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Affirmative-action ban OK’d

Justice Sonia Sotomayor says a Supreme Court decision upholding Michigan’s ban on using race as a factor in college admissions tramples on the rights of minorities. In her dissent to the 6-2 decision, Sotomayor says a lower court was correct in setting aside Michigan’s constitutional ban even though voters had approved it.

WASHINGTON – A state’s voters are free to outlaw the use of race as a factor in college admissions, the Supreme Court ruled Tuesday in a blow to affirmative action that also laid bare tensions among the justices about a continuing need for programs that address racial inequality in America.

The 6-2 decision upheld a voter-approved change to the Michigan Constitution that forbids the state’s public colleges to take race into account. That change was indeed up to the voters, the ruling said, over one justice’s impassioned dissent that accused the court of simply wanting to wish away inequality.

The ruling bolsters similar voter-approved initiatives banning affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies.

Justice Anthony Kennedy said voters in Michigan chose to eliminate racial preferences, presumably because such a system could give rise to race-based resentment. Kennedy said nothing in the Constitution or the court’s prior cases gives judges the authority to undermine the election results.

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

He stressed that the court was not disturbing the holding of a 2003 case from Michigan – which gave rise to the 2006 Constitution change – permitting the consideration of race in admissions. A Texas affirmative action case decided in June also did nothing to undermine that principle, Kennedy said.

In a separate opinion siding with Kennedy, Justice Antonin Scalia said Michigan residents favored a colorblind constitution, and “it would be shameful for us to stand in their way.”

Strongly dissenting from the majority, Justice Sonia Sotomayor said the decision trampled on the rights of minorities, even though the Michigan amendment was adopted democratically.

“But without checks, democratically approved legislation can oppress minority groups,” said Sotomayor, who read her dissent aloud in the courtroom Tuesday. Justice Ruth Bader Ginsburg sided with Sotomayor.

Michigan voters “changed the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities,” Sotomayor said.

Judges “ought not sit back and wish away, rather than confront, the racial inequality that exists in our society,” she said. She is one of two justices, along with Clarence Thomas, who have acknowledged that affirmative action was a factor in their college and law school admissions. Sotomayor attended Princeton University, and Thomas is a graduate of the College of the Holy Cross.

They both attended law school at Yale University. Thomas is a staunch opponent of racial preferences.

At 58 pages, Sotomayor’s dissent was longer than the combined length of the four opinions in support of the outcome.

Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Scalia and Thomas agreed with Kennedy.

Responding to Sotomayor, Roberts said it “does more harm than good to question the openness and candor of those on either side of the debate.”

Justice Elena Kagan did not take part in the case, presumably because she worked on it at an earlier stage while serving in the Justice Department.

University of Notre Dame law professor Jennifer Mason McAward said the opinions by five justices point “to a much more nuanced and heated debate among the justices regarding the permissibility and wisdom of racial preferences in general.”

In 2003, the Supreme Court upheld the consideration of race among many factors in college admissions in a case from Michigan.

Three years later, affirmative action opponents persuaded Michigan voters to change the state constitution to outlaw any consideration of race.

The 6th U.S. Circuit Court of Appeals said the issue was not affirmative action but the way in which its opponents went about trying to bar it.

In its 8-7 decision, the appeals court said the provision ran afoul of the Equal Protection Clause of the U.S. Constitution’s 14th Amendment because it presented an extraordinary burden to affirmative action supporters who would have to mount their own campaign to repeal the constitutional provision. The Supreme Court said the appeals court judges were wrong to set aside the change as discriminatory.

But Sotomayor took up their line of reasoning in her dissent. She said University of Michigan alumni are free to lobby the state Board of Regents to admit more alumni children, but that the regents now are powerless to do anything about race-sensitive admissions.

Breyer parted company with other liberal justices Sotomayor and Ginsburg, voting to uphold the Michigan ban because it effectively took power from faculty members at the state colleges and gave it to the voters, “from an unelected administrative body to a politically responsive one.” Unlike the conservative justices whom he joined Tuesday, Breyer said he continues to favor “race-conscious programs” in education.

