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6/12/00 1:35 p.m.
Just One Factor
A life-or-death decision — based on skin color.

By Roger Clegg, general counsel of the Center for Equal Opportunity

week ago, the U.S. Supreme Court vacated a death-penalty judgment by the state of Texas against Victor Hugo Saldano, an Argentine man convicted for robbery and murder near Dallas five years ago. The conviction will stand, but the death penalty will have to be reconsidered. The Texas solicitor general did not contest this disposition of the case, and so the Supreme Court simply issued a bare-bones order sending the case back to the Texas court of criminal appeals “for further consideration in light of the confession of error” by the state.

The reason the sentence has to be reconsidered is that, at the trial, an expert witness for the state testified that ethnicity was a factor that ought to be considered by the jurors in deciding whether the death penalty was appropriate. The witness, psychologist Walter Quijano, listed 24 factors that he said ought to be considered in deciding whether Saldano was likely to pose a threat to society in the future. One of the 24 factors was Saldano's ethnicity, which is Hispanic.

According to the Washington Post, Saldano's case has led to a review, in which Texas has now uncovered eight more capital murder cases in which Quijano testified that race or ethnicity ought to be considered by jurors in deciding whether to mete out the death penalty. No case has yet resulted in an execution. The cases are being reviewed by the state, which does not dispute that it was wrong for race and ethnicity to be weighed.

Two points. The Texas solicitor general, John Cornyn, is to be praised for the confession of error, for his review to find other such cases, and for his position that it was “inappropriate” and “improper” for the state to urge jurors to consider race and ethnicity in determining a criminal's “future dangerousness.”

It doesn't matter that race might have been only one of 24 factors. If considering race can never make the difference between whether someone gets the death penalty or not, then there's no reason to consider it at all. But if in some case it can make the difference, then that means that whether someone lives or dies will depend on his or her skin color or ancestry. That kind of discrimination is simply inexcusable in this nation. But that brings us to the second point. Does taking race into account as “just one factor” sound familiar? It should. This is the mantra always repeated when a university tries to justify its system of racial and ethnic preferences in admissions. Yes, the school will say, we do consider race, but it is “just one factor.”

But there, too, the excuse won't wash. Of course the school will consider other factors in addition to race, but that doesn't make the consideration of race any less discriminatory. If race never tips the scale, then it needn't ever be considered. But the fact of the matter is that race and ethnicity do tip the scales in many, many cases, as studies by the Center for Equal Opportunity and others have shown. And when the scales are tipped, then discrimination has occurred.

Ironically, one of the schools caught discriminating in this way was the University of Texas law school. And the right to engage in this kind of discrimination is being aggressively defended now by none other than the Texas solicitor general, John Cornyn.

Not getting into college is not the same thing as a lethal injection. And, of course, the arguments for “diversity” in colleges are different from the arguments about “future dangerousness.” Perhaps the arguments that social scientists are now marshaling for “diversity” will have better statistics to back them up than psychologist Quijano's claim that race and ethnicity correlate strongly with future dangerousness. Or maybe not. But this is all really beside the point, because in neither case is the argument really about numbers. It's about principle.

And in both cases the basic principle is the same. People should be judged as individuals, irrespective of race and ethnicity, even when it is convenient or tempting or politically correct to consider such characteristics.

It is divisive, unfair, and immoral for the government to classify its citizens by skin color or ancestry and then treat them differently on that account. It sets a very dangerous precedent when the state does so in any context. The price is too high to pay. And when such discrimination occurs, it is no excuse to say that it was “just one factor.”

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