From Inane To Sublime To Ridiculous

In my post immediately below I criticized two columns, one of them from the Rocky Mountain News, as utterly inane. Today I’m happy to report that the Rocky Mountain News has a column by Vincent Carroll, the Rocky’s editorial page editor, that is superb. (HatTip to reader Linda Seebach, recently retired as an editorial writer at the Rocky Mountain News.)

A few days ago the Colorado Supreme Court upheld, on a 3–3 vote, the decision of a state board to allow the Colorado Civil Rights Initiative to be placed on the November 2008 ballot if its supporters gather a sufficient number of signatures, thus disappointing Democrats and liberals who, as usual, tried to prevent citizens from having an opportunity to vote for or against racial and ethnic preferences.

CCRI states, in language almost identical to the language approved by voters in California, Washington, and Michigan, that

the state shall not 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.

Opponents argued, as they have unsuccessfully in other states, that this language violates a rule that limits state initiatives to a single subject. So what, you may well ask, are the multiple subjects in a proposal that would ban discrimination against or preferential treatment of any individual or group on the basis of race, ethnicity, gender?

Good questions. Editor Carroll was perplexed as well:

Love or loathe the Colorado Civil Rights Initiative, it’s straightforward, simple and easy to understand. No hidden agendas or confusing language. Just a stark ban on government discrimination based on race, sex or the other familiar categories.

So why did three state Supreme Court justices try to sabotage the amendment last week, claiming it violated the rule barring a ballot measure from having more than one subject?


Yet despite its clarity, the measure survived a legal challenge only because the court knotted in a tie. Three justices (Nancy Rice, Nathan Coats and Alison Eid) agreed it was a single subject, while three others (Mary Mullarkey, Greg Hobbs and Alex Martinez) said it wasn’t. Justice Michael Bender did not participate.

The argument of the three nay-sayers, Carroll suggests (they don’t have to explain themselves), was no doubt based on or similar to arguments presented in the briefs of those who opposed allowing the measure on the ballot.

The amendment’s opponents claim its language implies that preferential treatment “is simply a subcategory of ‘discrimination,’” and they dispute whether that’s the case.

Preferential treatment “can certainly involve forms of ‘discrimination,’” the litigants concede, but it also “involves a good bit more than that.” In fact, they say, some forms of preferential treatment “disadvantage no one.”

I’m not sure what sorts of preferential treatment based on race, etc., “disadvantage” no one. Examples, anyone? But let’s leave that aside for now and look at the substance (assuming there is some) of this argument.

What they’re saying, I think, is that “discrimination” can only be against, never for. Thus “preferential treatment” of a person or group based on race, ethnicity, etc., is not discrimination at all. Thus, so the argument goes, banning discrimination and preferential treatment is doing two things, not one. Again leaving aside whether one can favor some people based on race without inevitably disfavoring others based on race, the argument of Mullarkey et. al. is, well, pure malarkey (“meaningless talk; nonsense”). It’s an argument that deserves ridicule and contempt more than refutation.

Carroll refutes the argument, thus giving it more respect than it deserves.

The short answer to this argument is that the measure’s sponsors obviously disagree. They believe “preferential treatment” is a subcategory of discrimination. That’s why they want it on the ballot — to end practices they consider wrong.

Nor are the measure’s sponsors unusual in mentioning discrimination and preferential treatment in the same breath. As the title board’s brief points out, “The United States Supreme Court has long acknowledged the close relationship between laws or actions that discriminate against an individual or a group based upon race, gender, nationality or ethnicity, and those that grant preferential treatment toward an individual or group.”

Every statute or amendment contains unanswered questions regarding its application, and the Colorado Civil Rights Initiative is no exception. But given the amendment’s overall clarity and narrow focus, it’s nothing less than scandalous that three justices of the state’s highest court were prepared to prevent voters from ever ruling on it.

But, fortunately, Carroll is not above dishing out a little ridicule as well. He closes with the following:

If you want to understand their high-handed attitude, you could do worse than consult Squealer, the propagandist in George Orwell’s Animal Farm.

“Do not imagine, comrades, that leadership is a pleasure,” Squealer explains at one point. “On the contrary, it is a deep and heavy responsibility. No one believes more firmly than Comrade Napoleon that all animals are equal. He would be only too happy to let you make your decisions for yourselves. But sometimes you might make the wrong decisions, comrades, and then where should we be?”

Comrade Mullarkey and friends, with their malarkey, are indeed the Squealers of our time.

UPDATE [20 September]

David Nieporent comments below on the briefs submitted to the Colorado Supreme Court opposing CCRI. HatTip to him for pointing me to them.

Although the Colorado Women’s Bar Association brief opposing allowing CCRI on the ballot gives a pro-forma nod to the objection that discrimination and preferential treatment are two different things, it really provides only one reason for its objection: it receives the assistance of the University of Colorado law school in awarding two “gender specific” scholarships every year, and it is

concerned that the ability of the University of Colorado, as a public institution of higher education, to administer and facilitate the application process would be imperiled by this Initiative.

Well, yes. CCRI would not prevent the Colorado Women’s Bar Association from discriminating in any way it wished, but it would indeed “imperil” the ability of public institutions to assist with that discrimination.

The lady lawyers go on to claim that if the University can’t help them, their task would be more difficult, “if not impossible,” because that would “virtually eliminate [its] referral source for students.” Presumably female law students at the University of Colorado would be incapable of learning of the availability of these two scholarships, and the lady lawyers would be incapable of publicizing them without the University’s active assistance.

