Supreme Court To Examine State Ban On Affirmative Action

By Nina Totenberg

Published March 25, 2013 at 3:00 PM EDT

A scene outside the Supreme Court on Monday, as the justices announced they would hear another case involving affirmative action in higher education. Many of those waiting in line at the court in a late-season snowfall were hoping to attend oral arguments on gay-marriage cases being heard Tuesday and Wednesday.

As the national spotlight turns to the U.S. Supreme Court this week with two historic arguments on same-sex marriage, the court on Monday made headlines on another high-profile issue: affirmative action.

Just 10 years ago a narrow court majority upheld affirmative action programs in higher education in an opinion written by Justice Sandra Day O'Connor. But ever since O'Connor retired and was replaced by the more conservative Justice Samuel Alito, the court has been on a steady march to get rid of all race-conscious programs.

In October, the justices heard arguments in a case from the University of Texas that has the potential to reverse O'Connor's affirmative action ruling.

After oral arguments, the only real question seemed to be whether the court would rule broadly, striking down all affirmative action programs, or narrowly, dealing just with the University of Texas program — a program with unique features. Then too, there was the possibility that the court would deadlock 4 to 4 because Justice Elena Kagan is recused from the case.

But on Monday, with the Texas case still undecided, the court surprised observers by accepting yet another affirmative action case for next term. This one, from Michigan, tests whether voters, by referendum, can bar affirmative action programs in higher education.

It is unclear just what it means that the court seemed to jump the gun in the case. After all, it will not be heard until next term. But if the justices are readying a broad decision in the Texas case, invalidating all affirmative action programs, it would seem to be unnecessary to hear the Michigan case.

Michigan's controversy began in 2006 when voters, by a vote of 58 percent to 42 percent, passed a state constitutional amendment prohibiting state universities from implementing race-conscious admissions policies. Civil rights groups and individuals challenged the law and won in the lower courts.

A federal appeals court cited Supreme Court rulings from the late 1960s that faulted referendums overturning local civil rights laws because the ballot initiatives appeared to target minorities. The lower court said that Michigan's anti-affirmative action referendum was much like those cases and could not stand.

But a majority of the U.S. Supreme Court now seems to be of a very different view, in numerous cases expressing overt hostility to race-conscious programs generally. That would seem to make it likely that the court will revive the Michigan referendum.

Such a ruling would be ironic indeed, since it was the affirmative action program at the University of Michigan Law School that the Supreme Court upheld in 2003.