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Campus affirmative action again may head to Supreme Court

- The Washington Times - Tuesday, July 12, 2011

The debate over racial preferences in higher education admissions could be headed back to the U.S. Supreme Court.

After a federal appeals court decision striking down Michigan's voter-approved ban two weeks ago and a renewed effort afoot to overturn a similar law in California, colleges and universities may be seeking further guidance on how to legally create racial diversity in their student bodies.

"This issue is still a live issue," said Ada Meloy, general counsel at the American Council on Education in Washington, who notes that at least four states including Michigan have enacted legislation or constitutional amendments that ban affirmative action in higher education.

"The laws that are being passed in these certain states only affect institutions in that particular state, but I believe there is still a movement by certain advocacy groups to try to have these similar laws passed in other states," she said.

A three-judge panel from the 6th U.S. Circuit Court of Appeals, which also covers Ohio, Kentucky and Tennessee, struck down a ban on the Michigan Civil Rights Initiative, which was approved by the state's voters in 2006. In a 2-1 decision announced June 30, the federal judges said that Proposal 2, which covers race and sex in public university admissions and government hiring, "reorders the political process in Michigan to place special burdens on minority interests."

The state will appeal the decision, seeking an "en banc" rehearing before the full 6th Circuit court, Michigan Attorney General Bill Schuette said in a statement.

"Entrance to our great universities must be based upon merit, and I will continue to fight for equality, fairness and rule of law," he said.

But George Washington, a lawyer whose Detroit firm led the lawsuit against the Michigan amendment, said support of the judges' decision has been overwhelming.

He plans to focus efforts on overturning a similar affirmative-action ban in California.

"We intend to pursue both until we win," Mr. Washington said, adding that it remains unclear how long it might take for the full 6th Circuit court to decide whether it will rehear the Michigan case.

"I'm sure whoever loses and however they lose is going to take this to the Supreme Court," Mr. Washington said. "I know we will, and I think the state will. ... We think it's the most important civil rights ruling since Grutter."

The U.S. Supreme Court has tackled the issue of affirmative action at universities, ruling most recently in 2003 on a pair of Michigan cases.

In Grutter v. Bollinger, the justices said that race could be considered in admissions policies at state law schools as long as it did not involve quotas or hold a predetermined weight in acceptance decisions. But the Grutter decision was 5-4, and all nine justices agreed that attempts at outright racial balancing are unconstitutional.

In a second University of Michigan case, Gratz v. Bollinger, the Supreme Court ruled 6-3 that the school's separate grid system for undergraduate admissions, which gave point increases to all minority students, violated the equal protection clause and was unconstitutional.

Mr. Washington said the key issue in the Michigan case differs from the decision in Grutter.

"Grutter says that [race] was constitutional as a factor in admissions for the purpose of achieving a racially diverse class. It didn't say anything about the political procedures or the violation of political rights because it creates an unequal structure of government," he noted, distinguishing a government-process issue from matters of equal protection.

Proposal 2, approved by 58 percent of Michigan voters, keeps public universities from giving preferential treatment to individuals or groups based on race, sex, color, ethnicity or national origin. It remains in effect as the case continues on appeal.

In California, Gov. Jerry Brown has filed a legal brief supporting a federal lawsuit against his state's Proposition 209, which voters approved in 1996.

The lawsuit, which challenges the constitutionality of the California law covering affirmative action policies at public universities, has been filed with the 9th U.S. Circuit Court of Appeals, which reviewed and upheld the ban in 1997.

Mr. Brown, in his brief filed Friday, cited the Grutter decision and said that the ban placed a wall too high for minorities to overturn since it has become a part of his state's constitution, not simply legislation or a policy created by a university.

In Texas, affirmative action found more support from judges on the 5th U.S. Circuit Court of Appeals. The jurists declined to hear an appeal of a University of Texas admissions case in which a three-judge panel upheld the use of race as a "plus factor" for Longhorn admissions.

Ms. Meloy said she thinks the Michigan decision supports the overall principles of Grutter and hopes it stands.

"It's our view that the issue of diversity is highly constructive to the learning environment, and institutions should be allowed to set politics that they feel will enhance the learning of their students along with their missions," she said.

"When these statutes are passed, or constitutions are amended that restrict the ability of institutions, it really harms the diversity of the types of higher education environments that are available to students."

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