Proposition 209 – the California ballot initiative to prohibit discrimination and preferential treatment on the basis of race, sex, color, ethnicity or national origin – has been a source of controversy in California since its passage in 1996. The primary opponent of 209 is an aptly named organization – the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN). Yes, that is the true name!
BAMN has protested, demonstrated and filed a seemingly endless series of lawsuits, all with the objective of overturning Proposition 209 or Proposal 2 in Michigan, the subject of the recent decision of the United States Supreme Court. This case, Schuette v. Coalition to Defend Affirmative Action, involved the question of whether it is constitutional for a white majority electorate to approve a ballot initiative to prohibit race preferences. Schuette was decided 6-2 with one justice, Elena Kagan, not voting because of her association with the case in her prior position with the Obama administration.
The Schuette case represents, quite likely, the last legal challenge to be brought against Proposition 209, Proposal 2 or any of our other anti-preference initiatives. Given this likelihood, attention should now be focused by all parties on how to adapt to and implement the vision represented by 209.
California is a very diverse, pluralistic society. The people of this state comprise various ethnicities, religious convictions and, what some call, “races.” This reality was a motivating factor in the genesis of and campaign to enact 209. The central question was: what is the optimum public policy framework to guide the conduct of a diverse people to ensure fairness and equitable treatment for all.
It is clearly understood that history has not always been kind to all of the people of California. There is hardly a group that has not endured some degree of discrimination and oppression based solely on the identity – ethnic, racial, or some other characteristic – of those who comprise the group. The message of 209 to all was that “you are an equal.” When you apply to college, for employment, or bid on a public contract, none of your history will be held against you or credited to your record in determining your merit.
Unfortunately, once any group has been given special consideration, rarely do the members of that group ever happily relinquish their claim to such considerations. That is the painful reality that confronts America in its quest to wind down race based affirmative action. This is precisely why the Supreme Court must boldly accept its responsibility to interpret the Constitution, as it sees it. And, in this regard, constitutional scholars for decades have consistently opined that the Constitution is “colorblind.”
Yet, when it comes to race, the Court has chosen to be incremental in its efforts to deal with race. Instead of ruling once and for all that race preferences offend the principle of equal treatment and violate the simple command of equality proclaimed in the Civil Rights Act of 1964, the Court, every 25 years or so, reminds us that the Constitution “barely tolerates” race preferences, but it nonetheless allows such policies to continue.
In 2003, the Court savaged the fundamental principle of equal treatment for every person when it jumped on the “diversity” bandwagon. Certainly, the Court recognizes the inherent contradiction between the principle of equal treatment for every person and its decision to allow the use of race as a way to achieve diversity. Equal treatment carries with it the abiding belief that every individual is endowed with certain unalienable rights. Among those rights is the right to be treated as an individual in the public arena by one’s government. The pursuit of diversity harbors no respect for the individual. Rather, such a pursuit licenses the government to discriminate against some individuals to ensure that the ultimate mixture of students yields enough of some “races” to produce a critical mass of whatever is not produced through the normal process of competition. Thus, the pursuit of diversity produces an irreconcilable conflict with individual rights.
With the Supreme Court clearing the way for the people to achieve a society that exalts equal treatment, it is now incumbent upon the people to take the action that a majority of the Supreme Court justices refuse to take: end preferences and relegate race to the dustbin of history.