SCOTUS grants review of second affirmative action case


Posted by AzBlueMeanie:

Last October, the U.S. Supreme Court heard oral argument in the University of Texas affirmative action case of Fisher v. University of Texas (11-345). It is widely speculated that the Court may issue its decision in this case this week.

But on Monday, the Court granted review in another affirmative action case with broader implications, the 6th Circuit Court of Appeals decision striking down Michigan's Proposition 2, the so-called "Michigan Civil Rights Initiative" (2006) promoted by anti-affirmative action proponent Ward Connerly and his American Civil Rights Institute. Similar Ward Connerly measures were enacted in California, Proposition 209 (1995), in Nebraska, Initiative 424 (2008), and in Arizona, Proposition 107 (2010).

Lyle Denniston at reports, Court to rule on affirmative action ban:

In a surprise development, the Supreme Court on Monday agreed
to decide whether a state may constitutionally ban the use of race in
deciding who gets admitted to public colleges or universities.   The
Court chose not to await the outcome of an already pending case on the
constitutionality of an admissions plan at the University of Texas that
makes some use of race. The new case is significantly broader.

At issue in the new case — which will be decided by an eight-member
Court because Justice Elena Kagan is not taking part — is the validity
of Michigan’s Proposal 2, adopted by the state’s voters in 2006, by a
fifty-eight- to forty-two-percent margin.  The Sixth Circuit Court,
sitting en banc, struck that down by an eight-to-seven vote.   The new
case is an appeal by the Michigan attorney general, Schuette v. Michigan Coalition to Defend Affirmative Action (docket 12-682).

* * *

On the Michigan affirmative action case, it had been expected
generally that the Court would not act on that case at all until after
it had decided the case of Fisher v. University of Texas (11-345) — a case that was argued on October 10.  But the decision has not yet emerged in the Fisher
case, and the Court nevertheless stepped into the Michigan dispute. (The Court is expecting to issue opinions in argued cases tomorrow and
Wednesday, and it is conceivable that the Fisher decision could come out on one of those days.)

With Justice Kagan out of the new case, there is always the chance
that the Court would wind up dividing four to four — an outcome that
would leave the Sixth Circuit decision intact, and mean the end of
Proposal 2. The Kagan recusal puts an additional focus on Justice
Anthony M. Kennedy, who very likely would have the power to shift the
final vote to five to three — perhaps reviving Proposal 2 — or four to
four, ending it. (Justice Kagan also is not taking part in the Fisher case.)

The Fisher case, while it does have fairly broad
potential, focuses directly only on the specifics of an affirmative
action plan at Texas’s flagship university in Austin, and so the ruling
in that case might not go much beyond that plan.   The Michigan case,
however, involves a move by a state to deny its public colleges and
universities any right to use race as a factor in choosing the incoming
class of students. It thus has the potential to produce a far more
sweeping decision.

Although Proposal 2 barred the use of race not only in public
education, but also in public contracts and employment, only the ban in
education was considered and struck down by the Sixth Circuit decision

The Michigan case is the most significant case yet added to the list of cases the Court has said will be heard and decided in the new Term starting in