SACRAMENTO, CA - As various commentators have rightly pointed out, the U.S. Supreme Court blew the University of Michigan race-preference cases. By making racial “diversity” a compelling state interest that justifies race-based college admissions, the Court made racial discrimination constitutional. Rather than engaging in recriminations, however, opponents of racial preferences should mobilize a nationwide campaign to enact anti-preference laws such as California’s Proposition 209 in every state.

“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,” said Proposition 209, passed by California voters in 1996. Voters in Washington state
approved a similar measure.

Will the Supreme Court’s Michigan decisions affect the California law? Not really. The reason is that a state can use a higher standard than that used by the federal courts.

For example, in upholding the constitutionality of Prop. 209, the federal Ninth Circuit Court of Appeals said that the measure’s anti-preference provisions did not violate the U.S. Constitution’s equal protection guarantees. The appellate court specifically pointed out: “To hold that a democratically enacted affirmative action program is constitutionally permissible because the people have demonstrated a compelling state interest is hardly to hold that the program is constitutionally required. The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

The California Supreme Court, in an important ruling upholding Prop. 209, noted that under federal statutory law, although race and gender preferences can be used under certain circumstances, such preferences are not mandated. California’s top court observed that federal law “expressly provides for the supremacy of state law” that does not expressly violate federal laws. Since Prop. 209 doesn’t conflict with federal laws, such as the Civil Rights Act, it is lawful. Indeed, a key federal court decision stated: “The mere fact that affirmative action is permissible under the Title VI and IX [Civil Rights Act] regulations, and some judicial interpretation, does not require preemption of a state law that prohibits affirmative action.”

Thus, although the U.S. Supreme Court may have given the green light to universities to discriminate against highly qualified white and Asian students, that doesn’t mean that Americans must simply swallow the universities’ preference programs. States can demand that their legislature pass anti-preference laws, or where legislatures are unresponsive, the people can pass voter referenda requiring race neutrality. Is there support, however, for such efforts?

The New York Times does not think so and solemnly says that “there is broad societal consensus in favor of affirmative action in higher education.” Even White House counsel Alberto Gonzales, speaking recently before a large Hispanic audience, praised the Supreme Court’s diversity decision, evidently putting politics and votes over principle. Yet, the cold hard fact is that most people oppose race preferences. In a February 2003 Los Angeles Times poll, Americans opposed race preferences by a two-to-one margin.

There are already discussions taking place in Michigan for a ballot measure to dump race preferences. Such discussions should be taking place all across the country. Justice O’Connor’s majority opinion was illogical and intellectually dishonest, but, as Ronald Reagan used to say, such mistakes can be corrected by “We the people.”