A case accepted for argument next term not only threatens big trouble for what remains of race-based preferential admissions, but for gender-based admissions policies as well.
Last month's case dealt with the University of Texas. Next term's case deals with the state of Michigan. Unless the justices save affirmative action, proponents in the Michigan case warn, the nation's best universities and graduate schools increasingly could become enclaves for the elite.
The Supreme Court has wrestled with the concept of affirmative action in college admissions for decades, weighing whether diversity is so compelling an interest that public colleges and universities can treat applicants differently because of the color of their skin.
In 1978's Regents of the University of California vs. Bakke, a Supreme Court majority found the admissions policy of the UC Davis Medical School unconstitutional when it set aside spaces for minorities, but a plurality recognized that diversity was a legitimate goal.
In 2003, the high court went both ways, striking down the University of Michigan's undergraduate admissions policy but upholding the admissions policy of the Law School, though both used race as a determining factor.
In Gratz vs. Bollinger, the justices ruled 6-3 the university's undergraduate admissions guidelines were unconstitutional. The guidelines used a number of factors to evaluate an undergraduate applicant, assigning a numerical value to each factor.
Those scoring above 100 were considered eligible to fill the limited number of slots. However, minorities automatically received a 20-point bonus.
The prevailing opinion written by the late Chief Justice William Rehnquist said: "Because the university's use of race in its current freshman admissions policy is not narrowly tailored to achieve [the school's] asserted interest in diversity, the policy violates the equal protection clause" of the 14th Amendment.
The other University of Michigan case, Grutter vs. Bollinger, was handed down the same day with Justice Sandra Day O'Connor joining four liberals to form the five-member majority for a different result.
In Grutter, the university's Law School chose applicants based on a number of factors, including race, but gave no numerical weight to race. Instead, the Law School tried to achieve a "critical mass" of students, black and Native American, who might otherwise not be included.
O'Connor said in her majority opinion, "The law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the equal protection clause" of the Constitution.
She said the law school's policy survived even strict scrutiny, the toughest of three levels of scrutiny used by the courts (the lower levels are "reasonable review" and "intermediate review").
But, she warned 10 years ago, racial preferences should not last forever.
"It has been 25 years since Justice [Lewis] Powell first approved the use of race to further an interest in student body diversity in the context of public higher education" in 1978's Bakke, O'Connor said. "Since that time, the number of minority applicants with high grades and test scores has indeed increased. ... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
Last month, the justices ruled 7-1 to narrow the use of affirmative action by state schools but fell short of striking down such policies altogether.
More than three-fourths of freshmen enrolled at the University of Texas at Austin under a state law that gives automatic admission to students in the top 10 percent of their high school classes. For the rest, the school considers a number of factors, including race.
Two white students denied UT admission under the policy challenged it in federal court.
A three-judge appellate panel upheld the admissions policy, and the full 5th U.S. Circuit Court of Appeals, one of the most conservative in the country, refused to rehear the case by a vote of 9-7.
The appeals court majority said UT's admissions program was "narrowly tailored," as required by the 2003 Supreme Court precedent in Grutter vs. Bollinger.
But the Supreme Court threw out the appellate ruling in the Texas case, saying it didn't conform to Grutter.
In effect, the majority opinion ruled, consideration of race had to be the last resort when trying to achieve diversity. Kennedy said: "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."
Justice Ruth Bader Ginsburg was the sole dissenter, noting: "The court rightly declines to cast off the equal protection framework settled in Grutter. Yet it stops short of reaching the conclusion that framework warrants. Instead, the [Supreme] Court vacates the court of appeals' judgment and remands [sends it back] ... to 'assess whether the university has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.'
"As I see it," Ginsburg added, "the court of appeals has already completed that inquiry, and its judgment trained on this court's [precedents] merits our approbation."
The new affirmative action case out of Michigan, accepted for argument next term, presents a much broader canvas for the Supreme Court's conservatives to paint on. Liberal Kagan again is not participating.
In the November 2006 election, 58 percent of Michigan's voters adopted Proposal 2, which amended Michigan's Constitution to prohibit discrimination -- or preferential treatment -- in public education, government contracting and public employment based on race, sex, ethnicity or national origin.
In other words, the state cannot discriminate against someone because of race or gender, but it also cannot give preferential treatment to someone based on race or gender.
Almost immediately following the election, a group of plaintiffs led by the Coalition to Defend Affirmative Action filed suit challenging the constitutionality of the amendment.
