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Affirmative Action in Danger Again as Supreme Court Hears Michigan Case

supreme_court_side_view_medium_web_viewAfter handing affirmative action opponents a narrow victory in Texas in June, the U.S. Supreme Court will hear arguments tomorrow in another case, this time   to determine whether the ban on affirmative action that Michigan voters approved in 2006 is a violation of the U.S. Constitution.

The Michigan case is not a clear-cut consideration of the merits of affirmative action; rather it is a somewhat murky legal skirmish between defenders of affirmative action and the Michigan attorney general, who must defend the ban passed by voters seven years ago. But each case that goes before the ultra-conservative Roberts court sends the policy of affirmative action closer to its deathbed.

After the voters of Michigan, in a measure called Proposition 2, banned all “preferential treatment” based on race in education, it was struck down by the 6th U.S. Circuit Court of Appeals. In an 8-7 decision, the appeals court said the ban violated the Equal Protection Clause of the 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 appeals court decision concluded that when the governing boards at the University of Michigan, Michigan State University and other public colleges set admissions policies at the schools and decide what factors they would use in determining admissions, groups representing athletes or alumni or musicians or any other grouping of students had the ability to lobby the governing boards on behalf of their students.

But proponents of affirmative action would have to change the state constitution to change admissions policy, which the appeals court ruled was an extraordinary burden.

But veteran court watchers expect the conservative Roberts court, which has shown little tolerance for allowing race to be employed in such situations, to thoroughly reject the appeals court argument.

Peter Kirsanow, a Republican member of the U.S. Commission on Civil Rights and an opponent of racial preferences, was so confident that he told the Washington Post: “I would eat a copy of the 14th Amendment if in fact the court upholds the 6th Circuit’s decision.”However, Harvard University Law School professor Tomiko Brown-Nagin told the Post that although the court would likely reject the appeals court argument, the impact of such a ruling would be minimal because “affirmative action already is on life support.”It would be much more meaningful if the court upheld the appeals court because such a ruling would endanger similar voter-approved initiatives banning affirmative action in education in Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington.

Since the ban was approved by voters, African-American enrollment at the University of Michigan has plummeted nearly 40 percent, from 6.4 percent of the university’s freshman class (not including international students) to 3.9 percent last year. At the prestigious University of Michigan Law School, this fall there were just 14 African-Americans among the 315 students admitted by the law school, a paltry 4.4 percent.

In contrast, Michigan’s black population stands at 14.2 percent. Detroit, which is just a 45-minute drive from Ann Arbor, is nearly 85 percent black.

The same drop-off  has been seen in blacks and Latinos at universities in California and Texas because of the race bans. 

The U.S. Supreme Court in June disappointed opponents of affirmative action looking for a resounding rejection of the controversial policy when it issued a 7-1 ruling sending the University of Texas affirmative action case back to the lower court. With the ruling, the court concluded that the lower court did not bring enough scrutiny to UT’s use of race.In claiming that the lower court misinterpreted an earlier Supreme Court decision, the court has made it more difficult for University of Texas to prove that its affirmative action program is constitutional.It was a narrow victory for Abigail Fisher, the white woman who initiated the challenge by claiming UT-Austin unconstitutionally discriminated against her after the university rejected her 2008 application under its race-conscious admissions program.

While Justice Anthony Kennedy, writing for the majority, appeared to endorse the Supreme Court’s earlier decisions establishing that affirmative action is constitutional if it is used to foster a diverse student body, the court established that a race-conscious program could only be used if it was the only way to increase diversity.

The court majority felt that the U.S. Court of Appeals for the 5th Circuit hadn’t pushed UT enough to prove that its race-conscious admissions program was the only available way to foster diversity.

“The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. On this point, the university receives no deference,” Kennedy wrote. “Strict scrutiny must not be strict in theory but feeble in fact.”

This “strict scrutiny” was a standard first established by the court in 1978. In the landmark 2003 decision in Grutter v. Bollinger, Justice Sandra Day O’Connor sided with the court’s four liberals to uphold the University of Michigan Law School’s affirmative action policy—though Kennedy dissented by claiming the University of Michigan did not meet the strict scrutiny standard.

In order for an affirmative action policy to meet this standard, as stressed today by the court, it must be absolutely necessary to achieve diversity on campus.

But Justice Ruth Bader Ginsburg, the only justice dissenting from the decision, felt the lower court had faithfully applied the standard set out in Grutter. “I would not return this case for a second look,” she wrote, because “the university reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student body diversity.”

The Michigan case is being argued tomorrow by two different plaintiffs, in an unusual decision by the Supreme Court to allow two sides with radically different approaches to argue for the same outcome. The Coalition to Defend Affirmative Action, a Detroit-based group led by lawyer George Washington, who acknowledges a “militant” approach to preserve racial policies, is taking up half of the time, while the second group, made up of University of Michigan students and faculty, known by the lead plaintiff Chase Cantrell, is representing the more dispassionate approach.

The Coalition to Defend Affirmative Action wants a sweeping decision along the lines of the appeals court, arguing that Proposal 2 broadly deprives blacks, Latinos and other minorities of their rights. Washington told Reuters his group was trying to reach audiences beyond the marble-columned courthouse and he will be bringing several busloads of students with him from Detroit to stand as silent witnesses.

“I think (the justices) have to understand that people feel very, very passionately about their own futures and their children’s futures,” he said.

Mark Rosenbaum of the ACLU Foundation of Southern California, who will argue for the Cantrell plaintiffs, told Reuters he will not ask the court to focus on blacks or Latinos hurt by the amendment, but rather to focus on the inequality of the process itself.

For his part, Michigan solicitor general John Bursch, who will present the state’s side Tuesday, said he will argue that the state amendment does not present an advantage or disadvantage to any race in the admissions process.

“It prohibits making a racial classification in the first place,” he said.

On the campus of the University of Michigan, Los Angeles native Arden Shore, a white junior studying film, told Al-Jazeera America that affirmative action is necessary so that students can be exposed to people of varying backgrounds.

“A school needs diversity to foster an equal playing field for students,” said Shore, 19.

She went on, “How can you learn what it’s like to be in someone else’s shoes if you’re just surrounded by a bunch of rich, entitled white kids?”

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