Surprise! 9th Circuit Court of Appeals Affirms Obvious!

The Ninth Circuit Court of Appeals (I am tempted to say even the Ninth Circuit Court of Appeals) has once again recognized that treating people without regard to race does not violate the Fourteenth Amendment. In an opinion released April 2, a three-judge panel reaffirmed in no uncertain terms a 1997 Ninth Circuit decision holding that “[a]s a matter of ‘conventional’ equal protection analysis, there is simply no doubt that Proposition 209 is constitutional.” The Pacific Legal Foundation, which successfully argued the case, deserves the congratulations and gratitude of all those who believe in colorblind equal opportunity.

Virtually identical to the current challenge, that earlier case, Coalition For Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), dealt with a charge by the ACLU and other progressives that California’s Proposition 209, prohibiting the state from discriminating against or giving preferential treatment to individuals based on race, sex, or ethnicity, violated the 14th Amendment because it allowed groups to seek preferential treatment for all sort of other reasons but not race or ethnicity.

The court’s opinion virtually laughed that argument out of court.

The alleged equal protection burden that Prop. 209
imposes on those who would seek race and gender preferences is a burden that the Constitution itself imposes. The
Equal Protection Clause singles out racial preferences for
severe political burdens — it prohibits them in all but the most
compelling circumstances. That the Constitution permits
the rare race- or gender-based preference hardly implies that
the state cannot ban them….

It would have been paradoxical to conclude that by adopting
the Equal Protection Clause, the voters had violated it….

….Proposition 209 amends the California Constitution simply to
prohibit state discrimination against or preferential treatment
to any person on account of race or gender. Plaintiffs charge
that this ban on unequal treatment denies members of certain
races and one gender equal protection of the laws. If merely
stating this alleged equal protection violation does not suffice
to refute it, the central tenet of the Equal Protection Clause
teeters on the brink of incoherence.

The argument that state preferences for peanut farmers or piccolo players is constitutionally indistinguishable from discrimination based on race is what I called here an offensive “fallacy of fungible discriminations.”

This is the argument that all discrimination is alike; if you can discriminate for one reason, you can discriminate for any reason. Thus if it’s acceptable to give preferences based on athletic or musical ability or the alumni status of parents, it’s also legitimate to give preferences based on race or religion. Preferences, in short, are preferences; if one is O.K., all are O.K.

You’d think that since the Ninth Circuit (even the Ninth Circuit) has driven a stake through the heart of this argument, now not once but twice, it would have the good grace to die. Let us hope that the pending decision from the Sixth Circuit on essentially the same challenge to the Michigan Civil Rights Initiative will be a silver bullet that will put it out its, and our, misery.

John S. Rosenberg blogs at Discriminations.


In its article on the case this morning, Inside Higher Ed quotes the plaintiff BAMN’s (By Any Means Necessary) lawyer, George B. Washington (also the lawyer in the virtually identical case pending before the Sixth Circuit), who continues to maintain that, the Fourteenth Amendment and various civil rights statutes notwithstanding, there is no difference between discrimination on the basis of race and any other kind of discrimination.
The effect of banning discrimination based on race, sex, or ethnicity, he still claims,

is to make it possible for people in California and Michigan to lobby university governing boards to change admissions policies in just about every way except about the issue of whether to consider race and ethnicity, and such bans effectively limit minority rights.

“The citizens of Beverly Hills can go to the University of California regents and say, ‘We need a special program for students from Beverly Hills,’ but here we have the groups most disadvantaged are the only groups that cannot go,” said Washington. “That is discrimination pure and simple. We don’t think a white majority has the right to tell black citizens they have no political right to go to the regents and say, ‘We need such a plan so our folks can get in.'”

There is, of course, no longer “a white majority” in California. According to the most recent census information, only 40.1% of California residents are “White persons not Hispanic.” In addition to ignoring the fact that both the Fourteenth Amendment and civil rights laws were written to prohibit precisely what BAMN and its lawyer want to promote — favoring some and disfavoring others because of their race — the demand for preferential treatment for “our folks” is in intent and effect a demand for racial discrimination against other folks based on their race, and most of those other folks are not even white; they’re Asian. As I wrote on Minding The Campus two months ago in Let’s Be Frank about Anti-Asian Admission Policies,

after California abolished racial preference the percentage of Asian-Americans accepted at Berkeley increased from 34.6% in 1997, the last year of legal affirmative action, to 42% entering in fall 2006.

Although it is widely thought, especially by defenders of affirmative action, that whites benefit when racial preferences are eliminated (indeed, those defenders frequently accuse critics of being racists whose purpose is to benefit whites), that is not the case. As I noted here, citing this data, the proportion of white freshmen entering the University of California system “fell from 40% in 1997 to 34% in 2005.”

Let us hope that the Sixth Circuit, in its pending decision on whether or not the Constitution allows the citizens of Michigan to prohibit their state from engaging in discrimination based on race, and the Supreme Court, when it decides Fisher v. University of Texas next term, will move us closer to the day when “our folks,” whoever we are, receive no more burdens or benefits based on our race.


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