Cam­pus chal­lenges may send af­fir­ma­tive ac­tion back to high court

The Washington Times Weekly - - Politics - BY AN­DREA BILLUPS

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 last month 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, Ken- tucky 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 Cal­i­for nia, Gov. Jerr y 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 July 8, 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 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 [poli­cies] 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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