By:  Timothy P. Flynn

This week, the SCOTUS will hear oral arguments from the Michigan Solicitor General, John J. Bursch, and Detroit lawyer George Washington in the affirmative action case of Schuette -v- Coalition to Defend Affirmative Action.  This case tests whether Michigan's public universities can ban race considerations altogether in the college admissions process.

This case represents the "flip-side" of the college admissions cases that have made it up to the High Court over the past two decades.  Instead of deciding whether a state actor [i.e. a public college or university admissions board] can take race into account relative to dispensing a public service, this case considers whether the state can, through a voter initiated law, outright ban race as a consideration in the dispensing of the public service.

Michigan Attorney General Bill Schuette seeks to uphold Proposition 2, a voter initiative that passed by 58% in the 2006 general election, which outright bans any public use of preferential treatment based on race, color, national origin or ethnicity.  Just last spring, SCOTUS decided the Fischer case from Texas which held that race could be given some deference in the admission process of a public university, but the school's criterion was to be subjected to "strict scrutiny" if challenged in a court.

Now our High Court is moving on to the pointed and specific question of whether a state can ban race altogether as a college selection criteria.  The Supreme Court's repeated consideration of cases involving race-based public university admission has a long history with several stops here in Michigan.

 In 2003, SCOTUS released two decisions stemming from admissions policies of the University of Michigan: one involving the law school, the other concerned UM's undergraduate admission policy.  In the law school admissions case, the Court ruled that a publicly funded law school could make a limited use of race in their  admissions decisions.  In the undergraduate case, however, SCOTUS struck down an admissions policy that relied too heavily on race factors.

In addition to the contradictory rulings arising out of Michigan's public universities, the federal appellate circuits, the 9th Circuit in particular [San Fransisco, CA], are conflict-laden on the affirmative action question.  As is so often the case, SCOTUS will attempt to set the matter straight once and for all by resolving the conflict within the federal appellate circuits.

For SCOTUS to do so, the spotlight will once again focus on Justice Anthony Kennedy; the so-called swing vote.  Only 8 justices will partake in this case as Justice Elena Kagan has recused herself, presumably due to her involvement in the case when she was the United States Solicitor General.

If Proposal 2 is held to be constitutional as the Michigan Attorney General argues [Schuette says there's nothing more equal than equality], then affirmative action is effectively dead in the water here in Michigan and, eventually, in other states.  On the other hand, if Proposal 2 is struck as unconstitutional then the admissions policies of our public colleges and universities will continue to receive "strict scrutiny" from the courts, but race would continue to be a factor in the admissions equation.

Weighty stuff, to be sure...

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