Hostile Supreme Court And Another Race Case

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Little doubt exists that the Supreme Court's most conservative justices want to do away with affirmative action and other race-conscious programs. And for months, the public has waited to see if they would do it with one broad decision: The case of a Texas woman who said she was denied admission to the university of her choice because she is white.

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But on Monday, with a ruling in the Texas case expected at any time, the nation's highest court announced it would hear another affirmative action case out of Michigan. That case challenges a federal appellate court decision that overturned a voter-approved constitutional ban on racial affirmative action in public education, hiring and contracting.

The court's move surprised activists on both sides of the affirmative action issue, who then quickly did the analysis: Instead of a sweeping ruling on affirmative action, the Texas case may be decided more narrowly. In taking another case right on its heels, the activists believe, the court might well have opted to undo the fabric of race-conscious laws and policies thread by thread.

"If the court is poised to deliver a lethal blow to the use of race across the board in college admissions, why would they hear this case in the fall? That confused me a bit," said Ward Connerly, head of the American Civil Rights Institute, which led the successful campaign to eliminate affirmative action in Michigan as well several other states. But either way, he said, "It portends good news from my perspective."Legal experts agreed.

"The court seems eager to weigh in on race," said Ian Haney-Lopez, a constitutional scholar at the University of California, Berkeley School of Law. "I think we are about to see an even more aggressive stance, not just against affirmative action but limiting anti-discrimination measures themselves."

The Texas and Michigan cases, while both centering on the government's use of race, address substantially different issues.The Texas case, Fisher v. University of Texas at Austin, challenges whether the Constitution permits the university to consider race in order to achieve diversity when admitting students.

But Schuette v. Michigan Coalition to Defend Affirmative Action deals with whether a ban on affirmative action in the state constitution — adopted in a statewide vote in 2006 — violates the 14th Amendment because it discriminates against racial minorities. The U.S. Court of Appeals for the Sixth Circuit ruled that subjecting the use of race to a popular vote that can only be overturned if racial minorities can convince a majority of the population to change their vote deprives racial minorities of equal protection under the Constitution.

William Eskridge Jr., a Yale University constitutional law scholar, said the timing might be unexpected but that this type of case is tailor-made for this Supreme Court. "This is the classic case where the Roberts court would grant cert," he said. "It's a liberal ruling by one of the courts of appeals overturning a populate initiative or statute that is objected to by racial minorities. That is the sort of case four members of the Supreme Court are strongly opposed to."

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