In 1996, California voters passed proposition 209, the “anti-affirmative action iniative”. I put that in quotes because AA, as it is often presented by AA supporters, is not affected by 209. The ACLU decided that it didn’t like 209 anyway, and that it had the right to veto it. It attempted to do so by arguing that it was unconstitutional, and suing to overturn it. They managed to convince a judge to issue an injunction, but eventually the case was dismissed.
I can undrstand how some people would not like 209 (although I didn’t expect the ACLU to be among them). What I don’t understand is how anyone could think that this is unconstitutional. Can anyone present an argument for this position? Or is ACLU just a sore loser?
That’s pretty odd. I know for a fact that the ACLU would not have a problem with that part alone, so there must be some obscure clause in there that is unconstitutional. Did they say it was the California or US Constitution? I’m going to read the full text now.
Okie dokie. I read the proposition and I’m still confused. It all seems perfectly benign to me. I’m going to see if the ACLU site says anything about it.
OK, I’m back. Here is what the ACLU says about it. They believe it violates the equal protection clause of the US Constitution. Why they believe this is completely beyond me.
I’m starting to worry about what those guys are doing with my money.
If it doesn’t affect Affirmative Action, why is it called the Anti-Affirmative Action initiative?
My guess is that the language of the measure seeks to impede AA efforts because, in a sense, AA efforts do discriminate by favoring racial minorities, in effect “discriminating” against the racial majority. Yes? No? If yes, this would seem to make sense as to why they ACLU would fight against it.
The ACLU favoring it does not need to make sense, hell they stopped making sense when they began to advocate NAMBLA. I think the ACLU is now just thriving on being bizarre. I got a letter asking me to renew about three months back, needless to say I will not. Pretty sad when a loudmouth whacko like me thinks a group is over the top.
I’d guess that the NAMBLA case was about defending the right to congregate and free speech. NAMBLA’s beliefs probably had nothing to do with the ACLU’s decision to defend them.
A as high school senior, I think I have a good grasp on the University of California admissions policies. For between 60% and 80% of students applying anywhere but Cal-Berkely, they go strictly by grades and test scores. (GPA x 1000)+ 3 SAT IIs + SAT gives you a score out of a max of 8000. Each school sets a cut off score and admits every student above it. Those who don’t make the cut have their entire applications looked at.
Before 209, I believe that some groups had a lower cut-off score than others.
I think that my wording may have been ambiguous. First of all, its name is the California Civil Rights Initiative. Why is it called the “anti-affirmative action initiative” (along with “divisive wedge initiative”, “mean-spirited hate-mongering initiative”, and many, many other things)? Because some people really didn’t want it to pass. Secondly, I didn’t say that it won’t affect AA. What I said was that AA, as it is often presented by AA supporters, is not affected by it. For instance, it outlawed racial quotas. Well, supporters of AA are always saying that AA isn’t about quotas. They say it’s about looking for opportunities that are not offered to underrepresented people, and offering them. If this is really what AA is about (and I’m not convinced it is), then 209 did not affect AA.
If AA is discriminatory, why does it make sense for the American Civil Liberties Union to sue for its protection? Do the civil liberties of the majority not matter?
In the simplest terms possible, the reasoning behind it (which I don’t necessarily agree with) is that the equal protection clause was written for the express purpose of improving the lot of black people. Therefore, any governmental action which has the opposite effect violates it. And many people believe 209 has had or will have the opposite effect.
Unless you’re donating to them, they aren’t getting any of your money.
So in other words, all governmental actions must help black people? The black community has the right to veto any decision it doesn’t like? I really hope you’re mistaken as to what their reasoning is. If you aren’t, the KKK has some pretty stiff competition for the “racist bastards” award.
I don’t think that’s their reasoning. In all the times I have followed what the ACLU was doing, they have not taken this type of view. Unless it’s a new shift in policy, in which case, I’m sure it would piss off a great deal of civil libertarians.
I’ve been a member for quite a while. They have quite a bit of my money. I’m going to try to find some less ambiguous literature about this case until I can find out what their real motivation is. I still think we’re missing something. If their motivation is what you posit, then it’s time for a Very Angry Letter.
The Ryan, it’s not that it means that ACLU wants ALL laws to benefit black people. They are afraid that certain elements in government will interpret the law to mean that NO law can benefit black people(or gay, or female, or any other group) specifically. Bye-bye hate crimes laws, government assistance for women’s shelters that do not allow men, etc.
