by Mark Sherman, Hoff Post, BlackVoices, Power and Politics
Washington — The Supreme Court’s decision to hear a new case from Michigan on the politically charged issue of affirmative action offers an intriguing hint that the justices will not use a separate challenge already pending from Texas for a broad ruling bringing an end to the consideration of race in college admissions.
To be sure, the two cases involve different legal issues. The University of Texas dispute, with arguments already completed and a ruling possible soon, centers on the use of race to fill some slots in the school’s freshman classes. The Michigan case asks whether a voter-approved ban on affirmative action in college admissions can itself violate the Constitution.
But the broadest possible outcome in the current Texas case – overruling the court’s 2003 decision that allows race as a factor in college admissions – would mean an end to affirmative action in higher education and render the new Michigan lawsuit irrelevant.
If the justices are planning to overrule that earlier decision, “then I would think they would hold this case,” the new one, and order lower courts to review it based on the Texas decision, said Erwin Chemerinsky, dean of the law school at the University of California at Irvine. He is representing students and faculty members in the Michigan case.
At the October argument in Fisher v. University of Texas, the court’s conservative justices sounded as if they were ready to impose new limits on the use of race in college admissions. More than five months have passed without a decision, which is not unusual in the court’s most contentious cases.
The appeal in the Michigan case comes from state Attorney General Bill Schuette, following a ruling from the sharply divided 6th U.S. Circuit Court of Appeals in Cincinnati. The appeals court, by an 8-7 vote, found fault with the 2006 constitutional amendment to outlaw “preferential treatment” on the basis of race and other factors in college admissions. The provision also applies to affirmative action in public employment and government contracting, but those issues are not being challenged.
The appeals court said the constitutional amendment is illegal under Supreme Court rulings from the late 1960s and early 1980s that prohibit placing special burdens on minority groups that want to bring about changes in laws and policies. The court said that forcing opponents of the ban to mount their own long, expensive campaign through the ballot box to protect affirmative action amounts to different, and unequal, treatment.
That burden “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change,” the appeals court said. By way of example, the court said that children of university alumni remain free to lobby lawmakers and university officials to adopt policies to take family ties into account in admissions.
Schuette said the notion that a measure that forbids discrimination on the basis of race can be unconstitutional is legal nonsense.