Supreme Court to Weigh Racial Preference Bans

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To hear Michigan Attorney General Bill Schuette explain it, what could be wrong with a state constitutional amendment that "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin?"

Just about everything, says Mark Rosenbaum of the American Civil Liberties Union and a host of civil rights groups. "While that makes a good bumper sticker ... it's not the truth," Rosenbaum says. "Instead of healing the nation's wounds, it's actually opening those wounds."

Those two views will play out before the Supreme Court on Tuesday, almost precisely a year after the justices heard another major case on a subject that has divided the nation -- and the high court -- for decades: affirmative action.

On the docket will be the Michigan Civil Rights Initiative, a 2006 constitutional amendment banning the use of racial preferences in public university admissions. It may not be a close fight. Lawyers for Schuette (pronounced Shoo-tee) are likely to convince the conservative court that, as Chief Justice John Roberts put it a few years back, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Far more is at stake than Michigan's Constitution. The justices' ruling in Schuette v. Coalition to Defend Affirmative Action could reverberate from the University of Michigan's flagship campus in Ann Arbor to seven states with similar bans: California, Florida, Washington, Arizona, Nebraska, Oklahoma and New Hampshire. And it could prompt other states to follow suit.

The justices could go beyond the dispute over state bans and render a ruling that affects affirmative action policies nationwide -- something they stopped short of doing in last year's Fisher v. University of Texas case by sending it back to the lower courts to scrutinize more closely the use of racial preferences.

"This case gives conservatives a second bite at the affirmative action apple at the Supreme Court," says Richard Kahlenberg of the Century Foundation, the nation's leading advocate for creating alternatives to racial preferences. The justices, he says, "may well use this case as a strong signal of what's to come."

Though the legal battle could turn out to be one-sided, the national debate over the impact of banning racial preferences is a far closer call. Beginning in the 1990s in Texas (by court order) and California (by constitutional amendment), the prohibitions have reduced black and Hispanic enrollments at some of the nation's most elite schools, from those in Berkeley and Los Angeles to Austin and Ann Arbor.

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Richard Wolf
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