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Justices consider Mich. affirmative action ban

| Tuesday, Oct. 15, 2013, 12:01 a.m.

WASHINGTON — Affirmative action opponents persuaded Michigan voters to outlaw consideration of race despite the Supreme Court ruling a decade ago that race could be a factor in college admissions.

That state's constitutional amendment is being examined by the high court to determine whether the change the voters sought is in fact discriminatory.

It is a proposition that even the lawyer for civil rights groups in favor of affirmative action acknowledges is a tough sell, at first glance.

“How can a provision that is designed to end discrimination in fact discriminate?” said Mark Rosenbaum of the American Civil Liberties Union. Yet that is the difficult argument Rosenbaum will make on Tuesday to a court that has grown more skeptical about taking race into account in education since its Michigan decision in 2003.

A victory for Rosenbaum's side would imperil similar voter-approved initiatives that banned affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies.

Black and Latino enrollment at the University of Michigan has dropped since the ban took effect. At California's top public universities, African-Americans are a smaller share of incoming freshmen, while Latino enrollment is up slightly, but far below the state's growth in the percentage of Latino high school graduates.

The case is the court's second involving affirmative action in as many years. In June, the justices ordered lower courts to take a new look at the University of Texas admissions plan in a ruling that could make it harder for public colleges to justify use of race in admissions.

For Michigan Attorney General Bill Schuette, whose office is defending the measure known as Proposal 2, the case is simple.

“We are saying no preferences. We're not discriminating. We're saying equal treatment,” Schuette said.

But the federal appeals court in Cincinnati that ruled on the dispute concluded that the matter was not that straightforward.

The issue, according to the 6th U.S. Circuit Court of Appeals, was not affirmative action, but the way in which its opponents went about trying to bar it.

That is why the ACLU's Rosenbaum said, “This is a case about means, not about ends. It is not about whether a state can choose not to have” affirmative action.

In its 8-7 decision, the appeals court said the provision runs afoul of the Equal Protection Clause of the U.S. Constitution's 14th Amendment because it presents an extraordinary burden to affirmative action supporters who would have to mount their own long, expensive campaign to repeal the constitutional provision.

Civil rights and education experts who are not involved in the case at the high court said they expect the justices to overturn the 6th Circuit ruling.

Justice Elena Kagan will not take part in the Michigan case. Kagan worked on the cases while serving in the Justice Department before she joined the court.

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