While the courts confuse the issue, ballot measures banning racial preferences are coming soon to a state near you.
Contrary to popular perception, racial quotas have never been fully struck down by the courts as unconstitutional. The U.S. Supreme Court has upheld preferential policies it considered "modest" or where it found evidence of past racial bias. Even this year's high court decision limiting race-based school assignments was limited in its scope. Affirmative action remains quite prevalent at universities and in government contracting.
Consequently, efforts to eliminate racial preferences in government contracts and public universities are shifting from legal battles in the courts to political fights at the ballot box and in legislatures. Ward Connerly of the American Civil Rights Coalition launched the first initiative banning preferences in California in 1996, Proposition 209, which passed in spite of significant opposition by far left interest groups. Similar initiatives soon followed in Washington and Michigan. Notably, all three initiatives passed in blue states.
Now Super Tuesday for Equal Rights is spearheading civil rights initiatives in at least four more states in 2008: Arizona, Colorado, Missouri, and Oklahoma. The wording is modeled after the color-blind language of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin.
In Arizona, the most brazen use of racial preferences in government might be at the University of Arizona, which lists specific percentages of minorities and women broken down into 33 job categories that must be attained when hiring various faculty and administration positions. For example, the goal for composition of tenure track faculty in the fine arts for 2007 is 17 percent minorities and 56 percent women. These numbers are even more egregious considering women only make up 50-51 percent of the U.S. population. Opponents defend the "goals" by declaring they are different from quotas — and judges often buy the argument.
Public employers and universities such as the University of Arizona cite Executive Order 11246 as an excuse for using quotas and "affirmative action." Executive Order 11246, which was issued by President Johnson in 1965, requires that federal government contractors use affirmative action to hire minorities. It was expanded in 1967 to include gender. Efforts to curb such practices under President Reagan and later with the proposed Dole-Canady Equal Opportunity Act in the 1990s were unsuccessful.
Ironically, Executive Order 11246 was taken from Executive Order 10925, signed into law by President John F. Kennedy. The original order stated that contractors doing business with the federal government shall take affirmative action in employment "to see that employees are treated without regard to their race, creed, color or national origin." (Emphasis added.) Johnson turned affirmative action on its head when he rewrote the order to treat people instead "with regard" to race, etc., leading us down the road where race hustlers could take this concept even further.
Executive Order 11246 applies to federal government contractors and includes state and local governments that participate on or work under a federal contractor. If the Arizona Civil Rights Initiative passes, it is unlikely the University of Arizona will be able to continue to hide behind it, since it would be a stretch to claim that every job position or entering student operates under a federal contractor. Although Arizona has similar state-level executive orders, they would be superseded by a change in state law.
This doesn't mean the elitists who run the universities won't try to find ways around bans on race and gender preferences. The arrogant administrators at most universities will stop at nothing to thwart the will of the people. For instance, after Proposition 209 passed in California, a UCLA faculty committee on diversity issued coy instructions how to bypass it. In place of the phrase affirmative action, it suggests, "For example, in hiring a faculty member, a department may consider whether a candidate's record of teaching, research or service will contribute to the diversity of the campus."
SUCH THINLY VEILED ATTEMPTS to undermine the voters mean that no matter how successful next year's civil rights initiatives might be, the debate over affirmative action will eventually return to the courtroom. With Samuel Alito and John Roberts now on the Supreme Court, there is some hope that color-blindness can be achieved. But the high court's past decisions have been a mixed bag at best.
In theRegents of University of California v. Bakke case of 1978, the court held 5-4 that racial quotas by the government are unconstitutional because they violate the 14th Amendment's Equal Protection clause. It was deemed impermissible to set aside a number of seats in a university's entering class for minority groups.
Just two years later in Fullilove v. Klutznik, the court held that "modest" quotas for minority groups were acceptable, leaving in place a federal law that set aside 15 percent of public works projects for qualified minority contractors. In 1987, quotas were again upheld in U.S. v. Paradise where the court found there had been evidence of past racial discrimination. The court backed off on quotas in 1989 with its decision in City of Richmond v. Croson, striking down a program that set aside 30 percent of city construction funds for black-owned firms, on the basis there was no evidence of past discrimination. A similar opinion involving federal contractors, Adarand Constructors, Inc. v. Pena was handed down in 1995.
The court continued its convoluted thinking in two 2003 decisions involving the University of Michigan, Gratz and Grutter. Both cases drew on earlier opinions in holding that although schools may not specify set numbers of minorities or women for admission to the university, they may still consider race or gender as a factor as long as a specific weight is not assigned to them. So the court voted 6-3 to overturn the University of Michigan's undergraduate admissions policy of assigning extra points to applicants of certain minority groups, the equivalent of adding a full grade point to a student's GPA. But, inexplicably, the justices let stand the law school's policy race preferences. Justice Sandra Day O'Connor provided the clear-as-mud rational for these split decisions, stating, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Many have wondered, if something is unconstitutional in 25 years, then how is it constitutional today?
The incoherence of the courts when it comes to racial preferences has forced the voters to take matters into their own hands. If past votes are any indication, next year's color-blind initiatives are likely to succeed. But it won't be long before the ball ends up back in John Roberts's Court.
