Many conservatives are applauding the recent Supreme Court Schuette decision upholding the right of the citizens of Michigan to ban racial preferences. As Charles Krauthammer writes, the 2003 Grutter decision, which like Schuette did not ban racial preferences altogether, was correct: “The people should decide. The people responded accordingly. Three years later, they crafted a referendum to abolish race consciousness in government action. It passed overwhelmingly, 58 percent to 42 percent. Schuette completes the circle by respecting the constitutionality of that democratic decision.”
This approval of Schuette, however, ignores 2 problems. The first is that a state’s ban on racial preferences doesn’t end racial preferences; it just spurs universities to find more creative and subtle ways to take race into account. Second, it leaves in place the duplicitous, ideological, and incoherent doctrine of “diversity” that ever since the 1978 Bakke decision has been the “compelling state interest” justifying taking race or sex into account.
In November of 1996 the voters of California passed Proposition 209, the Civil Rights Initiative, which amended the state constitution to forbid the state from “discriminat[ing] against or grant[ing] 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.” Yet despite the clear-cut legal prohibition, race-based preferences and policies live on in California higher education.
Take, for example, the process of hiring faculty in the California State University system. Despite the “end of affirmative action,” every hiring committee still must have an “affirmative action” representative, which after Proposition 209 was renamed the “Equal Employment Opportunity designee.” Despite the name change, the EEO designee performs the same function based on the same assumptions the voters supposedly rejected. The purpose of this representative is not to make sure the most qualified and suitable person is chosen for the position regardless of race, sex, or any factor forbidden by the 1964 Civil Rights Act. The EEO designee can be from any department on campus, and so in most cases will not have much awareness of the qualifications required for the position. Yet despite this lack of knowledge, no hire can go forward without the EEO representative’s approving signature at every step of the process, in order to make sure no qualified minority candidate has been unjustly passed over. But by definition the only “qualification” that matters to the EEO designee will be race or sex.