The U.S. Supreme Court takes up the issue of affirmative action again Tuesday, but this time the question is not whether race may be considered as a factor in college admissions. Instead, this case tests whether voters can ban affirmative action programs through a referendum.

In 2003, the high court upheld the University of Michigan Law School's affirmative action policy. The next day, opponents of affirmative action launched a referendum campaign to bar such programs, and in 2006, voters overwhelmingly approved a ballot initiative amending the state constitution to ban affirmative action programs in higher education.

Michigan's state colleges and universities promptly abandoned any use of race or ethnicity to promote diversity, and minority enrollment plummeted. In 2012, a federal appeals court ruled that the referendum itself was discriminatory, and the U.S. Supreme Court stepped in to decide the issue.

In recent years, the court's conservative majority has become increasingly skeptical of race-based policies. As Chief Justice John Roberts put it in a 2007 opinion, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." (Parents Involved v. Seattle School District)

'Equal Treatment' Or 'Separate And Unequal'?

Michigan Attorney General Bill Schuette contends that is exactly what the state's voters did. "What the Michigan citizens did and said in a vote, by 58 percent of the people, is that it's wrong to treat people different on the basis of your race or color of your skin," he says. "That's what this case is about — equal treatment."

But opponents of the referendum claim that the ballot initiative rigged the system. They note that other state admissions policies are set by the popularly elected boards of regents of the three state universities. Indeed, affirmative action defenders observe that some regent elections have focused on the issue of affirmative action. If that process isn't working, they argue, the state Legislature could give the power to set all admissions policies to another body. Or the Legislature could enact a different system to promote diversity — for instance, guaranteeing admission to students graduating in the top 10 percent of their high school classes.

"The one thing they can't do," says the American Civil Liberties Union's Mark Rosenbaum, "is to take our political process, to take the way that decisions are made with respect to higher education, and say, 'There will be one set of rules for race, which are particularly onerous, and another set of rules for all other admissions policies, including all other preferences.' "

Rosenbaum will tell the justices on Tuesday that passage of the referendum means that the only way for minority groups to reinstate affirmative action programs is to re-amend the state constitution. That task is extremely difficult — and, he asserts, doubly difficult and costly, given that the state is 79 percent white. In contrast, if other Michigan citizens want to change other preferences in university admissions — for example, the preference for the children of alumni — they can lobby the regents.

"They have created a separate and unequal system when it comes to considering racial matters," he says.

It's Not Just About Michigan

At issue in Tuesday's case is not just the Michigan affirmative action referendum, but a line of Supreme Court decisions dating back to 1969. Those decisions established the "political process doctrine" and struck down state referenda that the court said targeted racial minorities. In one case, for example, the state referendum prohibited a local busing program that was used to desegregate schools.

Schuette, however, calls the political process doctrine "somewhat antiquated" and asserts that, in any event, his state's referendum is different.

"Those other cases," Schuette says, "removed a provision with respect to equal treatment under the law. We adopted something that requires equal treatment."

The elephant in the room in this case, of course, is the whole question of affirmative action in higher education. When the Supreme Court upheld the Michigan program in 2003, the vote was 5 to 4. Justice Sandra Day O'Connor's majority opinion stressed that affirmative action programs are supposed to be temporary, and that "25 years from now, the use of racial preferences will no longer be necessary."

But O'Connor has retired, replaced by Justice Samuel Alito, who has made no secret of his hostility to affirmative action. With the issue back before the court last term in Fisher v. University of Texas, it was something of a surprise when the justices punted and sent the case back to the lower court for further examination.

Most observers expect there will be no such punt on the Michigan referendum. The clear odds are that the justices will sustain it.

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