Substitute “race specific” for “gender specific” and “white” for “women” to evaluate the position of the Colorado Women’s Bar Association. If you think public scholarships limited to whites are acceptable, then by all means oppose CCRI. If not, tell the lady lawyers to take a hike.

Hard though it may be to believe, the brief submitted by the Colorado ACLU opposing allowing citizens to vote on CCRI may be even worse. From its “Summary of Argument” at the very beginning:

The phrase “preferential treatment” has no common meaning, nor it is not [sic] defined anywhere within the initiative. It may or may not prohibit a wide range of constitutionally permissible laws and programs affecting persons of a particular race, sex, color, ethnicity or national origin. As the phrase has no clear meaning and is submitted without definition, the proposed initiative is ambiguous, misleading, and inaccurate, and the effect of a “yes” vote on the proposed initiative is unclear.”


A detailed exploration of the many meanings of “preferential treatment” demonstrates the confusion the term engenders. For example, one reading of term [sic] implicates only programs that would “prefer” a person of one class to the disadvantage of a person from another class. Under this interpretation, the phrase “preferential treatment” would not include programs that provide additional opportunities or resources to one class with disadvantaging others, such as a special recognition award for women, designated scholarships to persons of color, or holidays celebrating a certain country or ethnic heritage.

The brief goes on to list other readings that confuse the ACLU. With all due respect (which, alas, isn’t much), it’s hard to believe that the Colorado ACLU is as confused about the meaning of “preferential treatment” based on race, etc., as it claims to be here. Leaving aside “ambiguous” for a moment, it would be interesting to hear how and why the Colorado ACLU thinks “the proposed initiative is … misleading, and inaccurate” when it doesn’t even know what it means. (Actually, on second thought I’m not sure it would be very interesting.)

Let us, however, suspend disbelief, lean over backwards, go the extra mile, etc., and assume the Colorado ACLU really is as confused as it claims to be. If we do that, we can easily dismiss its fear about the fate of “a special recognition award for women” and various ethnic holidays by reminding that organization that the proposed initiative is limited to barring discrimination/preferential treatment based on race, sex, ethnicity, etc. only by the state and only “in the operation of public employment, public education, or public contracting.” “Woman of the Year” awards, “Mexican Heritage Month,” etc., are entirely safe.

On the other hand, is there really anybody in Colorado, even on the legal staff of the ACLU, who doubts that public scholarships limited to members of one race is preferential treatment based on race? I don’t think so.

One final thought: if the Colorado ACLU really and truly is confused about the meaning of preferential treatment based on race, etc., I really and truly feel sorry for the poor souls who must rely on it to argue on their behalf that this program or that policy violates state or federal laws against racial discrimination or the Constitution’s requirement of equal protection of the laws.

Say What? (4)

  1. Dan Ruch September 19, 2007 at 12:56 pm | | Reply

    Um…maybe I am stating the obvious, but, haven’t the SCOTUS and Congress repeatedly clarified and codified it was wrong to continue providing preferential treatment to whites? Are those not the precedential defintions of discrimination? Do we not have 50 years of rulings and legislation establishing these two concepts are one in the same?

  2. David Nieporent September 20, 2007 at 12:39 am | | Reply

    Wow. I was curious how any judge could vote against it, so I went back and looked at the decision. Unfortunately, there’s no opinion — just an order — so I couldn’t see their “reasoning.” So I went and looked at the briefs against the CCRI. The ACLU’s amicus brief is particularly cynical and dishonest. It says that since some people pretend to disagree on what “preferential treatment” is — that is, they dishonestly deny that race preferences are preferential — it should be taken off the ballot.

    The Colorado Women’s Bar Association amicus brief is so embarrassingly bad that it’s not clear it was written by a lawyer (or at least not someone who would have been a lawyer if not for affirmative action). It says, in essence, “If the initiative passes, we wouldn’t like the result; we’d find it harder to discriminate.” I guess that has the virtue of honesty, but not much else.

    And then both the petitioners and the third amicus brief argue that the initiative shouldn’t be allowed to use the term “preferential treatment,” leaving it unclear to me exactly what the CCRI could say that would get its point across. (We already know that dishonest left-wingers and activist judges pretend that discrimination isn’t discrimination if it’s for a reason they approve of, so what language could be used?)

  3. eddy September 21, 2007 at 12:07 pm | | Reply

    If the ACLU claims that “preferential treatment” is an ambiguous catch phrase, what is their opinion on the term “affirmative action”?

    Since “affirmative action” has opposite meanings from expunging preferences to installing preferences, would they also object to every ballot initiative involving “affirmative action”?

  4. eddy September 21, 2007 at 12:48 pm | | Reply

    You should have highlighted the third amicus brief by Victor Ridder, a public opinion researcher, who objected to the term “preferential treatment” because opinion research showed people supported “affirmative action” but not “preferential treatment”. And that using “preferential treatment” in the title was an affront to the requirement of neutral ballot titling.

    The amicus confuses neutrality of titling with a requirement that the title alone must evoke a “half for, half against” opinion result. Apparently a ballot entitled “Safer Schools” would fail neutrality because there aren’t enough voters predisposed towards more dangerous schools. Likewise, there probably aren’t enough hard-hearted voters to justify ever using the words “orphans”, “widows”, or “puppies” in any ballot title.

    Maybe Mr. Ridder would give a pass to a ballot initiative titled “Certs is a Breath Mint”.

Say What?