Surprise! Americans Oppose Discrimination

Almost everyone is disappointed, frustrated, or angry about the election results—Republicans, because at this writing they appear to have lost the presidency amid widespread reports of voting—er, irregularities; Democrats, because they suffered an unexpected but major shellacking in the House and appear not to have regained the Senate. A noteworthy, important exception is the hearty band of Asian Americans and other Davids, who, under the inspired leadership of Ward Connerly, defeated the massively funded effort of Goliath—California’s Democratic party and the state’s cultural and financial elite—to pass Proposition 16, which would have repealed the state’s constitutional prohibition of discriminating against or granting preferential treatment to people based on race, ethnicity, or sex.

The vote, shocking to some and surprising to many, was not close: 57% to 43%. As this graphic display vividly demonstrates, California was a sea of red counties voting No with only a handful of coastal liberal enclaves (San Francisco, Marin, Santa Cruz, Alameda [Oakland]) voting Yes. Los Angeles, the only other yes-voting county, barely did so—51% to 49%.

If there is anything surprising about the vote on Proposition 16, it is that so many people who should know better—Democrats, self-appointed “woke” opinion-shapers, pundits, progressives (but I repeat myself)—were surprised. The virtually identical issue had been on the ballot four other times in liberal states, and each time the forces favoring racial preference over colorblind equality faced the same “surprising” fate:

• California, 1996. Proposition 209, amending the state constitution to prohibit discrimination against or preferential treatment of people based on race, ethnicity, or sex, approved 54.55% to 45.45%.
• Washington, 1998. Initiative 200, modeled on California’s Proposition 209, approved 58.22% to 41.78%.
• Michigan, 2006. Proposal 2, a state constitutional amendment also modeled on California’s Proposition 209, approved 58% to 42%.
• Washington, 2019. The Washington legislature passed Initiative 1000, which would have repealed I-200’s prohibition of racial preferences, but supporters of that ban gathered enough signatures to place Referendum 88 on the ballot to block I-1000 and preserve I-200’s ban on racial preference. Their effort was approved 50.56% to 49.44%. (I have discussed that vote here.)

Although preference-pushers were serially shocked by these results, no one familiar with the consistent findings of opinion surveys over many years would be surprised. As I discussed here, for example, in “The Harvard Affirmative Action Case and Public Opinion,” Frank Newport, then Gallup’s editor in chief, quoted a question 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 of the four times Gallup has asked this question over a 13-year time period,” Newport emphasized, “between 67% and 70% of Americans chose the ‘solely on merit’ option.”

Similarly, in 2019 Pew Research Center asked respondents whether they thought employers should “Only take a person’s qualifications into account, even if it results in less diversity,” or whether they should “Take a person’s race or ethnicity into account, in addition to qualifications, in order to increase diversity.” 74% of all adults said qualifications only, including 54% of blacks and 69% of Hispanics. Pew also asked respondents whether they thought race or ethnicity should be a major factor, a minor factor, or no factor in college admissions. 7% thought it should be a major factor, 19% a minor factor, and 73% not a factor at all.

Other recent polls have reached the same results. WGBH in Boston found that 74% of respondents disagreed and 24% agreed with the Supreme Court that “colleges can use race as one factor in deciding which applicants to admit.” A Marquette University law school poll also found that, 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).

Proponents of racial preference have long known, of course, that a substantial majority of the public has been and remains stubbornly committed to colorblind equality, to the principle that Gunnar Myrdal and others have called “the American creed”: that individuals should be treated without regard to race, creed, or color. That is why advocates of “affirmative action,” from its earliest days, have attempted to disguise and obfuscate the actual content of the policies they propose: Affirmative action as only a temporary measure until “the playing field is level”; race as only a tie-breaking “tipping point”; race as only “one of many factors”; no quotas, only “goals”; Asian admission limited to allow admission of more blacks and Hispanics, but that’s not “racial balancing,” and so on.

This obfuscatory rhetorical camouflage can be regarded as just “politics as usual,” but it is much more objectionable, even ominous, when this misrepresentation is officially promulgated by state officials, as it frequently is when challenged by referenda such as Washington’s Referendum 88 and, most recently, by Proposition 16 in California. Thus the official summary of Proposition 16 prepared by Attorney General Xavier Becerra that appeared in voter guides and on the ballot stated it “Permits government decision-making policies to consider race, sex, color, ethnicity, or national origin in order to address diversity by repealing constitutional provision prohibiting such policies.”

In a complaint filed opposing this language, Prop. 16 opponents argued that the “ballot label for Proposition 16 – the description of the measure that will be in the sample ballot and which will appear on the ballot itself – never sets forth the principal action that Proposition 209 prohibits and what Proposition 16 actually seeks to repeal: granting race- and gender-based preferences. Instead, the Attorney General’s description of Proposition 16 is an argument plainly designed to create prejudice in favor of the measure, using euphemisms and feel-good language, like ‘[a]llows diversity’ (what voter could be against merely allowing diversity?), without explaining to the voters that the measure’s sole purpose is to repeal the prohibition against race and gender-based preferences…. An impartial Attorney General,” the Complaint stated, “should have described Proposition 16 as repealing the constitutional prohibition against granting preferences based on race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting.”

