Can states ban affirmative action?

Supreme Court hears case Tuesday on Michigan vote that made it unlawful to use race as school acceptance criterion

University of Michigan students on the steps of the Hatcher Graduate Library last Wednesday during a rally to promote diversity on the campus in Ann Arbor, Mich.
Melanie Maxwell/

ANN ARBOR, Mich. — The gleaming Gothic-style buildings of the University of Michigan Law School bring to mind a bygone era in education and American society, when such places were home to a primarily white education elite.

A glance at the incoming class reflects that as well. This fall, there were just 14 African-Americans among 315 students admitted by the law school. There were three times more Asian-Americans enrolled there, while white students were a clear majority of the new group of potential lawyers.

Sarah Zearfoss, the director of admissions and an assistant dean at the law school, has tried all manner of tactics to boost African-American enrollment, which stood at 25 out of 369 students seven years ago.

She has devoted hours to personal outreach at predominantly black colleges, courted applicants once the university has offered them a spot, and tapped Michigan’s well-connected alumni for help in finding blacks who might apply.

But if they do, Zearfoss is prevented by the state constitution from considering race as a criterion for offering spots at the law school. That is due to a ballot initiative, Proposal 2, that was passed by Michigan voters in 2006.

As a result, “the number of (minority) candidates I can admit in a race-blind system is smaller than I can admit under a system that can take race into account,” Zearfoss says. “It’s a tough job.”

On Tuesday the U.S. Supreme Court will hear a challenge to the constitutional amendment that complicates Zearfoss’ efforts. It is scheduled to hear oral arguments in Schuette v. Coalition to Defend Affirmative Action, named for the state’s attorney general, Bill Schuette, who is representing Michigan in the lawsuit.

The case is “not technically about affirmative action,” said Kevin Brown, a professor of law at Indiana University. “It’s about, what kinds of ability do citizens have to restructure the political issue?” he said.

Michigan at center of battle

The Sixth Circuit Court of Appeals struck down Proposal 2 in an 8-7 ruling last November, saying that it created an undue burden on black applicants that did not exist for other groups.

Brown and other court watchers say it would be a major victory for opponents of the amendment if the high court agrees with the appeals court.

Should it strike down the Sixth Circuit Court’s ruling, the long-term outcome would be to open the door for citizens’ initiatives in other states attempting to ban affirmative action, Brown said.

Michigan is at the center of the fray, both for its ballot initiative and for the long battle by the university in favor of affirmative action in admissions. Proposal 2’s impact in Ann Arbor was swift.

Since 2006, the last year race could be used in deciding whether to accept applicants, African-American enrollment at Michigan has dropped nearly 40 percent, from 6.4 percent of the university’s freshman class (not including international students) to 3.9 percent last year.

In contrast, the state’s black population stands at 14.2 percent, and that of Detroit, a 45-minute drive from Ann Arbor, is nearly 85 percent.

Michigan’s inability to use race as a criterion in admissions means students are learning in an artificial environment that does not mirror the society they will encounter after graduation, said Rosario Ceballo, an associate professor of psychology and women’s studies at the University of Michigan.

She and her husband, Matthew Countryman, an associate professor of history and American culture also at U. Mich., are two of the plaintiffs in the Supreme Court case challenging Proposal 2.

Affirmative action is “such a crucial part of creating a diverse climate on campus,” Ceballo said. “Diversity means you can’t pick and choose. You have to diversify in all fashions. You don’t want to train white students and Asian students who are only good at working with each other.”

The current racial mix is “an injustice,” added Countryman, “and it means we don’t have a campus population that’s equipped to deal with the challenges of the future.”

What students say

Shelby Hawkins, a black senior majoring in political science and African-American and African studies, said she’s also concerned that that minority enrollment will continue to fall without affirmative-action policies.

Hawkins, 21, who is from Detroit, said she fears that black students will end up at schools with lesser reputations because they can’t compete with other applicants to Michigan.

“That’s terrible. That means people who look like me and people of other races that are not white don’t get the chance to go here,” she said. “There should still be some way for us to achieve a better education than what’s offered to us at these neighborhood universities.”

Los Angeles native Arden Shore, a white junior studying film, said she agreed with Countryman that affirmative-action criteria are necessary so that students can be exposed to people of varying backgrounds.

“A school needs diversity to foster an equal playing field for students,” Shore, 19, said.

She went on, “How can you learn what it’s like to be in someone else’s shoes if you’re just surrounded by a bunch of rich, entitled white kids?”

How can you learn what it's like to be in someone else’s shoes if you’re just surrounded by a bunch of rich, entitled white kids?

All last week, students from the Coalition to Defend Affirmative Action operated a booth on the Diag, the central meeting place on the main campus, to talk to classmates about the upcoming case. There was a pro-diversity rally on Wednesday, with speakers calling for Proposition 2 to be overturned by the high court.

Like many of his fellow students enjoying the temperate weather, Ben Rebertus, a white sophomore from Big Bay, Mich., was not aware of the upcoming case. After all, Proposal 2 passed when many Michigan undergraduates were in middle school or just starting high school.

Nonetheless, Rebertus, 19, who is studying ecology and evolutionary biology, said he hopes the court will rule to let the university to reimplement race-based admissions.

“I think it is the right thing to do. It helps promote diversity and fairness out of unfair situations,” he said.

Second-year law student Christopher Burtley, 23, of Flint, Mich., who chairs the Black Law Student Alliance, sees dwindling black enrollment as a troubling trend.

“At the law school, it becomes as important, if not maybe more important” for other parts of the university, Burtley said.

“These are the people who are going to decide cases like this in the future. These are the people that have gone into politics, that have gone into government, that have gone into business, that have gone into shaping the future of our legal world.”

Diversity by any means?

Schuette, a Republican, has spoken emphatically in favor of improving education for minority students across the state in hopes they can win admission to top schools.

Nonetheless, the former Michigan congressman said he is charged with upholding the state’s constitution and defending the affirmative-action ban before the Supreme Court.

“Diversity on college campuses across the country (as well as Michigan) is so very important, but we need to achieve it by constitutional means, not by any means necessary,” he said in an interview with the Michigan Public Radio Network.

He disagreed with Proposal 2 critics who said the amendment placed an undue burden on black applicants that athletes, children of prominent alumni and those from wealthy backgrounds do not share.

“We’re not discriminating against anybody. If anything, we are discriminating against discrimination,” Schuette said. “We need to have equal treatment.”

Tyrell Collier, 21, a Michigan senior majoring in sociology and African-American and African studies, said he viewed it in a more personal way.

“I guess my main concern is the psychological effect on African-Americans,” said Collier, the speaker of the university’s Black Student Union. “I think being the only African-American student in class isn’t good for your psyche.”

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