Affirmative action plea to Court

UPDATE, Wednesday a.m.: Supreme Court Justice John Paul Stevens has asked for a response to the motion discussed in this post. The response is due Wednesday, Jan. 17.
Also: the University of Michigan announced Wednesday that it will resume its admissions process, without race or gender being considered. The statement announcing the action can be found here.

Several Michigan groups and individuals who support the use of race and gender as part of public college admissions programs asked a Supreme Court Justice on Tuesday to allow three state universities to continue that practice during the current admissions cycle. In a motion filed with Justice John Paul Stevens, the groups sought to reinstate a federal judge’s order that postpones the impact of a voter-approved ballot measure barring the use of race or gender at public colleges — Michigan’s so-called “Proposal 2”, approved last November.

The motion is Coalition to Defend Affirmative Action, et al., v. Granholm, et al. (docket 06A678. It seeks to challenge a stay that the Sixth Circuit Court issued on Dec. 29. That stay blocked an order Dec. 19 by U.S. District Judge David M. Lawson putting Proposal 2 temporarily on hold for the three universities — the University of Michigan, Michigan State University and Wayne State University.

Judge Lawson had ordered that the affirmative action ban be “enjoined from this date through the end of the current admissions and financial aid cycles,” with the order to expire no later than July 1. The Sixth Circuit stayed that order, concluding that “our decision ultimately turns on the likelihood of success on the merits, and our conviction that these are weak federal claims.” Proposal 2 has been challenged with claims of violation of the First Amendment, the Equal Protection Clause, and Titles VI and IX of federal civil rights law. (The Sixth Circuit ruling can be found on that Court’s opinion page, found here; it is docket numbers 06-2640 and 06-2642.)

In the lower courts, the plea to continue the use of race and gender as admissions factors was supported by the three universities. They are not among those filing the motion with Justice Stevens.

The case has not yet reached a final decision in the Sixth Circuit. The attempt to enforce Proposal 2 immediately in the state is being pressed by Eric Russell, a white youth who has applied for admission to the University of Michigan Law School next Fall. Also joining in the effort is a group named Toward a Fair Michigan, and the Michigan Civil Rights Institute, led by Jennifer Gratz, who was the lead challenger to Michigan affirmative action admissions policies leading to the Supreme Court’s decision in Gratz v. Bollinger in 2003. The Court struck down the University of Michigan undergraduate admissions program in the Gratz case, but upheld a different program at the University’s Law School.in Grutter v. Bollinger.

In the motion filed with Justice Stevens, the groups and individuals argue that the Sixth Circuit’s stay “has already had devastating consequences. The University of Michigan has been forced to suspend all admissions for the class that will enter in August 2007. It will soon be forced to resume admissions, but Michigan’s provost and provosts of the other state state universities have submitted uncontradicted affidavits stating that they can not devise and implement a new plan for admitting students that will allow the admission of racially diverse classes in fall 2007.”

The motion seeks to reinstate the temporary injunction pending an appeal to the Supreme Court challenging the Sixth Circuit’s stay decision. Among those supporting the motion are black and Latino or Latina applicants for admission to the three state universities.