Black Lives Matter on the Ballot

John Rosenberg

Editor’s note: This article was originally published by the Minding the Campus on July 7, 2020.


Democrats in the California legislature, with the encouragement and support of elected Democrats everywhere, have just given the citizens of the Golden State the opportunity to vote on what is one of the central demands of Black Lives Matter — converting civil rights into a naked racial spoils system.

Proposition 16, which will be on the November 3 ballot, repeals Proposition 209’s prohibition against racial discrimination that 55% of the voters added to the state constitution in 1996. Echoing, virtually restating, the 1964 Civil Rights Act, Prop. 209 added the following simple, straightforward provision to the California constitution: “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.”

Democrats have been trying, legally and politically, to repeal Prop. 209 — and its progeny in Washington state, Michigan, and elsewhere — since the day it was passed. So far those efforts have failed. I have discussed them in some detail here, and will have more to say about some of them below, but now the blacks and Hispanics who power the California Democratic Party think conditions have changed enough that they will succeed in overpowering the largely Asian opposition that stymied them in the past.

The most relevant of those conditions is the paroxysm of protest, rioting, and elite kowtowing to Black Lives Matter that followed the death of George Floyd under the knee of the Minneapolis police.

Although the measures that became Prop. 16 were introduced earlier, they were debated and passed on a party line vote only on June 10 in the Assembly and June 22 in the Senate. Thus that debate and most of the public discussion to date reflects the fact that the nation has been in the grip of the post-Floyd hysteria, and the proponents of reviving racial preference are attempting to ride the wave of Black Lives Matter’s new power and popularity, and benefit from its intimidation of critics.

Those arguments merely amplified the traditional arguments that the opponents of Prop. 209 have made, unsuccessfully, for years. The legislative summary included in the original introduction listed a number of them, which I summarized, along with the traditional refutation of them, in my article, “Another Scheme to Justify Racial Preferences.”

What is striking about these arguments, and the more recent ones as well, is how often they are demonstrably wrong:

  • 209 did not have “a devastating impact on minority equal opportunity and access to California’s publicly funded institutions of higher education”;
  • “diversity within public educational institutions” has not been “stymied”;
  • Passage of Prop. 209 has not “led to a decreased likelihood of [minorities] earning a college degree within six years”;
  • The University of California has exceeded the amount of “diversity” it had prior to the passage of Prop. 209

Assemblywoman Shirley Weber (D, San Diego), chair of the Legislative Black Caucus and co-sponsor of Assembly Constitutional Amendment 5 that led to Prop. 16 being placed on the ballot, repeated several pro-preference tropes. For example, she asserted in a press release that “Since becoming law in 1996, Proposition 209 has … perpetuated a wage gap wherein women make 80 cents on every dollar made by men and has allowed discriminatory hiring and contracting processes to continue unhindered.”

Even Politifact, usually kind to progressive arguments, has refuted the 80% assertion, noting that it “does not adjust for such factors as the degrees and jobs women pursue, the time they take off to care for children, the number of hours they work, and the years of experience they’ve had … [and thus] the statistic cannot be used to pinpoint pay discrimination between men and women doing the same work.”

No attempt to justify preference for members of a group to which one belongs would be complete without what I have described as the “C’est Moi!” defense of affirmative action — “the argument that the advocate’s own success justifies abandoning the principle that everyone should be judged ‘without regard’ to race.” Assembly member Lorena Gonzalez (D, San Diego), co-author of ACA 5, does not disappoint, stating that “I’m a product of Affirmative Action. Without it, I wouldn’t be where I am today.”

On Twitter she argued that “I didn’t take someone’s place,” revealing that she either does not understand how affirmative action works or purposefully misrepresented it. “I was seen and acknowledged for my unique life experiences and given a shot. Once given the opportunity, I was able to succeed alongside folks who had never faced a challenge in their life. Latinas in my community deserve that second look.”

Leave aside the snide, arguably racist (or at least race-based) argument that her “life experiences” — and presumably the “life experiences” or all Latinas — are unique while all whites and Asians uniformly “had never faced a challenge in their life.” What is either a misunderstanding or a misrepresentation of affirmative action is Gonzalez’s claim that she “didn’t take someone’s place.” Of course she took someone else’s place! As a “product of affirmative action,” she would not have been admitted without the ethnic preference she received, which inescapably means that someone else was refused admission who would have been admitted but for his or her race or ethnicity.

