The Supreme Court Just Doubled Down on Affirmative Action

In a surprise move that compounds the conversation on race and college admissions in America, the Supreme Court decided on Monday to hear the case of Michigan's Proposal 2, perhaps signaling that an already emotional ruling on affirmative action this week could give way to a more sweeping decision soon. As if the justices didn't have a busy enough week already.

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In a surprise move that compounds the conversation on race and college admissions in America, the Supreme Court decided on Monday to hear the case of Michigan's Proposal 2, perhaps signaling that an already emotional ruling on affirmative action this week could give way to a more sweeping decision in the Fall. In an already busy week for the justices that includes two linked cases on the culture-war question of gay marriage, the docket now includes another gigantic question with another emotional face: Will the use of race in public universities be banned forever?

The Face of the Pending Case 

Abigail Fisher (pictured above at right) is the controversial 23-year-old plaintiff in the Fisher v. University of Texas case that's about to get cleared off the Supreme Court docket with a ruling expected any day now. In that case, Fisher — with more than a little help from the anti-affirmative action crowd that backed her — argued that she did not get into UT because she was white and that there were students who got into the university because they weren't. Fisher didn't graduate in the top 10 percent of her class, and was subject to an evaluation based on test scores along with a "personal achievement index," which takes into account factors like socio-economic status and whether or not English was spoken at home. The case is about race as one part of the admissions process, even though, as ProPublica's Nikole Hannah-Jones insists, the reason Fisher didn't get in was simple — her scores weren't good enough:

One allotted points for grades and test scores. The other, called a personal achievement index, awarded points for two required essays, leadership, activities, service and "special circumstances."

Even among those students, Fisher did not particularly stand out. Court records show her grade point average (3.59) and SAT scores (1180 out of 1600) were good but not great for the highly selective flagship university. The school's rejection rate that year for the remaining 841 openings was higher than the turn-down rate for students trying to get into Harvard.

As a result, university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no.

The History of the New Case

Proposal 2 was actually pushed forward by a caucasian woman named Jennifer Gratz (above at left). "Gratz won her own affirmative action case against the University of Michigan in 2003, in a landmark Supreme Court ruling," reports Salon's Jillian Rayfield. Gratz had applied for admission and was denied in 1995, but in its 2003 ruling the Court found that Michigan's undergraduate admissions policy, which awarded predetermined points solely based on race, was unconstitutional. But Gratz's case was heard in conjunction with Grutter v. Bollingeranother landmark affirmative action case, (in that case, the admissions conflict had to do with the University of Michigan's Law School) and that Supreme Court ruling found that "student body diversity is a compelling state interest that can justify the use of race in university admissions." The decision found that quotas, which the Court could have linked to Michigan's undergraduate policy, should not be established.

Proposal 2, then, was a statewide referendum seen as Gratz striking back. The measure sought to dissolve — or, at the very least, chips away at — the 2003 ruling that "student body diversity is a compelling state interest." Proposal 2 sought to establish that Michigan's public universities "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." The measure passed by a 58-42 percent majority back in 2006, essentially getting rid of affirmative action in Michigan. It was added to the state's constitution, reports CNN, and almost immediately became the subject of lawsuits and endless delays, before being struck down twice by the U.S. 6th Circuit of Appeals — first by a 2-1 vote in July 2011, and then by an 8-7 vote in November 2012.

This past November, that appeals court argued that the Proposal 2 amendment violated the Constitution's equal protection laws on the basis that a legacy student and a black student would not have the same options when filing an appeal:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution.

The appeals court continued:

The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy,expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change. 

How Are the Two Connected?

The Supreme Court hasn't given its opinion in the Fisher case, which was argued in October, but according to Lyle Denniston at the SCOTUS blog a decision could be announced at the Court in the next two days. But the Court's making plans to hear a new case on affirmative action just as it's about to rule on another could provide an early signal as to the Fisher decision, and what students might be affected by the first ruling before a second one gets heard next fall. "The Fisher case, while it does have fairly broad potential, focuses directly only on the specifics of an affirmative action plan at Texas's flagship university in Austin, and so the ruling in that case might not go much beyond that plan," writes Denniston. Michigan's Proposal 2 applies to all the public universities in the state, and the Court's decision in that case, on paper at least, could be more sweeping. Should the Supreme Court reverse the decision on Proposal 2, other states could then follow Michigan's move under the equal protection clause. In many ways it's the opposite of the connection between Proposition 8 and the Defense of Marriage Act on the Court's docket this week — in those cases DOMA would have less sweeping appeal despite being tied to the equal protection clause, while a reversal of Prop 8's statewide ban could effectively legalize gay marriage across much of the country.

Will More Be Resolved with the New Case?

The case will only be heard by eight of the justices — Justice Elena Kagan has recused herself from both cases, "apparently because she worked on them as United States solicitor general," reports Adam Liptak of The New York Times. That means a stalemate would see the lower court's decision upheld. And it also means even more of a spotlight, as in the gay marriage cases, falling upon Justice Anthony Kennedy's swing vote:

 The Kagan recusal puts an additional focus on Justice Anthony M. Kennedy, who very likely would have the power to shift the final vote to five to three — perhaps reviving Proposal 2 — or four to four, ending it. 

This article is from the archive of our partner The Wire.