Supreme Court Takes New Case On Affirmative Action

WASHINGTON — The Supreme Court on Monday added a new affirmative action case to its docket. It is already considering a major challenge to the University of Texas’ race-conscious admissions program.

The new case, Schuette v. Coalition to Defend Affirmative Action, No. 12-682, concerns a voter initiative in Michigan that banned racial preferences in admissions to the state’s public universities. In November, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled that the initiative, which amended the State Constitution, violated the federal Constitution’s equal protection clause.

The initiative, approved in 2006 by 58 percent of the state’s voters, prohibited discrimination or preferential treatment in public education, government contracting and public employment. Groups favoring affirmative action sued to block the part of the law concerning higher education.

The appeals court majority said the problem with the law was that it restructured the state’s political process by making it harder for disfavored minorities to press for change.

“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,” Judge R. Guy Cole Jr. wrote for the majority.

“The same cannot be said,” Judge Cole added, “for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. 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.”

A dissenting member of the court, Judge Jeffrey S. Sutton, wrote that the majority had it backward. “A state does not deny equal treatment by mandating it,” he said.

The majority opinion, he added, “transforms a potential virtue of affirmative action into a vice.”

“If there is one feature of affirmative action programs that favors their constitutionality,” he said, “it is that they grow out of the democratic process.”

In urging the Supreme Court to hear the case, Bill Schuette, Michigan’s attorney general, said the Sixth Circuit decision was “exceedingly odd” in saying, in essence, that the government must engage in affirmative action.

A brief filed by the American Civil Liberties Union defended the decision.

“The vice of Proposal 2,” the brief said, “is that it selectively shuts off access to the ordinary political processes for advocates of otherwise permissible race-conscious policies.”

The decision the Supreme Court will review was decided by an 8-to-7 vote. The eight judges in the majority were all nominated by Democratic presidents. The seven judges in dissent were all nominated by Republican presidents. (Judge Helene N. White, who was in the majority, was initially nominated by President Bill Clinton and was later renominated by President George W. Bush as part of a compromise involving several nominations.)

The United States Court of Appeals for the Ninth Circuit, in San Francisco, came to the opposite conclusion in 1997, upholding the state’s ban on racial preferences in higher education and saying it “would be paradoxical” to rule otherwise. The court reaffirmed that ruling in 2010.

The case the Supreme Court agreed to hear on Monday will be considered in the term that starts in October. A decision in the Texas case is expected shortly.


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