Supreme Court to hear second affirmative action case

WASHINGTON -- The Supreme Court's decision to hear a new case from Michigan on the politically charged issue of affirmative action offers an intriguing hint that the justices will not use a separate challenge pending from Texas for a broad ruling to end the consideration of race in college admissions.

To be sure, the two cases involve different legal issues. The University of Texas dispute, with arguments completed and a ruling possible soon, centers on the use of race to fill some slots in freshman classes. The Michigan case asks whether a voter-approved ban on affirmative action in college admissions can itself violate the Constitution.

But the broadest possible outcome in the current Texas case, overruling the court's 2003 decision that allows race as a factor in college admissions, would mean an end to affirmative action in higher education and render the new Michigan lawsuit irrelevant.

If the justices are planning to overrule the earlier decision, "then I would think they would hold this case," the new one, and order lower courts to review it based on the Texas decision, said Erwin Chemerinsky, law dean at the University of California at Irvine. He is representing students and faculty members in the Michigan case.

In the October argument in Fisher v. University of Texas, the conservative justices sounded as if they were ready to impose new limits on the use of race in admissions. More than five months have passed without a decision, not unusual in the court's most contentious cases.

The appeal in the Michigan case comes from state Attorney General Bill Schuette, following a ruling from the sharply divided 6th U.S. Circuit Court of Appeals in Cincinnati. The appeals court, by an 8-7 vote, found fault with the 2006 constitutional amendment to outlaw "preferential treatment" on the basis of race and other factors in college admissions.

The appeals court said the constitutional amendment is illegal under Supreme Court rulings from the late 1960s and early 1980s that prohibit placing special burdens on minority groups that want to bring about changes in laws and policies. The court said forcing opponents of the ban to mount long, expensive campaigns through the ballot box to protect affirmative action amounts to different, and unequal, treatment.

Schuette said the notion that a measure that forbids discrimination on the basis of race can be unconstitutional is legal nonsense.

"Entrance to our great colleges and universities must be based upon merit, and I remain optimistic moving forward in our fight for equality, fairness and rule of law at our nation's highest court," Schuette said Monday.