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U.S. top court upholds Michigan ban on college affirmative action

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WASHINGTON - The Supreme Court on Tuesday further undermined the use of racial preferences in higher education by upholding a voter-approved Michigan law that banned the practice in decisions on which students to admit to state universities.

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On a 6-2 vote, the court rejected a challenge to the ban, although the justices were divided as to the legal rationale.

The court made it clear it was not deciding the larger and divisive question of whether affirmative action admission policies can be lawful. But the decision made it clear that voter-approved affirmative action bans can withstand legal challenges. It could encourage other states to pass similar bans and deter challenges to existing bans in seven other states.

The court rejected the argument made by civil right groups that the 2006 Michigan constitutional amendment that passed as a ballot initiative to ban the practice had imposed burdens on racial minorities in violation of the U.S. Constitution's guarantee of equal protection.

Michigan's Republican attorney general, Bill Schuette, welcomed the decision, saying that the ban "enshrined the basic concept of equality and fairness" in the state's constitution.

"It is fundamentally wrong to treat people differently based on the color of their skin," Schuette said.

Affirmative action programs, first advocated in the 1960s to combat discrimination against racial minorities, have faced a backlash from conservatives in recent decades. Court rulings and action by states have chipped away at the practice.

The other states with similar bans are Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington.

In November 2012, a divided 6th U.S. Circuit Court of Appeals in Cincinnati ruled Michigan's ban unconstitutional, prompting the state to appeal to the Supreme Court.

The ruling was decried by civil rights activists and some Democrats. Michigan Democratic Representative John Conyers, one of the senior black members of Congress, said the ruling was one of a "troubling line" of recent high court decisions, including one last year that struck down a key part of the Voting Rights Act, a landmark law aimed at protecting minority voters.

"Our nation has come a long way in seeking to end discrimination, but our work is far from complete at a time of continued under-representation of minorities in high education and many walks of life," Conyers added.

On Tuesday, the justices in the majority were divided three ways. Justice Anthony Kennedy wrote an opinion, joined by Chief Justice John Roberts and Justice Samuel Alito, saying the lower court that threw out the law lacked the authority to do so.

'Who may resolve it'

"This case is not about how the debate about racial preferences should be resolved," Kennedy wrote. "It is about who may resolve it."

The dissenting votes came from two of the court's liberal members, Justices Sonia Sotomayor and Ruth Bader Ginsburg.

Sotomayor read parts of the dissent from the bench. She wrote that the decision was a blow to "historically marginalized groups, which rely on the federal courts to protect their constitutional rights."

The court had undermined its own precedents, which state that the majority cannot suppress minorities' right to participate in the political process, Sotomayor said.

Justice Antonin Scalia wrote a separate opinion, joined by Justice Clarence Thomas, in which he said challenges to laws that rest on equal protection claims must show that the law reflects a discriminatory purpose. This law did not, he said.

Justice Stephen Breyer was the only member of the liberal wing of the court to join the majority. He wrote that Michigan's ban was constitutional because the prohibition moved the decision on whether to adopt race-conscious admissions policies from university officials to the voters.

Justice Elena Kagan did not take part, presumably because she worked on the case in her previous position as U.S. solicitor general.

Supporters of affirmative action condemned the ruling.

Mark Rosenbaum, the American Civil Liberties Union lawyer who argued before the Supreme Court, said the ban "unfairly keeps students from asking universities to consider race as one factor in admissions, but allows consideration of factors like legacy status, athletic achievement and geography."

"This case is ultimately about whether students of color in Michigan are allowed to compete on the same playing field as all other students. Today, the Supreme Court said they are not," Rosenbaum said.

The Michigan case was argued in October 2013, just four months after the justices issued a legally narrow ruling on affirmative action in a different case involving the University of Texas at Austin.

In a lopsided 7-1 vote that few had expected, the court said.

university policies that took race into account could be more vulnerable to legal challenges in the future. But the court did not strike the policy down and instead sent the case back to a lower court for reconsideration.

The Michigan case raised a different legal question, focusing not on the state's ban on affirmative action itself but rather the political process that led to its amendment being enacted.

Michigan has long been a legal battleground over the use of affirmative action in higher education. The state's amendment was passed as a direct result of a previous courtroom battle that reached the Supreme Court.

The case is Schuette v. Coalition to Defend Affirmative Action, U.S. Supreme Court, No. 12-682.

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