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Supreme Court hints at narrow ruling in Michigan affirmative action case (+video)

The US Supreme Court heard oral arguments Tuesday on whether Michigan's ban on affirmative action in college admissions violates the equal protection of minorities.

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Mark Rosenbaum, a Los Angeles lawyer representing opponents of the ban, told the justices that organizers of the Michigan ballot initiative bypassed the proper channels to address the affirmative action issue.

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He said the measure violated the high court’s “political restructuring doctrine,” an approach based on two Supreme Court equal protection precedents handed down in 1969 and 1982.

The doctrine holds that under the 14th Amendment’s Equal Protection Clause the government may not enact changes to the political process that will make it harder for minorities to exercise their rights.

Michigan law assigns to the Board of Regents at each university the authority to enact or repeal affirmative action programs. Rather than lobbying the boards to reverse their race-based policies, opponents of affirmative action went above the boards and directly to the people to amend the state constitution to forbid any race-conscious preferential treatment in college admissions.

Mr. Rosenbaum argued that by amending the state constitution via a statewide vote, the usual political process (involving the Board of Regents) had been substantially altered in a way that undercut the ability of minority groups to lobby state officials to adopt affirmative action plans. That, he said, violated their constitutional rights.

Rosenbaum told the justices that Michigan would have to reassign the power over affirmative action programs away from the regents prior to passing any statewide ban.

Because the affirmative action initiative deals with race, he added, it implicates the equal protection requirements of the 14th Amendment.

“The people of the state have multiple options available to them if they don’t like the way the universities are operating,” Rosenbaum said. “But the one option they don’t have is to treat racial matters different from all other matters.”

The lawyer said the constitutional ban on affirmative action established a “separate and unequal” track for deciding the affirmative action debate, a political process minorities could not make equal and effective use of.

“You have to use the ordinary political process. And that’s all we’re saying,” Rosenbaum added.

Michigan is no stranger to controversy over affirmative action. More than a decade ago, white students challenged race-conscious admissions programs at the University of Michigan and the University of Michigan Law School. In 2003, the Supreme Court struck down the university’s affirmative action program for relying too heavily on race. At the same time the high court upheld the law school’s program.

The majority justices said the law school’s admission plan was sufficiently holistic to avoid making an applicant’s race a determining factor in who was admitted and who was rejected.

Three years later, state voters enacted the constitutional ban on affirmative action. 

The ban sparked litigation. A federal judge upheld the ban. An appeals court panel voted 2 to 1 to strike it down, and the full Sixth US Circuit Court of Appeals invalidated the ban in an 8-to-7 decision.

It is that decision that is now before the Supreme Court.

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