March 25, 2013

"In a surprise development," the Supreme Court took another affirmative action case.

Just now, the Court "agreed to decide whether a state may constitutionally ban the use of race in deciding who gets admitted to public colleges or universities."  This is huge, considering that there is currently a pending affirmative action case — dealing with the peculiar situation at the University of Texas that makes some use of race. "

"The new case is significantly broader," Lyle Denniston says.

ADDED: Here's a report on the 6th Circuit decision from last November. I don't think it's actually surprising that the Supreme Court took this case.
In an 8-7 decision, the court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action....

The court said having supporters and opponents debate affirmative action through the governing boards of each public university would be much fairer than cementing a ban in the constitution, which it referred to as home of "the highest level" of public policy.
This issue is about the political process for adopting a policy when it is within the range of what can be done through majoritarian decisionmaking — not about whether affirmative action is beyond majoritarian decisionmaking. So I don't agree that this case is "significantly broader" than the University of Texas case. Both cases could be resolved with a big decision prohibiting affirmative action, but both present narrow questions. The Court's taking this new case doesn't mean something big is necessarily brewing, so I retract my "This is huge." I think the UT case could be huge, but taking this additional case doesn't add much reason to suspect that it will be.

18 comments:

chickelit said...

Maybe they're feeling extra judgmental on the topic or else they're feeling jurisprudent.

The Godfather said...

If the universities can't use race in admissions, how can they avoid being overrun by Asians?

Basil said...

The 6th Circuit opinion is so awful that they had no choice. 8-0 to reverse. Reading the 14th Amendment to require AA is really jumping the shark.

SomeoneHasToSayIt said...

No one worries about disparate impact in that greatest of all meritocracies, Sports, so high time Academia was prohibited from practicing favoritism, as they are obviously not smart enough to banish it on their own.

Tim said...

Regarding this, I believe two things: racism against non-white Americans still exists (yes, racism against whites does too), albeit in much, much diminished form from previous decades and generations; "Affirmative Action," as a remedy, makes this worse rather than better.

We have reached the point where, despite residual racism, the best thing to do is to amplify merit-based selections rather than politically-based selections.

That, and fix the public schools so that kids coming out of those union-run concentration camps actually learn something so they might be able to have the opportunity to advance, rather than drop-out.

Seeing Red said...

The republican women need to start a dialog on Title IX. Since women are 60% of college majors, it's time IMHO for it to go, it won't, but maybe we can cut some funding by block granting it.

campy said...

Ramp up the War On Women. Yeah, that'll bring the repubs back.

edutcher said...

(OK, I'll say it...)

This is my surprised face...

khesanh0802 said...

@ Tim

Couldn't agree more!

Jane said...

The (Chicago) Trib had an article today: Republicans' outreach to Latinos is doomed to fail unless they also reverse course and embrace Obamacare. In other words, in order to get votes, they'd better out-Democrat the Democrats.

Sam L. said...

"In an 8-7 decision, the court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action...."

Or, the other way around.

Guimo said...

Just like the 13th Amendment was unduly burdensome to slave owners.

gregq said...

Gosh, yes, it's so horrible when the people make a decision the judges don't like, and then have the audacity to actually try to make it stick!

The 8 "judges" who voted for that decision should all be impeached.

Richard Dolan said...

Since the 6th Circuit voided the Michigan constitutional provision, the grant of cert preserved the rights of Michigan to further review. (A denial of cert would have left the Michigan petitioners without a remedy, and the constitutional provision banning AA would have been dead regardless of how the Court may rule in the Texas case.) But the grant of cert does not mean that the Court will issue an opinion on the merits. The Court could instead just vacate the 6th Circuit decision and send it back for reconsideration in light of whatever they do in the Texas case. That strikes me as the most likely outcome, particularly if Texas loses and its racial preferences are struck down.

Alex said...

I'm sure the wise Latina thinks the Constitution authorizes AA. After all how did the wise Latina end up on the court?

Alex said...

Oh and lump the other 3 Commie judges in there.

Lucien said...

I seem to recall language from the Supremes (Adarand?) to the effect of "The Constitution does not require that which it barely allows."

Given that the strict scrutiny test that seems to apply to race discrimination cases requires a compelling state interest in the discrimination sought to be imposed, the establishment, via direct democratic action in a state initiative, that the people of the state of Michigan have an interest opposed to race discrimination, one not learned in the law might think this is an easy case.

Sigivald said...

"agreed to decide whether a state may constitutionally ban the use of race in deciding who gets admitted to public colleges or universities"

Am I the only one dispirited by the idea that it is even - in those terms - up for consideration whether it might be unconstitutional for a State to ban race-based public decision making?

I mean, seriously?