Supreme Court to decide whether affirmative action can be left up to state voters

Just 10 years after the Supreme Court upheld the University of Michigan’s use of race in admissions as a necessary step to foster campus diversity, the justices are set to decide whether that state’s voters are allowed to ban affirmative action in admissions entirely.

The case, Schuette v. Coalition to Defend Affirmative Action, is one of several controversial cases on the docket in the 2013-14 term, which began Monday.

The justices are also set to decide cases concerning campaign finance, prayer at legislative meetings and abortion rights.

If the justices decide in Michigan voters’ favor, it could lead to a spate of states banning affirmative action through ballot initiatives and would almost certainly result in declining enrollments of minority students in public colleges around the country.

In 2006, Michigan voters approved a measure to amend the state Constitution to prohibit the government from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The voter initiative, called the Michigan Civil Rights Initiative, effectively banned affirmative action at state schools.

The measure came just three years after the 2003 Grutter v. Bollinger case, where the court decided in a 5-4 vote that the University of Michigan Law School could grant admissions preferences to minority applicants in the interest of fostering diversity for the entire study body. (The decision barred the use of racial admissions quotas, however.)

Black enrollment has plummeted 30 percent at Michigan’s undergraduate and law schools since the 2006 affirmative action ballot initiative. Nine other states have barred the use of race in admissions as well, and the Supreme Court’s decision this year could either cement those policies or effectively eliminate them, depending on its scope.

The architect of the 2003 Grutter v. Bollinger decision, Sandra Day O’Connor, has since retired and been replaced by the more conservative Samuel Alito, shifting the balance of the court rightward. That has led legal experts to believe affirmative action could be on the chopping block the next time an acceptable case reached the court.

But last June, the justices surprised court watchers by passing on the opportunity to strike down the University of Texas’ use of affirmative action in undergraduate admissions, sending the case back down to a lower court for review. And this Michigan case is not a good platform for the justices to consider the legality of affirmative action itself, since it addresses whether a state may ban affirmative action, not whether affirmative action is constitutional.

“The court may say something that bears on the Grutter case, but it's not going to overturn the Grutter case,” Gail Heriot, professor of law at the University of San Diego and an opponent of race-based affirmative action, told Yahoo News.

If the court ultimately reverses itself on affirmative action and declares it discriminatory, it would most likely be when the University of Texas case wends its way back to the court, she added.

But the stakes are still high, both for voters who want to ban the use of race in admissions in their state and universities who say it’s incredibly difficult to maintain racial diversity on campus if they’re required to use totally race-blind admissions.

The argument in favor of allowing Michigan’s ballot initiative is that it’s well within a state’s right to bar preferences and discrimination based on race. Just because the Supreme Court says the Constitution allows racial preferences in admissions doesn’t force a state to do so as well, the argument goes.

The case against the ballot initiative is not so straightforward.

Affirmative action defenders say the initiative puts minorities at a distinct disadvantage because it singles them out and says universities cannot favor or discriminate against them while not singling out other groups that might be eligible for special treatment, including legacies, athletes and veterans. That means that the children of alumni, for example, could lobby a university to privilege them in admissions, but minority applicants would have no ability to do so since the initiative has made it explicitly illegal.

That’s where conservative leaning swing vote Anthony Kennedy comes in.

In 1996 Kennedy wrote the majority opinion in Romer v. Evans, ruling that Colorado voters could not amend the state constitution to prevent the government from protecting gays and lesbians as their own group in anti-discrimination policies. Kennedy wrote that since this ballot initiative intended to single out gay people as ineligible for special protection, it violated their right to equal protection under the law.

Geoff Stone, a constitutional law professor at the University of Chicago, says Kennedy will have to show that the Michigan ballot initiative is different from Romer and not discriminatory.

“In his own mind, [Kennedy] saw Romer as a law that was discriminating against gays and lesbians, whereas … he sees this as a law that simply guarantees racial equality,” Stone said. “It all depends on Kennedy.”

Most legal experts believe that Kennedy will join the four more conservative justices in upholding the Michigan ballot initiative. Justice Elena Kagan has recused herself, probably due to her work on the case as solicitor general under President Barack Obama. If the justices split 4-4, the lower court's decision striking down the ballot initiative would stand.