High Court to Look at Affirmative Action Ban

WASHINGTON (CN) - Michigan can fight to revive its ban on affirmative action at public colleges and universities and in government hiring, the Supreme Court said Monday.

Born in the Civil Rights movement of the 1950s and 1960s, Affirmative Action remained largely unchanged until the late 1990s.

In 2003, the Supreme Court ruled "universities cannot establish quotas for members of certain racial groups" but may "consider race or ethnicity more flexibly as a 'plus' factor in the context of individualized consideration."

In 2006, Michigan voters approved a statewide ballot proposal to amend the Michigan Constitution "to prohibit all sex- and race-based preferences in public education, public employment, and public contracting."

After a half-century of such practices, Proposal 2 eliminated the consideration of "race, sex, color, ethnicity, or national origin" in individualized admissions decisions for Michigan's public colleges and universities.

Yet, no other admissions criteria - for example, grades, athletic ability, or family alumni connections - suffered the same fate.

The amendment also entrenched this prohibition at the state constitutional level, thus preventing public colleges and universities or their boards from revisiting this issue -and only this issue - without repeal or modification of article I, section 26 of the Michigan Constitution.

Several interest groups and individuals immediately filed suit against then-Gov, Jennifer Granholm, the Regents of the University of Michigan, the Board of Trustees of Michigan State University and the Board of Governors at Wayne State University.

The Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality said Proposal 2 violated the U.S. Constitution and federal statutory law. Michigan's then-Attorney General Michael Cox intervened as a defendant.

A group of University of Michigan faculty members, prospective and current students filed a similar federal complaint against Gov. Granholm. Their case was consolidated with that of an applicant to the University of Michigan Law School and Toward a Fair Michigan, a nonprofit corporation formed to ensure implementation of Proposal 2. Attorney General Cox again intervened, and replaced Granholm as the representative of Michigan in the litigation.

A federal judge granted the state summary judgment after disagreeing that Proposal 2 violated the equal protection clause of the 14th Amendment.

In July 2011, a divided three-judge panel of the 6th Circuit reversed, but the court vacated that ruling in favor of a rehearing en banc. Over a year later, the full court again sided with the amendment's opponents.

"A student seeking to have her family's alumni connections considered in her application to one of Michigan's esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school's governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state's constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy," the majority wrote. "That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution - a lengthy, expensive, and arduous process - to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change. We therefore reverse the judgment of the district court on this issue and find Proposal 2 unconstitutional."

As is its custom, the Supreme Court did not issue any comment in granting the case a writ of certiorari on Monday. It noted only that David Boyle, the University of Michigan law student, can file a brief as amicus curiae.

Justice Elena Kagan did not participate in the court's consideration or decision of the motion or the petition.

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