Gratz (Andrew Burton / Getty Images)
Washington— Michigan’s voter-approved ban on affirmative action will take center stage at the nation’s highest court today in a case that’s poised to define public university admissions in Michigan and other states with similar bans on racial preferences.
U.S. Supreme Court Justice Anthony Kennedy is likely to be the swing vote on deciding whether Michigan’s 2006 Proposal 2 initiative stays in place or is overturned, legal experts say. He has not favored affirmative action programs in the past, but has criticized state initiatives that discriminate against a particular group.
“The (pro-affirmative action) litigants realize that Kennedy is their only real hope,” said Adam Winkler, law professor at UCLA School of Law.
A decade ago, the court upheld the limited use of affirmative action in university admissions in a landmark case involving the University of Michigan Law School, Grutter v. Bollinger. In that case, Kennedy dissented. The issue before the court today is less about the legality of banning racial preferences and more about whether Proposal 2 restructured the political process in Michigan to the disadvantage of racial minorities.
The outcome could have broad implications on how states treat race preferences. If the court strikes down Michigan’s ban, it is expected to affect states such as California and Washington that have similar laws. If the law is upheld, the ruling could spur ballot initiatives in other states.
“This is an odd case because it’s not exactly about the constitutionality of affirmative action and yet the outcome may have just as much or more impact on affirmative action than some cases the court has decided that were about the constitutionality of affirmative action,” said Stephen Wermiel, law professor at American University’s Washington College of Law.
A ruling isn’t expected until the end of the court’s term in June.
Proposal 2, approved by 58 percent of Michigan voters, banned the use of gender, race and ethnicity preferences in public university admissions and governmental hiring and contracting. This case challenges only the part of the law that bars affirmative action in college admissions.
After the law’s passage, admissions declined among black, Latinos and Native Americans collectively in the U-M undergraduate and professional schools as well as the law and medical schools at Wayne State University.
Overturned by appeals court
Proponents of affirmative action sued, arguing the ban creates an unequal status for racial minorities. Their reasoning: Under-represented groups would have to amend Michigan’s constitution to have race considered in their admissions, while students seeking an edge on other citeria, such as athletic ability and relation to school alumni, don’t have the same hurdles.
In an 8-7 ruling, the U.S. Sixth Circuit Court of Appeals agreed and overturned the ban in November 2012 as a violation of the U.S. Constitution’s equal protection’s clause, which guarantees all citizens equal access to the tools of political change. Michigan Attorney General Bill Schuette appealed to the Supreme Court.
“We are saying that it is fundamentally wrong to treat people differently on the basis of your race or the color of your skin,” Schuette said.
Justice Elena Kagan, the former Harvard Law School dean and solicitor general under President Barack Obama, recused herself from this case without giving a reason, so eight justices will decide the fate of Proposal 2. A 4-4 split means the appeals court decision will stand and the ban on affirmative action is struck down.
But some Supreme Court watchers say the math is on Schuette’s side.
Four conservative justices nominated by Republican presidents — Chief Justice John Roberts, Clarence Thomas, Antonin Scalia and Samuel Alito — haven’t supported affirmative action remedies and have advocated for color-blind constitutionalism.
Three liberal justices nominated by Democratic presidents — Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsberg — are likely concerned about Proposal 2 and the removal of affirmative action as a remedy in admissions to achieve diversity, experts say.
That leaves Kennedy. Nominated by President Ronald Reagan, Kennedy has a mixed record. In every case before him that’s involved a race preference, Kennedy has voted against it, notes Christopher Bracey, a professor and senior associate dean at George Washington University School of Law.
But the justice ruled against a Colorado amendment that excluded gays and lesbians from protection under an anti-discrimination law. In his 1996 opinion, Kennedy said the amendment imposed a disability on a single group and its passage “seems inexplicable by anything but animus toward the class that it affects.”
“The only way you get the 4-4 split is if Kennedy somehow defects and joins the lefties,” Bracey said.
Other states join in
The Michigan case has drawn attention from other states, scholars and education groups who filed 31 amicus briefs — 13 in favor of Schuette and 18 in favor of the pro-affirmative groups.
Arizona, Alabama, Georgia, Oklahoma and West Virginia filed a joint brief in support of Michigan, arguing that while the Supreme Court has upheld the limited use of race preferences, states are not required to use them. These states contend striking down Michigan’s amendment hampers states’ experimentation and innovation in race-neutral policies, which the Supreme Court also has encouraged.
The brief notes seven other states — Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington — have similar laws that are “materially identical” to Michigan’s amendment.
The Civil Rights Project, a research center at UCLA, submitted a brief documenting declines in African-American enrollment at selective schools after Proposal 2 was enacted. It argues that banning affirmative action “imposes a particular harm on the long-term community interests of minorities and undermines the nation’s interest in reducing inequality.”
From 2006 to 2012, the proportion of African-American undergraduate students at U-M fell 33 percent and the proportion of Latino students fell 12 percent, the brief says.