In 2003, the Supreme Court said it was appropriate for the University of Michigan to consider race as part of their admission's process. In reaction to that, in 2006, Michigan voters passed a referendum that would ban a consideration of race in all public institutions, including colleges and universities.
Last year, the U.S. 6th Circuit Court of Appeals ruled that Prop 2 (affirmative action) was unconstitutional and a violation of the Equal Protection Clause in the constitution. This recent case is an appeal of the case that the 6th Circuit Court ruled on and it's now on the lap of the U.S. Supreme Court, says Brad Bannon, democratic political consultant with Bannon Communications Research, in Washington, D.C.
Justice Kagan is recusing herself bcause she dealt with this issue when she worked in the White House, so now there are 8 justices ruling, not 9, says Bannon. Based on oral arguments heard this week, 5 justices are overly skeptical of affirmative action and 4 are very hostile, to include Roberts, Scalia, Alito and Kennedy. Bannon says it's safe to assume that Justice Thomas is also going to vote for affirmative action, giving the Court the 5 votes needed to overturn.
Bannon says that there's something important to consider in that Justice Kennedy is often the swing vote on these types of cases. In 2003, he ruled that affirmative action was acceptable and he has a history of defending affirmative action. However, says Bannon, he seemed somewhat skeptical of the affirmative action oral arguments heard last week.
If Kennedy votes with the 4 conservative judges, that will uphold the ban on affirmative action but if he votes in favor of affirmative action, there will be a 4-4 tie, which means the Circuit Court ruling will hold and there will be affirmative action again in the universities and colleges in Michigan, Bannon says.
The Affirmative Action Coalition made the argument that since Prop 2 went into effect, the percentage of students in Michigan universities has decreased than before 2006. They say the decline of enrollment of minorities is a clear illustration that the ban discriminates against minorities and is a violation of the equal protection clause in the constitution, Bannon adds.
Brad Bannon is President of Bannon Communications Research, a Washington, D.C.-based political polling and consulting firm. More information can be found at www.bannoncr.com. This video commentary was hosted by The Legal Broadcast Network, which provides on-demand legal content.