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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.”