Schuette v. Coalition to Defend Affirmative Action - Reason Foundation

17sion would have to hold: The discretion to grantany constitutionally-permissible racial preferenceswould have to reside with them, not with the stateconstitution.This would be an unusual argument even if racewere not involved. How Michigan chooses to allocatepolicy-making authority among its subdivisionsis ordinarily a matter for Michigan law. It israre to suggest the Constitution has anything tosay about it. Indeed, the Tenth Amendment states,“The powers not delegated to the United States bythe Constitution, nor prohibited by it to the States,are reserved for the States respectively or to thepeople.” U.S. Const., Amend X. Nowhere in theConstitution are powers reserved to state universities,municipalities or sanitation districts.To apply the Sixth Circuit’s sub-State/local approachin the context of race is, however, entirelymisguided and ahistorical. While Pitchfork BenTillman and Bull Connor might be appreciative,the nation has generally adopted a different path.See U.S. Const. Amend XIV. Indeed, the local oragency level is often the worst place to let racial issuesbe decided. See, e.g., Croson, 488 U.S. 469;Peterson v. City of Greenville, 373 U.S. 244 (1963);Buchanan v. Warley, 245 U.S. 60 (1917); Yick Wo v.Hopkins, 118 U.S. 356 (1886).For almost 150 years, it has been the policy ofthe American people that the primary legal authorityon issues of state-sponsored race discriminationis the Fourteenth Amendment’s Equal ProtectionClause—part of the highest law of the land, not thelowest. It is because of the Equal Protection Clausethat Jim Crow policies adopted by States, state