ROBERT SIEGEL, HOST:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
The U.S. Supreme Court once again tackled the subject of Affirmative Action in higher education today. But the issue this time is not whether these programs are permissible - so far the justices have said that they are. The question now is whether voters can amend their state constitutions to ban these programs.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In 2006, Michigan voters, by a 58 percent majority, approved an initiative that banned the very Affirmative Action programs that the U.S. Supreme Court had upheld in the state three years earlier. Affirmative Action supporters, contending that minority enrollment was plummeting, went to court and a federal appeals court agreed that the Michigan referendum unconstitutionally targeted racial minorities.
Michigan then appealed to the Supreme Court. Here's State Attorney General Bill Schuette on the steps of the High Court today.
BILL SCHUETTE: Michigan is an example of citizen democracy, where voters in our state said that it's wrong, fundamentally wrong, to treat people differently based on the color of your skin or your race.
TOTENBERG: But ACLU lawyer Mark Rosenbaum countered this way.
MARK ROSENBAUM: So what's really at stake is the integrity of the political process, that it be the same playing field and not two separate playing fields for all individuals.
TOTENBERG: Inside the Supreme Court chamber, the argument focused on a doctrine that dates back more than 40 years. It holds that the political structure cannot be altered to disadvantage minorities. For example, in 1982, the justices ruled that the state of Washington acted unconstitutionally when it amended the state constitution to prevent the city of Seattle from voluntarily using busing to desegregate schools.
Today, Michigan urged the Supreme Court to reverse the Seattle ruling and others like it, if necessary. Maybe the whole doctrine needs to be re-examined, said Michigan's advocate, John Bursch, after struggling to persuade the justices that there is a difference between the Seattle case and Michigan's.
Justice Kennedy: What would you do with a constitutional amendment that said pro-Affirmative Action laws, and only those, require a three-quarters vote of the state legislature?
Answer: You might want to consider whether there's a discriminatory animus based on race. But it can't be that any law falls if it has a racial focus.
Lawyer Bursch was followed to the lectern by the ACLU's Mark Rosenbaum, who defended Affirmative Action programs as themselves democratically enacted by the state board of regents, who are elected by popular vote.
Chief Justice Roberts: What if the regents decided to revoke the Affirmative Action programs?
Answer: That would be absolutely fine.
Roberts: So why is it different if the people of the state themselves make that decision?
Answer: The difference is what's going on is a change from the ordinary political process to the extraordinary; students seeking to enact or get rid of other preferences can lobby the regents. But racial minorities cannot. And in order to get back their preferences, they would have to embark on a difficult and multi-million dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.
Justice Kennedy: So the regents can take it away?
Kennedy again: Can the legislature take it away?
Answer: Yes, if the legislature has plenary authority to do that.
Justice Kennedy: But then the voters can't take it away? I just don't understand.
Answer: The point is that the people of the state have multiple options available to them if they don't like the way the universities are operating. The one option they don't have is to treat racial matters different from all other matters.
Also arguing against the Michigan referendum today was lawyer Shanta Driver. Justice Breyer posed this hypothetical to her: Most cities have a vast number of administrators of all kinds of programs. And now, if one of those administrators decides to adopt a racial preference for what may be a good reason but the city council votes no, to abolish that preference, is that unlawful?
No, replied Driver.
Justice Breyer: Where is the line then that would say we're not giving power to every administrator in the city to decide on his own whether to use racial preferences without a possibility of a higher-up veto?
Justice Sotomayor stepped in with an answer. I thought the line is when the normal way of doing things is changed through the political process, specifically for race and only for race.
Nina Totenberg, NPR News, Washington.
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