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U.S. justices appear inclined to uphold affirmative action ban

By Lawrence Hurley

WASHINGTON (Reuters) - In a potential boost to opponents of affirmative action, the conservative majority on the U.S. Supreme Court appeared inclined on Tuesday to uphold a Michigan law that bans the use of racial preferences in state university admissions.

During an hour-long oral argument, several of the eight justices questioned whether a 2006 state constitutional amendment that banned the practice had imposed burdens on racial minorities in violation of the U.S. Constitution's guarantee of equal protection.

Affirmative action programs, first advocated in the 1960s to combat past discrimination against racial minorities, have faced a backlash from conservatives in recent decades.

None of the five conservative justices gave any indication they would be inclined to rule against the state ban, which was struck down by a federal appeals court in 2012. Only eight justices are considering the case because the ninth, Justice Elena Kagan, is recused.

The case arrives at the court four months after the justices issued a narrow ruling on affirmative action in a different case involving the University of Texas at Austin. In a lopsided 7-1 ruling that few expected, the court warned university policies that took race into account could be more vulnerable to legal challenges in the future. But the court did not strike the policy down and instead sent the case back to a lower court for reconsideration.

The Michigan case raises a different legal question, focusing not on the state's ban on affirmative action itself but rather the political process that led to the state constitutional amendment being enacted.

OFF THE TABLE

Chief Justice John Roberts was one of the conservative justices who appeared comfortable with the Michigan ban, noting during the argument that the point of the Equal Protection Clause of the U.S. Constitution "is to take race off the table."

Roberts asked Mark Rosenbaum, an attorney for the challengers, whether it was unreasonable for the state to "try to achieve diversity without racial preferences," as Michigan has said it would like to do.

Rosenbaum countered that the Michigan law instead sent the message that "race itself is a dirty word," which is at odds with Supreme Court precedent that currently allows for narrowly crafted affirmative action programs.

Regular swing vote Justice Anthony Kennedy is likely to again have a key role in deciding how the court rules.

He gave no indication he would vote against the ban. He appeared troubled over whether it made sense, as the challengers argued, to distinguish between a state constitutional amendment and other ways in which the affirmative action policy could be terminated, such as via the university's board of regents or faculty members.

"At what point is it that your objection takes force?" Kennedy said in a lengthy dialogue with Rosenbaum. "I just don't understand."

Among the justices on the liberal wing of the court, the most vocal in defending the appeals court decision that struck down the ban was Justice Sonia Sotomayor. She said the Michigan law had the effect of "changing the playing field" for those who support affirmative action programs.

She said there was evidence the Michigan law was encouraging racial segregation in the state.

John Bursch, Michigan's solicitor general, said there is no definitive data on whether racial diversity on the University of Michigan campus had declined since the law was passed. He said there were "race-neutral ways" that the state universities could boost the number of minorities on campus.

EIGHT STATES

Michigan is one of eight states to ban affirmative action. The others are Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington.

A ruling in Michigan's favor could encourage other states to follow suit.

Michigan has long been a legal battleground over the use of affirmative action in higher education. The state constitutional amendment was passed as a direct result of a previous courtroom battle that reached the Supreme Court.

A ruling is expected by the end of June.

The case is Schuette v. Coalition to Defend Affirmative Action, U.S. Supreme Court, No. 12-682.

(Reporting by Lawrence Hurley; Additional reporting by Joan Biskupic; Editing by Howard Goller and Cynthia Osterman)

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