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Proposal 2 goes to U.S. Supreme Court

By Ariana Assaf, Daily Staff Reporter
and Peter Shahin, Daily News Editor
Published March 25, 2013

Monday, in what many called a surprise decision, the U.S. Supreme Court agreed to hear a case on the status of Michigan’s Proposal 2. The 2006 ballot proposal that forbade the use of race-based affirmative action in the state. Since then, the proposal has faced a series of legal battles — the latest of which resulted in the U.S. Sixth Circuit Court of Appeals narrowly overturning the ban in November.

Since the circuit court’s 8-7 en banc ruling on Schuette v. Michigan Coalition to Defend Affirmative Action, Michigan Attorney General Bill Schuette, a Republican, petitioned the U.S. Supreme Court to review the case. The eight justices that ruled in favor of overturning the ban were appointed by a Democratic president and the seven minority jurists were all appointed by a Republican president.

The case faces strong headwinds in a court dominated by conservative jurists. More problematic for the liberal bloc, Justice Elena Kagan has recused herself from the Michigan case because of a conflict of interest — as she did for Fisher v. University of Texas, the affirmative action case that was heard by the court in October 2012. During her time as solicitor general, Kagan helped file an amicus curiae brief for Fisher v. Texas.

With only eight justices participating, in the unlikely event of a tie, the Sixth Circuit Court’s ruling would stand but have no precedential value.

The drive to instate the ban was a reaction to the two 2003 landmark decisions issued by the Supreme Court in which the University was a party three years after the cases. The voters of Michigan overwhelmingly approved the measure with 57.9 percent voting in favor of banning affirmative action.

In Gratz v. Bollinger and Grutter v. Bollinger cases — bearing the name of then-University President Lee Bollinger — the Supreme Court ruled that certain forms of affirmative action are permissible. Between 2003 and 2006, the University was allowed to use a “holistic” approach, as outlined in the rulings, achieve a racially diverse campus.

In an unusual step, the Supreme Court agreed to take the case before it issued a ruling on a pending case against the University of Texas. The case could have sweeping implications for affirmative action policies across the nation and render much of the two University cases moot.

Fisher v. University of Texas, which was filed in 2008, brings one interpretation of the 2003 rulings under scrutiny. According to University of Texas policy, every Texan student in the top 10 percent of their class is automatically admitted to the university. Abigail Fisher, a white student from a competitive high school, says she was forced to compete in a much harder application pool after she failed to be in the top 10 percent of her class. She sued the University, claiming that the policy, meant to achieve racial diversity, was discrimination and illegal under the 2003 rulings.

She did not receive admission to the University of Texas and has since graduated from Louisiana State University.

According to a Reuters article, the Court could release a decision on Fisher v. Texas as soon as this week. Alternatively, taking the Michigan case could be a signal that the court is deeply divided over Fisher v. Texas and has not yet reached a decision.

As a result of the affirmative action ban, the number of black students has declined precipitously, from around 10 percent in 2006 to under 5 percent in 2013. The University has attempted to compensate for the decline through outreach efforts to social minorities, but cannot offer specific advantage in the admissions process.

Law School Prof.


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