The Michigan measure is nearly identical to the California proposition that in 1996 abolished race-based affirmative action policies for admission to the state's colleges and universities.
But defenders of affirmative action went to federal court in Michigan and won a ruling from the U.S. 6th Circuit Court of Appeals that held the state measure unconstitutional on the grounds it took away a civil rights provision that benefited minorities.
The Supreme Court justices are highly skeptical of any use of race-based policies, and few doubted the justices would hear Michigan's defense of its ban on race-based affirmative action. The only surprise was that the justices announced Monday they would hear the appeal before they ruled on a pending affirmative action case involving the University of Texas.
In the Texas case, lawyers for a rejected white student urged the court to rule that giving preferences to applicants based on their race violates the Constitution's promise of "equal protection of the laws." A decision in that case, Fisher vs. University of Texas, is expected this spring.
Michigan's voters appeared to adopt the kind of race-neutral admission policies that many of the justices favor. It told the state universities to admit students without regard to their race or ethnicity.
State Atty. Gen. Bill Schuette said it made no sense to say a provision that forbids discrimination of any sort based on race violates the "equal protection" provision of the Constitution.
But the defenders of the race-based policies could point to Supreme Court rulings from the late 1960s that faulted state and local governments for repealing civil rights provisions in actions that appeared to target minorities. By an 8-7 vote, the 6th Circuit Court said the Michigan ballot measure was unconstitutional under those precedents.
The high court said it will hear the Michigan case in the fall. It is Schuette vs. Coalition to Defend Affirmative Action. Justice Elena Kagan is not taking part in the case, apparently because she worked on it as solicitor general.
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