But I’ll try my best. Here is a better summary of the ACLU’s objections to Proposition 209, and it makes clear why they think the proposed amendment to the California Constitution violates the equal protection clause in the US Constitution.
Here is a partial quote:
The ACLU cites the SOCUS decision against Colorado’s anti gay rights amendment, an amendment which the Supremes held violated the equal protection clause for the same reasons cited above in regards to Proposition 209.
The ACLU are also challenging 209 on the basis that it prohibits California employers from complying with federal law.
In that case, they really don’t understand the term “discrimination”. That or else my high school government teacher didn’t know what he was talking about (and I really doubt the latter is true; he passed the bar exam). “Discrimination” refers to laws that are passed with the intent of helping or hurting a certain class, not with the effect.
Any hate crime law that deals with a race, rather than the class of race,(see below) should go bye-bye, as should any funding which excludes men by design (if no men choose to show up to the shelters, that’s okay).
According to that logic, no anti-discrimination law is constitutional, because there’s no way any law can cover all the possible classes.
WRONG! It places no burdens on women and minorities that it does not place on men and the majority.
Again, this is wrong. They aren’t asking for protection; they’re asking for special treatment.
Strike three for the ACLU. I was expecting this argument, because the two cases do look superfically similar. To explain how they are different, I should should explain the distinction between a group and a class. “Race”, “sex”, and “relgion” are classes. “Black” “female”, and “Catholic” are groups. A class is a method of distinguishing between groups. A group is a set of people so distinguisehed. The Colorado amendment 2 explcitly barred protection to homosexuals. It targeted a group, not a class. 209 targets a clss, and is therefore constitutional. People claim that it targets blacks, but nowhere in the proposition is mention of the word “black”. Amendment 2 does mention the word “homosexual”.
Unless the employer is part of the state of California, 209 doesn’t affect them. And if the employer is part of the state of California, what business does the federal government have them what to do?
What a ridiculous misinterpretation. Of course all government actions don’t have to help black people. The idea is simply that they cannot compromise the equality of black people, and if that is what 209 does, it’s unconstitutional. So the theory goes.
The best way to understand this theory is to view it in the context of some of the post-Brown v. Board of Ed decisions. In some parts of the US, school boards declared that children would simply attend whatever school was closest to them. In areas with a long history of racial segregation in housing, such policies had the effect of maintaining inequality and thus they were declared unconstitutional even though on paper they might seem perfectly legal (i.e. nobody was singled out for better or worse treatment under them).
I should have made clearer that I wasn’t attributing this reasoning particularly to the ACLU; it’s been used by many on the pro-AA side over the past 30 years. Ronald Dworkin wrote probably the best defense of it, though I can’t for the life of me find the name of his essay.
First, let me apologize for my link. I should be more careful when cutting and pasting url’s. This is the corrected link.
Second, The Ryan’s objections. Hmmm… where do I start? I could just say “The Ryan is wrong on all counts”, but what would be the fun in that?
No Sir. The logic is that, where some classes are expressly allowed preferential treatment, to arbitrarily exclude other classes from preferential treatment violates the equal protection clause. (By the way, The Ryan, pay close attention to that word “protection” please. It doesn’t mean what you seem to think it means.)
The “burden” placed on women and minorities by the amendment is that it would expressly bar “race and gender conscious remedies” for historical under-representation, while expressly allowing remedies for other under-represented classes, members of which would be allowed remediation denied to women and minorities. To say that this represents no special burden misses the point of remedial preferences entirely, and makes me believe you may not have a firm grasp of all the terms in use.
Actually, The Ryan, in this case they are the same. The ACLU is using “protection” in the sense it is used in the 14th Amendment, to mean equal protection (or consideration) of the laws. California and federal laws specifically allow for preferences to be established to remedy underrepresentation of certain classes; to specifically deny such remedies based on race and gender but not other classes, is unequal protection.
I can’t find where this distinction between “group” and “class” has been made by the Supreme Court. The decision stated that any law “declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from government is itself a denial of equal protection of the laws…” If by “group” they don’t mean any classifiable section of the population, please point me to the specific reference.
