Law & the Courts

California Abandons Equality under the Law

California State Capitol in Sacramento (Pixabay)

Here are some unexpected developments: In Mississippi, Republicans have decided to excise the Confederate flag; in California, Democrats have decided to legalize racial discrimination.

Who had that on their 2020 bingo card?

From the end of Reconstruction to the early 21st century, Mississippi Democrats had 136 years of legislative control to get around to that Confederate flag issue, but they left doing so to the Republicans who took control of both houses of the state legislature in 2012. Peculiar that an absolute moral necessity such as that escaped Mississippi Democrats for so long — not in the era of Theodore Bilbo but in the era of Barack Obama.

The explanation for that paradox is the calculating politics of racial clientelism, which Mississippi Democrats can see in action on the other side of the country as it is implemented by their fellow partisans in California. In 1996, California voters by a substantial margin enacted a constitutional amendment reading: “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 Democrat-run state legislature has just voted to repeal that amendment.

California had a long struggle with race-based admissions practices in its public universities, most famously with the Bakke case, in which the Supreme Court upheld race-based policies. The 1996 amendment was an attempt to sort that out in the most straightforward fashion, by insisting that the state take no notice of race at all in its policies. That was, for some generations, the great aspiration of most good-hearted Americans, who took it to be the dream of the Reverend Martin Luther King Jr.’s famous speech.

But the Democratic Party, whether in California or in Mississippi, is not interested in high-minded liberal principle. It is interested in spoils and patronage. And in an education-driven society such as ours, there are few more attractive forms of patronage than controlling admissions to universities, handing them out on a constituency-by-constituency basis the way old-fashioned ward-heelers still hand out turkeys at Thanksgiving.

Predictably, the 1996 amendment’s largely conservative supporters were smeared as covert racists looking to keep California’s universities white. That is one of the unlovely quirks of racial politics: The people who want to encode racial preferences into law and practice are the ones who insist they are anti-racists, and the people who want to encode racial neutrality into law and practice are taken as the latest incarnation of the Ku Klux Klan.

But reality is a little more complicated: California’s universities weren’t overwhelmingly white in 1996 — white students composed less than 40 percent of the students, more than a third of whom were Asian Americans. Black students were 3.7 percent of the student body in 1996, exactly the same as they were in 2010. The number of Asian-American students climbed slightly after the amendment, and the number of white students declined significantly, to 27 percent. The big change was the share of Latino students, rising from 13 percent to 20 percent. Under California’s officially colorblind policy, the share of black students has remained unchanged (even as the black population of California declines) and the number of Asian-American and Latino students has grown. The white share of students has declined along with the white share of the population. It is difficult to see anything outrageous in any of that.

California Democrats such as Assemblyman Todd Gloria insist that eliminating rules against racial discrimination are necessary to “advance true racial and gender equity in this state.” That is, of course, nonsense. It is, in fact, self-refuting nonsense — the fact that the ethnic makeup of California’s state universities does not reflect the ethnic makeup of the state is not an indictment of colorblind university policies but an indictment of the state’s K–12 education system and other institutions. Racial preferences do not create equality — they camouflage inequality.

California’s highly regarded state schools are extremely selective: Berkeley, for example, accepts fewer than 15 percent of applicants, putting its selectivity somewhere between Swarthmore’s and Cornell’s — pretty rarefied territory. On the other hand, California has some of the worst-performing public schools in the country, with fewer than 30 percent of eighth-graders achieving proficiency in math or reading as measured by the National Assessment of Educational Progress. California’s problem isn’t who is going to Berkeley’s law school — it is who isn’t finishing high school, or who is finishing high school with a woeful lack of preparation for either work or higher education.

But addressing California’s actual educational problems would not pay any dividends to Democrats in Sacramento, who are utterly dominated by the state’s unionized public-sector workers, teachers prominent among them. Giving politicians more influence over who gets into college, on the other hand, is all gravy.

The events of the past several months are a reminder (albeit a destructive reminder in some cases) that the United States — its government and its people — have very often failed to live up to the best of our creed. The most effective advocates for civil rights, from Frederick Douglass to King, have always understood that the shortcoming was not in American principles but in our failure to live up to them. One of those principles is that all men are equal under the law and in relation to the state. That principle may have gone out of fashion in some circles, but it is still a good one, and worth defending in California and everywhere else.


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