File image of the United States Supreme Court building in Washington, D.C. from the Associated Press.
WASHINGTON (USA TODAY)- A majority of Supreme Court justices appeared to agree Tuesday that states can ban affirmative action policies, an indication that they are likely to uphold a Michigan voter initiative after a decade-long dispute.
Several justices expressed doubts about an appeals court's 8-7 ruling last year that the constitutional amendment, which banned discrimination or preferential treatment on the basis of race or sex, violated minorities' equal protection rights.
"Is it unreasonable for the state to say, 'Race is a lightning rod ... we want you to do everything you can without having racial preferences?'" Chief Justice John Roberts asked lawyers trying to preserve affirmative action at state universities.
The justices could be ready to issue a ruling that such bans are constitutional, but not to go further by taking aim at the wide use of racial preferences by universities in states without bans.
In addition to Michigan, seven other states ban affirmative action: California, Florida, Washington, Arizona, Oklahoma, Nebraska and New Hampshire. The University of Georgia also bans the policy.
The debate comes a year after the high court sidestepped what would have been a landmark ruling against affirmative action in university admissions by ordering a lower court to scrutinize more carefully the University of Texas' use of racial preferences.
And it comes a 10 years after two seminal Supreme Court decisions affecting the University of Michigan: one that struck down the undergraduate school's point system that included race, but another that upheld the law school's consideration of race among other factors.
The decade-long effort to pass and defend the Michigan Civil Rights Initiative began just days after that latter decision. Voters approved the amendment by a 58% to 42% margin in 2006. A federal district court upheld it, but the 6th Circuit Court of Appeals struck it down last November.
The debate has practical as well as legal implications. In Michigan and California particularly, the bans have reduced black and Hispanic enrollments at elite universities, as well as graduate and professional schools. The percentages of African Americans among entering freshmen at the University of California-Berkeley, UCLA and the University of Michigan were the lowest among the nation's top universities in 2011.
While civil rights groups denounce those statistics, some conservative scholars argue that doing away with affirmative action gives minority students a better chance of succeeding at less competitive schools. They cite California's experience in the late 1990s, when declines at Berkeley and UCLA translated into more blacks and Hispanics at other University of California campuses.
And some states with bans on affirmative action, led by Florida, have used greater outreach to minority communities or increased the weight of socioeconomic factors to make up the difference.
The Michigan constitutional amendment says the state "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin."
The state's attorney general, Bill Schuette, put it more simply in an interview with USA TODAY: "Anything a university does that has racial discrimination ought to be thrown in the trash can."
Opponents argued in their brief to the court that the initiative "enshrines in the Michigan Constitution the false claim that any attempt to overcome racial inequality and exclusion is an attempt to win 'preferential treatment,' an attempt to maintain 'discrimination.'"
They cite two precedents for their argument that the constitutional amendment violates minorities' rights: the Supreme Court's 1969 and 1982 rulings in cases from Akron and Seattle, in which the justices struck down voter-approved initiatives that had blocked the cities' pro-minority housing and school busing policies.
And Justice Anthony Kennedy, whose vote could determine the outcome, wrote the court's 1996 decision in Romer v. Evans striking down a Colorado referendum which had blocked local governments from enacting gay rights laws. But he has been on the other side of several cases involving racial preferences.
Kennedy appeared torn during Tuesday's oral argument, but his sharp questioning of lawyers opposing the state constitutional amendment made it seem he is more likely to align with the court's conservative wing. "The person to watch here is Justice Kennedy," says Steven Shapiro, the ACLU's legal director.
Justices Sonia Sotomayor and Ruth Bader Ginsburg were the only ones who appeared to differ with the state, while Justice Stephen Breyer's vote was more difficult to determine. Justice Elena Kagan recused herself from the case, presumably because of work she did while serving as U.S. solicitor general in 2009-10.