Black and Latino enrollment at the University of Michigan has dropped since the ban took effect. At California’s top public universities, African-Americans are a smaller share of incoming freshmen, while Latino enrollment is up slightly, but far below the state’s growth in the percentage of Latino high school graduates.

The case was the court’s second involving affirmative action in as many years. Last June, the justices ordered lower courts to take another look at the University of Texas admissions plan in a ruling that could make it harder for public colleges to justify any use of race in admissions.

Tuesday’s case is Schuette v. Coalition to Defend Affirmative Action, 12-682.

Court critical of Ohio law punishing campaign lies

WASHINGTON – The Supreme Court appears to be highly skeptical of laws that try to police false statements during political campaigns, raising doubts about the viability of such laws in more than 15 states.

Justices expressed those concerns early and often Tuesday during arguments in a case challenging an Ohio law that bars people from recklessly making false statements about candidates seeking elective office.

The case has attracted widespread attention, with both liberal and conservative groups saying the law tramples on the time-honored, if dubious, tradition of political mudslinging. Critics say free speech demands wide-open debate during political campaigns, including protection for negative speech that may sometimes twist the facts.

The high court is not expected to rule directly on the constitutional issue because the current question before the justices is only a preliminary one: Can you challenge the law right away, or do you have to wait until the state finds you guilty of lying?

But the justices couldn’t resist going after the law itself, pointing out that the mere prospect of being hauled in front of state officials to explain comments made in the heat of an election has a chilling effect on speech.

“What’s the harm?” Justice Stephen Breyer asked Eric Murphy, attorney for the state of Ohio. “I can’t speak, that’s the harm.”

Justice Anthony Kennedy said there’s “a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say.”

The case began during the 2010 election when a national anti-abortion group, the Susan B. Anthony List, planned to put up billboards accusing then-Rep. Steve Driehaus of supporting taxpayer-funded abortion because he voted for President Barack Obama’s new health care law. Driehaus, a Democrat who opposes abortion, claimed the group’s billboard ads distorted the truth and therefore violated the false speech law.

Driehaus filed a complaint with the Ohio Elections Commission, an action which prompted the billboard owner to decline posting the ads. The commission found probable cause that the ads violated the law, but Driehaus later withdrew his complaint after losing his re-election campaign.

The Susan B. Anthony List then challenged the state law as unconstitutional, but a federal judge said the group didn’t have the right to sue because it hadn’t yet suffered actual harm. The 6th U.S. Circuit Court of Appeals in Cincinnati agreed.

Murphy argued that the Susan B. Anthony List has not shown a credible threat of harm because the Driehaus case was ultimately dismissed before it was referred to a prosecutor.

But Justice Elena Kagan wondered why a probable cause determination didn’t count as harm. For the average voter, “they think probable cause means you probably lied,” she said.

Chief Justice Roberts pointed out that third parties such as TV stations or billboard owners are going to be intimidated by the law, preventing a group from getting its message out.

“The slightest whiff of this is going to be legal trouble,” Roberts said.

Justice Antonin Scalia said the Susan B. Anthony List intends to make the same charges against other Democrats in the next election. He said the harm is that the group fears being dragged before the “Ministry of Truth” for similar proceedings, referring to the government propaganda office in George Orwell’s novel “Nineteen Eighty-Four.”

At one point, Murphy reminded the justices that they were not there to debate the merits of the law, just the question of standing. But Breyer said the merits discussion is meant to suggest “that there are real people who would really like to speak in an election campaign. And if they feel they can’t they are really being hurt.”

Michael Carvin, attorney for the Susan B. Anthony List, suggested that election speech has “an extraordinarily short shelf life” and a group accused of false speech will never be able to go through the entire process of being accused of a crime and exonerated before the election is over.

“You have this regime which has existed for decades in Ohio where they continue to impose very serious burdens on speakers on what we consider facially unconstitutional law, yet it has consistently evaded judicial review precisely because of the short time frames of the election,” Carvin said.

More than 500 false statement claims have been brought under the Ohio law between 2001 and 2010, Murphy told the justices. Only five cases have been referred to a prosecutor, and of those, three resulted in plea agreements.

“So you have a system that goes on and on, year after year, where arguably there’s a great chilling of core First Amendment speech, and yet you’re saying that basically you can’t get into federal court,” Justice Samuel Alito said.

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