High court questions affirmative action ban

While the rest of the government remained in shutdown mode, the U.S. Supreme Court heard arguments on Tuesday challenging Michigan’s voter-passed ban on affirmative action policies.

This case is significant as it will affect other state bans, but it’s unlikely to be as consequential as last year’s affirmative action case, Fisher v. University of Texas at Austin. In that case,the court had the opening to strike down affirmative action policies in general, which it declined to do. Instead, the justices allowed affirmative action to remain constitutional in certain circumstances.

Tuesday’s case, Schuette v. Coalition to Defend Affirmative Action, is less blockbuster because it concerns the absence of affirmative action. The Supreme Court is unlikely to say that not having an affirmative action policy is unconstitutional. Michigan has a healthy chance of winning this case, and arguments on Tuesday pointed in that direction. Michigan’s 2006 voter-passed initiative, known as Proposal 2, adds a constitutional ban on discrimination based on race or sex in public universities’ admissions.

John Bursch, the lawyer defending the ban, argued that schools could achieve racial diversity through other means than affirmative action. For example, the University of Michigan could make its student body more racially diverse if it sought more socioeconomic diversity, he said. Bursch said the effect of the 2006 initiative on racial diversity at the University of Michigan is “muddy,” because the university changed how it recorded data on minorities in the years after Proposal 2 passed.

The Supreme Court’s 2003 ruling, Grutter v. Bollinger, said schools could use race as one factor among many in admissions decisions.

“What we’re saying is under Grutter, race preferences are barely permissible,” said Bursch. “It cannot be unconstitutional for the people to choose not to use them anymore, to accept this court’s invitation in Grutter, to move past the discussion about race and into a race-neutral future.”

Chief Justice John Roberts seemed to concur with Bursch’s logic, posing this question to one of the opposing attorneys: “Is it unreasonable for the state to say, look, race is a lightning rod—we’ve been told we can have affirmative action programs that do not take race into account. Socioeconomic diversity, elimination of alumnae preferences, all of these things. It is very expensive. Whenever we have a racial classification, we’re immediately sued. So why don’t we say we want you to do everything you can without having racial preferences?"

Shanta Driver, one of the attorneys challenging the ban on affirmative action, said there couldn’t be a state ban on “constitutionally permissible programs.” Schools could individually decide on their own to discontinue affirmative action, she argued, but states couldn’t issue a constitutional ban on the practice. For the University of Michigan, she said affirmative action was the only way the school could achieve the racial diversity it sought.

Roberts and Justice Anthony Kennedy, the other key vote on this issue, didn’t sound particularly convinced.