OK, ya got me; I omitted the word “public” from in front of “employers.” Check the link, though; the ACLU remembered to use it.
As far as what business the federal government has telling states what to do in this case, I suggest Article IV, Section 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
But something just doesn’t sit right with the idea of an battered women’s shelter that must also allow battered men. Most battered women were abused by men, and until they recover, they just aren’t going to feel as safe if there are men hanging around. Separate-but-equal may not make sense with races, but it does seem make sense with genders. (Otherwise we’d see unisex public restrooms popping up from time to time.)
I’m gonna bite the bullet here and go with The Ryan in a general sense. No law should specifically target a population of birth. That is, one chooses to be a sewer worker but not hispanic. We can make laws based on the sewer worker part but not the hispanic part. To do so would imply inequality of birth, something I think which goes against the whole constitution thing. That is, to do so would mean that being born black or female (or a black female!) makes one worse or better. Any law which then tries to elevate the status of this person would promote inequality. xeno I don’t understand what “underrepresentation” of race and gender have to do with anything if we’re all equal anyway. Right? How could someone who is equal be underrepresented? Does this mean that personality is affected by race and sex? I don’t understand…
Tracer, your battered women’s clinic struck me as a beautiful example. I really don’t know how else to contribute to this topic offhand. Seperate but equal never really bothered me in theory, either, but its practice wasn’t as wholesome as it could have been.
Well, she’s at a conference this week, so I don’t think she is likely getting a chance to keep up with the Board. But, you seem to be doing a fine job holding down the fort here.
I really don’t know what to add, except to ask those who are indignant about the ACLU’s stand (and AA in general) whether they are really as dense as they are acting on this whole issue, or are you just posturing? I mean, we now have a President-elect whose “youthful indiscretions” (and general futzing around) would likely have landed him on skid row, if not in jail, if he were poor and black and somehow you think that all one needs to have “equal opportunity” is to tell people that legally they are not supposed to discriminate!?! Hello!?!
Since it’s rather difficult for any law to be completely race neutral, and your explanation did say that any law that hurts blacks is unconstitutional, a logical conclusion is that every law must be helpful to blacks, or at the very least indeterminate.
Well, I disagree with that reasoning as well, but that’s a different debate.
Yes, I’m doing my best to address my objections to the argument rather than to you.
xenophon41
Are you using a definition of class than I am? According to my definition, it is simply impossible to allow preferential treatment to a certain class. “Yes, we’re going to give race an extra thousand dollars this year”.
First of all, you seem to be completely missing my point here about this not being discriminatory. Yes, a burden is placed on women and minority. But it is also placed on men and the majority. Therefore, there is no discrimination. Secondly, you either have a very strange definition of “expressely”, or else have a diferent copy of 209 from what I have. Thirdly, the phrase “remediation denied to women and minorities” is absolutely ridiculous. No woman or minority is denied remediation for another class. An age discrimination suit brought by a woman is treated exactly the same as an age discrimination suit brought by a man.
How so?
Let’s see. According to you, special treatment is the same as protection. And protection is equal consideration. So you are actually trying to argue that special treatment is the same as equal consideration? Are you insane?
If preferences are given to certain people, obviously they are not being given equal treatment. If “protection” means “equal treatment”, then obviously the ACLU is not asking for protection, and obviously protection is not the same thing as special treatment.
But they aren’t being denied on the basis of race. For the remedy to be denied on the basis of race means that people of one race receive the remedy, but people of another race does not receive the remedy.
That doesn’t mean it doesn’t exist.
The fact that you quoted this implies that you believe that 209 declares that it shall be more difficult for one group to seek aid. What group is this, and where is it so declared?
That’s the whole point. They do mean a classifiable section of the population. They do not mean a method of classifying the population. “Race” is a method of classification. Can you find anyone who is a member of the group “race”? No, you can’t, because “race” is not a group. Do you really need a USSC cite to believe this? Is common sense not enough for you?
If 209 truly does violate that section, then it is unconstitutional, and federal law is irrelevant. If it does not violate the constitution, then I don’t see why the federal government can demand that individual states practice AA.
It’s not a battered women’s shelter that excludes men that I have a problem with. It’s funding that excludes men than bothers me. That is, if the government is paying for women’s shelters, but not men’s shelters, that is a problem (assuming that there is demand for men’s shelters). I think we agree on this point.