- The Washington Times - Tuesday, October 15, 2013

The Supreme Court appeared eager during oral arguments Tuesday to uphold a Michigan ban on affirmative action, with the justices even considering whether they would need to overrule previous precedents to make sure the state’s color-blind school admissions requirement can remain in place.

Michigan voters added the ban on race- and sex-based preferences to their state constitution in a 2006 vote, but the 6th U.S. Circuit Court of Appeals last year held that the provision violates the U.S. Constitution’s Equal Protection Clause because it sets a higher political bar for minorities.

“The whole point of equal protection is to take race off the table when everyone is being treated the same,” said John J. Bursch, Michigan’s solicitor general, who defended the state’s constitutional amendment.

Affirmative action supporters, though, countered that the 14th Amendment’s Equal Protection Clause is designed not to be color-blind, but specifically to protect racial and ethnic minorities from the actions of majorities.

Shanta Driver, the lawyer for the Coalition to Defend Affirmative Action, said any state action that puts minorities at a disadvantage, even if the purpose is to lessen a special benefit those minorities had enjoyed, violates the federal Constitution.

“It’s a measure in which the question of discrimination is determined by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority,” Ms. Driver said.

But Justice Antonin Scalia balked at that interpretation.

“My goodness, I thought we’ve held that the 14th Amendment protects all races,” he said. “I mean, that was the argument in the early years, that it protected only the blacks. But I thought we rejected that.”

He challenged Ms. Driver to cite one Supreme Court precedent that agreed the Equal Protection Clause was designed only to apply to blacks. She said she could not.

The amendment in Michigan, known as ballot Proposal 2, targeted policies adopted by the governing boards and faculty at state schools including the University of Michigan, Michigan State and Wayne State.

Those boards have extraordinary power to set admissions standards, free from control by the Legislature. Opponents said their only recourse was the state constitution, and they proposed the amendment — which passed with support from 58 percent of voters — to ban the use of racial or sex preferences unless a court has otherwise required them.

Justices said the current case is not so much about affirmative action as about the political process.

Opponents of Michigan’s amendment say that by elevating a ban on racial preferences into the state’s constitution, the state has imposed a higher burden on minorities than it has on other groups, such as alumni or geographic regions.

“The problem with Proposal 2 is that it creates two playing fields,” said Mark D. Rosenbaum, an attorney who argued against Michigan in the case.

The justices prodded the attorneys on whether they could uphold the Michigan amendment without overturning two other Supreme Court rulings, both of which ruled that states couldn’t change their political process to impose discrimination.

But in the current case, Michigan officials argued, they aren’t imposing discrimination, only eliminating a special preference for minorities.

Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation who filed a brief supporting Michigan in the case, said he believes the court can leave those two precedents in place and still uphold Michigan’s amendment — and he said he expects the justices to do so.

Mr. von Spakovsky, who attended the oral arguments, said the attorneys challenging the state were unable to offer any “bright line” for the justices as to where the political restructuring would be acceptable and where it would be too discriminatory.

“The justices, including the liberal justices, don’t like situations where you can’t draw a bright line,” he said. “The challengers were unable to come up with any kind of rational rule for what they were trying to achieve.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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