Delivered at Republican National Convention Gopac Panel, August 14, 1996

Good morning. It is my pleasure to be here today.

The famous American philosopher, Yogi Berra, once said, "If you don't know where you are going, you are bound to end up someplace else."

It is in this spirit that I want to look back to where we were before the Civil Rights movement of the 1950s and 1960s, in order to understand why we are where we are today, to ensure that we don't end up back where we were in the early 1950s. Which in Yogi's words, is someplace else.

Affirmative Action means a myriad of things to about as many people. My thesis today is that over the last thirty years the meaning of "equal opportunity" has shifted from projects of "affirmative action," which focused on recruitment and casting a wider net, to outright "preferences" for privileged groups.

At the same time, the groups deemed privileged have multiplied to include everyone except, as a manager in a major corporation recently told me, "white males under forty."

As Ward Connerly, the chairman of the CCRI campaign so cogently states, “Americans have a passion for fairness.” It was this passion for fairness that caused us to create affirmative action programs in the early 1970s. It is this same passion for fairness that is driving the present effort to abolish racial quotas and restore affirmative action to its original intent.

Americans have never supported preference programs or quotas, so champions of these programs continue to insist that they are "affirmative action," in the sense that they focus primarily on recruitment.

But the facts simply don’t support this position. From public university admissions, to civil service hiring and government contracting, it is not equality of opportunity but equality of results that is being pursued.

In its original conception, Affirmative Action was used in the spirit of equality of opportunity.

This meant that recruitment efforts were to be broadened by government, private-sector employers and institutions of higher education. In addition, selection processes were to be examined to ensure that discriminatory screens were not masquerading as"objective criteria."

Still, at this point, equality of outcomes, which can only be realized by setting quotas, was adamantly rejected by politicians seeking equal opportunity.

In fact, Democratic Senator Hubert Humphrey, a sponsor of the 1964 Civil Rights Act, vigorously denied charges that the act would lead to the categorization by race and the use of quotas.

He even promised to eat the paper on which the bill was printed if it led to equality of results.

Responding to charges that the act would lead to categorization and thus decision making by race, Humphrey stated on the Senate floor "In fact, the opposite is true. Title VII prohibits discrimination. In effect, it says that race, religion, and national origin are not to be used as the basis for hiring and firing."

But through a fairly rapid process of bureaucratic manipulation and court decisions, equality of opportunity was rejected as inadequate and replaced with equality of outcomes.

Fourteen years after the passage of the 1964 Civil Rights Act, U.S. Supreme Court Justice Harry Blackmun, signaling the postmortem to Humphrey’s non-discriminatory law, wrote in the famous Bakke decision, "I suspect that it would be impossible to arrange an affirmative action program in a race neutral way . . . In order to get beyond racism, we must first take account of race . . . In order to treat some persons equally, we must treat them differently."

Supreme Court Justice Thurgood Marshall, who made the case for a colorblind constitution as a lawyer for the NAACP, reportedly told his fellow Justice William O. Douglass, who commented upon the discriminatory nature of affirmative action, "You guys have been practicing discrimination for years. Now it’s our turn."

As Dr. Thomas Sowell of the Hoover Institution has stressed repeatedly, when people in positions of institutional power talk about equal opportunity today, what they mean is equal probability of success, not equal treatment under a fair process.

This is perhaps best expressed not by any social theorist of the left, center or right, but by novelist Kurt Vonnegut, Jr., in his essay "Harrison Bergeron" from Welcome to the Monkey House which begins:

"The year was 2081, and everybody was finally equal. They weren't only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was stronger or quicker than anybody else ... All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of the agents of the United States Handicapper General."

Vonnegut brilliantly shows how dull a world would be in which everyone was exactly alike. He also shows that such a world can only even be approximated with totalitarian means. Smart people have buzzers in their ears; talented dancers are weighed down with cement bags; and on and on. In short, everyone is treated special so that everyone can be ensured the same probability of success.

Ensuring 'equal probability of success' requires individuals to be held to different standards -- they must be handicapped according to group averages.

Before it was outlawed by Congress, this was accomplished by race- and gender-norming. Today, administrators simply claim they are looking for “intangible” qualities that only seem to be present in individuals from underrepresented groups who do poorly on objective achievement tests.

