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Demonstrators in Michigan protesting an anti-affirmative action measure, promoted by Ward Connerly, an African American anti-affirmative advocate who successfully sponsored similar measures in California and Washington state. The measure passed in Michigan in November 2006. AP. Demonstrators in Michigan protesting an anti-affirmative action measure, promoted by Ward Connerly, an African American anti-affirmative advocate who successfully sponsored similar measures in California and Washington state. The measure passed in Michigan in November 2006. AP.  

Ten years later, Supreme Court will revisit affirmative action in Michigan

A full decade after issuing two pivotal decisions to permit but limit race-based admissions at the University of Michigan, the Supreme Court announced Monday that it will revisit the issue.

The case is Schuette v. Michigan Coalition to Defend Affirmative Action, and will likely be heard next fall. A decision in another race-based admissions case, Fisher v. University of Texas, is expected in June. Together, the decisions could present the first major shake up in affirmative action’s legal status in the last 10 years.

In 2003’s Gratz v. Bollinger and Grutter v. Bollinger, the Supreme Court struck down U-M’s race-based undergraduate admission policies — which weighed an applicant’s minority status more heavily than a perfect SAT score — but permitted the law school to consider race as one factor among many.

In response, Jennifer Gratz, the plaintiff in the undergraduate case, undertook a political advocacy campaign to eliminate race-based admissions entirely. As a result of her efforts, Michigan became one of several states to approve a ballot initiative — the Michigan Civil Rights Initiative — that banned race-conscious affirmative action. But the Federal Sixth Circuit Court of Appeals struck down the ban in 2011 on the grounds that it violated the Fourteenth Amendment.

Now, the Supreme Court will consider the Sixth Circuit’s decision, giving the final word on affirmative action in Michigan == and possibly the nation.

“I’m very happy that the Supreme Court has decided to take up this case,” said Gratz, in an interview with The Daily Caller News Foundation. “I think that they will rule that MCRI and all of the other civil rights initiatives are constitutional, and maybe they will make another push to say that all states should be moving in that direction.”

Gratz has good reasons to be optimistic. Justice Sandra Day O’Connor, the swing vote in the 2003 decisions, wrote in the majority opinion for Grutter that “race-conscious admissions policies must be limited in time.” Though O’Connor is no longer on the bench, the Supreme Court is thought to have grown more conservative — and more skeptical of affirmative action — since her retirement.

The legality of a ballot initiative that bans affirmative action, however, may be a different matter. The Sixth Circuit was ultimately persuaded that the passage of MCRI “reorders the political process in Michigan to place special burdens on minority interests,” thus violating the equal protection clause of the Fourteenth Amendment.

George Washington, a lawyer representing opponents of the ban, said the upcoming Supreme Court case is about whether minorities have the same rights as white people.

“It will decide whether a white majority in a state can vote to ban affirmative action and thus excludes tens of thousands of black and Latino students from its universities, which has happened in Michigan,” he said in a statement to The Detroit News.

The historical irony that such a consequential decision will once again stem from nine justices considering affirmative action in Michigan’s public universities isn’t lost on Gratz.

“I’m going back to the U.S. Supreme Court,” she said. “This time my name isn’t on the case, but I feel like this is almost even more so my case, because of the amount of worked I put into [MCRI]. It’s overwhelming.”

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