QUICK BLOG: U.S. Supreme Court to Take Up Michigan’s Proposal 2

March Against Proposal to Ban Affirmative Action in Michigan

By Sharon Davies,

The Supreme Court’s decision to review the Sixth Circuit’s decision in the Coalition to Defend Affirmative Action case is a bit surprising.

On the one hand, it is not unusual for the Court to agree to review a decision that has created a split of opinion between 2 federal circuit courts on the same legal issue.  Coalition to Defend did that.  (The 9thCircuit Court of Appeals had previously upheld the constitutionality of a California referendum that banned race conscious decision making by public universities, while the 6th Circuit Court of Appeals inCoalition to Defend, by a 8-7 vote, struck down as unconstitutional  Michigan’s Prop. 2 referendum which did the same thing).

On the other, Lyle Denniston’s blog entry in SCOTUS explains well.

There is a case already pending before the Court which raises the constitutionality of race conscious admissions practices (Fisher), the Court would generally be expected to wait to act on the second affirmative action case (Coalition to Defend) until after it decided the first. The reason for that is that, having decided the first, it might then be able to dispatch the second case more expeditiously, e.g., by “remanding” the second case to the lower court “in light of its decision” in the earlier case.   But the Court did not do that.

It is tempting to “read the tea leaves,” but attempts to tie the Court’s decision to review the second case to what it might say in Fisher would be highly speculative.  Given that Ohio State and the Kirwan Institute both worked on briefs in support of the University of Texas in the Fisher case, we would hope of course that it means that Fisher is proving to be harder for the Court than most predicted, and that its looming decision in that case will not allow the Court to summarily dispatch the second case.  But again, that is highly speculative and admittedly wishful thinking on my part.   We’ll have to wait and see.

In any event, the Court’s order granting review in Coalition to Defend is the most significant case yet to be added to its list of cases for decision in its next Term starting in October.


Court to rule on affirmative action ban

In a surprise development, the Supreme Court on Monday agreed to decide whether a state may constitutionally ban the use of race in deciding who gets admitted to public colleges or universities.   The Court chose not to await the outcome of an already pending case on the constitutionality of an admissions plan at the University of Texas that makes some use of race.  The new case is significantly broader…. MORE

Executive Director, Kirwan Institute for the Study of Race & Ethnicity, John C. Elam/Vorys Sater Professor of Law, Moritz College of Law, The Ohio State University. Professor Davies was a Harlan Fiske Stone Scholar and a Notes and Comments Editor of the Columbia Law Review while in law school at Columbia University. After graduation she worked for Steptoe and Johnson in Washington, D.C. and Lord, Day & Lord Barrett Smith in New York City. Professor Davies served for five years as an Assistant United States Attorney in the Criminal Division of the United States Attorney’s Office in the Southern District of New York. She joined the law faculty at Ohio State University in 1995, was awarded tenure in 1999, promoted to Full Professor in 2002, and awarded a named professorship in 2003. Professor Davies teaches Criminal Law, Criminal Procedure (Police Practices), Race and the Criminal Law, Civil Rights Law, and Evidence. Professor Davies’ primary research focus is in the area of criminal justice and race. Her articles and other writings have been published in some of the nation’s leading law journals including the Michigan Law Review, the Duke Law Journal, the Southern California Law Review, the Columbia Law Review, and Law and Contemporary Problems. In 2010, Oxford University Press published Davies’s narrative nonfiction account of a 1921 murder trial in Birmingham, Alabama, titled Rising Road, A True Tale of Love, Race and Religion in America, for which the Mayor of Birmingham awarded her a “Key to the City.”