Traverse City Record-Eagle

Michigan

December 1, 2012

Affirmative action ruling on hold

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DETROIT (AP) — The ruling that ended Michigan's ban on affirmative action in college admissions was put on hold Friday until the U.S. Supreme Court decides to hear an appeal by the state's attorney general.

The 6th U.S. Circuit Court of Appeals in Cincinnati issued an order staying its Nov. 15 ruling that the voter-approved mandate was unconstitutional.

Michigan Attorney General Bill Schuette filed a petition Thursday asking the high court to review the ruling.

"The ruling is on hold until the Supreme Court says it will take the appeal," said Joy Yearout, a spokeswoman for Schuette.

If the high court hears the appeal, the stay will remain until the Supreme Court makes a ruling. If Schuette's appeal is denied, then the affirmative action ban is ended, she added.

In 2006, Michigan voters amended the state constitution to ban the use of race in choosing students.

In their 8-7 decision, the appeals court said the amendment 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.

That burden "undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change," Judge R. Guy Cole Jr. wrote for the majority on the appeals court.

Schuette said in his petition that the appeals court misapplied the Supreme Court's "equal-protection precedents."

"It is exceedingly odd to say that a statute which bars a state from discriminating ... on the basis of race violates the Equal Protection Clause because it discriminates on the basis of race and sex," Schuette wrote.

Since a 2003 Supreme Court decision, universities have been allowed to use racial preferences if they choose, though they are not compelled to do so. Michigan, Washington, Nebraska, Arizona, New Hampshire, California and Florida have banned racial preferences in admissions. Leading public universities in Texas and Georgia use a race-neutral system, though the University of Texas has maintained some use of affirmative action.

The high court recently heard arguments in a case that could change that precedent — Abigail Fisher, a rejected white applicant, is suing the University of Texas.

"The more likely outcome is that the Supreme Court will hold onto the Michigan case until it decides the University of Texas case and then revisit it," said Peter Henning, a law professor at Wayne State University in Detroit. "The grounds are different but each involves an affirmative action program."

Meanwhile, schools in Michigan are "in limbo" regarding some admissions policies, Henning added.

"Everything is on hold — quite possibly until June," he said. "You don't want to commit to one way of doing things and then have to reverse again."

AP-WF-11-30-12 2206GMT

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