The Fight For Equality

     The battle for racial equality in the courts and on the ballot box is quickly reaching a climax.  The fight to pass civil rights initiatives via the ballot box achieves yet another in a long string of victories this past November when Oklahoma, for the most part, outlawed Affirmative Action.

     The language used is similar to other Civil Rights Initiatives passed in other states previously.  The key operative text for these measures makes it clear that it is meant to end discrimination”

“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.”

     The drive to pass these Civil Rights Initiatives began in the mid-’90’s when then University of California Regent Ward Connerly was able to get the Board of Regents to approve SP-1 and SP-2 which banned the use of race as a factor in admissions

     This was quickly followed up by Prop. 209 which passed with a 10% margin.  This was followed up by victories in many more states, with Oklahoma being but the most recent.

     Despite the clear and plain meaning of these initiatives, there has been a sustained attack by those who somehow have come to believe that discrimination is equality and equal treatment is discrimination.

     Their logic is such that discrimination is so ingrained in American society, that they can only achieve an equality of results by an inequality of opportunity.  Equality can not be achieved through the institutionalization of inequality.  Much like any government program, it will not make itself, or the people who run it, obsolete by actually achieving its goal.  The urge to disregard the requirement that people be treated equally is so great, that UCLA was caught cheating on admissions by an independent study.

     These attacks have resulted in divided court cases and split circuit courts.  The 9th circuit court many years ago upheld the California Civil Rights Initiative (Prop. 209) as being Constitutional, as it obviously is.  Unfortunately, the 6th circuit recently declared that requiring equal protection of the law violated the 14th Amendment’s “Equal Protection” clause based on some truly tortured logic:

“The rationale behind that decision was that the state had altered the political process in a racial fashion by selectively shifting race-related decision-making from local government to the (more remote and less easily-influenced) state government. But state universities, unlike school districts, are arms of the State, for purposes of the Eleventh Amendment, not local governments, and a state obviously has a keen and legitimate interest in preventing racial discrimination for which it can be held liable out of the state treasury.”

     This race raises a clear question that the Supreme Court must answer:

“[W]hether prior Supreme Court decisions on racial equality, including the latest college admissions decision in 2003, permit the University of Texas to use race in the selection of its freshman classes.”

     Further, this case is different from previous rulings.

“Fisher disrupts the debate over the constitutionality of affirmative action because it represents the first affirmative action case to reach the Supreme Court in which (a) there is no plausible case that racial and ethnic preferences are necessary to achieve “diversity”; and (b) those most affected by the affirmative action preferences at issue are not blacks and whites, but Hispanics and Asians.  Therefore, neither the diversity rationale nor the social justice rationale has the force in Fisher they have had in previous cases.”

     With the excuses of “diversity” and “social justice” absent, the Supreme Court will be able to focus on the crux of the debate: Whether the state may treat people unequally on the basis of race.

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