Contributor Post Created with Sketch. California Upholds Prop. 209


Eugene Volokh, who helped draft the initiative, has the news. It is always comforting, though not as regular as it should be, to see a court properly interpret the Constitution now and again. And the Supreme Court of California, no less. As other federal courts have found, Proposition 209 does nothing more than declare the basic meaning of the 14th Amendment to the U.S. Constitution: that the government cannot discriminate on the basis of race. Government can only take race into account when it provides a remedy to individuals who have suffered past racial discrimination at its own hands (a government has to take the race of the black freedman into account, for example, when it provides him with assistance after the end of slavery).

Nonetheless, the 1970s gave rise to a whole industry devoted to coming up with ever more intrusive and creative efforts to create a racial spoils system for all sorts of government spending. For roughly the last 20 years, the courts have been rejecting these racial set-asides, with university admissions as the only exception and even this under the cover of “diversity,” rather than racial preferences. The decision yesterday upholding Prop 209 should be yet another judicial nail in the coffin for the misguided quest to divide up government largess on racial grounds.

This won’t stop the Obama administration from using its Justice Department from trying to protect groups that want to continue to make racial claims for privileged status (such as the Supreme Court case where Obama defended New Haven’s right to toss out test results for firefighter promotions because they did not yield enough minorities), or appointing judges who will uphold racial preferences (Sotomayor was the lower court judge who upheld New Haven’s blatant racial discrimination against whites). But it will be on the losing end of most of these cases.

The case is also interesting in that it opens a window into the circus house of mirrors the whole diversity/racial preferences industry has become. Here, we have the case of the City of San Francisco, probably the most liberal city government in America, claiming that it needs to give minority businesses a 5-10 percent bidding advantage (their bids for government construction projects receive a 5-10 percent discount, while white businesses do not). Why? Because San Francisco claims that its own government officials are discriminating on the basis of race.

Anyone who has lived in San Francisco and seen its city government in action would laugh at the idea that it is discriminating against minorities. But the obvious weak spot of the City’s argument is that if its officials are discriminating, it can just fire them. A city shouldn’t need to reform its own illegal practices by shifting the costs onto innocent white businesses, who are not responsible for any discrimination. It should bear the costs itself, either by paying damages to minority businesses that have suffered at its own hands, or by taking the real step of dismissing the officials responsible for the alleged discrimination in giving out contracts. That the City cannot take this step shows that the program is really about government rewards for friends who have the right skin color.

And this doesn’t even get us into the question whether any consciousness of race should be permitted at all, once we have a state like California where no race is in the majority. Every racial group in California can lay claim to being a “minority.”

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  1. courageman Inactive

    The funhouse part for me was the argument made for racial preferences. Here ’tis, courtesy of the AP:

    Justice Carlos Moreno dissented, writing that it’s unfair to explicitly single out minorities and women while other special groups continue to enjoy preferential treatment in school admissions and elsewhere.

    “In the wake of Proposition 209, veterans, the economically disadvantaged, the physically disabled, children of alumni, in-state residents, etc., all may continue to seek, obtain, and benefit from preferential legislation as before,” Moreno wrote. “The same is no longer true for those seeking race- and sex-conscious legislation.”

    The logic beggars belief. Because the government gives any preference to some people on any basis at all, it forfeits the ability to refuse someone else’s claim to get a preference on any other basis.

    Preference defenders like this justice truly have reached the logical end of their war against “discrimination.” Only instead of realizing that “discrimination” is merely the ability to classify, to make distinctions, to engage in reason itself — they conclude the opposite. Those things (classification, distinction, reason) also must be made war against too.

    • #1
    • August 3, 2010, at 10:34 AM PDT
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  2. Mel Foil Inactive

    Any racial preference system in education–well hidden (behind diversity) as it may be– does no favors for the black genius–his accomplishments will be discounted–and especially does no favors for the black student who’s in over his head, because his skin color got him over a threshold his talent couldn’t. The less-talented black student is thrown into an arena where he’s likely to fail, and steered away from an arena where he’d likely succeed. Don’t worry about the black genius. He can take care of himself.

    • #2
    • August 3, 2010, at 10:45 AM PDT
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  3. courageman Inactive

    Irrelevant (or maybe not so irrelevant) amusing aside.

    The paid at the right of this page as I type is for a dating site that caters to inter-racial couples: “Afro Romance / Where love is more than skin deep / CLICK HERE to join now! / Join thousands of members looking for their interracial partner!”

    • #3
    • August 3, 2010, at 10:50 AM PDT
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  4. cdor Member
    cdorJoined in the first year of Ricochet Ricochet Charter Member

    “–and especially does no favors for the black student who’s in over his head, because his skin color got him over a threshold his talent couldn’t” e.d.

    Careful…someone might think you were talking about the President.

    • #4
    • August 3, 2010, at 11:37 AM PDT
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  5. Duane Oyen Member
    Duane OyenJoined in the first year of Ricochet Ricochet Charter Member

    The best book out there addressing this issue from the standpoint of the alleged beneficiary is Prof. Carter’s Reflections of An Affirmative Action Baby.

    Prof. Carter is no conservative (though he is very much in the Shelby Steele-Bill Cosby-John McWhorter wing of opinion leaders), but he is very much pro-religion and pro-individual initiative.

    • #5
    • August 3, 2010, at 11:40 AM PDT
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  6. Richard Epstein Contributor

    I am glad that you got to post first, John, because I am at something of a loss as to what to say. I think that historically there is a really hard question of whether the equal protection clause in 1868 was intended to deal with the distribution of government benefits or only with differential enforcement of the criminal law. Historically, I am inclined to think that the latter position is correct, but that its validity has been eroded over time. Yet oddly enough this position has nothing to do with this case.

    Here the argument for the City is that it is under a duty to engage in affirmative action to remedy a set of racial and sexual wrongs which it, of all places on the globe, is least likely to commit. Its entire program of preferential treatment is hardly evidence that in the depths it secretly gave preferences to firms run by white men or other nonprotected groups. Yet that seems to be the claim. As the Court noted, “the City argued the equal protection clause required preferences as a remedy for discrimination.” [1/2]

    • #6
    • August 4, 2010, at 2:52 AM PDT
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  7. Richard Epstein Contributor

    Note there is no specification of which acts, against which parties. The relevant statute of course states the opposite, by holding that no unit of state government “shall not discriminate against, or grant 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.” (§ 31, subd. (a).)”

    This case thus leads to an odd dynamic. The usual rules on remedy require that you show a good fit between the wrong and the remedy. But in this case the protections go to firms that were not in business at the time that the supposed acts of discrimination took place, mind you, by a City whose own policy for years has conveyed the opposite message. The real risk in these cases is that cities will basically scour the record to find evidence of their own discrimination in order to buy the freedom to act that the state law denies them. It is not very pretty, and shows that moral hazard is at work in the law of equal protection. [2/2]

    • #7
    • August 4, 2010, at 2:53 AM PDT
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