Affirmative Action Back at the Supreme Court

WASHINGTON - Michigan's ban on race-conscious admissions policies at public universities seemed to get a favorable reception today from some of the conservatives on the Supreme Court.

Michigan's Solicitor General John J. Bursch defended Proposal 2, a ballot initiative that passed in 2006 with 58 percent of the vote.

"The issue in this case is whether a Michigan constitutional provision requiring equal treatment violates equal protection," he said. "The answer is no."

At issue in front of the court was not whether racial preferences are a good or bad thing, but whether the people of Michigan "have the choice through the democratic process" to try race-neutral means, he said.

He pointed out that the Supreme Court has narrowly upheld race conscious admissions programs but that doesn't mean voters in a state cannot decide to do away with them.

The Sixth Circuit Court of Appeals invalidated the ban last year, citing an obscure "political restructuring doctrine" and holding that Proposal 2 placed a special burden on minorities within the governmental process in violation of the Equal Protection Clause.

Chief Justice John Roberts and Justice Samuel Alito didn't seem to buy that argument.

"You could say that the whole point of something like the Equal Protection Clause is to take race off the table," Roberts said. "Is it unreasonable for the state to say, look, race is a lightning rod?"

Justice Sonia Sotomayor emerged as the most vocal critic of the ban. She said that one of the sponsors said "this constitutional amendment will bring back segregation in Michigan, and it appears to have done just that."

Her arguments were similar to the holding of the lower court, which said that individuals who want a school to consider non-racial factors such as legacy status, geographic origin, and athletic skills, in its admission plan can lobby the popularly elected governing boards of the schools. But those black, Latino and other minority citizens who seek to restore the consideration of race as one factor in admissions are blocked from any lobbying by Proposal 2. Their only recourse is the incredibly difficult and expensive task of attempting to repeal the state constitutional amendment.

She asked why its OK to take power "away from the people on the ground here, the board of regents." She noted that social scientists said that race-neutral alternative efforts had failed in schools.

Mark D. Rosenbaum, an attorney with the ACLU challenging the ban, said that it "singles out race for different treatment."

The student who wants to lobby the board of regents to allow race preferences is now barred from doing so by Proposal 2.

"That student is shown the door," he said.

Only eight Justices will decide this case as Justice Elena Kagan dealt with it in her previous job as solicitor general. In the event of a 4-4 tie, the lower court decision is upheld but no new precedent is set.

The Supreme Court has deeply divided on affirmative action in recent years.

In 2003, when Justice Sandra Day O'Connor was still on the bench, she wrote an opinion in Grutter v. Bollinger holding that student-body diversity is a compelling state interest that can justify the use of race in university admissions policy in narrow circumstances.

The case concerned the University of Michigan Law school and O'Connor wrote: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Shortly after that 5-4 decision, opponents of affirmative action launched the campaign for Proposition 2 in Michigan.

The court took up a case similar to Grutter last term in Fisher v. the University of Texas. The fact that O'Connor has retired and been replaced by the more conservative Justice Samuel Alito led many court watchers to believe that the court might be poised to get rid of racial preferences in higher education all together. But after 8 and ½ months of deliberation, the court sidestepped the issue and sent the case back down to the lower court for another look.

Although today's case deals with the ballot initiative - and not a specific plan at a public university - supporters of affirmative action fear that if the court rules in favor of Schuette, other states may attempt to pass similar ballot initiatives.

In 1996 California passed Proposition 209, which is identical to Michigan's Proposal 2. It was upheld by the Ninth Circuit Court of Appeals. According the National Conference of State Legislatures, Nebraska, Oklahoma, Arizona and Washington State have similar approved measures.

While supporters of Michigan's ban say that race-neutral programs are workable alternatives to race- conscious programs, supporters of affirmative action disagree.

The Civil Rights Project has filed a brief supporting the challengers. They say that since California passed its ballot initiative, enrollments of African American freshman at the University of California Berkeley declined by 53 percent and the proportion of Latino enrollees fell by 45 percent between 1997 and 1998.