One of the many odd things about the challenge to Proposition 2 (MCRI) filed by the University of Michigan, Michigan State, and Wayne State is that, as state-supported institutions, they are legally arms of the state. Thus one arm of the state of Michigan is suing the governor, an agent of the state of Michigan, to prevent the enforcement of a constitutional amendment adopted by the superiors of both of them, the people of Michigan. Odd, indeed, as is the fact that the ostensible defendant, Governor Granholm, is in close political cahoots with the plaintiffs in opposing the amendment.
Also odd is the fact that these centers of learning claim that they have a First Amendment right to engage in racial discrimination. As Hans Bader points out in an impressive legal analysis, this claim is spurious, confusing an “interest” in using race with a “right” to use race.
The fact that Grutter may have found a First Amendment interest in using race does not mean it found a First Amendment right to use race, as the Center for Individual Rights (CIR) points out in its brief defending Proposal 2. As CIR notes, the First Amendment exists to protect citizens against the government, not the government against citizens.
