WASHINGTON — 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.
As a result, the percentage of African Americans among entering freshmen at the nation's top 29 universities in 2011 was lowest at the University of California-Berkeley, UCLA and the University of Michigan, despite efforts by those schools to use socioeconomic and other race-neutral criteria in search of diversity.
"It becomes harder and harder to offset the race-conscious ban with whatever tools are in the toolkit," says William Kidder, assistant executive vice chancellor at the University of California-Riverside, who has written extensively on the issue.
Other states' bans have forced officials to find recruitment tools that can replace racial preferences and maintain campus diversity. That has worked well in Florida, where a 1999 executive order by Gov. Jeb Bush prohibited using race in admission decisions but not in outreach to potential students.
"We really try to target students in urban communities, rural communities, upward-bound types of programs," says Zina Evans, vice president for enrollment management at the University of Florida. Prospective students get the message that "a ban may exist, but it's not because we don't want you here."
More typical are states such as Washington, which struggles to maintain a semblance of diversity at its flagship Seattle campus 15 years after a statewide ban on affirmative action went into effect. Philip Ballinger, associate vice provost for enrollment and undergraduate admissions at the University of Washington, likens it to making spaghetti sauce without garlic.
"We do the best we can," Ballinger says, but "I think that I could make a better spaghetti sauce — a better freshman class — if I could use race and ethnicity."
DRIVING DOWN DIVERSITY
Can banning affirmative action help white students without hurting "underrepresented minorities" — largely blacks and Hispanics? The experiences of the most elite universities suggest not.
Among in-state students at the University of California, the percentage of African Americans enrolled in 2012 remained lower than 1995, before the ban went into effect. Hispanics' enrollment rose from 16% to 27%, still far below their 46% share of public high school graduates. The university's graduate business, law and medical schools saw similar shifts.
"More than 15 years after Proposition 209 barred consideration of race in admissions decisions at public universities in California, the University of California still struggles to enroll a student body that encompasses the broad racial diversity of the state," the school's president and chancellors say in their Supreme Court brief opposing Michigan's law.
The University of Michigan makes a similar case. From 2006 to 2012, the percentage of black undergraduates there dropped from 7% to 4.7%, and Hispanics from 4.9% to 4.3%.
"Despite its best efforts to maintain racial diversity, (the university) experienced a sharp decline in the enrollment of students of color after Proposal 2 took effect," says Liliana Garces, an assistant professor at Penn State whose brief on behalf of the Civil Rights Project offers the most extensive statistical look at affirmative action bans nationwide.
Garces' separate study of affirmative action bans in California, Texas, Florida and Washington found that they slashed the percentages of black and Hispanic students in graduate schools as well — particularly in engineering and science.
"It's not too surprising that the largest effects are in California and Michigan," says Peter Hinrichs, an assistant professor at Georgetown University who has written on the issue. "Out of all the states with affirmative action bans, these are the ones with the most selective public universities."
State officials and those who spearheaded the constitutional amendment dispute the figures. They note that prospective students can check more than one box for race or ethnicity, skewing the results.
"You can't say that those numbers changed significantly when you've changed the rules of how you score the game," says Jennifer Gratz, who won her case against the University of Michigan's racial point system in 2003, then led the effort to change the state Constitution.
AN 'INDEFENSIBLE' DECISION?
Opponents can say something else: that Michigan's law is a form of "political restructuring" that prohibits racial minorities from seeking admission to a university the same way an athlete or legacy applicant can. Instead, the argument goes, they have to change the state Constitution. That dichotomy was the basis of the 6th Circuit Court of Appeals' narrow 8-7 decision striking down the ban.
As precedent, the majority cited the Supreme Court's 1969 and 1982 rulings in cases from Akron and Seattle. The high court struck down voter-approved initiatives that had blocked the cities' pro-minority housing and school busing policies. Opponents of the Michigan initiative want equal treatment.
"Michigan established pervasive de facto segregation and inequality with the same scientific precision that it used to create the assembly line," the state's opponents argue in their brief. "Michigan must not become the model for how to create a new, constitutionally-ratified Jim Crow."
Given the innocuous wording of the amendment, some Supreme Court litigants say the "political restructuring" argument isn't likely to go down easy with most justices.
"This is an indefensible decision by the 6th Circuit," says Neal Katyal, a former acting solicitor general in the Clinton administration who argues frequently before the high court. "This is really a legislative choice, and it's up to the people, not to the courts."
Katyal's former boss, Justice Elena Kagan, has recused herself from the case, presumably because of work she did while serving as solicitor general in 2009-10. That won't alter the result, because opponents just need a 4-4 tie to uphold the lower court ruling.
As usual, then, Justice Anthony Kennedy is the man to watch. He wrote the court's 1996 decision in Romer v. Evans that struck down a Colorado referendum that banned local governments from enacting gay rights laws.
Kennedy has been less enthusiastic about the use of racial preferences in several recent cases, including Fisher and the court's landmark 2003 Grutter v. Bollinger decision upholding the limited use of racial preferences at the University of Michigan Law School. That ruling led to the 2006 constitutional amendment and to Tuesday's case bearing Schuette's name.
"We need to achieve diversity by constitutional means, not by any means necessary," the state's attorney general says. "In Michigan, we don't discriminate against anything or anybody, except discrimination."