Another Scheme to Justify Racial Preferences

In 1996 55% of California voters shocked Democrats by approving Proposition 209, which added a provision to the state constitution prohibiting state agencies from “discriminating against, or granting 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.”

The law effectively ended preferential treatment for minorities, a policy otherwise known as affirmative action. But last week, the University of California found another way to disregard the voters’ will by deciding to phase out SAT and ACT requirements for admission to its vast educational system. The standardized tests are considered biased against low-income ethnic groups (not including whites or Chinese who score close to 100 points higher than other groups on both the verbal and mathematics sections of the tests.) By eliminating the tests, admissions officers can geo-target and racially target a “diverse” student body.

That was just the beginning of the drive to restore affirmative action in many states that had ended racial preferences.

In 1998 58% of the voters in another very liberal state, Washington, approved I-200, a measure modeled on California’s Prop. 209, and in 2006 yet another liberal state, Michigan, adopted a similar constitutional amendment, the Michigan Civil Rights Amendment (Proposal 2), with 58% of the vote. As one progressive group lamented, “Prop. 209 has been replicated like a bad seed to thwart affirmative action.”

Democrats and their progressive allies never recovered from the shock produced by substantial majorities of voters in liberal states voting to prevent blacks and Hispanics (supported by their progressive followers) from bestowing preferential treatment on themselves, and they have been resisting that result from the very beginning.

The latest of these resistance efforts were passed out of the California Assembly’s Public Employment and Retirement Committee on May 5, the first day of the legislature’s return after a long break caused by Covid-19. Assembly Constitutional Amendment 5 — if passed by both houses of the legislature, signed by the governor, and approved by a majority of the voters in the November 2020 election — would repeal the anti-preference provisions put in the state constitution by Prop. 209 and revive affirmative action.

The Amendment’s long “Digest” begins with a long list of “whereas’s” listing all the horrible things Prop. 209 inflicted on California, most of which are simply restatements of the arguments used against its passage. Several, however, are simply and demonstrably false:

• Proposition 209 has had a devastating impact on minority equal opportunity and access to California’s publicly funded institutions of higher education;
• Since the passage of Proposition 209, diversity within public educational institutions has been stymied;
• Among California high school graduates who apply to the University of California, the passage of Proposition 209 has led to a decreased likelihood of earning a college degree within six years;
• The University of California has never recovered the same level of diversity that it had before the loss of affirmative action nearly 20 years ago.

Repealing Prop. 209, ACA 5’s black and Hispanic sponsors claim, will produce the magic of more “diversity”: “the destruction of stereotypes, the promotion of cross-racial understanding, the preparation of a student body for an increasingly diverse workforce and society, and the cultivation of a set of leaders with legitimacy in the eyes of the citizenry.” The wonders of repeal will never cease.

The arguments against this proposal are familiar — among them:

• Preferential treatment based on race or ethnicity is bitterly divisive, discriminating primarily against Asians;
• 209, despite the misrepresentations of its critics, did not cause the sky to fall. Attendance and graduation rates of underrepresented minorities (URMs) in both the University of California system and the California State University system actually increased since Prop. 209 passed;
• By significantly reducing mismatch, more minorities were honor students and more successfully received STEM degrees.

These and other arguments have recently been presented, with compelling evidence by Gail Heriot, Peter Kirsanow (also here), Jason Riley, Jeff Jacoby, and Wenyuan Wu (and here). Also noteworthy is Heriot’s “A ‘Dubious Expediency’: How Race-Preferential Admissions Policies on Campus Hurt Minority Students.” Here are some bizarre and some underhanded ways that Prop. 209 and its progeny have been attacked, for the arguments against colorblind equal treatment reveal the sad state of contemporary liberalism. They will no doubt all be hauled out again in the coming California battle.

Legal Argument

The day after Prop. 209 passed, a collection of groups and individuals claiming to represent the interests of women and minorities, filed a complaint in the Northern District of California. Judge Thelton Henderson, a Carter appointee, granted the injunction they sought.

In an opinion that Proposition 209’s sponsor, Ward Connerly, has described with understatement as “the most garbage decision I have ever seen,” Judge Henderson’s bizarre argument was that in prohibiting preferential treatment based on race, Prop. 209 actually discriminated based on race! It violated the 14^th Amendment, he claimed, by allowing any and all groups to seek preferences except for groups that sought preferential treatment based on race, ethnicity, or gender.

