Appeals court finds Michigan affirmative action ban unconstitutional

The U.S. Sixth Circuit Court of Appeals narrowly ruled on Thursday that Michigan's ban on affirmative action, passed by a ballot initiative in 2006, is unconstitutional.

The court ruled 8 to 7 in Coalition to Defend Affirmative Action v. University of Michigan that banning affirmative action was a violation of the 14h Amendment's guarantee to equal protection.

In the majority opinion, Judge R. Guy Cole Jr. writes that while a student has many paths to protect legacy admissions that give special preference to her family's alumni connections under the state's constitution, "Thesame cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. … The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change."

This is not the conclusion many expect the Supreme Court to come to when it rules on Fisher v. University of Texas at Austin this session, meaning that the court's Thursday ruling is likely to be taken to the Supreme Court as well.

If the court rules against affirmative action in Fisher and takes on the Sixth Circuit's ruling on the Michigan ban, things could look very different for colleges that have been using race-conscious admissions. But Richard Kahlenberg, a senior fellow at the Century Foundation, when talking to Raw Story earlier this week about Fisher, says even if schools are forbidden from using race as a factor in admissions (quotas have long been outlawed by the Supreme Court), they can still maintain racial and ethnic diversity -- and may even do a better job on socioeconomic diversity than they have been.

"I'm very encouraged that in the cases where universities have been banned by voter initiative or by the courts they have found new and better ways of affirmative action," Kahlenberg told Raw Story. "They could come up with a system that's more fair than simply looking at income or simply looking at race," He notes, like the Sixth Circuit judges said, preferences for legacy admissions -- a policy that affects a disproportionately white and wealthy group -- remains intact while affirmative action comes under threat.

In fact, according to a report Kahlenberg and his colleague Halley Potter co-authored last month, schools aren't doing such a great job with socioeconomic diversity. They noted that an analysis of law school students at UCLA found, "89 percent of African Americans, and 63 percent of Latinos come from the top socioeconomic half of the population."

They also note that, "One study found that almost nine in ten African Americans at selective colleges are middle or upper class -- though whites are even wealthier."

Kahlenberg told Raw Story, "The argument that always comes up is, let's just do both, count both economic disadvantage and race. … That's what universities have been saying for years that they do. They all claim to provide a leg up for both economically disadvantaged students and and racial minorities and all the research suggests that in fact they give large preferences based on race and virtually no bump for economically disadvantaged students."

He continued, "If you can create a really sophisticated definition of class that recognizes these aggregate differences in poverty that different racial and ethic groups face, you can indirectly recognize the realities of race that continue to afflict our society." Such ways of calculating a "sophisticated definition" of economic diversity include caluclating wealth instead of just income, looking at concentrated poverty and factoring in single-parent households -- issues that all disproportionately affect people of color.

Indeed, many schools are beginning to find that a more creative approach to admissions following a ban on race-based affirmative action can create some positive results for people of color.

A working paper released by the National Bureau of Economic Research this week found that while minority enrollment in the University of California system declined by 1.1 percent following the passage of the state’s affirmative action ban (Proposition 209), graduation rates for minorities actually increased by 4.4 percent. But because the number of minorities graduating from California high schools actually increased over that same period of time, that slight decline is actually a much bigger setback.

However, the University of California Los Angeles, the state's largest public university, reported in 2010, 14 years after the passage of the affirmative action ban in the state, that they were actually seeing an uptick in African American and Latino students as well as an increase in low-income and first-generation colleges students. This is a good sign for California, especially given that it's population is generally becoming more diverse.

But should the Supreme Court rule against affirmative action, universities around the country will have no choice but to follow in California and Michigan's footsteps to find a new --and perhaps even better -- way of achieving diversity.

[African American college graduate via Shutterstock]

Correction: This piece originally referred to Fischer v. the University of Texas at Austin.