Posted on January 13, 2006

UnKingly Statutes

Roger Clegg, National Review Online, Jan. 13, 2006

It now appears inevitable that voters in Michigan later this year will have the opportunity to forbid their state—when it hires, promotes, contracts, or makes college-admission decisions—from judging individuals by the color of their skin rather than the content of their character. That is, Jennifer Gratz, Ward Connerly, and several hundred thousand petitioners there have succeeded in placing on the ballot for November 2006 the Michigan Civil Rights Initiative, which would bar discrimination and preference based on race, ethnicity, or sex in state employment, education, and contracting.

The measure will pass, but it’s needed not just in Michigan, but all over the nation. And Martin Luther King Day is a good time to explain why.

The Federalist Society has posted on its website a white paper by Shawn Nevill and myself that summarizes the results of a nationwide study recently completed by the Society, which surveyed and catalogued the various state statutes that use racial and ethnic classifications. The results were appalling: There are 656 statutes on the books that contain such discriminatory classifications. Not all states have them—the honor roll of those that do not includes 15 states—but most do.

The worst offenders include Louisiana and Arkansas, neighboring states with a long history of racial classifications, as well as, ironically, California. I say “ironically” since the voters of California amended the state constitution in 1996 to ban such discrimination. Come to think of it, though, perhaps “ironically” is not the right word, since the profusion of such statutes and the legislative mindset behind them may be part of what prompted the state’s voters to act. Michigan, not incidentally, is another double-digit offender.

The statutes include preferences in government contracting and in other aid to private business; selections for service on various state boards; education, including racial preferences for both teachers and students; and even health care.

It is, to put in mildly, disturbing when states classify their citizens on the basis of skin color and national origin, and treat some folks better and others worse on the basis of those characteristics. Such discrimination is unfair, irrational, divisive, and stigmatizing. It is also increasingly unwieldy and untenable as America becomes more multiracial and multiethnic with every tick of the clock.

And this discrimination is illegal. The Supreme Court has made it clear that state classifications on the basis or race and ethnicity are presumptively unconstitutional, and can be justified only in limited and narrow circumstances. It is very unlikely that most—if any—of these statutes can pass the “strict scrutiny” the Court has demanded.

There are a number of ways to get these laws off the books. The most dramatic and fool-proof is to do what California and Washington did and what Michigan has the chance to do later this year: pass constitutional amendments that make them null and void.

Equally direct would be for state legislators to look down the list for their state and then to introduce bills repealing the offending laws. Governors, lieutenant governors, and state attorneys general could do the same thing—and could announce that they will refuse to enforce clearly unconstitutional statutes.

Private citizens can bring these laws to the attention of their local officials—and they can bring lawsuits that challenge them. The Federalist Society list provides a good roadmap for them.

Federal civil-rights officials should also scrutinize the list. The Justice Department’s Civil Rights Division and Education Department’s office for civil rights have already been sent copies.

Not that the federal government is very trustworthy, however. The U.S. Code and the Code of Federal Regulations are honeycombed with statutes and regulations that are just as bad as the states’. And there are those in Congress who would make matters worse. There are, at our last count late this fall, at least a half-dozen pending bills that use racial or ethnic preferences ( H.R. 2931, H.R. 609, H.R. 509, S. 357, H.R. 427, S. 1465, and H.R. 921, if you’re curious), not counting even more than that just in the health-care area (see my earlier piece on the abuses in this area).

Some of the state laws are vague or ambiguous. In cases like that, it would help if the state passed legislation that made clear that discrimination and preferences on the basis of race and ethnicity are illegal. The Center for Equal Opportunity has e-mailed model legislation that would do this to legislators in all 50 states.

In addition, CEO has also drafted and circulated to state legislators a model bill that requires state universities that use racial and ethnic admission preferences to report this fact to the public, along with the steps the school is taking to ensure that such preferences meet the limitations set on them by the Supreme Court. Preferences are bad enough, but surely we can all agree that there should be no SECRET preferences in taxpayer-supported, state-run institutions of higher learning.

One hopes that publicizing preferences will result in public pressure to abandon them. Judging people by the content of their character rather than the color of their skin is not a principle that ought to have 656 exceptions to it.