Under challenge, the full 6th U.S. Circuit Court of Appeals, based in Cincinnati, by a vote of 8-7 struck down the state amendment only as it applies to public schools, saying it violates the equal protection guarantee of the U.S. Constitution. It left the rest of the amendment intact.
"It is exceedingly odd to say that a statute which bars a state from 'discriminat[ing] ... on the basis of race' violates the equal protection clause because it discriminates on the basis of race and sex," the state told the U.S. Supreme Court in a petition. "Yet that is precisely what the [court of appeals] majority held here, in conflict with the 9th Circuit's decision" in another case, and the California Supreme Court in a third case.
"Michigan recognizes that affirmative action has long been controversial; some state entities use it for some programs, some do not," the petition said. "But until now, no court has ever held that, apart from remedying specific past discrimination, a government must engage in affirmative action. This [Supreme] Court has said just the opposite, holding that all racial classification by government entities are presumptively invalid and subject to the strictest scrutiny. ...
"In the face of that exacting standard, the 6th Circuit [appeals court] held that [the ban on college admission affirmative action] violates the equal protection clause by denying minorities a 'fair political process.'
"In reaching that conclusion, the court of appeals did not say that the process through which Michigan voters adopted the measure was unfair," the petition said. "Rather, what is 'unfair' [according to the en banc majority] is that supporters of affirmative action can no longer obtain affirmative-action programs on a university-by-university basis. That conclusion cannot possibly be right."
The petition pointed to O'Connor's opinion in 2003's Grutter vs. Bollinger that suggested "a 25-year window allowing race-conscious admissions programs in higher education, and it invited states to experiment with race-neutral alternatives for achieving classroom diversity. Eight states have accepted that invitation: Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma and Washington. But more than 2 million Michigan voters have now been disenfranchised of their choice to eliminate considerations of race in education by a one-vote margin en banc decision that misapplies this [Supreme] Court's equal-protection precedents in several ways. Michigan respectfully requests that the [Supreme] Court ... consider whether a state's decision to require equal treatment in higher-education admissions violates equal protection."
The challenger of the affirmative action ban, Coalition to Defend Affirmative Action, sees the case in a quite different light.
"Until the passage of Proposal 2, the elected university governing boards had complete control over all admission criteria, and the state's residents could therefore add to, change, or delete any of those factors through a simple majority vote by the faculties or by the elected governing boards, who supervised those faculties," the coalition told the U.S. Supreme Court in its own brief.
"Proposal 2, like Proposition 209 before it" -- California voters enacted their own ban in 1996 and the federal and state courts have upheld it -- "selectively changed that. The universities may now adopt any factors authorizing departures from their baseline criteria of grades and test scores for any purpose -- except that they may not consider race for the purpose of admitting black, Latina/o or Native American applicants."
The Michigan parents of minority applicants "may no longer even propose that the governing boards adopt the exact plan that this [U.S. Supreme] Court held was the only practical means by which their children could be admitted to the state's leading universities" -- a plan outlined in 2003's Grutter vs. Bollinger.
The appeals court right held that the ban violated the equal protection guarantee of the U.S. Constitution, the coalition brief said.
The brief argued, "The proponents [of Proposal 2] claim that its ban is neutral, but the only explicit consideration of race is for the purpose of admitting minority students. In practice, Proposal 2 hands the opponents of minority admissions a legal sword [a private right to file suit] to wield whenever and wherever a university admits what the opponents believe are too many minority students."
The ban has practical effects in "the real world," the brief said.
State Attorney General Bill Schuette, who asked the justices to reverse the appeals court, "claims that it is impossible to determine who Proposal 2 actually burdens. But in the real world, there is no doubt on that question. In 2003, the University of Michigan's attorneys told this [Supreme] Court that eliminating affirmative action would cause a one-third fall in minority admissions at its Law School. They were too optimistic. In six years, Proposal 2 has slashed the share of black, Latina/o and Native American students in the entering classes in Michigan's undergraduate college by one-third, slashed the share of those students at the Law School by 40 to 50 percent and slashed the share of those students at the Dental and Medical Schools by 70 percent or more.
"The president and chancellors of the University of California have informed this court that the effects [of Prop 209] in California are even worse," the coalition brief said.
"The number of black students in the entering classes at UCLA and Berkeley has fallen by 50 percent while Latina/o admissions have not reached pre-209 levels despite a 25 percent increase in the percentage of Latina/os in that state's high-school graduating classes. As the UC officials informed this court, they have found no way to reverse that precipitous fall."