This takes place in virtually all of California's public institutions. At the University of California at Berkeley, non-resident targeted minorities are automatically admitted, without even having their essay read, in academic index ranges in which Asian and white California residents are automatically rejected.

We recently did a study of the UC Medical Schools which found that targeted minorities were two to four times more likely than non-targeted minorities to be accepted. Furthermore, this study found that economic disadvantage, UC's favorite rationale for its special admissions, had no bearing on anyone's chance of admission.

In the State's civil service, until recently, applicants were grouped in statistically equivalent test bands and managers were encouraged with bonuses to ignore applicants in the first two bands to hire someone who met a goal in the third.

As for state contracting, there are explicit goals of 5 percent for women-owned businesses and 15 percent for minority-owned businesses. Enforcing a double standard at the same time the taxpayer is fleeced, bureaucrats in the Pentagon often add 10 percent to the bid of non-minority contractors to make things "equal."

Under its "mend, don’t end affirmative action" program, the Clinton administration is seeking to extend this ten percent "bid preference" from the Pentagon to the entire federal government.

The Clinton administration’s proposals are merely semantic reform. For example, quotas, which long ago became goals and timetables, have again been renamed by the Clinton administration as "benchmarks." As for contracting set asides, they are now called "sheltered bids."

Each of these is an instance where "casting a wider net" has been abandoned for "ensuring certain outcomes." It is clear that what is called affirmative action by its enthusiasts, is really preferences or racial discrimination.

The shift from equality of opportunity to equality of outcomes can only be understood in the context of a broad intellectual shift away from individualism towards collectivism or group rights.

This shift is the moving away from the idea that every American should be free to pursue their own goals unencumbered by arbitrary government restraints to the idea that bureaucratically planned and enforced “equality of results” should be the goal of all social policies.

The former emphasizes a fair process -- fair to individuals -- and lets the results be what they may. The latter emphasizes group identity -- viewing a person’s societal role as a function of his/her group -- and fixates on equality of results.

Equality of opportunity is compatible with, indeed it is required of, a free society. Equality of results -- that each group be perfectly represented in each of society’s institutions -- cannot be pursued within the framework of a free society and indeed will even prove elusive in a planned society.

Furthermore, pursuing equality of results destroys equality under the law. As with Vonnegut’s essay and Blackmun’s candid admission, people must be treated preferentially to be treated equal.

In California, citizens will have an opportunity, for the first time in history, to weigh in on this issue this November when they vote on the California Civil Rights Initiative or the CCRI. Modeled after the 1964 Civil Rights Act, the CCRI's operative clause simply states: "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."

At its core, the CCRI is about whether race should be a salient factor in government decisions. That is, should the government use the immutable factor of race, something with which we are all born but have no control over, to make decisions. The CCRI is about discrimination -- whether we want our government to discriminate based on race. The CCRI is about fairness -- whether it is to be defined in terms of results or in terms of process.

The CCRI, at its best, will force Californians and ultimately Americans to address these fundamental issues -- like we are doing here today. It will, and has, opened an important and much needed dialogue over policies that, while pervasive, have been crafted and operated outside the public’s view.

It is my opinion that, like a rapidly descending pendulum, American society practiced official discrimination until a critical mass accumulated with the 1964 Civil Rights Act and forced America to live up to the moral imperative it set for itself at its founding.

The period of true equality of opportunity, however, was fleeting and the pendulum passed rapidly through it and embarked on an assent to bureaucratically enforced "equality of results." This assent reached its legal peak in the late 1980s when the courts could no longer square the imperatives of “equality of results” with the U.S. Constitution.

The California Civil Rights Initiative marks the pendulum’s social shift back to the original intent of equality of opportunity as stated in the 1964 Civil Rights Act. It is not a retreat to segregation nor is it a retreat to racial animus, it is a noble return to what Abraham Lincoln called the "standard maxim for a free society," the Declaration of Independence's "self evident truth” that “all men are created equal."

If human equality is indeed a "truth," then the only just and proper government is self-government -- a government which treats all its citizens equally under the law.

I am hopeful that CCRI marks the last directional change of the pendulum and that, once passed, we once again embark upon the important, and never-ending process, of achieving the ideal of “equal opportunity in a colorblind society.” A society in which individual merit and hard work, not skin color, gender, or connections, open the doors of opportunity.