Schuette v. Coalition to Defend Affirmative Action - Reason Foundation

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