Supreme Court's affirmative action ruling prompts passionate reaction on both sides of issueJennifer Gratz had a view of the Supreme Court in Washington, D.C., when its decision was released Tuesday morning to uphold Michigan's ban on affirmative action in public university admissions.
For 17 years, Gratz has fought the University of Michigan and other Michigan-based affirmative action allies, decrying that race-based acceptance practices give minorities an unfair advantage in college admissions. On Tuesday, when the Supreme Court in a 6-2 decision and ruled that Proposal 2, passed by voters in 2006, is constitutionally sound, Gratz rejoiced.
"It's a great victory. Not only a personal victory, but a great victory," Gratz said from Washington, where she was in town in preparation for a debate on affirmative action.
The court's decision is divided 6-2, with Justice Elena Kagan recusing herself from the case; she was the U.S. solicitor general when the case was before the lower courts. Justice Anthony Kennedy wrote the majority opinion, Justice Sonia Sotomayor authored the dissenting opinion.
Michigan voters in 2006 passed Proposal 2, a ballot initiative that amended the state constitution and made it illegal for state entities to consider race in admissions and hiring. With the Supreme Court's ruling, the only way left to nullify Proposal 2 is to mount a long, expensive and uncertain campaign to overturn it.
The court heard oral arguments on Proposal 2 on Oct. 15, 2013.
"Race preferences are living on borrowed time," said Gratz, plaintiff in the 2003 Supreme Court case Gratz v. Bollinger, in which the court struck down U-M's point-based admissions process but decreed that affirmative action was permissible. "More states can and should move in the direction of eliminating these discriminatory policies."
Mark Rosenbaum is an attorney with the American Civil Liberties Union who argued before the Supreme Court in October in defense of affirmative action, and against the ban. In his view, the Supreme Court's decision will make it difficult for schools in Michigan and other states with affirmative action bans in place — including Arizona, Nebraska, Oklahoma, California and Washington — to active a racially diverse student body.
"It's profoundly disappointing. The big losers are the citizens and the students of the state of Michigan. It's going to put true educational diversity out of reach and permit preferences on behalf of children of donors, alumni, athletes, but keep raciai identity as if it doesn't exist," he said.
"It means that Michigan and a handful of states ... are going to be outliers in a nation that is committed to true diversity," he continued.
Added George Washington, who also opposed Proposal 2 before the Supreme Court, on behalf of By Any Means Necessary.
"It's a terrible decision. It's a racist decision. It says that white voters have a right to take away from black and latino citizens the right to the only programs that will get their children in into the University of Michigan," he said.
Michigan attorney general Bill Schuette has been a fierce defender of Proposal 2, and initially a federal judge in Detroit upheld the ban when BAMN challenged its application in university admissions in court. Yet a three-judge panel of the Sixth Circuit Court found it unconstitutional, and then the full slate of judges in the Sixth Circuit, in an 8-7 opinion, backed the panel's decision in November 2012.
The Sixth Circuit's decision conflicted with another appeals court, the Ninth Circuit on the West Coast, which had upheld California's ban on affirmative action in an earlier case. The Supreme Court agreed to hear the Michigan case and settle the conflicting opinions.
Washington and Rosenbaum argued that the ban violated the equal protection provision in the 14th amendment of the U.S. Constitution. The group argued that to get a school to consider race, someone would have to overturn an amendment to the state constitution; whereas, to get a school to consider other factors, such as legacy or socioeconomic status, someone just has to lobby a governing board.
In his opinion, Justice Kennedy disagreed with their interpretation.
"This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it," he wrote. "There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters."
Washington said his organization will continue to work to promote racial diversity at Michigan universities, including U-M.
"We will fight to get students into the University of Michigan because, despite this decision, we will not accept the one-third to one-half drop in black and latino students at that university," he continued. "It will obviously be more difficult now."
U-M, which defended its affirmative action policies twice before the Supreme Court in 2003, stopped using racial preferences in admissions in 2006, when 58 percent of Michigan voters approved Proposal 2 and amended the constitution to prohibit the consideration of race in government hiring and university admissions.
Blacks comprise 4.6 percent of undergraduates this year at U-M, compared to 8.9 percent in 1995 and 7 percent in 2006.
"I would hope it would end the debate and that the institutions in the state would say the people have spoken," Gratz said of the decision. "But I've learned in 17 years that it takes patience. ... Our opponents, they don't back down. Even when the highest court in the land tells them they're wrong."
U-M spokesman Rick Fitzgerald said the ruling has little effect on the Ann Arbor school, since it no longer uses affirmative action in admissions.
"With this ruling, there's really no effect on our policies, which are already consistent with Proposal 2," he said. "But we remain committed to the goal of a diverse student body and will continue to seek to reach that goal in ways that are consistent with the law."
Schuette was not immediately available to comment on the Supreme Court's decision, but is holding a press conference in Lansing at 1:30 p.m. Tuesday.
Kellie Woodhouse covers higher education for the Ann Arbor News. Reach her at
kelliewoodhouse@mlive.com and follow her on twitter.
