Schuette v. Coalition to Defend Affirmative Action - Reason Foundation

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12bition on race discrimination. To the contrary, itwas intended to shore up Seattle’s segregated housingpatterns and thus to facilitate private discriminationand allow its effect to continue long into thefuture.MCRI is in no way intended to encourage eitherpublic or private race discrimination; nor will it encouragesuch. Instead, it is a strong ban on statesponsoreddiscrimination. Neither Hunter nor SeattleSchool District has any application, therefore.It should be noted that no one seriously claims thatthe kind of race discrimination MCRI prohibits isconstitutionally justified as a remedy for past discrimination.See Gratz v. Bollinger, 539 U.S. 244(2003); City of Richmond v. J.A. Croson Co., 488U.S. 469 (1989); Regents of University of Californiav. Bakke, 438 U.S. 265, 307-10 (1978) (Opinion ofPowell, J.) (rejecting societal discrimination as apermissible justification for race-preferential admissionspolicies).B. All Laws Work a “Political Re-Structuring” of the Kind the Sixth CircuitCondemns; That May Be Among theReasons This Court Has Quietly DeclinedTo Follow Hunter Even in Casesin Which It Arguably Could Be Applied.If MCRI works a “political re-structuring,” thenall laws do, no matter what level at which they arepromulgated. Take, for example, the Equal CreditOpportunity Act, Pub. L. 94-239, 90 Stat. 251(1974). Under its provisions, 15 U.S.C. sec. 1691 etseq., it is illegal to discriminate on the basis of racein the provision of credit. When Congress passedthat law in 1974, it effectively pre-empted the
13Michigan legislature from passing legislation thatmight have required banks to give African Americanscredit at preferential rates. If African Americansin Michigan had wanted such a statute, theywould have been required to first lobby to repealthe federal legislation that mandates equality.That would not end the matter. In turn, if theMichigan legislature had enacted a mandatory onepointpreferential rate, it would have pre-empted astate agency from adopting regulations requiringlenders to give African Americans a two-point preferentialrate. Again, repeal would be necessary tosecure the greater advantage. Indeed, since lenderstraditionally set their own rates, this argumentcould continue to still lower levels of government.See also Gail Heriot, California’s Proposition 209and the United States Constitution, 43 Loy. L. Rev.613 (1998) (making this same argument using fairhousing laws as the example); Gail Heriot, TheUniversity of California Under Proposition 209, 6Nexus 163 (2001) (symposium issue) (same).In the end, one would be hard-pressed to comeup with a single enactment concerning race relationsthat would not violate the Sixth Circuit’s interpretationof Hunter and Seattle School District.Even the doctrine of strict scrutiny itself is unconstitutionalunder it.It is thus no wonder that this Court has shiedaway from such a broad application of Hunter. Inthe most recent case that potentially concerned theissue, Romer v. Evans, 517 U.S. 620 (1996), thisCourt conspicuously avoided reliance on Hunter.Romer concerned Colorado’s Amendment 2, whichrepealed ordinances that prohibit discrimination
Page 5 and 6: ivHirabayashi v. United States,320
Page 7 and 8: viEbner, Michael H., & Tobins, Euge
Page 9 and 10: 1INTEREST OF AMICI CURIAE 1An affil
Page 11 and 12: 3the principles of the American fou
Page 13: 5[I]f the admissions committee of a
Page 19: 11charter amendment at issue in Hun
Page 23 and 24: 15Once such a law is passed, the gr
Page 25 and 26: 17sion would have to hold: The disc
Page 27 and 28: 19than its tendency to break and co
Page 29 and 30: 21fornia, between the years 1914 an
Page 31 and 32: 23Ayres & Richard Brooks, Does Affi
Page 33 and 34: 25were at less competitive schools
Page 35 and 36: 27rican-American and Hispanic stude
Page 37 and 38: 29ty, so it is remarkable that grad
Page 39: GAIL HERIOT4830 Hart DriveSan Diego

Schuette v. Coalition to Defend Affirmative Action - Reason Foundation

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