That's the question the court faces in Schuette v. Coalition to Defend Affirmative Action.
Oral arguments were held yesterday.
NPR details the history of this dispute - which involves a previous Supreme Court case.
Oral arguments were held yesterday.
NPR details the history of this dispute - which involves a previous Supreme Court case.
The U.S. Supreme Court takes up the issue of affirmative action again Tuesday, but this time the question is not whether race may be considered as a factor in college admissions. Instead, this case tests whether voters can ban affirmative action programs through a referendum.
In 2003, the the University of Michigan Law School's affirmative action policy. The next day, opponents of affirmative action launched a referendum campaign to bar such programs, and in 2006, voters overwhelmingly approved a ballot initiative amending the state constitution to ban affirmative action programs in higher education.
Michigan's state colleges and universities promptly abandoned any use of race or ethnicity to promote diversity, and minority enrollment plummeted. In 2012, a federal appeals court ruled that the referendum itself was discriminatory, and the U.S. Supreme Court stepped in to decide the issue.
. . . opponents of the referendum claim that the ballot initiative rigged the system. They note that other state admissions policies are set by the popularly elected boards of regents of the three state universities. Indeed, affirmative action defenders observe that some regent elections have focused on the issue of affirmative action. If that process isn't working, they argue, the state Legislature could give the power to set all admissions policies to another body. Or the Legislature could enact a different system to promote diversity — for instance, guaranteeing admission to students graduating in the top 10 percent of their high school classes.
"The one thing they can't do," says the American Civil Liberties Union's Mark Rosenbaum, "is to take our political process, to take the way that decisions are made with respect to higher education, and say, 'There will be one set of rules for race, which are particularly onerous, and another set of rules for all other admissions policies, including all other preferences.' "
Rosenbaum will tell the justices on Tuesday that passage of the referendum means that the only way for minority groups to reinstate affirmative action programs is to re-amend the state constitution. That task is extremely difficult — and, he asserts, doubly difficult and costly, given that the state is 79 percent white. In contrast, if other Michigan citizens want to change other preferences in university admissions — for example, the preference for the children of alumni — they can lobby the regents.
"They have created a separate and unequal system when it comes to considering racial matters," he says.
