Justices consider Michigan affirmative action ban

Supreme Court examining amendment to state's constitution that says race cannot be a consideration in college admissions
Associated Press
Oct 15, 2013


Affirmative action opponents persuaded Michigan voters to outlaw any consideration of race after the Supreme Court ruled a decade ago that race could be a factor in college admissions.

That state's constitutional amendment is now being examined by the high court to determine whether the change the voters sought is in fact discriminatory.

It is a proposition that even the lawyer for civil rights groups in favor of affirmative action acknowledges is a tough sell, at first glance.

"How can a provision that is designed to end discrimination in fact discriminate?" said Mark Rosenbaum of the American Civil Liberties Union. Yet that is the difficult argument Rosenbaum will make on Tuesday to a court that has grown more skeptical about taking race into account in education since its Michigan decision in 2003.

A victory for Rosenbaum's side would imperil similar voter-approved initiatives that banned affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies.

Black and Latino enrollment at the University of Michigan has dropped since the ban took effect. At California's top public universities, African-Americans are a smaller share of incoming freshmen, while Latino enrollment is up slightly, but far below the state's growth in the percentage of Latino high school graduates.

The case is the court's second involving affirmative action in as many years. In June, the justices ordered lower courts to take another look at the University of Texas admissions plan in a ruling that could make it harder for public colleges to justify any use of race in admissions.

For Michigan Attorney General Bill Schuette, whose office is defending the measure known as Proposal 2, the case is simple.

"We are saying no preferences. We're not discriminating. We're saying equal treatment," Schuette said.

But the federal appeals court in Cincinnati that ruled on the dispute concluded that the matter was not that straightforward.

The issue, according to the 6th U.S. Circuit Court of Appeals, was not affirmative action, but the way in which its opponents went about trying to bar it.

That is why the ACLU's Rosenbaum said, "This is a case about means, not about ends. It is not about whether a state can choose not to have" affirmative action.

In its 8-7 decision, the appeals court said the provision runs afoul of the Equal Protection Clause of the U.S. Constitution's 14th Amendment because it presents an extraordinary burden to affirmative action supporters who would have to mount their own long, expensive campaign to repeal the constitutional provision.

That burden "undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change," Judge R. Guy Cole Jr. wrote for the majority on the appeals court.

The governing boards at the University of Michigan, Michigan State University and other public colleges set admissions policies at the schools, which included the use of affirmative action before the amendment passed.

Other groups seeking changes in admissions still could lobby the policymakers at the schools. Only proponents of affirmative action would have to change the constitution, the appeals court said.

The appeals court vote broke along party lines, and there were other oddities. Two Republican-appointed judges sat out the case because of their ties to Michigan schools. One judge in the majority, Martha Craig Daughtrey, is a senior judge and typically would not be allowed to take part in the full appeals court hearing. But she sat on the original three-judge panel that heard the case.

Civil rights and education experts who are not involved in the case at the high court said they expect the justices to overturn the 6th Circuit ruling.

Harvard University Law School professor Tomiko Brown-Nagin said five of the Supreme Court justices "are skeptical of race-conscious affirmative action" and could be expected to side with Michigan. Those justices are Chief Justice John Roberts, Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.

But Brown-Nagin said impact of such a ruling would be muted because "affirmative action already is on life support."

Peter Kirsanow, a Republican member of the U.S. Commission on Civil Rights and an opponent of racial preferences, was more blunt. "I would eat a copy of the 14th Amendment if in fact the court upholds the 6th Circuit's decision," Kirsanow said.

Justice Elena Kagan will not take part in the Michigan case, just as she excused herself from last term's case about the University of Texas admissions program. Kagan worked on the cases while serving in the Justice Department before she joined the court.

The case is Schuette v. Coalition to Defend Affirmative Action, 12-682.


Stop It

Uh, oh...



Licorice Schtick

This is all about white kids with all the advantages whining because someone else gets a break for a change.


Yeah, the white kids have all the advantages. You want a break? How about work your arse off for what you deserve? Oh, that's right, we're supposed to feel sorry because "the man" held you down. Get outta here with that crap. Since affirmative action BS, many students AND employees who are a better fit have been turned away for someone who hasn't worked as hard because they feel they deserve "a break." Pfft... Oh, poor you.


Really Licorice? A good student is a good student and a shi&&y student is a shi&&y student no matter color or race.


No ethnic questions should be on an application. The individual should be based on their merits solely.

Peninsula Pundit

Most the time, it doesn't need to be on the app.
When you see a first name like Shawteekwa or Jarvidarius, you can figure it out from there.


.....or when they show up for the interview!


Are black people dumber than white people? Are Native Americans too stupid to attend college? Are those of Hispanic descent uneducable? I believe the answer to ALL of those, and similar questions, is an emphatic NO.

Mikesee is right. Either an applicant is qualified or an applicant is not. Being female, gay, Asian, or anything else has nothing to do with it. If you've got 500 spots to fill, then the top 500 applicants should fill those spots. Period.

If you're black and unqualified, why should you drag down the rest of your class with the extra attention and the struggles you'll require? If you're white and QUALIFIED, why should you be denied or punished?

Again, I agree with mikesee: The ethnic (or religious, for that matter) question shouldn't even be ON a college application. How about looking at extracurricular activities? The answer to the essay typically required? The high school GPA? You know, those things that actually have MEANING where the projected success of a college student is concerned?


I've always thought this way. It's crap. This is the case in employment as well.


Lol I had killer qualifications for college and I failed miserably. I didn't know how to study. never had to. high school and college are remarkably different.

2cents's picture

I believe in EQUALITY, it is the only way we will be able to eliminate generational racism and sexism among Americans.

I have listened to some very well educated black men tell their story on a TV program a few years ago, some worked their butts off to get through college, have moved on to become successful lawyers, doctors and business people. Ironically many of these people in the interview still question and will question their entire lives one major item in their education. (Did I receive what I have because I worked so hard or was I part of a quota) Even with their success, they say, they will question this for the rest of their lives and feel that it was not fair that they were treated as unequal! Not sure of the program but it was an interesting take on the whole thing.


I don't think They were treated unequally but they were given the opportunity to compete on an equal level. Big difference!


In my opinion, affirmative action has served its purpose. The original goal was to provide opportunity to under represented minorities and women to top tier universities and professional schools to make up for years of discrimination and lack of opportunity. Most people are not aware that top universities and learned professions such as medicine and law have legacy programs that provide preferences to the children of graduates.

Thus, because historically the graduates of top universities and professional schools were white males, it was their children who had (and continue to have) preferences to attend elite schools like Harvard or medical school. But with Affirmative Action minorities and women gained access to these schools two generations ago. Their children now enjoy the same legacy opportunities that white males enjoyed for over a hundred years in many cases.

Proof of the success of Affirmative Action and the reason the need for it no longer exists is the fact that the President and First Lady
both attended Harvard Law School. Their daughters attend a prestigious private school in Washington DC and will likely attend an alma mater of their parents (Harvard, Columbia) where they will receive preferential admission due the fact their parents attended these Ivy League schools.

That said, if one is going to do away with Affirmative Action, one should also eliminate the legacy provisions for children of graduates. But, that would be contrary to American values which encourage families to strive to work hard and be successful so that those values are passed on to their children. It also ignores the genetic and environment realities that smart people tend to have smart children.