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Case could head to Supreme Court

By Rayza Goldsmith, Daily News Editor
and Andrew Schulman, Daily News Editor
Published November 15, 2012

Though affirmative action became legal again in Michigan on Thursday, the change may be short-lived, according to University experts.

The U.S. 6th Circuit Court of Appeals in Cincinnati, Ohio effectively changed Michigan law on Thursday by lifting the ban on affirmative action, overturning the decision of the U.S. District Court for the Eastern District of Michigan at Detroit in the case of Coalition to Defend Affirmative Action v. Regents of the University of Michigan.

In April, the U.S. 9th Circuit Court of Appeals in San Francisco, Calif. upheld a ban on affirmative action in California instated by the state’s voters, ruling in opposition to the 6th Circuit. The discrepancy, according to some, makes it a near certainty that the U.S. Supreme Court will take up the issue of ballot initiatives banning affirmative action in state constitutions.

Residential College Prof. Carl Cohen, a leading proponent of Michigan’s Proposal 2, said the Supreme Court often intervenes when two circuit courts issue opposite rulings on the same issue.

“They almost have to (take up the case),” Cohen said. “They’re almost obliged to do so because of the conflicting decisions in the 6th Circuit Court of Appeals and the 9th Circuit Court of Appeals in California.”

Cohen said the Supreme Court is not sympathetic to race-based admissions, and would reverse the 6th Circuit decision should they decide to take up the case.

“The likelihood that they will pick up the case is 97 percent, I’d say, maybe 98,” Cohen said. “There’s no likelihood of their turning it down. It’s absolutely made for them — that’s their job. Their job is to resolve conflict between the circuit courts.”

Regent Julia Darlow (D–Ann Arbor) said in an interview at Thursday’s meeting of the University’s Board of Regents that she expects the Supreme Court to take up Proposal 2, but is nevertheless pleased with the 6th Circuit’s decision.

“It’s a very compelling issue and I think it’d be a very, very important development for equal justice everywhere.”

Regent Martin Taylor (D–Grosse Pointe Farms) said he not only expects the Court to take up the case, but is pessimistic about what he thinks their decision will be.

“I don’t know if I’d say optimistic,” Taylor said. “Not with this Supreme Court, maybe with a few more appointments by our new president maybe I can be a little more confident.”

Cohen said despite some outspoken University support for affirmative action policies, he doesn’t expect Thursday’s decision to have a significant effect on the University’s admissions processes.

“I think the immediate impact on the University of Michigan is nil, except that they will be watching very closely of course, at what happens at the United States Supreme Court.”

He added that for that reason, the University is not likely to take action in response to the decision.

“The University of Michigan is very unlikely to re-introduce preferences only to have the rug pulled out from them again,” Cohen said. “So my guess is that (University leaders) will be saying to themselves, ‘Let’s just see wait and see how it comes out in the Supreme Court.’”

Michigan Attorney General Bill Schuette already said he plans to appeal the ruling to the U.S. Supreme Court. Cohen said he expects the Supreme Court to take up the case, despite the fact that it has already heard oral arguments for another affirmative action case this year.

In October, litigants in Fisher v. University of Texas, another affirmative action case, in which the court will determine if the use of race in undergraduate admissions decisions is legal under the Equal Protection Clause of the 14th Amendment, presented their arguments before the court, which has not yet issued a decision.

Many, including Cohen, expect the Court to rule in favor of Fisher, at least in part, and therefore against the use of affirmative action.

Therefore, even if the Supreme Court doesn’t take up Proposal 2, the state still may be legally forbidden from considering race in university admissions.

The state and the University itself have a tenuous relationship with affirmative action policies.

Race-based admission practices began at the University in 1987, in response to widespread campus activism for increased diversity.

“Affirmative action” was first introduced as a term by President John F. Kennedy in 1961, and first realized under President Richard Nixon, who adopted the Philadelphia Plan. The policy, which required equal opportunity for minority employment by federal contractors, is now widely considered the first major affirmative action program.

However, affirmative action was slower to hit the University’s campus, and was the outgrowth of years of protests by and on behalf of students of color on campus. The Black Action Movement advocated for increased commitment to minority enrollment in 1970, 1975 and again in 1987. Then-University President James Duderstadt responded to the demands of BAM and others with the Michigan Mandate, which began the University’s use of race in admissions decisions.

The mandate was effective, and minority enrollment went from 12.7 percent in 1986, to more than 25 percent in 1997.

Since Proposal 2 became effective in December 2006, undergraduate minority enrollment decreased by about one-third.

“We're going to reverse that now,” George Washington, a lawyer for By Any Means necessary — a pro-affirmative action group that helped argue the case before the court — said of the minority enrollment figures.

In 1998, the University instituted a point system for use to assess undergraduate applicants, which awarded 20 points to underrepresented ethnic groups and 12 points for a perfect ACT score.

In 2003, the Supreme Court ruled in two cases involving the University's use of race-based admissions. In Grutter v. Bollinger, the court ruled that universities may use race as a factor among many in reviewing student applications, upholding the University Law School’s admissions process. The Court’s ruling in Gratz v. Bollinger, handed down on the same day, declared the College of Literature, Science and the Arts use of a points system in admissions unconstitutional because it was not narrowly tailored to achieve a compelling interest.

Both cases came after students who did not earn admission to the University filed lawsuits. Barbara Grutter filed suit against the Law School in 1996. Jennifer Gratz and Pat Hamacher were not admitted in 1995 and 1997, respectively.

With the help of Jennifer Gratz, the plaintiff in Gratz v. Bollinger, Proposal 2 got onto the Michigan ballot in 2006, and was voted into law. The proposal amended Michigan’s constitution to ban the use of affirmative action in admissions and employment decisions.

Daily Staff Reporter Peter Shahin contributed to this report.