Saturday, September 8, 2001

By Alan Keyes

This week a California state appeals court unanimously ruled that California's constitutional ban on racial preferences in government hiring, contracting and education means what it says. Accordingly, in the words of Pacific Legal Foundation, the court "invalidated key statutes that contain preferences in the form of goals, timetables and other 'schemes' that treat people differently on the basis of race or gender."

The court's eloquent and principled decision was the latest confirmation that the authors of California Proposition 209 – the California Civil Rights Initiative (CCRI) – have set a successful example for the whole country of how to take the high road of American principle toward a truly colorblind society.

The court's opinion, based on the 14th Amendment to the Constitution and on CCRI's simple prohibition of race and gender-based discrimination by the California government, was refreshingly simple, as several key quotations from their decision illustrate.

What is constitutionally significant is that the government has drawn a line on the basis of race, or has engaged in a purposeful use of racial criteria. A constitutional injury occurs whenever the government treats a person differently because of his or her race.

Regardless of the burdens or benefits imposed by or granted under a particular law, the use of a racial classification presents significant dangers to individuals, racial groups and society at large.

If our national policy on racial preferences were guided by such champions of the prudent assertion of American principle as Ward Connerly, chairman of the CCRI campaign and plaintiff in the case decided this week, we could confidently expect that racial preferences would quickly join slavery and Jim Crow as repudiated missteps in the American march to justice.

Affirmative action was an aberrant betrayal of the principles of the civil rights movement. Those principles are stated, among other places, on the back of the NAACP membership card. One stated purpose of the NAACP is "to secure equal job opportunities, based on individual merit, without regard to race, religion, or national origin."

That is the original civil rights principle. It is self-evidently incompatible with quotas and numerical preference systems. The civil rights leaders fought for fairness, for colorblind justice, and for individual success to be based on individual merit. In the promised land they dreamed of, every man, woman and child in this country could get up knowing that, if they did their best, no group characteristic would deny them the fruits of their labor. This is the principle which the leadership of the CCRI team, co-authors Tom Wood and Glynn Custred, Connerly, Declaration Foundation President Richard Ferrier and many more sought to return to our national councils. It is the principle that led to victory in the I-200 Initiative in Washington State in 1998. And it is the principle that will, I pray, be vindicated once more in Colorado if the people have a chance to vote on the Colorado Equal Protection Initiative in 2002.

But alas, our national policy on racial preferences is not currently guided by such champions as these. The Bush administration was expected by many of its supporters to join, in a prudent, compassionate and statesmanlike way, in the difficult task of weaning America yet again from the habit of classifying people by the color of their skin. In its first visible opportunity to do so, the Bush administration chose instead to affirm vigorously the Clinton administration's position in the landmark Adarand vs. Mineta case. That is, ignoring the remonstrances of Wood, Ferrier, Connerly and other leaders of the anti-preferences movement – including his one time cabinet appointee Linda Chavez – the president came down squarely in a crucial preferences case on the side of color consciousness. The lame excuse that the administration was obligated to do so was widely ridiculed by knowledgeable people on both sides of the argument. After all, in another key affirmative-action case, Taxman vs. Piscataway, the Clinton administration had switched sides twice, and other administrations had changed positions in other cases. The plain fact is that the primary duty of the United States Department of Justice is justice – not consistency with the injustice of a misguided predecessor.

And now, the Washington Post reports that a draft policy by Office of Management and Budget Director Mitchell E. Daniels, Jr., proposes funneling non-defense government contracts directly to businesses owned by women and minority group members. As the Post puts it, such businesses would be made eligible for government contracts "without competing for them." According to the Post, an OMB official "defended the proposal" as reflecting "Bush's goals of 'affirmative access.'"

It is increasingly clear to anyone with eyes to see that the Bush administration will be a hindrance in the struggle for a colorblind America. Where the citizen activists who led the CCRI campaign rightly see a clear issue of American principle, this administration seems incapable of seeing anything but opportunities for more pandering demonstrations of fake "compassion" and "inclusiveness," and for stroking of constituencies whose votes are needed in 2004.

The sad thing is that there is probably no issue on which it would be easier to unite a strong, electorally decisive majority. The passage of the California Civil Rights Initiative in 1996 showed that, rightly presented, the principle of official government refusal to categorize citizens by their race commands enormous popularity – even in liberal and racially ghettoized communities.

The most charitable understanding of the administration's actions to date is that it secretly desires to move the nation toward a colorblind future through its open pursuit of "racial reconciliation." If this is true, the means it has chosen must be judged in the light of the maxims of prudent statesmanship. Prudence teaches that compromises may sometimes be made. But all compromises are not created equal. There is a difference between playing your own hand and advising your opponent how best to play his.

It is one thing generously to grant what must be granted, while reasserting your own principles, plainly and vigorously. Abraham Lincoln was a master of this art. It is altogether another thing to maintain a sheepish silence on principle and to propose, on one's own, unnecessary and undemanded concessions, consonant with the unprincipled demands of one's opponent. A good rule is to avoid compromises which, on the very matter under dispute, encourage and embolden your opponent to believe that you will eventually concede the principle itself.

Bush-administration policy on racial preferences is taking the shape of a tutorial for the racial balkanizers, teaching them how best to advance their own cause in the face of public disapproval. It is unwise appeasement at best.

At the worst, and I fear in fact, it is cooperation by a rudderless administration in the project the left has pursued for so long, and with such great damage – the manipulation of racial categorization and racial passions for the political benefit of those in power.

Ward Connerly and CCRI have shown us a better way. Americans who care about the principles of the civil-rights movement, and who recognize how crucial for the future of American liberty is the vindication of those principles, should follow his example.

We can do no better than to remember the courageous concluding words of Lincoln's 1860 address at the Cooper Institute:

Let us have faith that right makes might, and in that faith, let us, to the end, dare to do our duty as we understand it.

We have little excuse to do otherwise. Looking to the state of California, we can have better hope in our time than Lincoln could in his that, if we stand for what is right, the whole nation will follow. Now, if only the leader of the party of Lincoln would join us with energy, confidence and joy in a renewed pursuit of the American promise of equality under the law.

Be sure to visit Alan Keyes' communications center for founding principles, The Declaration Foundation.