Last fall the Supreme Court took up the question of whether a white applicant to the University of Texas had been unfairly treated when she was denied admission as part of a system that gave advantages to some applicants of color. After mulling the case throughout the term, the Court released an end-of-session ruling that kicked it back down to a lower court for reconsideration.
With that dispute still working its way through the system, SCOTUS will today hear arguments in a case that raises a separate issue in the use of race in college admissions.
In Fisher, argued last year, the question was whether the University of Texas could take race into consideration. In Schuette v. Coalition to Defend Affirmative Action, due up this afternoon, the question is whether public colleges in Michigan can be barred from doing so.
In 2003 the Supreme Court upheld the University of Michigan’s use of affirmative action in admissions, but in a referendum three years later the state’s voters rejected such policies by a 58-42 margin. Supporters of affirmative action say that the referendum unconstitutionally disadvantaged students of color by forcing them to use the state constitutional amendment process to win consideration in admissions, while other groups — donors, legacies, out-of-state applicants — could win changes to university policies through simpler means. (They also note that enrollment of black students has dropped significantly since the referendum: from 6.1% to 4.4% at the University of Michigan, for instance, and from 8.8% to 6.2% at Michigan State.)
Supporters of affirmative action face a steeper climb with the Court today than they did last year. Then, the question was whether states could use race in admissions. Now, the question is whether they may be compelled to.
Most observers expect the Court to reject the challenge to the Michigan referendum. With four Justices on record against the constitutionality of affirmative action generally, and a fifth — Justice Anthony Kennedy — clearly uncomfortable with such policies, it’s hard to imagine that a Court majority would impose an affirmative action plan on of a state in the face of a landslide popular vote to the contrary. (Some affirmative action opponents hold out hope for a flat ban from the Court, but if they didn’t take that opportunity with Fisher, it’s unlikely they’ll do so here.)
Surprises are always possible in the Court, however, and oral arguments are often illuminating. Justice Kennedy’s views on the scope of constitutionally permissible affirmative action remain something of a mystery, for instance, and it’s possible that today’s discussion will shed light not only on his thoughts on Schuette but also on his plans for Fisher II, once it wends its way back.
Oral arguments in Schuette v. Coalition to Defend Affirmative Action are scheduled for one o’clock this afternoon. Transcripts of the session will be released later today, and I’ll be back with a link and a review of the contents once I’ve had a chance to take a look at them.