Associated Press/Ebrie BentonA University of Michigan student protests a ban on affirmative action.The Supreme Court made a surprise move Monday by agreeing to hear a case involving a Michigan law that banned colleges from considering race in admissions, SCOTUSBlog’s Lyle Denniston reports.
The Supreme Court heard another affirmative action case involving a race-based admissions policy at the University of Texas at Austin back in October. It has yet to issue a decision in that case.
Many court watchers thought the Supreme Court would hold off on taking up the Michigan case until it handed down a decision on UT’s affirmative action policy, Denniston says.
“The new case is significantly broader,” Denniston writes.
The Texas case involved a specific policy at UT Austin — it automatically accepts the top 10 per cent of students from every high school and considers race as one factor in admissions.
The Supreme Court could potentially issue a narrow ruling in the Texas case that only affects admissions policies similar to UT Austin’s, but the Michigan case could lead to a “more sweeping” decision, Denniston writes.
In the Michigan case, the Sixth Circuit Court of Appeals struck down the state’s ban on affirmative action. If the Supreme Court overturns that decision, it could pave the way for any state to ban affirmative action in college admissions.
Under the so-called Rule of Four, four of the Supreme Court’s justices agreed to review the Sixth Circuit’s decision. Justices don’t usually agree to review a decision just so they can affirm it, so at least four of them are likely to overturn the Sixth Circuit.
Justice Elena Kagan is recusing herself from the Michigan case, so only three liberals will be weighing in on Michigan’s policies. It’s possible that the famously mercurial Anthony Kennedy will side with the liberals, which would result in a tie.
In the case of a tie, the Sixth Circuit ruling would stand, Denniston writes. But Kennedy, a famous supporter of states’ rights, may end up swinging to the right this time so states can have a say on affirmative action.
The high court will hear the Michigan case in the term starting in October.
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