Phi Beta Cons

Why Don’t State Legislatures Act?

Earlier this summer, the Arizona legislature put onto the 2010 ballot an initiative that would amend the state constitution to ban preferences and discrimination on the basis of race, ethnicity, and sex in state and local employment, contracting, and education — including racial and ethnic admission preferences to state universities.

It’s not always possible for state legislatures to put constitutional amendments on the ballot, but there’s nothing to stop any state legislature from banning such discrimination by passing a simple statute. The essential language would be the same and has been adopted by four states already (California, followed by Washington, Michigan, and Nebraska).

If that’s too much, then a state’s legislature can at least require its public universities to disclose whether they are awarding such admission preferences — and, if they do, how they conform to the constraints on them that the Supreme Court laid out in the University of Michigan cases. The Center for Equal Opportunity has drafted model legislation that does this. What’s more, the U.S. Commission on Civil Rights has endorsed legislation that takes this approach.

Even if some people argue that discriminatory preferences ought to be allowed, what possible argument could there be for keeping them secret — and beyond the bounds of what the Supreme Court allowed — at public institutions? I think that the political risks associated with challenging affirmative action are often greatly overstated. To the contrary, such discrimination appears to be extremely unpopular with most voters. But even those who see risks should be willing to support simple disclosure.

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