That was too much for even the notoriously liberal Ninth Circuit, which promptly reversed Judge Henderson in a scathing opinion. “Lest we lose sight of the forest for the trees,” Judge O’Scannlain stated tartly, “the Fourteenth Amendment does not require what it barely permits…. It would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.”

Judge Henderson’s argument was absurd, not paradoxical, and you might think the Ninth Circuit’s devastating reversal would have driven a stake through its heart. Alas, it did not. Indeed, that same argument (argued by the same lawyer, Mark Rosenbaum of the California ACLU), was hauled out to attack Michigan’s Proposal 2 in the Sixth Circuit.

This time, however, in a measure of how far mainstream liberal opinion had descended from its former colorblind ideals, eight judges appointed by Democratic presidents held that prohibiting racial preference violated the Equal Protection Clause. Seven judges appointed by Republican presidents vigorously dissented.

I discussed several fallacies of the Sixth Circuit’s majority opinion here and here, fallacies that appear in virtually all arguments against colorblind equal treatment and that are already apparent in the new effort to repeal California’s Prop. 209. Among them:

The Fallacy of Fungible Discriminations

The first sentence of the majority opinion, echoing Judge Henderson, claims that the effect of Michigan’s prohibition of racial preference is that all sorts of people can seek preferential treatment for all kinds of reasons, but “the same cannot be said for a black student” seeking a racial preference. Thus, a state that allows preferences for tuba players or tight ends cannot bar preferences for blacks or Hispanics.

The Fallacy That Affirmative Action “Inures to the Benefit” of Minorities

This fallacy ignores the ubiquitous assertions that the purpose of preferential treatment is to promote “diversity,” which its advocates incessantly assure us “inures” to the benefit of the whites, Asians, and others who are exposed to the preferred minorities. It also ignores the accumulating “mismatch” evidence that preferential admissions injure rather than benefits the preferred.

The Fallacy of Fungible Minorities

The Sixth Circuit Democratic majority repeatedly lumped all minorities together into one amorphous mass — “the minority,” a lumping that was unaffected by its one brief recognition of the argument that Asian Americans suffer from racial preferences given to others.

The Fallacy That Discrimination and Freedom from Discrimination Are Constitutionally Indistinguishable

Perhaps the most radical and disturbing fallacy of the Democratic judges’ decision is that the Constitution looks with equal favor on a group’s interest in being free from discrimination based on race and its interest in receiving preferential treatment based on race.

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In Schuette v. Coalition to Defend Affirmative Action (2014), the Supreme Court reversed the Sixth Circuit by a 6-2 vote, with Justices Sotomayor and Ginsburg predictably dissenting. “It has come to this,” Justice Scalia begins his devastating concurring opinion (joined by Justice Thomas), referring with near-boiling incredulity to the fact that the Court was required to “confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself.”

When the persevering attorney Rosenbaum of the ACLU asserted in the oral argument that Proposal 2 is “an explicitly facial racial classification,” Justice Scalia asked incredulously: “Every prohibition of racial classification is a racial classification?…. In that sense, the 14^th Amendment itself is a racial classification, right?”

Rosenbaum: “Well, it sets the standard….”

Justices Scalia and Thomas thought, “the question answers itself.” Still, the eight Democratic judges on the Sixth Circuit, Justices Sotomayor and Ginsburg, and a host of liberal amici either asked the wrong question or came up with the wrong answer.

One of the most depressing of these amicus briefs was submitted by 76 historians. Organized by Paul Finkelman (who had written a New York Times OpEd, “The Monster of Monticello,” describing Jefferson as “a creepy, brutal hypocrite”), the brief was signed by several eminent historians — among them, Eric Foner (Columbia), David Blight (Yale), James McPherson (Princeton), and Jack Rakove (Stanford).

They should be embarrassed. Their brief’s argument — “The history surrounding the Fourteenth Amendment demonstrates that the Amendment’s Framers intended to eliminate special burdens on racial minorities’ ability to seek legislative change such as the enactment of race-conscious affirmative action” — was both wrong and irrelevant. Wrong, because the Fourteenth Amendment did not even prohibit barring the freed slaves from voting (that took the Fifteenth), much less intend anything about securing affirmative action. Irrelevant, because even if it had been designed to enable minorities to seek legislation in their own interest, only today’s liberals could read it as protecting the right of any group to define its interest as requiring discrimination against others based on race, thus barring state measures prohibiting that discrimination.

