Schuette Symposium: The Parade of Horribles Lives : SCOTUSblog
The case concerns the Michigan Civil Rights Initiative (“MCRI”) - a voter initiative passed in 2006 by a wide margin. Its core provision prohibits the state from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” In other words, it enshrines in the Michigan Constitution the principle that the state should not engage in (among other things) race discrimination. For that reason, the Sixth Circuit found it unconstitutional.
MCRI was passed in the wake of the Supreme Court’s 2003 decision in Grutter v. Bollinger. In that case, the Court decided that the Constitution did not forbid the University of Michigan Law School from granting African Americans, Hispanics and American Indians very large admissions preferences. Michigan voters decided that if the Constitution did not forbid race-preferential admissions, they would.
There is nothing remarkable about that. The fact that the Constitution does not forbid something does not mean it is required. The Constitution does not forbid state universities from admitting only students who can carve the federal tax code on the head of a pin. But voters in direct democracy states can amend the state constitution to impose a more sensible policy.
Here is their argument’s core: By adopting a policy against race discrimination in the state constitution, Michigan is discriminating against racial minorities who might wish to lobby for preferential treatment. Other interest groups - for example, veterans, public employees, or fisherman — can lobby for special treatment without restraint. But a racial group can do so effectively only if it first successfully lobbies to repeal the state constitutional provision. Such a “political restructuring” is unconstitutional - or so the argument runs.
The argument fundamentally misconstrues the issue. MCRI doesn’t discriminate against racial minorities. It discriminates against race discrimination - the way the strict scrutiny doctrine discriminates against race discrimination.