Jus­tices’ com­ments seem to fa­vor Mich. law

The Washington Times Weekly - - National - BY STEPHEN DINAN

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 race­and 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

AF­FIR­MA­TIVE AC­TION ON TRIAL

Ex­cerpts from Tues­day’s Supreme Court oral ar­gu­ments on the con­sti­tu­tion­al­ity of a Michi­gan con­sti­tu­tional ban on race-based af­fir­ma­tive ac­tion. 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, state of­fi­cials ar­gued, they aren’t im­pos­ing dis­crim­i­na­tion, only elim­i­nat­ing a spe­cial pref­er­ence.

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.”

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