Ten years after ruling a case in Michigan to allow affirmative action in college admissions, the Supreme Court is considering banning it, the Associated Press reported.

Affirmative action has gained enough opposition in the state that voters were convinced to outlaw the practice in higher education. The Supreme Court is now deciding whether or not the original decision is discriminatory itself.

Mark Rosenbaum, of the American Civil Liberties Union, has the unenviable task of trying to argue Tuesday in court how a provision meant to end discrimination is inherently discriminatory.

"How can a provision that is designed to end discrimination in fact discriminate?" he told the AP.

One factor possibly working against Rosenbaum's argument is the fact that African-American and Latino enrollment at the University of Michigan has declined since voters decided to ban affirmative action. It is part of a national downswing in minority enrollment in college.

Michigan Attorney General Bill Schuette's office will be defending Proposal 2, the ban on affirmative action. A victory could lead to change in California and Washington state, who have similar higher education affirmative action laws.

"We are saying no preferences. We're not discriminating. We're saying equal treatment," Schuette said.

For the ACLU, the case is about how a state goes about addressing affirmative action and not the consideration of race in the recruitment or enrollment process.

"This is a case about means, not about ends," Rosenbaum said. "It is not about whether a state can choose not to have [affirmative action.]"

Before the affirmative action banning vote passed, governing boards at the University of Michigan, Michigan State University and other public schools changed their policies to include the use of affirmative action.

Harvard University Law School professor Tomiko Brown-Nagin said five justices who will hear the case are already "skeptical" of affirmative action. Those justices could very well side with Michigan, but Brown-Nagin said it would be because "affirmative action already is on life support."