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Michigan affirmative action ban faces Supreme Court scrutiny

Credit David Jesse @freephighered / Twitter
Crowds gather in front of the U.S. Supreme Court yesterday..

A crowd marched yesterday on the United States Supreme Court. The rally drew people from Detroit and other parts of Michigan.

They chanted: “What do we want?” “Affirmative action!” “When do we want it?” “Now!” and “They say ‘Jim Crow!’” “We say, ‘hell no!’’’

“They say ‘Jim Crow!’” “We say, ‘hell no!’’

The protest was aimed at Michigan’s ban on affirmative action in university admissions. It was approved by voters in 2006. And it took place as the Supreme Court heard a legal challenge to the amendment.

“Actually, it’s still ridiculous that we’re fighting (about) affirmative action,” said Sunni Thompson. She made the trip from Detroit as part of the demonstration organized by the group By Any Means Necessary. It’s one of the litigants challenging Michigan’s affirmative action ban.

“We’re going to fight this out and we’re going to do what we have to do,” she said. “You see the army of kids out here. They’re our next generation. They’re willing to do something. If they’re willing to fight, I’m willing to fight with them.”

The crowd gathered in front of the steps as the nation’s highest court heard arguments on this latest wrinkle in Michigan’s – and the nation’s – battle over the role race preferences should play in higher education.

Leveling the playing field?

The state says the ban on affirmative action is an anti-discrimination measure that ensures race does not play a role in the admissions process. Opponents of the ban say it’s impossible to separate race from the amendment and its purpose.

“So, what’s really at stake is the integrity of the political process -- that it be the same playing field and not two separate playing fields for all individuals,” said Mark Rosenbaum, who argued the case on behalf of the American Civil Liberties Union and a group of University of Michigan faculty and alumni who challenged the ban.

He says the ban violates the Constitution’s Equal Protection Clause, and that’s because anyone can go petition a university board for a change in policy – unless the complaint is rooted in someone’s status as a racial minority.

“And in this situation, the separate and unequal track that has been created here is one that says you can’t talk about race until you raise some $15 million, get a state constitutional amendment, and then and only then are you on the same footing as the person who wants to say, I play the oboe, or I’ve got alumni connections, or I’m born in Iowa,” he said.

Rosenbaum says the evidence shows minority enrollment at Michigan’s public universities has declined since 2006, and the effect has been particularly profound in law and medical schools.

Jennifer Gratz, who led the ballot campaign to amend the state constitution, also attended the hearing. She disputes that data, and says ending affirmative action helps improve graduation rates among minority students.

But she also says that’s beside the point: “With respect to diversity, diversity and other equally good intentions should not trump anyone’s right to be treated equally by our government.”

The state's view

The U.S. Sixth Circuit Court of Appeals struck down the amendment as unconstitutional. The Supreme Court would have to reverse that decision to uphold the amendment.

Which is exactly what the state argues should be done.

Michigan Attorney General Bill Schuette says there are other, better ways to ensure diversity on college campuses without using race preferences. He predicts that if the Supreme Court upholds the Michigan affirmative action ban, more states will follow.  

“And we’re saying equal treatment is the Michigan approach, and it was citizen participation, citizen democracy. I think you’ll see that emerging across the land,” he said. 

Eight states have already adopted some version of an affirmative action ban. At least three other states are considering it.

The court’s expected to make its ruling sometime next year. 

Rick Pluta is Senior Capitol Correspondent for the Michigan Public Radio Network. He has been covering Michigan’s Capitol, government, and politics since 1987.
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