If the court divides evenly, the Sixth Circuit decision would take effect. Justices take up affirmative action

The Supreme Court jumped back into the fractious debate over affirmative action Tuesday, hearing a challenge to a statewide ban Michigan voters imposed in 2006 on consideration of race or gender in public education, employment or contracting.

The fate of the measure appeared to be in the hands of Justice Anthony Kennedy, who suggested at the outset of the argument that the Michigan constitutional amendment was clearly invalid under a three-decade-old Supreme Court precedent.


“I have difficulty distinguishing” between Michigan’s ban and a Washington state ban on racial busing that the court struck down in 1982, Kennedy said.

However, later in the hour-long afternoon session, Kennedy seemed troubled by the implications of the rule the court applied in that case forbidding race-related changes to the structure of the political system. He appeared concerned that the rule might sweep so broadly as to be unwise or unworkable.

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A ruling in Schuette v. Coalition to Defend Affirmative Action upholding the Michigan constitutional amendment is unlikely to end all affirmative action programs, but it could lay out a road map for those looking to end those programs in individual states.

Major universities and civil rights groups have supported the legal battle against the Michigan measure, approved by voters in 2006, 58 percent to 32 percent.

The other justices lined up largely as expected Tuesday. Justices Antonin Scalia and Samuel Alito seemed strongly inclined to find the Michigan affirmative action ban constitutional, as did Chief Justice John Roberts. Justice Clarence Thomas remained silent as is his custom, but based on past rulings is also expected to wind up in favor of allowing the Michigan measure to stand.

Justices Sonia Sotomayor and Ruth Bader Ginsburg made it fairly evident they would vote to strike down the ballot initiative, which became an amendment to the state’s constitution.

( Also on POLITICO: Affirmative action reappears before Supreme Court)

Justice Stephen Breyer was harder to read and at one point seemed to share some of the same line-drawing concerns as Kennedy, Roberts and Alito, but Breyer has traditionally supported autonomy for educational institutions.

Justice Elena Kagan recused herself from the case.

As a legal matter, the Michigan case is likely to turn not on the merits of affirmative action itself, but on the viability of a longstanding legal principle that the court laid out back in 1969. Under the “political restructuring doctrine,” the court invalidated a change to the city charter in Akron, Ohio, that required all measures relating to racial or religious discrimination be put to a referendum.

In 1982, the Supreme Court used the same theory to throw out the Washington state busing ban.

The court found both changes unconstitutional because they placed a special and unfair burden on racial and religious minorities seeking to assert their interests in the political process.

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Opponents of the Michigan measure say it acts similarly, by prohibiting minorities from seeking preferences in the college admissions process while alumni and donors can continue to seek special accommodations for their children.

American Civil Liberties Union attorney Mark Rosenbaum urged the justices to strike down the ban, arguing that it effectively prevents a student from arguing to admissions officers that his or her race should be taken account of in the process.

“That student is shown the door and told, ‘Go raise $5 [million] to $15 million and repeal Prop. 2 and then come back,” Rosenbaum argued.

“The people of the state of Michigan have multiple options…..One option they don’t have is to treat racial matters differently than all other matters,” he added, calling the measure a “racial classification.”

“It’s not a racial classification,” Scalia interjected. “It’s a prohibition of racial classification.”

Several justices asked a version of the same question but got few answers: Who could ban affirmative action without unconstitutionally tilting the political process against minorities? Since faculty and administrators generally set admissions policies, could a dean overrule them? A college president? The state legislature?

“At what point is it that your objection takes force?” Kennedy told Rosenbaum. “I just don’t understand the declension here, or the crescendo — whatever you call it.”

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Rosenbaum implied that the process of amending the state constitution erected a special barrier. “The problem with…mounting a racial classification within the [state] constitution itself is that then takes the ordinary political process to the extraordinary political process,” he said.

The track records of universities where race-conscious affirmative action programs have been banned arose Tuesday as the justices explored whether the motivation behind Michigan’s ban amounted to some form of racial animus.