Although the court found the attorney general’s language “misleading,” among other reasons because nothing in Proposition 209 prohibited “diversity,” the complaint was denied because state law was held to provide wide latitude to the attorney general. Nevertheless, the purposeful deception was widely condemned across the state. Criticizing “the partisan slanting of ballot language by attorneys general to either promote or undercut measures going before California voters,” the San Diego Union Tribune editorialized that “California needs to take this job away from Attorney General Xavier Becerra ASAP.” Noting that “voters need clear, impartial language on their ballots,” the Los Angeles Times argued that “The attorney general’s office often forsakes impartiality in favor of loaded and misleading language designed to sway voters.”

Attorney General Becerra’s Proposition 16 language was indeed loaded and misleading, but it was almost as nothing compared to the mother of all ballot misrepresentation perpetrated by Washington state Democrats in their attempt to repeal that state’s prohibition of racial preference.

I have discussed their deception in some detail in “A Duplicitous Attempt to Rescue Affirmative Action” and “Tricking Voters to Accept Racial Preference.” Briefly, the Ballot Summary for Initiative 1000/Referendum 88 stated that “It would allow the state to implement affirmative action in public education, employment, and contracting if the action does not use quotas or preferential treatment.” Buried in the weeds of Section 3, 11 (d) that few voters (and, apparently, few Washington state journalists) read was the following definition: “‘Preferential treatment’ means the act of using race, sex, color, ethnicity … as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate.” This purported prohibition of preferential treatment would in fact have prohibited absolutely nothing, since no affirmative action policies at any time have ever relied on race as “the sole qualifying factor.” The least qualified affirmative action admit, after all, has some other qualifications besides race, such as being literate and a high school graduate. It would have helped voters if one Washington state journalist had deigned to ask one of the Democratic opponents of I-200 to name one affirmative action policy that their proposal would prohibit.

Misrepresenting affirmative action is and has been pervasive—systemic, to use a term now in vogue among the woke—because it is necessary. Whenever people recognize—in responding to surveys or voting on state referenda—that its essence is preferential treatment, they oppose it. That opposition explains the failure of Proposition 16 far better than the tortured, perplexed, hand-wringing postmortems offered by the experts. For example, the Chronicle of Higher Education’s “Failure of California’s Prop. 16 Underscores Complexity of Affirmative Action Debate” argued that its “proposed striking from California’s legal code a sentence affirming that the state ‘shall not discriminate against, or grant preferential treatment to, any individual’ on the basis of race, gender, ethnicity, or national origin … might well have thrown off some would be supporters.” Well, duh!

Similarly, an Inside Higher Ed article titled “Why Did Prop 16 Fail?” quoted one expert who blamed “confusing wording” and another who lamented that “there may not have been enough time to ‘educate the electorate’ about Prop 16.” That same expert noted that “the term ‘preferences’ is often misused when it comes to affirmative action,” and referred to the hope “that with the recent emphasis on equity and anti-racism, voters would be more open to embracing diversity in higher education, employment and contracting. Obviously, that perception was wrong.”

Since Proposition 16’s proponents wrote the language, had pervasive political and celebrity support, and outspent opponents over 20 to 1, these defensive explanations of Prop. 16’s failure call to mind the parable about the dog food company that spent a fortune developing and marketing a new product, which did not sell. After considering and rejecting a number of sophisticated explanations of the failure from the best experts, it finally became apparent that the dog food didn’t sell because the dogs didn’t like it. Most people, not just “deplorables” and “chumps,” don’t like racial preferences.

It’s bad enough that preference proponents have corrupted the political process by dissembling and duplicity, but the corruption is not limited to the political arena. As discussed here, for example, the University of California has violated norms (and perhaps the law) requiring political neutrality by sponsoring tendentious research supporting Proposition 16, refusing to share its and related data with critical scholars while making it available to those who support affirmative action. Cancel culture, moreover, has reached such a pitch that even scholarly questioning of affirmative action is regarded as a violation of new “anti-racist” standards and perhaps even as a firing offense.

There is probably a bigger gap between what Democratic officeholders and opinion leaders in the press, universities, and cultural institutions believe about racial equality and what a majority of the public believes than on any other controversial issue. And, unfortunately, that gap is growing, not narrowing.

Increasingly, some of the most radical criticism of affirmative action comes not from conservatives but from woke progressives. Responding to the “mostly peaceful” riots that followed George Floyd’s death last May, a herd of college presidents moved in lockstep to condemn the “systemic racism” that still persisted on their own campuses. Typical was Brooklyn College President Michelle Anderson, who stated that “We at Brooklyn College must address how racism has shaped our history and how it continues to infect our present,” and Stanford President Marc Tessier-Lavigne: “We must recognize the stereotyping, stigmatization and marginalization of diverse individuals and communities that occur on our own campus and work to tackle them.”

Similar examples abound, and they all implicitly—and often explicitly—acknowledge the abject failure of the race and sex preferences these institutions have practiced for decades. It is too much to hope, or at least to believe, that the failure of Proposition 16 will slow or temper the rising demands for “anti-racist” policies on campus and elsewhere that will make affirmative action as it has been practiced seem mild by comparison.

We can hope that the Supreme Court in the Harvard case or some other will finally stem the tide of racial preference, but we should be cautious about urging the Court to defer to the majority of voters who have rejected racial preference when given the opportunity. We should not want a court, after all, that automatically defers to majorities, even our majorities. What the Court should do is prohibit racial preference for the same reason that majorities oppose it: because it violates the principle deeply embedded in the 14^thAmendment and in our civil rights laws holding that Americans should be treated without regard to race, creed, or color.

Image: Phil Roeder, Public Domain