The Supreme Court announced Monday it would include a Michigan law that would bar public universities from considering race as an admissions factor in its review of affirmative action in higher education.
The high court is already considering whether the University of Texas violated the constitutional guarantee of equal protection with its affirmative action program. In that case, the justices are considering a challenge to the university’s program, which factors in race to fill open spots in its freshman class. The Texas case has been argued before the justices but not yet decided.
The dispute over affirmative action in Michigan has its roots in the 2003 Supreme Court decision that upheld the use of race as a factor in university admissions. That case concerned the University of Michigan law school.
In response to the court's 5-4 decision in that case, affirmative action opponents worked to put a ballot measure in front of voters to amend the state constitution to outlaw preferential treatment on the basis of race and other factors in education, as well as government hiring and contracting. In November 2006, 58 percent of Michigan voters approved the measure.
Civil rights groups sued to block the provision the day after the vote. In November, the 6th U.S. Circuit Court of Appeals voted 8-7 to invalidate the ban as it applies to college admissions. It did not address hiring or contracting.
The appeals court said the constitutional amendment is illegal because it prohibits affirmative action supporters from lobbying lawmakers, university trustees and other people who ordinarily control admissions policies. Instead, opponents of the ban would have to mount their own long, expensive campaign through the ballot box to protect affirmative action, the court said.
That burden "undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change," the court said. The 6th Circuit divided along ideological lines, with its more liberal judges in the majority.