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The U.S. Supreme Court on Monday opened another front in the long-running battle over affirmative action by agreeing to decide the constitutionality of Michigan’s ban on the use of race in admissions at its public colleges and universities.

With a decision still pending in a University of Texas affirmative action case, the justices granted review in Schuette v. Coalition to Defend Affirmative Action, which will be heard next fall and could result in a broader decision than in the Texas case.

Fisher v. University of Texas-Austin challenges the university’s use of race as one of a number of factors in its admissions policy. Race is used in addition to a state law requirement that the university admit student applicants in the top 10 percent of their graduating classes. The Fisher arguments were on Oct. 10.

As in the Fisher case, Justice Elena Kagan did not participate in the grant in the Michigan case, thus creating the potential for a 4-4 ruling.

In the new case, Michigan Attorney General Bill Schuette is asking the court to reverse an 8-7 ruling by the U.S. Court of Appeals for the Sixth Circuit. The circuit court last November found that so-called Proposal 2, a ballot initiative adopted by 58 percent of Michigan voters in 2006, violated the equal protection of law under the political-process doctrine.

In the majority opinion, Judge R. Guy Cole Jr. said Proposal 2 made two significant changes to the admissions policies at Michigan’s public colleges and universities: "First, it eliminated the consideration of ‘race, sex, color, ethnicity, or national origin’ in individualized admissions decisions, modifying policies in place for nearly a half-century. No other admissions criterion—for example, grades, athletic ability, geographic diversity, or family alumni connections—suffered the same fate.

"Second, Proposal 2 entrenched this prohibition at the state constitutional level, thus preventing public colleges and universities or their boards from revisiting this issue—and only this issue—without repeal or modification of article I, section 26 of the Michigan Constitution."

Unlike, for example, the several options available to a student lobbying for a legacy-conscious admissions policy, a black student seeking adoption of a race-conscious admissions policy, which is constitutionally allowed, could achieve it only by amending the state constitution, said the appellate court.

"The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change," wrote Cole.

In his petition, Schuette said the Supreme Court in its 2003 decision in Grutter v. Bollinger invited states to experiment with race neutral alternatives for achieving classroom diversity. Eight states, including Michigan, have done so, he wrote. "But more than two million Michigan voters have now been disenfranchised of their choice to eliminate considerations of race in education by a one-vote-margin, en banc decision that misapplies this Court’s equal-protection precedents in several ways," he argued.

However, Mark Rosenbaum of the ACLU Foundation of Southern California, counsel to one group of challengers to Proposal 2, counters, "The vice of Proposal 2 is that it selectively shuts off access to the ordinary political processes for advocates of otherwise constitutionally permissible race-conscious policies—even though those ordinary political processes remain fully open and available to advocates for consideration of other non-racial factors or criteria."

George Boyer Washington of Detroit’s Scheff, Washington & Driver is counsel of record to the other challengers, the Coalition to Defend Affirmative Action.

Proposal 2 was pushed by anti-affirmative action advocate Ward Connerly shortly after the 2003 Grutter decision. Connerly also was behind the similar California Proposition 209, which has been upheld by the Ninth Circuit.

"I think that the grant of cert likely reflects the seeming split between the Ninth Circuit and the Sixth Circuit," said Erwin Chemerinsky, dean of the University of California Irvine School of Law. "Also, it raises the difficult question — as reflected in the close vote on the Sixth Circuit — as to whether prohibiting affirmative action is itself a form of race discrimination."

Chemerinsky, who assisted the challengers in the Michigan case, said the justices’ grant of review likely means that the court will not overrule Grutter in Fisher, as some experts have suggested. "If it was going to overrule Grutter, then the court could just hold this and remand it after Fisher was decided," he said.

The lawsuit challenging Proposal 2 was filed in 2006 by the American Civil Liberties Union, NAACP, NAACP Legal Defense and Educational Fund and the law firm of Cravath, Swaine and Moore.

"We trust that the U.S. Supreme Court will reaffirm the bedrock constitutional principle that our democratic processes must be open and accessible to all citizens," said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense & Educational Fund, in a statement. "Proposal 2 unconstitutionally gerrymanders Michigan’s political process and relegates the critical topics of racial diversity and access to educational opportunity to a separate, distant, and far more cumbersome playing field—one that is unplayable for all practicable purposes."

Marcia Coyle can be contacted at mcoyle@alm.com.

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