Michigan Solicitor General John Bursch, who defended the ballot measure, said minority enrollment at the state’s public universities was hard to track in recent years because of changes in reporting methods to allow individuals to report affiliation with multiple racial categories.

“We have a muddy picture,” Bursch said.

California saw minority enrollments rise at 16 of its 17 campuses after Prop. 209 in that state banned race-based measures and Texas saw similar effects, Bursch said.

A second attorney who argued to overturn the Michigan ban and preserve affirmative action, Shanta Driver, said statistics about undergraduates obscured major shifts along racial lines.

“If you look at the law schools, the medical schools, the professional schools now in the state of Michigan, there’s been a precipitous drop in underrepresented minority enrollment in those schools,” she said.

However, Bursch maintained there was no reason to think that doing harm to minorities was a significant part of what drove the ballot measure’s passage in that state.

“What the California and Texas experiences show is there are good, positive reasons why voters might want to try race-neutral alternatives,” he said.

Bursch insisted that Michigan’s universities are free to take race-neutral steps that could benefit minorities, like removing preferences for alumni.

That prompted a swat from Sotomayor, who said that would hurt minorities who’ve made it through college under the current system.

“They finally have children and you’re going do away [with] that preference for them? It seems the goal posts keep changing every few years for minorities,” she said.

Sotomayor said she was troubled that Michigan was singling out race as a taboo subject.

”This amendment is stopping the political process. It’s saying the board of regents can do everything else in the field of education except this one,” she said. “One of the main sponsors of this bill said it was intended to segregate again.”

Driver quickly ran into trouble when she suggested to the court that the Constitution’s 14th Amendment was designed “to protect minority rights against a white majority.”

Scalia jumped in to say the court long ago rejected the idea that “only the blacks” were protected by the post-Civil War amendment.

“Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?” he asked.

“No case of yours,” Driver replied.

In a separate, closely-watched case decided in June, the high court passed up a chance to issue a sweeping ruling striking down affirmative action programs. Instead, it voted, 7-1, to return a case about the University of Texas’s minority preferences to the lower courts for a closer examination of whether the program was “narrowly tailored” to achieve the goal of promoting diversity and whether other alternatives were viable.

Kennedy wrote the court’s decision in the Texas case and still appears to be the justice most likely to shape the future of affirmative action programs.

Outside the court, a group of about 40 people representing the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary gathered, waving signs beneath a placard comparing the case to Brown v. Board of Education. They waved signs calling on the Supreme Court to “DEFEND Affirmative Action and Integration and FIGHT For Equality.”

Jennifer Gratz, who spearheaded the ballot measure that became Michigan’s constitutional amendment, said she was “very confident” that the Supreme Court would uphold the measure. Gratz was a plaintiff in one of two affirmative action cases in 2003, when the Supreme Court found narrowly tailored programs to be permissible.

“It’s a sad day when an attorney argues before the court that only some groups are protected by our U.S. Constitution,” Gratz said. “That’s sad and unfortunate, and beyond that, I think that it’s wrong.”

While Kennedy has cast a skeptical eye towards affirmative action programs, it’s difficult to predict whether he would vote to upend or rein in the doctrine the court adopted more than four decades ago barring structural changes in government that disadvantage minorities.

In 1996, Kennedy wrote the court’s majority opinion striking down as unconstitutional a Colorado ballot measure that sought to ban all measures protecting gays and lesbians from discrimination.

However, the Michigan measure reaffirms anti-discrimination laws, while forbidding the public sector from engaging in “preferential treatment…on the basis of race, sex, color, ethnicity, or national origin.”

Kagan served as dean of Harvard Law School when the Michigan case arose and as solicitor general during part of the time it was on appeal. One or both of those factors may have led to her recusal. Her absence leaves only eight justices to decide the matter and, at least in theory, the possibility of a 4-4 split.

If the court divides evenly, the Sixth Circuit decision which struck down the ballot measure in a narrow 8-7 vote would take effect and stand as the law in that court’s geographic jurisdiction: Kentucky, Michigan Ohio and Tennessee. However, the Supreme Court’s ruling would set no precedent to control cases in other states.