Romer and Michigan
stevenjamar at gmail.com
Fri Nov 10 10:42:58 PST 2006
Of course it passes constitutional muster. But so did taking race
into account. That is why it is a matter of "mere" policy.
I don't think Romer results in this being unconstitutional. This does
not bar a group from seeking to ban discrimination on the basis of the
defining characteristic of that group. Indeed, many statutes and
ordinances in Michigan ban discrimination on the basis of race and
this change does not undo those laws.
And, of course, Rick and some others on this list are correct that in
the main our constituional rights analysis focuses almost exclusively
on the individual as opposed to the group. Some see this as genious.
Some of us see it as a significant flaw in transforming society toward
more fair and just.
But Rick still hasn't explained how geographic and economic diversity
and affirmative action is ok, but race is not as a matter of policy.
The Supreme Court said race could be taken into account just like
It would seem that if we were to get to a regime that said that only
race could not be considered, then we are getting into Romer territory
and discrimination on the basis of race in favor of the then dominant
But I do not think that is quite what the Michigan law says.
Prof. Steven Jamar
Howard University School of Law
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