The C’est Moi! justification of affirmative action always assumes something that is rarely obvious: that the person claiming “where I am today” is such a gift to the rest of us that it justifies the preferential treatment that excluded the person whose place she took. Where, we can never know, would that person be today?

This misunderstanding or misrepresentation of affirmative action is ubiquitous in the arguments of those seeking to promote its return. For example, the Academic Senate of San Francisco State University passed a resolution claiming that Presidential Executive Order 11246 “requires SF State University, as a government contractor, to develop an affirmative action plan,” an obligation that Prop 209 forced “to be de-emphasized.”

The professorial senators seem blissfully ignorant of how affirmative action is defined in Executive. Order 11246 (1965). It requires government employers and contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, ” etc. (Emphasis added) Prop. 209 required that same “without regard” standard; Prop. 16 would eliminate it.

Similarly, a report issued by the Assembly Committee on Public Employment and Retirement (May 5, 2020) promoting ACA 5 quoted Executive Order 10925, oblivious to the fact that it required precisely what ACA 5/Prop. 16 would repeal: “In 1961, EO 10925 was issued by President John F. Kenney [sic] which used affirmative action for the first time. This EO instructed federal contractors to take ‘affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.’”

Indeed, the language of the racial preference promoters is Orwellian, or perhaps Carrollian — as Lewis Carroll wrote in Through The Looking Glass, “‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”

When the League of Women Voters claims that passing Prop. 16 “will restore time-tested equal opportunity programs,” what it chooses to mean by equal opportunity is greater opportunity for some and less for others based on their race or ethnicity. When it claims that passage would mean “Young adults of color will have access to a quality higher education,” it implicitly argues that prohibiting discrimination or preferential treatment based on race limits the access of those young adults of color.

ACA 5 author Shirley Weber states (quoted on p. 3 of the public employment and retirement committee report linked above) that ACA 5 “will help improve all of our daily lives by repealing Proposition 209 and eliminating discrimination in state contracts, hiring and education.” But what she means by “eliminating discrimination” is eliminating the constitutional provision that bars state agencies from “discriminating against, or giving preferential treatment to,” any individual based on race, sex, or ethnicity. Weber claims that “[This Constitutional Amendment] is about equal opportunity for all and investment in our communities.” But what she means by “equal opportunity for all” is preferential treatment for some. Weber says passing Prop. 16 would eliminate “roadblocks” for people of color and women, but what she means by “roadblock” is treating everyone without regard to race, ethnicity, or sex.

Opponents of Prop. 209’s prohibition of discrimination and preferential treatment have been misdefining its words and mendaciously misrepresenting its intended and actual effect for 25 years, and that continues apace. There also has been and continues to be more than a large dollop of hypocrisy in their pro-preference protests.

They claim, for example, in the words of the University of California Board of Regents in endorsing ACA 5, that “the diversity of our university and higher education institutions across California, should — and must — represent the rich diversity of our state.” But they either deny or don’t know what the UC regents presumably know: that whites are the most “underrepresented” group in the University of California system — 37% of the California population but only 21% of 2019 UC students, as I pointed out here, meaning that whites are only 56% of what “reflect the diversity” advocates would call equity or parity. Blacks, by contrast, are 4% of the students and 6.5% of the California population — 61.5% of parity/equity. And Hispanics: 25% of students, 39.3% of population — 63.6% of parity/equity. And then there are the Asians: in the fall of 2019, Asians were 33% of the undergraduates in the University of California system; 43% at Berkeley; but only 15% of the California population.

As the debate over Prop. 16 heats up on the road to November it will be fun to watch Ms. Weber and Ms. Hernandez explain to their black and Hispanic constituents why “equity” requires increasing the number of whites in the UC system and to any Asian constituents they may have why the proportion of Asians must be reduced by half, and more at Berkeley.

The context of the coming debate is markedly different from what it has been since 1996. The rapid post-Floyd rise of Black Lives Matter — accompanied and in fact facilitated by the servility to it of our cultural elites in academia, the media, and now corporations — has shifted the terrain to a dark new ground. Preference proponents will be spending less time on “equity,” “fairness,” and “diversity” — less time demanding an end to discrimination and more demanding the thoroughgoing defeat of “systemic” anti-blackness, trumpeting racial reparations and what sounds increasingly like revenge.

