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Justices to Weigh Mich. Ban on Race in Admissions

The U.S. Supreme Court agreed on Monday to take up another case involving affirmative action in higher education.

The justices agreed to review a federal appeals court ruling that struck down a 2006 Michigan ballot initiative that bars the use of racial preferences at state colleges and universities.

The Supreme Court is still weighing whether race-conscious admissions policies at the University of Texas at Austin violate the equal-protection clause of the U.S. Constitution. The court heard arguments in that case, Fisher v. University of Texas at Austin, last October and a decision could come at any time.

The new case is Schuette v. Coalition to Defend Affirmative Action (No. 12-682). Last November, the full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, voted 8-7 to invalidate Michigan's Proposal 2 as it applies to state colleges and universities. The measure was promoted by Ward Connerly, the California activist who had led his own state's efforts to end racial preferences in education and government contracting in the 1990s.

Michigan's Proposal 2 also bars school districts from discriminating or granting preferential treatment on the basis of race (in addition to sex, color, ethnicity, and national origin), but the challenge decided by the 6th Circuit deals only with the measure's operation in higher education in the state.

A federal district court had upheld the measure, while a panel of the 6th Circuit had voted 2-1 in 2011 to strike it down. The full 6th Circuit agreed to reconsider the case. It outlined the issue as one of the measure running afoul of the equal-protection clause by removing the power of university officials to consider race in admissions to the extent they are allowed to do so under the Supreme Court's landmark 2003 decision in Grutter v. Bollinger. That case involved the University of Michigan law school and said race could be taken into account as a plus fact in the individual consideration of an applicant.

The full appeals court's majority said Proposal 2 violated the equal-protection clause as interpreted by two Supreme Court decisions about ballot initiatives. In Hunter v. Erickson, the high court in 1969 invalidated an Akron, Ohio, ballot measure that had overturned a fair-housing ordinance. In Washington v. Seattle School District No. 1, the court in 1982 struck down a ballot-initiated state law that prohibited busing for school desegregation.

"We find that the holistic race-conscious admissions policies now barred by Proposal 2 inure primarily to the benefit of racial minorities, and that such groups consider these policies to be in their interest," said 6th Circuit Judge R. Guy Cole Jr. He added that the measure had a racial focus and that it unconstitutionally burdened the political interests of racial minorities in the state.

In one of several dissents on the full appeals court, Judge Jeffrey S. Sutton said the case had turned a virtue of affirmative action programs—that they typically grow out of democratic action—into a vice by suggesting that the 14th Amendment's equal-protection clause bars states from eliminating such programs through amendments to their constitutions.

In their appeal to the Supreme Court, Michigan officials said the 6th Circuit decision turned "the democratic process on its head."

"There is a fundamental difference between overturning policies that prohibit discrimination and ending polices that require preferences," said the appeal filed by Michigan Attorney General Bill Schuette.

As with the Texas case, U.S. Supreme Court Justice Elena Kagan is recused from the Michigan case, presumably because she had some role in drafting federal briefs while she was U.S. solicitor general in 2009 and 2010.

There was immediate speculation about the Supreme Court's reasons for granting review of the Michigan case while the Texas affirmative-action case is still pending. Normally, an appeal raising similar issues to that of a case to which the court is giving full review is held until the decision in the pending case is released.

It's possible the justices think the issues raised in the Michigan case are sufficiently distinct from those in the Texas case. Or, the justices could be torn over the disposition of the Michigan case and could order reargument.

In any event, arguments in the Michigan case will be in the court's next term.

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