After dodging a bullet last term, supporters of affirmative action face another test at the U.S. Supreme Court on October 15 in a case that could launch a new state-by-state effort to eliminate programs that boost minority access to public universities and government contracts.

The case is Schuette v. Coalition to Defend Affirmative Action, which asks the court to reinstate a 2006 ballot initiative called Proposal 2 that amended Michigan’s constitution to ban “preferential treatment” based on race, gender or ethnicity in state education, employment or contracting.

If, as many predict, the Supreme Court resurrects the Michigan measure, even its opponents think other states will line up to follow suit, snuffing out affirmative action in many parts of the country.

“That’s a real fear,” said Mark Rosen­baum of the American Civil Liberties Union of Southern California, who will argue against the ballot measure October 15. “If the law is upheld, the door will be open for other states to follow what Michigan and California have done.” California’s Proposition 209, passed in 1996, is almost identical to the Michigan amendment passed 10 years later. Washington state has also passed a similar initiative. In other states where the electorate as a whole is more conservative than the leaders of their state universities who create affirmative action programs, similar bans could easily pass.

With a Supreme Court showing increasing skepticism toward affirmative action, supporters’ best hope might be a 4-4 tie, which would leave in place the decision by the U.S. Court of Appeals for the Sixth Circuit that found Michigan’s law unconstitutional. Justice Elena Kagan has recused herself, presumably because she was involved in the long-running case as solicitor general before she joined the court. Current Solicitor General Donald Verrilli Jr. did not file a brief in the case.

Rosenbaum will advance a theory that he thinks should convince the justices that what Michigan voters did by a 58 percent to 42 percent majority harms equality rather than advancing it. Rosenbaum, who teaches at the University of Michigan Law School, says minority admissions in Michigan state schools have dropped significantly since the initiative passed.

By making affirmative action off limits in the state’s constitution, Rosenbaum argues, Michigan has made it much harder for those who think they would bring diversity to the state university to make their case politically than, say, someone who wants to use parental alumni status to gain an edge in admissions.

For the diversity candidate to change the process would entail mounting a campaign to amend the state constitution again, Rosenbaum said, while the legacy candidate could just press for change through the Board of Regents or university officials.

That’s not a far-fetched argument, say those who want to see the Michigan initiative struck down. The court has a fairly short line of precedents that prohibits altering the structure of government in ways that make it harder for minorities to seek political gain.

The leading case is a 1969 decision Hunter v. Erickson, which struck down an amendment to the city charter of Akron, Ohio, that forced any proposed changes to fair housing laws to be put to the voters for approval. The measure placed “special burdens on racial and religious minorities within the governmental process by making it more difficult for them to secure legislation on their behalf,” the court ruled.

THE CASE AGAINST PROPOSITION 2

The so-called “political restructuring” doctrine applies to the Michigan initiative too, says Harvard Law School professor Laurence Tribe, who is part of the legal team attacking Proposal 2. “No state should be permitted to relegate constitutionally permissible forms of affirmative action that take account of race to separate and unequal status, fencing the choice to opt for such action out of the normal political process,” Tribe said in an interview.

The doctrine is deeply rooted in history, adds University of Akron School of Law professor Wilson Huhn, who wrote a brief in the case. Before the Civil War, he said, numerous states amended their constitutions to make it impossible to ban or limit slavery, ultimately leading to passage of the Fourteenth Amendment to overcome those barriers.

The Sixth Circuit adopted the restructuring doctrine in striking down the ballot initiative, prompting Michigan Attorney General Bill Schuette to appeal to the high court. “Nothing in the Constitution bars the people of Michigan from making that choice,” he argues in his brief.

The doctrine cited by the opponents of the constitutional amendment, Schuette said, has always been used against laws that place obstacles in the way of equal treatment. The Michigan initiative, on the other hand, requires equal treatment.

“It is curious to say that a law that bars a state from discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race and sex,” Schuette argues.

Charles Cooper of Cooper & Kirk, who filed a brief on behalf of a key Michigan supporter of the initiative, also asserts that the restructuring doctrine cited by opponents is in fact anti-democratic, “insulating any preferential treatment program from review” by higher levels of government or the voters.

Cooper agrees that a Supreme Court ruling upholding the Michigan amendment could serve as a green light to other states, but he did not predict that all voters in all states would vote in favor of something similar. “I don’t really know, but I don’t fear that result,” he said. “It’s a fit subject for the democratic process.”

The Michigan case comes to the court in the aftermath of last term’s Fisher v. University of Texas, a test of that university’s program which used race as part of a holistic admissions process. The high court returned the case to lower courts for a re-examination of the program under a more difficult “strict scrutiny” standard, but it left the concept of affirmative action to live another day.

Contact Tony Mauro at tmauro@alm.com.