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Supporters of Proposal 2 gather during a rally on the University of Michigan’s Diag in Ann Arbor in 2006.
—Carlos Osorio/AP-File

Combatants in the long-running war over affirmative action in education are lined up again in the U.S. Supreme Court. But the coming battle is a little different from those that produced well-known high court landmarks involving race and admissions.

Early in the new court term that opens next week, the justices will weigh a case about a 2006 Michigan ballot measure that prohibited racial preferences in education and other areas of state and local government. Last year, a federal appeals court struck down the measure as it applies to admissions policies at state colleges and universities.

The measure violated the 14th Amendment equal-protection rights of racial minorities in the state by making it harder for them to achieve a political goal, namely, a race-conscious admissions policy, the full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, said in an 8-7 ruling.

Many people were poised for a landmark decision last term on the use of race in admissions in the case known as Fisher v. University of Texas at Austin. But after months of deliberation, the Supreme Court issued a modest 7-1 decision that a lower court had failed to hold the university’s race-conscious admissions plan to the demanding burden of “strict scrutiny.” The high court sent the case back to the U.S. Court of Appeals for the 5th Circuit, in New Orleans, which has asked for new legal briefs.

The case from Michigan, Schuette v.Coalition to Defend Affirmative Action (No. 12-682), is the top education case in the Supreme Court’s new term. Other cases of interest to educators involve age discrimination, campaign finance, and prayers at public meetings of government boards.

The Michigan case has attracted a total of 30 friend-of-the-court briefs on both sides. Some of those are still fighting the last battle, stressing arguments about the constitutionality of race-conscious admissions plans. Indeed, in practical terms the justices’ ruling could affect the future of affirmative action in Michigan and elsewhere.

But the 6th circuit court’s ruling was based on a legal theory known as the “political process” or “political restructuring” doctrine.

The theory works like this: Under Michigan law, the state’s colleges and universities have plenary, or unqualified, power to supervise themselves through their governing boards. Those boards generally delegate admissions policies to faculty and administrative committees. (In other words, state lawmakers generally may not interfere.)

A student who wants to lobby a university’s board of regents or the admissions committee for a policy favoring, for example, legacy preferences (being the son or daughter of an alumnus) or a preference to residents of the state’s Upper Peninsula, may do so unencumbered.

But because of Proposal 2, which amended the state constitution, a member of a minority group may not simply go to the regents or admission committee to lobby for a racial preference that is permissible even under the Supreme Court’s complex rulings on affirmative action. That person would face the heavier political burden of trying to remove the state constitutional limitation.

The 6th Circuit court majority said Michigan’s Proposal 2 violated the equal-protection clause as interpreted by two Supreme Court decisions about ballot initiatives.

The case is set for oral arguments on Oct. 15.

Check out more on this important issue in Education Week 

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