Asians Rising

California’s Senate Constitutional Amendment 5

In Schuette, the Supreme Court seemingly put an end to the legal argument that states are powerless to prohibit racial preference. Still, since the Supremes have unfortunately allowed them to bestow it, the political argument continued and continues.

Just before Schuette was argued (October 15, 2013) and decided (April 22, 2014) in the Supreme Court, black and Hispanic legislators in Sacramento introduced Senate Constitutional Amendment 5, to place a repeal of Prop. 209 on the state ballot. Since Democrats had supermajorities in both houses, this proposal was widely regarded as a freight train hurtling toward certain passages.

That freight train, however, was derailed by an unexpected outburst of opposition from Asian Americans. The measure was withdrawn, the Sacramento Bee reported, “after weeks of intense advocacy from Asian Americans who argued that a repeal would hurt their children’s prospects for getting into the most competitive public campuses. In email blasts to voters, news releases in Asian-language media and town-hall meetings up and down the state,” enough Asian American senators were persuaded to jump off the repeal 209 train to bring it to an abrupt halt.

After the shocks of Prop. 209 and its progeny being passed by substantial majorities in liberal states, progressives were now aghast that storm clouds were obstructing their rainbow coalition. Not only did all minorities not necessarily have the same interests, but there were also evident tensions within, not just between ethnic groups.

For example, the Asian American Legal Defense and Education Fund noted angrily that SCA 5 died before it could reach the electorate “because of some short-sighted Asian Americans.” Normally, AALDEF continued, “the fight is over ending affirmative action, and Asian Americans are trotted out by predominantly white anti-affirmative action groups as the poor ‘aggrieved victims,'” but “in this new California fight to reverse the ending of affirmative action, some Chinese Americans, most of them new immigrants, have learned their political role and have been quick to speak out first.” The implication is clear: once these “new immigrants” become assimilated, they will learn to defer to their political leaders. (As Joe Biden could have said if he had been advising AALDEF, “they ain’t Asian” until they learn that deference.)

Washington State’s Referendum 88

In the last hours of the last day of the fall legislative session last October, on a party-line vote, Washington State Democrats voted to repeal I-200. Perhaps fearing a repeat of the 1998 election, they attempted to overturn by simple legislation the results of a popular referendum.

This measure would have become law, except that, as in California’s SCA 5 experience, Asian American voters were incensed; a rag-tag, under-financed group gathered enough signatures to put the measure to a vote on the November ballot (Referendum 88); and they succeeded in defeating the repeal of I-200. This was a stunning achievement. As I noted here, “In what was no doubt a rude shock to what can fairly be called the ruling class in the state of Washington — leaders of both political parties and nearly all Democrats, editorial boards of virtually all the state’s newspapers, Microsoft and other large corporations, labor unions, the university leadership and faculties, cultural organizations, rich urban and suburban liberals —  more than half the voters strongly opposed the campaign of their betters to foist affirmative action on them again.”

Although the contours of the Ref. 88 controversy are familiar, there was one unique (I hope) feature of it to which California defenders of Prop. 209 should pay close attention: the rank, brazen duplicity of the Washington state Democrats. Knowing that affirmative action requires preferential treatment — which surveys confirm is opposed by substantial majorities (more on those surveys below) — the Washington Democrats simply misrepresented what they were doing.

The Ballot Summary — all that many voters would know of the measure — stated that a Yes vote “would allow the state to implement affirmative action in public education, employment, and contracting if the action does not use quotas or preferential treatment… [thus] restoring affirmative action into state law without the use of quotas or preferential treatment.” (Emphasis added)

Voters would have to delve deeply into the extensive explications and definitions in the full text of the measure to find, in Part II, Section 3, 11 (d), that ” ‘Preferential treatment’ means the act of using race, sex, color, ethnicity, national origin, age, sexual orientation, the presence of any sensory, mental, or physical disability, and honorably discharged veteran or military status as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate for public education, public employment, or public contracting opportunity.” (Emphasis added)

As I noted in, “A Duplicitous Attempt to Rescue Affirmative Action,” what the Democrats hoped to accomplish “would actually prohibit no known affirmative action policy anywhere at any time since there are and have been no such policies that rely ‘solely’ on race” to select a less qualified over a more qualified candidate. Even preferentially admitted college applicants, for example, generally must be high school graduates and literate.

