Justices to hear arguments on Mich. affirmative action ban

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WASHINGTON -- The Supreme Court's decision Monday to hear a new case from Michigan on the politically charged issue of affirmative action offers an intriguing hint that the justices will not use a separate challenge already pending from Texas for a broad ruling bringing an end to consideration of race in college admissions.

To be sure, the two cases involve different legal issues. The University of Texas dispute, with arguments already completed and a ruling possible soon, centers on use of race to fill some slots in the school's freshman classes. The Michigan case asks whether a voter-approved ban on affirmative action in college admissions can itself violate the Constitution.

But the broadest possible outcome in the Texas case -- overruling the court's 2003 decision that allows race as a factor in college admissions -- would mean an end to affirmative action in higher education and render the new Michigan lawsuit irrelevant.

If the justices are planning to overrule that earlier decision, "then I would think they would hold this [Michigan] case," and order lower courts to review it based on the Texas decision, said Erwin Chemerinsky, the University of California at Irvine's law school dean. He is representing students and faculty members in the Michigan case.

At the October argument in Fisher v. University of Texas, the court's conservative justices sounded as if they were ready to impose new limits on use of race in college admissions. More than five months have passed without a decision, which is not unusual in the court's most contentious cases.

The Michigan case appeal comes from state Attorney General Bill Schuette, following a ruling from the sharply divided 6th U.S. Circuit Court of Appeals in Cincinnati. The appeals court, by an 8-7 vote, found fault with the 2006 constitutional amendment to outlaw "preferential treatment" on the basis of race and other factors in college admissions. The provision also applies to affirmative action in public employment and government contracting, but those issues are not being challenged.

The appeals court said the constitutional amendment is illegal under Supreme Court rulings from the late 1960s and early 1980s that bars placing special burdens on minority groups that want to bring about changes in laws and policies. The court said forcing the ban's opponents to mount their own long, expensive campaign through the ballot box to protect affirmative action amounts to different, and unequal, treatment.

That burden "undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change," the appeals court said. By way of example, the court said children of university alumni remain free to lobby lawmakers and university officials to adopt policies to take family ties into account in admissions.

Mr. Schuette said the notion that a measure that forbids discrimination on the basis of race can be unconstitutional is legal nonsense. "Entrance to our great colleges and universities must be based upon merit, and I remain optimistic moving forward in our fight for equality, fairness and rule of law at our nation's highest court," the Republican attorney general said Monday.

The American Civil Liberties Union's Dennis Parker said the constitutional ban discriminates against students of color. "Michigan's proposal aims to unfairly keep students from encouraging universities to consider race as one factor in admissions but does not do the same for those who are trying to get the school to acknowledge other factors, such as legacy or athletic achievement," said Mr. Parker, director of the ACLU's Racial Justice Program.

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