Lawyers for Michigan, moving rapidly with a new case on the use of race in college admissions, have laid out a plan to get the Supreme Court to hear and decide the case in the current Term. If the plan works, the Court would probably be reviewing the case before it decides the already-argued case from the University of Texas. The two cases are related but are, in fact, quite different.
The new case is Schuette v. Coalition to Defend Affirmative Action (docket 12-682). The state filed its petition for review on November 28, less than two weeks after the en banc Sixth Circuit Court had overturned a state ban on affirmative action. Ordinarily, the state would have had ninety days to file. The state’s petition is here; the Circuit Court’s ruling is here. This blog discussed the decision in this post.
Here is the plan that Michigan’s attorneys have made to try to get their case on a fast track at the Supreme Court: They filed early, thus starting a thirty-day clock for the other side to respond. The response is now due January 3. If that is filed within the thirty days, the state’s attorneys would forgo their right to file a reply within another ten days. That way, the case could be considered by the Justices at a Conference in January — and, if the case is granted, that would be in time for an April argument and a decision before the Term’s end in late June. A grant of review seems likely, because there is a split in lower courts on the issue at stake.
The attorneys’ plan, of course, might not work. The Court could consider the case to be related to the pending Texas case, and hold it for that decision, which may not come until later in the Term, perhaps in May or June. The backers of affirmative action in Michigan might not reply within the allotted thirty days; requests for added time are common in major cases, and are routinely granted. Moreover, with the response not due until January 3, and with the cases that will go to the Court for the last Conference in January — on the 18th — being distributed to the Justices on January 2, even an on-time response might still be a day late. Or, should everything else falls into place, the Justices might not actually act on the case at a January Conference. Sometimes, a case is listed for more than one Conference before action is taken. Under customary procedure, if a case is not granted until after January, it won’t be heard until the following Term.
Still, as Michigan Solicitor General John J. Bursch told this blog after the petition was filed, “Michigan agrees that it is in everyone’s best interests to resolve this issue quickly.” The Circuit Court has put its decision on hold while the state pursues its case in the Supreme Court. It did so on November 30 at the state’s request.
The Justices already have affirmative action in education under review this Term, for the first time in nine years. On October 10, the Court heard argument on the case of Fisher v. University of Texas (11-345). That is a test of the constitutionality of that University’s use of race as one factor in selecting those who will enter in each freshman class. The Texas affirmative action plan was modeled on one upheld by the Supreme Court in 2003 in the Justices’ last ruling on race in college admissions procedures (Grutter v. Bollinger).
After the Grutter decision, which involved two admissions policies at the University of Michigan (one was upheld, one was struck down), opponents of affirmative action began an effort in that state to ban the use of race in public education, public employment, and public contracting. The result of their efforts — “Proposal 2” — was approved by fifty-eight percent of the state’s voters in November 2006. It has been under challenge in the federal courts since then. On November 15, the en banc Sixth Circuit divided eight to seven in striking down the ban.
The majority relied solely on a finding that the voters had made it harder for minorities to get state government even to consider adopting race-conscious programs. The majority concluded that the result was to make the political process itself unequal, by making a policy that minorities cared about much more difficult to achieve: they would have to get a new constitutional amendment adopted to end the ban.
Unlike the University of Texas case, which does not involve any direct plea to the Court to allow states to end affirmative action policies, the new Michigan case over the validity of the “Proposal 2” amendment directly tests whether the Constitution’s guarantee of equality bars a state from adopting a flat ban on the use of race in public policy. As the case reached the Supreme Court, it only involves that ban as it applies to public education, not to other state activities.
The new petition, in a footnote, argued that the Court’s grant of review in the Texas case need not deter the Court from taking up the Michigan dispute, noting that no party in the Texas case had asked the Justices to “eliminate all race-based preferences in public university admissions.” The Texas case, the state lawyers added, involves only whether the affirmative action plan there squares with the Grutter decision in 2003. Noting that the Court in the Grutter ruling had said that race-based programs in education had to be limited in time, and that it had encouraged universities to experiment with non-racial alternatives in their admission policies, the Michigan lawyers argued that their case posed the question of “whether a state has the right to accept this Court’s invitation in Grutter to bring an end to all race-based preferences.”
The petition roundly attacked the Circuit Court majority opinion based upon the “political restructuring” argument. They contended that the Circuit Court ruling amounts to a constitutional command that states “must engage in affirmative action.” No court has ever ruled that way, the petition added, commenting that “it is exceedingly odd to say that a statute which bars a state from discriminating on the basis of race violates the Equal Protection Clause because it discriminates on the basis of sex….Yet that is precisely what the en banc majority held here.”
The Circuit Court ruling, the petition noted, conflicts directly with rulings upholding California’s affirmative action ban (“Proposition 209”) by the Ninth Circuit Court and by the California Supreme Court. The Supreme Court in 1997 had declined to review the Ninth Circuit decision in that controversy.