Despite Court Ruling, Future of Michigan's Affirmative-Action Ban Still Unknown
While Monday's U.S. Supreme Court ruling on affirmative action has no immediate impact on Michigan's voter-approved ban on the practice, it offers hope to those who want the nation's high court to reinstate the ban when it hears its second affirmative-action case since last year.
By David Jesse and Todd Spangler
While a U.S. Supreme Court ruling on affirmative action in a Texas case will do nothing to change practices at Michigan's public universities, it does offer hope to those supportive of Michigan's voter-approved ban on the use of affirmative action in college admissions, legal experts said.
In a 7-1 decision today, the Supreme Court allowed affirmative action programs to remain legal -- for now -- but told the Fifth Circuit Court of Appeals to reconsider its earlier ruling upholding the University of Texas' admissions process, which uses race as a factor. The justices held that universities have to prove there is a real need for affirmative action programs to diversify student enrollment and that courts must take a strict review of such programs to determine whether they are justified.
That toughening stance on the use of affirmative action in college admissions signals what the high court might do this fall when it takes up an appeal of a lower federal court's decision last fall to throw out Michigan's Proposal 2, said Kevin Saunders and Philip Pucillo, both law professors at Michigan State University, in separate interviews.
"This ruling may indicate a reluctance by the majority of the court to allow the overturning of Prop 2 to stand," Saunders said.
Pucillo said making universities prove they need affirmative action programs could signal the court's willingness to allow voters to restrict or outlaw those programs.
In essence, the courts have been taking universities at their word that affirmative action programs were needed in order to get diverse student bodies. Today's ruling reminds lower courts that justices want universities to prove that race-neutral programs weren't working to get more minority enrollment, Pucillo said.
"The court made it clear that when lower courts are reviewing the cases, they have to do it with rigor," he said. "They were giving universities the benefit of the doubt. The University of Texas has to prove why it needs (affirmative action)."
Writing for the majority, Justice Anthony Kennedy said a stricter standard needed to be applied by federal courts in determining whether a university's use of racial preferences was justified and "narrowly tailored to obtain the educational benefits of diversity."
"Strict scrutiny does require a court to examine with care, and not defer to, a university's serious, good faith consideration of workable race-neutral alternatives" before signing off on race-based admissions practices, Kennedy wrote.
In the Texas case, the justices were looking at a program used to help fill the last quarter or so of the university's incoming freshman classes. Race is one of many factors considered by admissions officers. The rest of the roughly 7,100 freshman spots automatically go to Texans who graduated in the top 8% of their high school classes.
A white Texan, Abigail Fisher, sued the university after she was denied a spot in 2008.
Even those fighting to overturn the Proposal 2 ban passed by Michigan voters in 2006 agreed with experts' interpretation of today's ruling, that the court passed on making wholesale changes to affirmative action with this ruling.
"While everyone assumed the court would weigh in on the merits of affirmative action, that's not what they did," said Mark Fancher, an attorney with the ACLU of Michigan, one of the groups fighting against the Proposal 2 ban. "In fact what they said, implicitly, was we've already done that. The only question is whether the rules are being applied properly by universities.
"The landscape is unchanged."
Detroit attorneys Shanta Driver and George Washington of the Coalition to Defend Affirmative Action, noted that today's decision did not strike the University of Texas affirmative action program, but only remanded it for reconsideration by the Fifth Circuit Court of Appeals.
"We believe that it will take a big fight in Texas and nationally to persuade the conservative Fifth Circuit to recognize this truth," they said in a written statement. "To win this fight -- which it is now clear we can do -- we have to return to the streets. That is how affirmative action was won and the only means by which it can be defended today."
They said when the Michigan case is heard before the Supreme Court this fall they will be "organizing a massive demonstration at the Court on the day of the argument, and we ask for every individual and every organization that supports affirmative action to join us in building that rally and march."
The Proposal 2 ballot initiative was pushed by Jennifer Gratz, who was denied admission to the University of Michigan and sued, and by Ward Connerly, a former University of California regent who backed a similar voter initiative in that state.
Michigan voters approved the ban, 58%-42%.
The ban came several years after U-M was involved in a landmark Supreme Court ruling governing race and universities in two companion lawsuits, one filed by Gratz and others over undergraduate admissions policies. The high court upheld the U-M Law School's use of race as a consideration in admissions, as long as there were no quotas attached, but threw out the undergraduate admissions system that awarded extra points to African-American, Hispanic and Native American students.
It was considered a win for U-M, despite the ruling on undergraduate admissions.
Proposal 2 erased U-M's court victory by banning the state's universities and other public institutions from considering an applicant's minority status or gender in their admissions or hiring processes.
A federal appeals court, in November, threw out Michigan's voter-approved ban on affirmative action.
November's ruling focused on university admissions, although the ballot initiative approved by Michigan voters in 2006 also banned the use of affirmative action in government contracting and hiring. Lawyers said the federal appeals court opinion struck down only what some consider the most significant piece, dealing with university admissions.
That case is about the equal protection clause, Fancher said.
"The only thing we suspected as we waited for the ruling (in the Fisher case) was that it wasn't going to knock us out of the ballpark, and it didn't," Fancher said.
But Gratz and her supporters were heartened by the Fisher ruling.
"It's hard to predict what the court will do, (but) this ruling shows the court barely tolerates these policies," she said.
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