Americans overwhelmingly agree that discrimination on the basis of race, ethnicity, or gender is wrong — whether it is the politically correct version that discriminates against whites, and often Asians (particularly in college admissions), by giving preferences to other racial or ethnic groups like blacks and Hispanics, or the old-fashioned, politically incorrect version that discriminates against African Americans and other ethnic minorities, which the civil-rights movement fought in the 1960s. Americans today still want to “live in a nation where they will not be judged by the color of their skin but by the content of their character,” to quote the man we honor this weekend.
For example, a Washington Post/ABC News poll released in June 2013 showed that three-quarters of Americans (76 percent) “oppose race-based college admissions.” That includes “eight in 10 whites and African Americans and almost seven in 10 Hispanics,” as well as “at least two-thirds of Democrats, Republicans, and independents.” A similar Gallup poll found that two-thirds of Americans “believe that college applicants should be admitted solely based on merit” and that their racial background should not be taken into account.
The U.S. Constitution and federal civil-rights statutes embody this principle of equal protection under the law and outlaw discrimination. Unfortunately, despite the law, numerous government programs, federal and state, award grants and contracts and make hiring decisions for public employment on a discriminatory basis, favoring certain races and sexes and disfavoring others. Many government officials have abused what were supposed to be limited exceptions, explicitly meant to remedy past discrimination, in order to create a racial spoils systems for government jobs and government contracting. Public-university officials have likewise embraced admissions policies that openly discriminate on the basis of skin color and national origin.
Such government actions are wrong. Jobs should go to the most qualified, contracts should be awarded to the lowest qualified bidder, and the students who have demonstrated that they are the most likely to perform well academically should be the ones admitted to the universities that taxpayers fund. Efforts to eliminate such discrimination in federal programs have largely met with failure due to determined opposition in Congress.
Many states, accordingly, have pushed back and enacted laws that ban politically correct and politically incorrect discrimination alike. Over the last two decades, six states have passed ballot initiatives to amend their constitutions to prohibit state and local governments from discriminating in public employment, contracting, and education (including at public universities) on the basis of race, ethnicity, or sex: California (1996), Washington (1998), Michigan (2006), Nebraska (2008), Arizona (2010), and Oklahoma (2012).
The voters of every other state that has a referendum or initiative process should follow suit and consider passing a state-constitutional ban on discrimination by state and local governments. At the very least, state legislatures should consider passing a statute that does the same thing.
In a state where this is not politically possible — how sad that is, by the way — perhaps it would at least be feasible to require public universities to reveal every year detailed information about whether and how race, color, ethnicity, and national origin are considered in their student-admissions process. So long as such discrimination continues, and until it is outlawed by ballot initiative or state legislation, it should at least be made public and narrowly limited, as the U.S. Supreme Court has required in a series of cases, including most recently Fisher v. University of Texas at Austin. Even if some insist that public universities should practice racial discrimination in admissions, can anyone justify doing so secretly and without taking pains to satisfy the Court’s requirements?
Quite apart from the constitutional and legal prohibitions against it, discrimination is simply wrong from a moral point of view — and particularly egregious when practiced by the government and used as a racial spoils system. Whatever label it is given, be it goals, set-asides, priorities, or preferences, it is still discrimination that provides or withholds government benefits based on skin color, ethnicity, national origin, or sex. Given the seeming inability and unwillingness of federal officials to eliminate official discrimination, and the numerous discriminatory programs that exist in the federal arena, state governments and particularly individual Americans should strive to eliminate such discrimination at the state and local level through the referendum and initiative process. Two model bills can be seen here.
As U.S. Supreme Court Chief Justice John Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This weekend, when we celebrate the birthday of a great crusader against such discrimination, would be an appropriate time to start putting that principle in place.
— Roger Clegg is president and general counsel of the Center for Equal Opportunity. Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.