Supreme Court Takes Up Challenge to Michigan Ban on Race-Conscious Admissions

March 25, 2013

The U.S. Supreme Court has decided to weigh the constitutionality of Michigan's voter-passed ban on the use of racial or ethnic preferences in public-college admissions. The court's decision, announced Monday, adds a second major affirmative-action case to its docket.

Bans similar to Michigan's have been adopted by voters in Arizona, California, Nebraska, Oklahoma, and Washington, and by state lawmakers in New Hampshire. The case that the Supreme Court took up Monday morning focuses narrowly on provisions in the Michigan ban dealing with public-college admissions, even though the ban in Michigan and those in other states apply broadly to most uses of racial and ethnic preferences by public colleges and other state and local agencies.

In a separate case pending before it, the Supreme Court is expected to rule this spring or early summer in a legal challenge to a race-conscious undergraduate admissions policy adopted by the University of Texas at Austin. The Supreme Court's conservative majority, which has been critical of affirmative action, could conceivably hand down a ruling rejecting any use of race-conscious admissions by public colleges, which would probably render moot the debate over the constitutionality of the state bans.

Widely seen as most likely in the Texas case, however, is a Supreme Court decision striking down specific provisions of the university's policy as not narrowly tailored to promoting a compelling government interest—an outcome that would have little bearing on the debate over the state measures.

The Supreme Court took up the Michigan case in response to the state's appeal of a November ruling, by the U.S. Court of Appeals for the Sixth Circuit, that struck down that state's ban as unconstitutional.

"Entrance to our great colleges and universities must be based upon merit," Bill Schuette, Michigan's attorney general, said in a news release issued on Monday, "and I remain optimistic moving forward in our fight for equality, fairness, and rule of law at our nation's highest court."

Disagreement Between Courts

The Supreme Court's decision to take up the Michigan case comes in the wake of disagreements between two federal circuit courts over the question of whether such measures violate the U.S. Constitution's equal-protection clause by disadvantaging racial and ethnic minority groups in the political process.

In its November decision, a narrowly divided U.S. Court of Appeals for the Sixth Circuit struck down the Michigan ban, passed in 2006, on the grounds that it unconstitutionally prevented members of racial minority groups from seeking the same preferential treatment in admissions enjoyed by other categories of students, such as the children of alumni.

Elsewhere, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rejected such arguments last year in upholding a nearly identical amendment to California's Constitution passed by voters in 1996. The Ninth Circuit has held that the California measure actually mirrors the equal-protection rights guaranteed by the 14th Amendment, which, it has said, does not provide any constitutional right to preferential treatment.

In urging the Supreme Court to review the Sixth Circuit's decision, Michigan's attorney general had argued that the court needs to clear up the disagreement between the Sixth and Ninth Circuits. Similar arguments were offered in briefs submitted by other supporters of Michigan's ban and by one of two groups of plaintiffs that had filed lawsuits challenging the Michigan measure.

"It is time for us to stop cringing and start fighting," said a written statement issued on Monday by George B. Washington, a lawyer for one of the organizations involved with that group of plaintiffs, the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary. Mr. Washington, whose organization, often called BAMN, has also been involved in the fight against the California measure, said such laws "assure that admissions are by privilege, not merit," and "are creating a new form of separate and unequal in a nation that will soon be majority minority."

The plaintiffs in a second lawsuit challenging the Michigan ban, consisting of the parents and guardians of minority children potentially affected by it, had urged the Supreme Court not to take up the case. Their brief argued that the Sixth Circuit's decision should be left intact and that there was not enough disagreement among the circuit courts for the matter to be ripe for the court's consideration. Nevertheless, Mark D. Rosenbaum, their lead lawyer, said Monday that he is looking forward to presenting arguments in this case.

"There is a constitutional principle of national importance that is involved here," Mr. Rosenbaum said, "and that is whether or not the process of government is going to be open and accessible to all students."

(Updated, 8:57 p.m., 3/25/2013) Justice Elena Kagan recused herself from the decision to take up the case and is not expected to participate in the court's deliberations on it. That means the court that hears the case is likely to have a 5-to-3 conservative majority, instead of a 5-to-4 one. The court is expected to hear oral arguments in the case in the fall.