NAACP Plans Lawsuits To Require Diversity

A year ago I asked, here,

If the Supreme Court holds that diversity is a compelling governmental interest, would the federal government, states, counties, cities, et. al. be, well, compelled to provide it?

This question was not mere paranoid speculation. After all, the ACLU had argued, with a straight face, that California’s Proposition 209 banning race preferences violates the 14th Amendment, and they persuaded a federal district court judge to grant a temporary injunction against it. That was overturned, but that (as well as my post last year) was before the Supremes had ruled in Grutter that diversity can be a compelling governmental interest.

Last October, in a post asking “Is ‘Diversity’ Mandatory?” I noted, perhaps prematurely, that “[e]veryone agrees that nothing in the Supremes’ recent Grutter decision allowing racial preferences makes those practices mandatory,” but then I went on to “wonder if everyone is right,” and offered a hypothetical that did not strike me as at all far-fetched.

And a little over a week ago I pointed out that Washington governor Gary Locke, in seeking legislation to overturn the results of the popularly approved initiative I-200 that barred preferences, had explained that the intent of his proposal was “bringing our admissions processes in line with U.S. Supreme Court decisions.” I ridiculed this argument by noting that

the Supreme Court did not require or even encourage states to practice racial preference. All it did (“all”!?) was refuse to assert that racial preferences are prohibited by the Constitution. Thus I-200’s ban on racial preferences is already perfectly “in line” with the Court’s ruling.

The NAACP, it appears, disagrees. I say “appears” because I haven’t seen any discussion of its plans in the mainstream press (if I’ve missed it readers, I trust, will let me know), but two Minneapolis news sources quoted NAACP President Kweisi Mfume, who spoke in Minneapolis honoring King’s birthday, stating that his organization was preparing litigation to require affirmative action.

A local TV station reported that “NAACP President Kweisi Mfume says the civil rights organization may soon file lawsuits against colleges and universities that do not use affirmative action.” A local public radio station reported the same news:

Mfume says the NAACP and others are preparing lawsuits against every college that refuses to abide by the existing affirmative action laws.

There is a certain historical symmetry to this demand. Brown barred school districts from assigning students to schools based on race, but it was not long before it was cited as authority for requiring racial balance in the schools, and beyond. The Civil Rights Act of 1964 barred the distribution of benefits or burdens based on race across a wide swath of our public life, but it has proved no barrier to the emergence of a regime permeated by racial preference.

Indeed, when critics of racial preference echo the 1964 act, they are routinely denounced as duplicitous racists, as is happening now in Michigan with the Michigan Civil Rights Initiative‘s new effort to get an initiative on the ballot banning preferences. As the Christian Science Monitor has recently written:

Adapting wording from the Civil Rights Act of 1964, [the proposed initiative] forbids the state to “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Borrowing language from the Civil Rights Act is especially troubling to those who oppose MCRI’s efforts.

“That [wording] is just conscious, creative, shameful duplicity,” says Luke Massie, national cochair of the Coalition to Defend Affirmative Action and Integration and Fight for Equality by Any Means Necessary (BAMN).

If Supreme Court opinions and legislation barring discrimination can be interpreted to require discrimination, then it may prove relatively easy to argue that a Supreme Court opinion (Grutter) holding that “diversity” is a compelling governmental interest should be read to require it.

As a first line of defense against this result, I suggest, again, that contributions to MCRI are much in order.

Say What? (1)

  1. Chetly Zarko January 23, 2004 at 10:41 am | | Reply

    I have the grave concern, John, that if MCRI passes, U-M will argue Supremacy Clause, and some variant of your point above. This fear is cut though with the OPPORTUNITY it would present. Sure, U-M could take a “second bite at the apple” after a defeat at the ballot, BUT SO COULD WE. O’Connor’s opinion was filled with loopholes for a future court to find against race preferences entirely; and O’Connor centered her opinion on “scientific deference,” that is, she accepted, without knowing or at least mentioning the potentially fraudulent nature of some of the science (see my WSJ piece, and I’m still fighting to get the data through FOIA, anyone wanted to contribute to a potential future legal effort there is recommended to contact the Michigan Association of Scholars through Dr. Howard Schwartz). Since science is by its own definition subject to change given new facts (as is the law), and scientific “consensus” or “evidence” rebuttable, there is plenty of room for change. Given that a new case for U-M could allow us to bring up undebated or new elements of the old one (and not make the strategic error CIR made), the house of cards could fall for either side in a second litigation. This is not the only line of reasoning that could negate Grutter’s, or worse, reinforce it, but it is one. Of course, a second decision would likely have at least one new court member, given the length of time the current Justices have endured (the battle of Justice endurance demonstrates the cultural battle that is occurring).

    This makes MCRI all the more important in a longer-term national context.

Say What?