For the second time in a decade, the U.S. Supreme Court will hear arguments on whether Michigan's university admissions policies are constitutional. Ten years ago, the challenge was to the University of Michigan's use of affirmative action to ensure diversity on campus. Tomorrow, civil rights groups will argue against the state's voter-approved ban on affirmative action.
Jennifer Gratz was here in Washington a decade ago. Her attorneys argued before the Supreme Court that the University of Michigan's affirmative action policy violated her right to a seat in a classroom and not just a spot on a waiting list. Back then, the court delivered a split decision. It threw out the point system the university used to deny Gratz a first-round admission. But it also allowed the limited use of affirmative action to help recruit minorities.
"Personal victory for me," says Gratz. "Principled victory for the University of Michigan. I followed that up by starting a ballot initiative."
That ballot initiative was Proposal Two of 2006. It amended the state constitution to outlaw the use of race- or gender-conscious policies in university admissions and public employment.
Now, the amendment is being challenged by a critics who say it enables discrimination and disables universities' efforts to recruit and admit minority students. It's up to Michigan Attorney General Bill Schuette to defend the amendment.
"We're not discriminating against anybody," says Schuette. "If anything, we're discriminating against discrimination."
Schuette says he's confident he'll win. He says the Supreme Court has already moved in that direction by setting parameters around the use of affirmative action.
"Preferences are barely constitutional," says Schuette. "That's just the state of the law."
But opponents say Michigan's ban on race-conscious admissions has set back diversity efforts at places like the University of Michigan.
"Only 4.7 percent of the undergraduate student population is African American. Only 4.7 percent is Latino. Point-one-nine is Native American. And considering that we live in a diverse state where 14 percent of the state population is African American," says PhD student Jessica Moorman. "This is a state institution, a public institution, an institution that's clearly not serving all of the citizens of the state."
The opponents' case is that Proposal Two created a two-tiered system for people who want to go to the governing board of U-of-M or any other public institution seeking to right an unfairness. They say athletes, children of alumni and others can expect to have their concerns addressed. They say complaints by students from racial minorities are treated differently.
"If you are a student of color, you would have to pass a constitutional amendment to have your concerns raised or acted upon," says UM psychology professor Rosario Cabello. She is one of the collection of U-of-M faculty members and former students who are plaintiffs challenging the amendment.
Cabello says minority students and would-be students should not have to launch a ballot campaign to have their complaints addressed.
But win or lose, Jennifer Gratz says she does not expect the Supreme Court decision will settle the controversy surrounding affirmative action.
"I have no doubt that regardless of what happens at the Supreme Court, this battle will continue on for a long time. And I didn't always believe that was true, but I've come to the realization that there isn't going to be a day where either side can stand up and say, We've won. This is over."