This article originally appeared in the American Spectator.
rachel@intellectualconservative.com
http://www.intellectualconservative.com/rachel-alexander-archives/
Read more articles by Rachel Alexander
“Johnson turned affirmative action on its head …”
“In 1996, Californians voted to ban race and gender preferences in government and education. Ten years later, the chancellor of the state-funded University of California at Berkeley, Robert Birgeneau, announced a new Vice Chancellorship for Equity and Inclusion, charged with making Berkeley more ‘inclusive’ and ‘less hostile’ to ‘underrepresented minority . . . groups.’ This move is just the latest expression of the University of California’s unrelenting resistance to the 1996 voter initiative, in every way possible short of patent violation. Stasi apparatchiks disappeared more meekly after the Soviet Empire’s collapse than California’s race commissars have retreated after voters tried to oust their preference regime.” – “Affirmative Action Showdown” by Heather MacDonald http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=26670
Passing these initiatives appears to get us nowhere because the government’s “Stasi apparatchiks”, a.k.a., race hustlers, at best just ignore them even after they pass court muster. California’s Prop 209 is a classic example of not only being ignored but also being turned on its head – literally. In addition to a new Vice Chancellorship for Equity and Inclusion, there is an active University of California Committee On Affirmative Action and Diversity. Why does this committee even exist years after Prop 209 was declared constitutional? Answer: To find ways to nullify the will of the people because obviously the hoi polli riff-raff are not as enlightened as university professors who know what’s best for society.
In addition to that, there is a “UC President’s Task Force on Faculty Diversity” whose job is also to find ways around Prop 209. The following is from the UC website referenced below:
Executive Summary
The UC President’s Task Force on Faculty Diversity, chaired by UCLA Associate Vice Chancellor Rosina Becerra, convened in May 2005 with a charge to review faculty diversity at the University of California and make recommendations to the academic leadership.
What do we mean by faculty diversity?
In addressing the complex issue of faculty diversity, the 10 member Task Force adopted the definition of diversity endorsed by the Assembly of the System-wide Senate on May 10, 2006:
“Diversity – a defining feature of California’s past, present and future – refers to the variety of personal experiences, values, and worldviews that arise from differences of culture and circumstance. Such differences include race, ethnicity, gender, age, religion, language, abilities/disabilities, sexual orientation, socioeconomic status, and geographic region, and more.”( sedonaman’s note: Italics added to simulate indentation in original)
Acknowledging the importance of all aspects of diversity, the Task Force focused on assessing the status of racial and ethnic diversity as one important component of overall faculty diversity at the University of California. While other dimensions of diversity were not the focus of this Task Force’s work, the goal of the Task Force is to promote a new culture of inclusion, opportunity and tolerance at the University of California that will benefit all members of the academic community. (sedonaman’s note: Italics added for emphasis)
Why is faculty diversity important to the University of California?
The University of California’s commitment to faculty diversity reflects two overarching goals: First, an effective faculty diversity program will foster an academic community that will reflect a diverse range of interests, abilities, life experiences and worldviews that will enhance the academic mission of the University of California. Second, an effective faculty diversity program will support equality of opportunity which will ensure that the University of California can fully utilize the intellectual resources embedded in our diversity and maintain our legitimacy as a public land grant university.
What about Proposition 209?
“The enactment of Proposition 209 in 1996 raised many questions about the status of faculty diversity efforts at the University of California.However, the Task Force found that the non-discrimination requirement in Proposition 209 can be understood as supporting the University’s commitment to provide equal opportunity in hiring, compensation and all other employment programs. (sedonaman’s note: bold Italics added for emphasis) Where there is under-representation, the University must take steps to address the barriers that prevent full participation of minorities in academic careers. Further, schools and departments in every field can identify the academic values that are enhanced by a diverse teaching and research environment. Strategies to select and advance scholars with the expertise to foster those academic values are essential if UC is to maintain its excellence as a premier public institution.” http://www.universityofcalifornia.edu/facultydiversity/executive-summary.pdf
More info here: http://www.universityofcalifornia.edu/facultydiversity/report.html
These paragraphs, taken directly from the UC website, are literally dripping with self-righteous condescension, and they describe EXACTLY what the people voted to ELIMINATE when they passed Prop 209.
I don’t know where MacDonald’s “showdown” is going to come from. To date, there doesn’t seem to be anyone on the conservative side of the political spectrum who wants to take on the university. So, the bottom line on passing these initiatives is that it will be a waste of time unless and until someone rises up to combat defiant administrations.
Comment by sedonaman | August 27, 2007
No matter how you slice it, it's a "now hiring" ad that reads: Five faculty positions open, two Black, one Hispanic, one Asian …
This amounts to telling your students, we intend to hire you the best Black, Hispanic and Asian professors we can find. It's a policy that serves no one well. In the process of ruling out a much more qualified black Asian studies professor in pursuit of the Asian you need to achieve "diversity," the students are denied the benefit of the better professor and a better education.
Ten years after graduation, the best the student seeking a job can hope for is that while he is less qualified due to his inferior education, he is of a color that appeals to a company seeking to meet a diversity goal. Thus the cycle continues.
Are you the benificiary of the best education or the best professors your university could hire? Or are you the beneficiary of a less qualified but more diverse faculty?
Contrary to some beliefs, what we don't know can hurt us. Would there have been a Plato had adminstrators in Ancient Greece decided Socrates was the wrong color and replaced him with someone of a color needed to achieve a diverse research and teaching environment?
By the way, what color was Socrates? Does it even matter? Only if a teacher of another color who was more capable was exluded because of his race.
But would not a law that abolishes race preferences in faculty hiring prevent such a thing?
No, what it would prevent at modern universities is the ability to achieve a diverse "mediocracy." Say, isn't "mediocracy" a word of Greek origin that translates to something like "rule of the crappy ones?"
Comment by nick adams | August 28, 2007