The Democrats’ duplicity, by the way, did not stop with the defeat of their ballot measure. Ignoring that vote, the legislature passed, and the governor signed a bill creating an office to monitor and correct “underrepresentation” that had been included in the defeated ballot measure.

Back To The Future: California’s ACA 5

Assuming ACA 5 succeeds in getting on the November ballot, Californians gearing up to defend Prop. 209 must pay excruciatingly close attention to how ACA 5 is described on the ballot — unless they believe its black and Hispanic sponsors are more honest than their counterparts in Washington state.

Even without overt duplicity, ballot descriptions can be misleading. Consider, for example, that when Gallup asked, “Do you generally favor or oppose affirmative action programs for racial minorities?” 54% favored in 2016 and 61% in 2018. Look what results, however, when the questions seek responses to “affirmative action” as it is practiced, as when Gallup asked four times between 2003 and 2016:

Which comes closer to your view about evaluating students for admission into a college or university — applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted (or) an applicant’s racial and ethnic background should be considered to help promote diversity on college campuses, even if that means admitting some minority students who otherwise would not be admitted?

Each time between 67% and 70% chose the “solely on merit” option. More recent polls have been even more unequivocal, finding 70%-80% opposition to preferential treatment. And even more recently, about two weeks before the Washington vote, the Marquette University Law School released the results of its national survey of opinion regarding some controversial Supreme Court rulings. On the question of whether it is appropriate for colleges to “use race as one factor in deciding which applicants to admit,” 77% opposed (56% strongly; 21% somewhat) and only 15% favored (4% strongly;11% somewhat).

A ballot measure described as “making affirmative action legal again” would have a better chance of success than one that said it “would allow race and ethnicity to be used as a factor in determining which applicants are accepted.” One that said, accurately, that it would allow some applicants to be accepted, and others rejected, because of their race would have virtually no chance.

A November Surprise?

There is widespread and reasonable speculation that Democrats may have chosen this moment to launch another attack on Prop. 209 to ride the expected coattails of a large turnout of voters in November 2020 who detest Trump. These survey results, and one other factor, however, suggest the possibility that, if ACA 5 makes it onto the ballot, come November, Democrats may be in for a rude surprise, again.

Affirmative action is rarely, if ever a prominent issue in elections, in good part because, over the years, Republicans have been afraid to make it an issue. In California, however, this year may be different. First, it will have been noticed by now that Trump is not like other Republicans. Seeing a referendum on affirmative action on the ballot, one can easily see him looking at the above survey results and jumping on that issue with both feet. He probably will not win California, but he may well bring more people to the polls who oppose racial preference than the Democrats anticipate.

There is another reason why the anti-preference vote in 2020 may be larger than expected, even if Trump does not choose to campaign on it. In last March’s primary elections, reports the San Francisco Chronicle, “Republicans took a strong first step … toward grabbing back at least some of the seven California congressional districts that Democrats flipped in 2018,” winning “a majority of the votes in six of those seven districts” and with “solid leads in two of them.”

The increasing Republican optimism, noted by ABC News and The Hill, was fueled by Mike Garcia’s convincing ten-point flip of a Democratic district in a special election May 12. And, the Los Angeles Times reports, “In some of the key districts, Republicans recruited marquee names as candidates, including two Korean American women — prominent counterexamples of the narrative that the Republican Party is dominated by white men.”

In a perceptive new article on National Review Online, John Fund provides additional evidence for the argument presented here. “Asian-Americans will take the lead in opposing ACA-5,” he writes. “In California, 14 percent of eligible voters are now Asian Americans,” and according to the Pew Research Poll last year, they opposed the consideration of race in college admissions by a 2-1 margin. “Should liberals in California ignore the experience of their Washington State counterparts and push for the return of racial quotas,” Fund concluded, “they will be stepping into a hornet’s nest.”

If Republican candidates in California make a defense of Prop. 209’s principle of colorblind equality a key part of their campaigns, Democrats may well regret bringing it up for a vote again. Campaigning on that issue should not require much courage, given the consistent polling results reported above, but Republicans have failed to display that courage in the past.

Maybe this time will be different.