WASHINGTON — Affirmative action opponents persuaded Michigan voters to outlaw any consideration of race after the Supreme Court ruled a decade ago that race could be a factor in college admissions.
That state’s constitutional amendment is now being examined by the high court to determine whether the change the voters sought is in fact discriminatory. It is a proposition that even the lawyer for civil rights groups in favor of affirmative action acknowledges is a tough sell.
“How can a provision that is designed to end discrimination in fact discriminate?” said Mark Rosenbaum of the American Civil Liberties Union. Yet that is the difficult argument Mr. Rosenbaum will make today to a court that has grown more skeptical about taking race into account in education since its Michigan decision in 2003.
A victory for Mr. Rosenbaum’s side would imperil similar voter-approved initiatives that banned affirmative action in education in California and Washington state.
Black and Latino enrollment at the University of Michigan has dropped since the ban took effect. At California’s top public universities, African-Americans are a smaller share of incoming freshmen, while Latino enrollment is up slightly, but far below the state’s growth in the percentage of Latino high school graduates.
For Michigan Attorney General Bill Schuette, whose office is defending the measure known as Proposal 2, the case is simple. “We are saying no preferences. We’re not discriminating. We’re saying equal treatment,” Mr. Schuette said.
But the federal appeals court in Cincinnati that ruled on the dispute concluded that the matter was not that straightforward. The issue, according to the 6th U.S. Circuit Court of Appeals, was not affirmative action, but the way in which its opponents went about trying to bar it.
That is why the ACLU’s Mr. Rosenbaum said, “This is a case about means, not about ends. It is not about whether a state can choose not to have” affirmative action.
In its 8-7 decision, the appeals court said the provision runs afoul of the Equal Protection Clause of the U.S. Constitution’s 14th Amendment because it presents an extraordinary burden to affirmative action supporters who would have to mount their own long, expensive campaign to repeal the constitutional provision.
Other groups seeking changes in admissions still could lobby the policymakers at the schools. Only proponents of affirmative action would have to change the constitution, the appeals court said.