US Supreme Court to tackle affirmative action again

McClatchy NewspapersOctober 12, 2013 

— An affirmative action backlash that began in California and migrated to Michigan has now reached the Supreme Court, with university admissions and more potentially on the line.

In one of the new term’s highest-profile cases, the court on Tuesday will consider a Michigan ballot measure that bans the use of race in public university admissions. Inspired by a similar measure in California, the Michigan policy has divided other states, while giving court conservatives their latest chance to roll back race-based preferences.

“This measure was so polarizing that it created a racial divide,” Mark Rosenbaum, the chief counsel of the American Civil Liberties Union of Southern California, said Thursday. “Instead of healing the nation’s wounds, it actually opens those wounds.”

The case, called Schuette v. Coalition to Defend Affirmative Action, returns the court to an enduring conflict that justices effectively ducked last term. The court in June avoided a sweeping decision in a case challenging University of Texas admissions procedures, as the justices opted to send the matter back to a lower appellate court for further review.

The Michigan case, while it also might prompt an underwhelming decision, underscores potentially significant changes in the court itself.

In 2003, then-Justice Sandra Day O’Connor wrote a 5-4 decision upholding the consideration of race in University of Michigan Law School admissions. O’Connor has since retired, replaced by the steadfast conservative Justice Samuel Alito. The conservative chief justice who dissented from the 2003 decision, William Rehnquist, has since been replaced by John Roberts Jr., who appears both conservative and strategically minded in his decisions.

“The thing to look for is the rhetoric the court will adopt,” Pamela Harris, a professor at the Georgetown University Law Center, said at a briefing.

Legal scholars add that the court’s ultimate decision could well be fairly technical and written in a way that unites liberal and conservative justices. A blockbuster ruling is by no means guaranteed.

The hourlong oral argument Tuesday morning will revolve around a Michigan ballot measure that 58 percent of the state’s voters approved in 2006. It amended Michigan’s Constitution to prohibit discrimination or the granting of preferential treatment in public education, government contracting and public employment based on race, sex, ethnicity or national origin.

“The people of Michigan concluded that not having affirmative action in higher education was the best policy for the state,” Michigan Attorney General Bill Schuette said in a legal brief. “Nothing in the Constitution bars the people of Michigan from making that choice.”

In a sign of the potential consequences of the high court’s Michigan case, 31 amicus briefs have been filed from outside parties. By comparison, the argument in the case being heard before the Michigan case Tuesday attracted only five amicus briefs.

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