Jennifer Gratz jumped out of her chair when she heard the news Monday morning, surprised by an announcement from the U.S. Supreme Court that it would hear oral arguments this fall on whether Michigan's ban on the use of affirmative action is constitutional.
It was nearly a decade ago when Gratz was first in front of the Supreme Court as one of the plaintiffs in landmark cases about how the University of Michigan used race in its admission process. She'll be back this fall as one of the prime backers of a statewide ballot proposal passed in 2006 to ban the use of affirmative action.
"This is just as personal to me," Gratz told the Free Press. "I can't believe we're headed back to the Supreme Court."
Like the 2003 cases, this case promises to set precedent on the role of affirmative action in American life -- centered again on university life, those on both sides of the issue say. Six states will be watching closely to see whether their bans on affirmative action will be upheld or swept away.
"This could be a much broader ruling if the court were to decide that the (Michigan) ban was constitutional," said Carl Tobias, a professor at the University of Richmond School of Law.
If such an admissions policy ban were found constitutional, he said, "It would change the landscape substantially."
Monday's announcement was a surprise -- not that the Supreme Court would hear the case, but rather the timing.
Justices are expected to rule anytime -- perhaps as early as this morning -- on the somewhat related Fisher v. the University of Texas.
However, law experts and attorneys on both sides of the Michigan case say that case is relatively limited and centers on one specific program at the University of Texas.
In contrast, the Michigan case centers on two main questions: Can the public use petitions and ballot initiatives to set policy, and is a ban on affirmative action constitutional?
The fight over U-M admissions stretches back to 2003, when Gratz and others sued over the university's admissions policies. In June 2003, the high court upheld the U-M Law School's use of race as a consideration in admissions, as long as there were no quotas attached. However, it threw out the undergraduate admissions system that awarded extra points to African-American, Hispanic and American Indian students. Gratz, who was denied admission to U-M, was a plaintiff in the undergraduate case.
The 2003 decision was considered a win for U-M despite the ruling on undergraduate admissions.
Then, in 2006, Michigan voters approved Proposal 2, called the Michigan Civil Rights Initiative, which banned the state's universities and other public institutions from considering an applicant's minority status or gender in their admissions or hiring processes. The initiative was pushed by Gratz and Ward Connerly, a former University of California regent who backed a similar voter initiative in that state. Michigan voters approved the ban, 58%-42%.
Last November, the U.S. 6th Circuit Court of Appeals partially overturned Proposal 2, which led to an appeal to the Supreme Court by Michigan Attorney General Bill Schuette.
November's ruling by the U.S. 6th Circuit Court of Appeals focused on university admissions, although the ballot initiative approved by Michigan voters in 2006 also banned the use of affirmative action in government contracting and hiring. Lawyers said the federal appeals court opinion only struck down what some consider the most significant piece, dealing with university admissions.
The appeals court said the state ban on affirmative action violated the equal protection clause of the U.S. Constitution by making it more difficult for a minority student to get a university to adopt a race-conscious admissions policy than for a white student to get a university to adopt an admissions policy that considers family alumni connections.
"We think the 6th Circuit decision needs to be extended to the whole country," said George Washington, the lead attorney for those seeking to overturn Michigan's ban on affirmative action. He said that if the high court upholds Proposal 2, more states will likely put similar laws on the book.
Michigan State University College of Law Professor Mae Kuykendall says the decision by the Supreme Court to accept the Michigan case could be tipping the court's hand in the Fisher case. She said she believes the court is going to take a harder line against affirmative action in the Texas case and then use the latest Michigan case to do some "cleanup work" on its decisions in older rulings, including the 2003 cases involving the University of Michigan.
In the Texas case, the justices are looking at a program used to help fill the last quarter or so of the university's incoming freshman classes. Race is one of many factors considered by admissions officers. The rest of the roughly 7,100 freshman spots automatically go to Texans who graduated in the top 8% of their high school classes.
A white Texan, Abigail Fisher, sued the university after she was denied a spot in 2008.
The challengers to the Texas affirmative action plan say they believe the university already has produced significant diversity by automatically offering about three-quarters of its spots to the top high school graduates, under state law. They say additional affirmative action isn't needed.
Only eight justices will be hearing the case. Justice Elena Kagan recused herself from both the Texas and Michigan cases.
Contact David Jesse: 313-222-8851 or email@example.com
More Details: A CLOSER LOOK
The U.S. Supreme Court now is looking at two cases involving race and admission to universities.
Schuette v. Michigan Coalition to Defend Affirmative Action
Status: Accepted Monday by Supreme Court; oral arguments to occur next fall.
Case synopsis: The U.S. 6th Circuit Court of Appeals ruled in November that the state ban on affirmative action violated the equal protection clause of the U.S. Constitution by making it more difficult for a minority student to get a university to adopt a race-conscious admissions policy than for a white student to get a university to adopt an admissions policy that considers family alumni connections.
Fisher v. University of Texas
Status: Oral arguments were heard on Oct. 10. Ruling expected anytime, perhaps as early as this morning.
Case synopsis: Justices are looking at a program used to help fill the last quarter or so of the university's incoming freshman classes. Race is one of many factors considered by admissions officers. The rest of the roughly 7,100 freshman spots automatically go to Texans who graduated in the top 8% of their high school classes. A white student, Angela Fisher, filed suit after being denied a spot at the university.
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