The Endless War Against 209

By Ward Connerly
More than thirteen years ago the people of California voted to end discrimination and “preferential treatment” on the basis of race, sex, color, ethnicity and national origin, in the public arenas of contracting, education and employment. The margin of the vote on the ballot initiative (Proposition 209) that enshrined the principle of equal treatment in the California Constitution was not a squeaker; it was a decisive 55%-45% margin.
In the years since that vote, most Californians have accepted the verdict of the majority and have adapted to a life of equal treatment without preferences for anyone. That is as it should be in a nation for which the principle of equal treatment is the centerpiece of our civic values system, and for which the “rule of law” is one of our most valued ideals. But, there are some who refuse to take “no” for an answer. Instead, they have used every means at their disposal to bureaucratically circumvent, legally challenge, or flat-out disregard the initiative’s simple command of equality.
This week the California Supreme Court upheld the constitutionality of the law, 6-1, in a response to a lawsuit by white contractors against the city of San Francisco. Along the way, the court noted and dismissed various stratagems employed by the city to avoid the clear meaning of the law.

This resistance tells us a great deal about how America has changed (and is still changing) with regard to its national attitude about race and, equally, about its respect for the rule of law.
When America most dramatically confronted the conundrum of race during the 1960s, President John F. Kennedy expressed the national consensus that “race has no place in American life or law.” Dr. Martin Luther King, Jr. echoed Kennedy’s sentiment in his immortal “dream” about the day when his four little children would live in a nation in which they would be judged ‘not by the color of their skin but by the content of their character.”
Kennedy’s and King’s words, taken together, outlined a path that would hopefully lead America to the realization of its cherished ideal of one nation where “all men are created equal.” We have been consistently following that “colorblind” path, with only occasional detours, since passage of the 1964 Civil Rights Act and its command of equal treatment for every person.
It is instructive to examine the reaction to Proposition 209 in California as a way of assessing whether the “colorblind” model is still universally embraced by the American public or whether the continuing resistance to the measure can merely be likened to the small band of diehard segregationists of the 60s who proclaimed their dedication to “segregation now, segregation forever.”
First, any analysis of Proposition 209 must begin with the University of California (UC) – the institution where race was most heavily utilized prior to passage of the initiative. It is fair to say that UC administrators, much like most academic administrators, are generally contemptuous of any “outside” intrusion into their domain. They believe they know best what is appropriate policy to govern their activities. This overarching attitude accounts for some of the institutional resistance to 209 and virtually any other policy that does not originate with the faculty and administration. The institutional response is, “Just send us money and don’t mess around by trying to tell us how to spend it.”
Rather than doing anything that might be construed as open defiance of the law, UC typically attempts to craft clever techniques that enable them to create the illusion of compliance while pursuing their own objectives. The pursuit of racial “diversity” is an obsession with UC. This pursuit is at the heart of the inherent tension between 209 how UC views its “mission.”
Instead of using race in an explicit fashion, UC San Diego, for example, has announced its intention to hire roughly 40 faculty members who will contribute to campus “diversity.” In years past, UC would have specifically revealed that it wanted to hire “minority” faculty, even specifying in some instances the flavor of minority that it was seeking. To appear to be in compliance with the dictates against preferential treatment, however, UC has now crafted an approach that sufficiently camouflages the word “diversity” so that the appearance is given that diversity is being used in a much broader sense than race. I would not want to take a wager that all of the new hires will comply with the larger context of “diversity” instead of the narrower one based on race, ethnicity and gender.
Despite all that UC is doing to legally circumvent 209 – and there has been a considerable effort in this regard – it is still not enough for some. California Assemblyman Ed Hernandez (D) has introduced legislation (AB 2047) that is now moving through the Legislature which would enable UC and the California State University to “consider race, gender, ethnicity, national origin, geographic origin, and household income, along with other relevant factors, in undergraduate and graduate admissions, so long as no preference is given, (emphasis added) if and when the university, campus, college, school, or program is attempting to obtain educational benefit through the recruitment of a multifactored, diverse student body.”
The gratuitous “so long as no preference is given” doesn’t pass the giggle-test in view of all else that is contained in the bill about having public education reflect the “racial and ethnic diversity” of California. In addition, the bill’s author discussed in a committee hearing that the purpose of his bill is to “level the playing field” for minority kids. On its face, AB 2047 is contradictory and a blatant violation of 209, as have been virtually all other legislative proposals introduced in the California Legislature with respect to 209.
Use of the courts has also become a convenient device for 209’s detractors. While there was a recent victory when a Superior Court judge ruled in our favor in Connerly v. Schwarzenegger, two other cases have been under consideration for several months – one involving higher education and the other relating to public contracting.
The case that has drawn the most attention was brought by the Coalition to Defend Affirmative Action, Immigrant Rights and Integration and to Fight for Equality By Any Means Necessary (BAMN). True to its name, BAMN does, indeed, use “any means necessary,” including factual distortions, fabricated incidents and even violence to achieve its objectives.
The principal arguments in the instant case are that by placing emphasis on standardized tests, UC has adopted a system that uniquely disadvantages “minorities.” Moreover, BAMN argues that 209 was enacted by a white majority that was disrespectful of minorities and has placed a burden on them that that can only be altered by a vote of the people. This burden of having to alter the California Constitution to restore preferential treatment, argues BAMN, discriminates against “minorities” and, thus, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
The logical conclusions of the BAMN case – often expressed explicitly by BAMN itself – are frighteningly racist. First, is the assertion that academic institutions should not use academic achievement as the yardstick for admissions to higher education, because minorities cannot perform at the same level as Asians and whites. Second, BAMN claims that majority-white populations should not be allowed to vote on issues such as “affirmative action” because of their inherent bias against minorities
The pursuit of “diversity” by the government, at all levels, has become one of the most corrosive and divisive activities of our time. It is this pursuit that causes many elected officials to betray their oath of office to protect and defend the constitutions of their states At a time when the State of California is swimming in red ink, and suffering a host of other fiscally-related problems, it is a gross waste of resources for members of the California Legislature and UC to engage in activities that run the risk of visiting legal action against them for violating the California Constitution by undertaking racially preferential treatment.
It is abundantly clear that the colorblind ideal that is represented by 209, and which has been inviolate since the 1960s, is facing a direct and forceful challenge by those who favor the pursuit of diversity by official government action. If the threats to 209 are successful, the character of our nation will be changed forever more.
There is considerable reason for optimism, however. As this was being written, the California Supreme Court handed down a 6-1 decision that upheld the constitutionality of 209. In question was the issue of whether 209 violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
The case that prompted the above decision involved a contractor (Coral Construction) who challenged the City and County of San Francisco, because of its open defiance of Proposition 209 since its passage by continuing its minority preference program. The Court has struck a major blow for the “rule of law” and for the colorblind principle. Let us hope that the rest of the nation takes note of this decision.