out race for different treatment,” Mark Rosenbaum, a lawyer with the American Civil Liberties Union arguing against the law, said today.

That position gained little traction among the court’s conservative wing. Justice Anthony Kennedy, usually the swing vote on issues involving race, questioned the limits of Rosenbaum’s argument.

Justices’ Questions

Kennedy asked whether the state legislature, a state executive department or a university president could bar the use of race in admissions. Roberts and Justice Samuel Alito asked similar questions.

“At what point is it that your objection takes force?” Kennedy asked.

The appeals court ruling pointed to decades-old Supreme Court decisions barring government actions that restructure the political process along racial lines. In a 1982 case, the court invalidated a Washington ballot initiative that had prohibited busing for purposes of desegregating schools.

Michigan says that, to uphold the ballot measure, the Supreme Court may have to overturn at least some parts of that “political process doctrine.”

Michigan Solicitor General John Bursch said today that “it does not violate equal protection to require equal treatment.”

Proposal 2

Proposal 2, as the initiative is known, bars preferences on the basis of gender or race in public education, contracting and employment. The university admissions aspect of the law is the only part that is before the Supreme Court.

Proposal 2 was spearheaded by Jennifer Gratz, whose reverse-discrimination lawsuit against Michigan became one of the two 2003 Supreme Court cases and who was in the courtroom today. Michigan voters approved Proposal 2, a constitutional amendment, 58 percent to 42 percent.

The Supreme Court has grown more skeptical of affirmative action since upholding it in 2003. That’s largely because of Justice Sandra Day O’Connor’s 2006 retirement and the appointment of Justice Samuel Alito to fill her seat.

Alito today asked Rosenbaum how he could square his argument with Supreme Court cases that say racial classifications are suspect no matter which race is benefiting.

“What if it’s a white student who comes in and says, ‘I want to talk about race. I’m white and therefore you should admit me. You should give me a preference,’” Alito said. “The state can’t say, ‘No, we don’t want to hear that’?”

Justice Ruth Bader Ginsburg said the political-process doctrine was based on the notion that the court needed to protect minorities who lack political clout.

The court’s reasoning was “the notion that we can’t put hurdles in the way of a disadvantaged minority,” she said.

The court will rule by July in the case, Schuette v. Coalition to Defend, 12-682.

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