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U.S. justices to hear race case; one side has two voices

A policeman and his bomb sniffing dog walk in front of the Supreme Court in Washington, April 17, 2013. REUTERS/Larry Downing
A policeman and his bomb sniffing dog walk in front of the Supreme Court in Washington, April 17, 2013. REUTERS/Larry Downing

By Joan Biskupic

WASHINGTON (Reuters) - The U.S. Supreme Court on Tuesday will delve into a decades-old debate over university admissions policies that favor racial minorities, hearing a Michigan case that picks up where the justices left off last session in a dispute from the University of Texas.

Unlike the Texas case that tested a specific affirmative action practice, this new dilemma revolves around a broad state constitutional amendment.

In a twist, the two groups in the Michigan case that favor affirmative action to help minorities have put forward divergent views. They will split their side's half hour of oral argument, each taking a different tack in hopes of influencing a court dominated by ideologically conservative justices.

They so differentiated their positions in filings to the court last month that the justices took the rare step of granting a request for divided argument at the court's lectern.

Michigan, where voters in 2006 approved a ban on all "preferential treatment" based on race in education, will have the other half hour to itself.

The country's struggle with the issue traces back to the early 1960s when President John Kennedy first told federal contractors to take "affirmative action" to hire minorities.

The Supreme Court has been the arbiter of disputes over universities' consideration of applicants' race since the groundbreaking Bakke case in 1978, when it forbade quotas but said schools could weigh race with other factors.

The new Supreme Court case does not directly test Bakke, but it could determine how easily states can end the affirmative action that the 1978 case endorsed. A ruling could affect bans in place in Michigan and seven other states: Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington.

While they vary in the breadth and tone of their arguments, those challenging the Michigan ban say it unconstitutionally altered the state political process related to admissions policies along racial lines.

Specifically, challengers say that because of the ban, advocates for racial preferences in admissions may not directly lobby universities the way those seeking to employ other advantages, such as family alumni status, can. Rather, such advocates must first undertake to win a new amendment to the state constitution, reversing the 2006 one.

It is difficult to predict how the justices might rule, but their acceptance of Michigan's appeal of a lower-court decision relying on the political-process theory and their increasing rejection of racial policies suggests they might be poised to uphold the ban.

DIVERGENT APPROACHES

One group opposed to the ban, from the University of Michigan, employs measured rhetoric, relies on more recent cases joined by conservative justices and tries to assure the court it can rule narrowly when striking down the Michigan ban.

The other group, a long-standing Detroit-based coalition advocating for minority rights, is pushing a more expansive legal rationale and, in more impassioned rhetoric, invokes the orations of two late champions of racial justice in the 1960s, Martin Luther King and President Lyndon Johnson.

The twin approaches offer a window into strategies used to address a court majority increasingly skeptical of racial-based remedies.

Usually when there are multiple parties on one side of a dispute, only one lawyer from their combination gets to argue, such as during last term when several civil rights groups were defending U.S. voting rights law and, in a separate case, challenging an Arizona measure that required people seeking to register to vote to prove citizenship.

In last term's affirmative action case, brought by a white student who asserted she was rejected at the University of Texas while minority students with lower scores were admitted, the justices sidestepped the constitutional challenge by a vote of 7-1. They returned the case to a lower court for review under a somewhat tougher standard for universities trying to justify giving blacks and Hispanics a boost in admissions.

The new case, like last term's, will be heard by only eight of the nine justices. Elena Kagan, who before her 2010 court appointment was the U.S. solicitor general and handled some affirmative action litigation, is not participating.

A ruling in the case, Schuette v. Coalition to Defend Affirmative Action, is expected before the term ends in June 2014.

NEARLY 50 YEARS

Picking up the mantle of the assassinated Kennedy, Johnson in 1964 sought to counter the effects of long-standing race discrimination in America with executive orders and by signing several milestone laws including that year's groundbreaking Civil Rights Act.

As such measures proliferated, whites who believed they were rejected because of "reverse discrimination" sued. In the Supreme Court's first review of campus affirmative action, brought by white aspiring medical student Allan Bakke against the University of California, Davis, the court forbade racial quotas but said that universities could weigh race with other factors in admissions.

Three decades later, that legacy is on shaky political and judicial ground. Chief Justice John Roberts, now leader of the five-justice wing on the court's right, wrote in 2007 that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Tuesday's dispute goes back a decade, to a 2003 Supreme Court decision upholding the University of Michigan's use of affirmative action. To try to stop the university's practices, voters then adopted Proposal 2, which among its sweeping prohibitions, targets "preferential treatment ... on the basis of race" in education.

The Coalition to Defend Affirmative Action, a Detroit-based group led by lawyer George Washington, who acknowledges a "militant" approach to preserve racial policies, immediately sued. A second group, made up of University of Michigan students and faculty, known by the lead plaintiff Chase Cantrell, also sued.

After the cases were combined, the U.S. Court of Appeals for the 6th Circuit ruled against Michigan, declaring Proposal 2 violates equality rights by changing the political process for minorities. In a broadly written opinion, the appeals court relied on Supreme Court decisions from 1969 and 1982 involving racial bias and political rights.

The Coalition to Defend Affirmative Action is seeking a sweeping decision along the lines of the appeals court, arguing that Proposal 2 broadly deprives blacks, Latinos and other minorities of their rights. In an interview, Washington said his group was trying to reach audiences beyond the marble-columned courthouse.

Several busloads of students will be traveling from Detroit for the case Tuesday, Washington said. "I think (the justices) have to understand that people feel very, very passionately about their own futures and their children's futures."

The Cantrell plaintiffs, represented by Mark Rosenbaum of the ACLU Foundation of Southern California, stressed in an interview that he will not ask the court to focus on blacks or Latinos hurt by the amendment, but rather to focus on the inequality of the process itself. In another difference, he emphasizes recent Supreme Court precedent targeting government use of race as a "predominant factor," for example, in drawing congressional districts deemed unconstitutional.

Michigan solicitor general John Bursch, who will present the state's side Tuesday, will argue that the state amendment does not advantage or disadvantage any race in the admissions process: "It prohibits making a racial classification in the first place."

(Reporting by Joan Biskupic; Editing by Howard Goller, Amy Stevens and Philip Barbara)

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