High court takes up affirmative action again

Michael Doyle / McClatchy Washington Bureau /

Published Oct 12, 2013 at 05:00AM

WASHINGTON — An affirmative action backlash that began in California and migrated to Michigan has now reached the Supreme Court, with university admissions and more potentially on the line.

In one of the new term’s highest-profile cases, the court on Tuesday will consider a Michigan ballot measure that bans the use of race in public university admissions.

Inspired by a similar measure in California, the Michigan policy has divided other states, while giving court conservatives their latest chance to roll back race-based preferences.

“This measure was so polarizing that it created a racial divide,” Mark Rosenbaum, the chief counsel of the American Civil Liberties Union of Southern California, said Thursday. “Instead of healing the nation’s wounds, it actually opens those wounds.”

The case, called Schuette v. Coalition to Defend Affirmative Action, returns the court to an enduring conflict that justices effectively ducked last term. The court in June avoided a sweeping decision in a case challenging University of Texas admissions procedures, as the justices opted to send the matter back to a lower appellate court for further review.

The Michigan case, while it also might prompt an underwhelming decision, underscores potentially significant changes in the court itself.

In 2003, then-Justice Sandra Day O’Connor wrote a 5-4 decision upholding the consideration of race in University of Michigan Law School admissions. O’Connor has since retired, replaced by the steadfast conservative Justice Samuel Alito. The conservative chief justice who dissented from the 2003 decision, William Rehnquist, has since been replaced by John Roberts, who appears both conservative and strategically minded in his decisions.

“The thing to look for is the rhetoric the court will adopt,” Pamela Harris, a professor at the Georgetown University Law Center, said at a briefing.

Legal scholars add that the court’s ultimate decision could well be fairly technical and written in a way that unites liberal and conservative justices. A blockbuster ruling is by no means guaranteed.

The hourlong oral argument Tuesday morning will revolve around a Michigan ballot measure that 58 percent of the state’s voters approved in 2006. It amended Michigan’s Constitution to prohibit discrimination or the granting of preferential treatment in public education, government contracting and public employment based on race, sex, ethnicity or national origin.

“The people of Michigan concluded that not having affirmative action in higher education was the best policy for the state,” Michigan Attorney General Bill Schuette said in a legal brief. “Nothing in the Constitution bars the people of Michigan from making that choice.”

The Michigan language resembles that of California’s Proposition 209, adopted in 1996. Key supporters of the California measure, including former University of California Trustee Ward Connerly, championed the Michigan measure as well.

“The imposition of racial classifications in the award of government benefits involves an inherent injustice to members of disfavored groups,” the American Civil Rights Institute, a group founded by Connerly, argued in a legal brief. “Racial preference schemes unjustly impose the costs of remedying past discrimination on individuals who have no responsibility for the prior wrongs.”

In a sign of the potential consequences of the high court’s Michigan case, 31 such amicus briefs have been filed from outside parties. By comparison, the argument in the case being heard before the Michigan case Tuesday attracted only five amicus briefs.

The myriad briefs underscore, as well, how affirmative action divides voters. While Georgia and four other states joined a brief supporting the Michigan ballot measure, California Attorney General Kamala Harris rallied five other states and the District of Columbia to a brief supporting the benefits of diversity

“It is particularly important for states with large non-white populations to ensure that students of all races have meaningful access to their public colleges and universities,” says the brief, primarily prepared by Los Angeles-based Deputy Attorney General Antonette Benita Cordero.

Minority student admissions fell after Proposition 209 passed, University of California officials noted in a separate brief. In 1995, the year before the ballot measure passed, 6.7 percent of the entering freshman class at the University of California, Berkeley, was African-American. This year, African-American students accounted for only 4.2 percent of Berkeley’s entering freshman class.

If they want, though, justices need not sort through the costs and benefits of affirmative action. Instead, the Michigan case could easily turn on a little-known piece of legal arcana known as the political restructuring doctrine.

Michigan residents interested in changing admissions policies at the state’s universities — for instance, to further aid children of alumni — may petition university regents. But because of the constitutional amendment, the regents are powerless to change policies regarding race or gender. That would take another constitutional amendment, a much harder task.

This change in the political process, or political restructuring, will be scrutinized by the court, with a key question being whether the change places a special burden on a minority group’s ability to accomplish its goals or protect itself.

“This isn’t a playing field that isn’t level,” Rosenbaum said. “This is two separate playing fields.”

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