At a live-streamed press conference discussing “What Would Systemic Change Look Like?,” Shirley Weber provided some clues. Referring to ACA 5/Prop. 16, she played the BLM tune. “We’re here because for 400 years, African American men and women in this country have been disrespected. This country has taught itself to hate African Americans and to deny the history that has brought us here.”

“The Black Lives Matter movement, galvanized by the police killing of George Floyd,” the Los Angles Times reported, “is propelling the once volatile issue of affirmative action onto the November ballot.” The article quoted Lorena Gonzalez, “chairwoman of the Legislative Latino Caucus, [who] recently tweeted this strong message to other lawmakers: ‘I don’t want to see a single one of my fellow legislators post about #blacklivesmatter but not vote on #ACA5…. Black lives matter in government contracting and college admissions, too.’”

The Guardian (where else?) was ecstatic, reporting “an emotional session on the senate floor, in which numerous lawmakers of color recounted personal experiences of discrimination.” The article quoted “Steven Bradford, a Democrat from Los Angeles who is black…. ‘I know about discrimination. I live it every day. We live it in this building. Quit lying to yourselves and saying race is not a factor. The bedrock of who we are in this country is based on race.’”

“This country” hates blacks? “The bedrock of who we are in this country is based on race”? No wonder the monuments to the country’s white founders and heroes should be torn down, and no doubt Frederick Douglass and Martin Luther King Jr. will also soon be candidates if they are not already. (ADDENDUM: Several hours after this article was submitted the Rochester Democrat & Chronicle reported that “Frederick Douglass statue vandalized on anniversary of famous Fourth of July Rochester speech.”)

On June 8 Timothy P. White, the Chancellor of the California State University System, endorsed ACA 5 in a letter to Shirley Weber. He was quite clear about what he would implement if freed from the non-discrimination requirements of Prop. 209:

  • Focused student recruitment and programs based on race/ethnicity;
  • Focused recruitment programs for faculty of color;
  • Externally funded scholarship programs based on race/ethnicity;
  • Programs to recruit teacher candidates based on race/ethnicity; and
  • Student retention programs based on race/ethnicity.

There is no disingenuousness here. The intention of the pro-preference Democrats to implement an unconstrained racial spoils system is acknowledged with frankness and even zeal. The only thing missing — at least so far — is their failure to admit (perhaps even a failure to recognize) that what they really want, what their goals require, is a repeal not just of Prop. 209 but also the federal civil rights laws, especially the iconic Civil Rights Act of 1964, on which it is based.

Perhaps Assemblywoman Weber, Assemblywoman Hernandez, or Senator Bradford can explain why the race-based programs proposed by Chancellor White do not flagrantly violate Title VI’s requirement that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

If you think the charge that racial preference programs flaunt federal civil rights laws (at least if properly interpreted by the courts) and, if their proponents gain enough power, demand their repeal, review the legal arguments launched against Prop. 209 and the identical Michigan Civil Rights Initiative discussed here. The argument that prohibiting racial preference violates the 14th Amendment (I’m not making this up) won the support of a Democratic federal judge in California, eight Democratic-appointed judges on the Sixth Circuit Court of Appeals, and two Democratic-appointed justices of the Supreme Court. Imagine what they would do with a majority.

One bright spot that so far has not been darkened by the rapidly emerging Black Lives Matter hegemony is the polling data — consistent over decades and also summarized here — revealing that substantial majorities of Americans oppose race-based preferential treatment. We will know whether that remains true, or even if true nationally whether it is also true in California, after the November 3 vote on Prop. 16.

There is, of course, another election that same day. Based on his magnificent Mt. Rushmore Fourth of July speech, President Trump seems determined to make the presidential election a referendum on traditional American values vs. the view that we are a corrupt, endemically racist nation. If so, he should consider campaigning early and often in California to defend what Gunnar Myrdal called the American Creed — the principle that Americans should be treated without regard to race, creed, or color. He may not win California, but campaigning there on that principle would make his argument much more forcefully than placing guards around statues.


John Rosenberg blogs at Discriminations

Image: Chris Henry, Public Domain

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