While the Texas case on affirmative action in college admissions is still
pending, the U.S. Supreme Court surprisingly agreed last week to hear an
affirmative action case out of Michigan that promises to be a genuine mover and
Before hearing the two same-sex marriage cases last week -- challenges to California's Proposition 8, which limits marriage to heterosexual couples in the state, and to the Defense of Marriage Act, which limits federal benefits and considerations to heterosexual couples across the nation -- the justices said they would hear argument on whether Michigan or any state can ban race- or sex-based preference in government actions, particularly in university admissions.
The underlying law is much broader than the admissions issue.
In the November 2006 election, 58 percent of Michigan's voters approved a proposal that amended the state Constitution. The amendment banned discrimination, or the granting of preferential treatment, in public education, government contracting and public employment based on race, sex, ethnicity or national origin.
After the election, a group of plaintiffs led by the Coalition to Defend Affirmative Action filed suit challenging the constitutionality of the amendment.
Eventually the full 6th U.S. Circuit Court of Appeals ruled 8-7 the law violated the equal protection clause of the U.S. Constitution.
In asking for U.S. Supreme Court review, the state said: "Michigan recognizes that affirmative action has long been controversial; some state entities use it for some programs, some do not. But until now, no court has ever held that, apart from remedying specific past discrimination, a government must engage in affirmative action. This [Supreme] Court has said just the opposite, holding that all racial classification by government entities [is] presumptively invalid and subject to the strictest scrutiny."
Justice Elena Kagan, who was U.S. solicitor general before reaching the high court in August 2010, did not participate in accepting the case.
Argument in the case should be heard next term.
The justices already heard argument in October on the University of Texas admissions policy.
During that argument, Justice Anthony Kennedy led the skeptics from the bench.
More than three-fourths of freshmen enroll at the University of Texas through a state law that gives automatic admission to students in the top 10 percent of their high school classes. For the rest, the school considers a number of factors, including race.
Two white students denied UT admission under the policy challenged it in federal court. But a three-judge appellate panel upheld the admissions policy, and the full 5th U.S. Circuit Court of Appeals, one of the most conservative in the country, refused to rehear the case by a vote of 9-7.
The majority said UT's admissions program was "narrowly tailored," as required by the 2003 Supreme Court precedent in Grutter vs. Bollinger.
In argument before the Supreme Court, however, the admissions policy appeared to be in trouble with at least four conservative justices. Kennedy, a key swing vote, showed some doubt, and appeared in the end not to be convinced of its constitutionality, most observers reported.
The liberal bloc, expected to support the policy, was reduced from four to three
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