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BAMN, Affirmative Action Supporters Claim Equality Is Unconstitutional

Once again defenders of racial preferences are marching into federal court to argue that racial equality is unconstitutional. Peter Schmidt of the Chronicle of Higher Education reported this morning that BAMN will challenge California?s Proposition 209 by arguing that

the California measure, adopted by that state's voters in 1996, violates the Equal Protection Clause of the U.S. Constitution by placing a distinct set of legal hurdles in front of minority groups seeking to increase their representation on the university system's campuses.

As I discussed here, preference pushers attacked the Michigan Civil Rights Initiative with the same incredible assertions, arguing that prohibiting preferential treatment based on race or ethnicity (quoting now from their Brief)

would single out specific categories ? race, sex, color, ethnicity, and national origin ? and place on actions related to those categories greater burdens than exist on government action unrelated to race, sex, color, ethnicity, or national origin. Such disparate treatment on the basis of race, sex, color, ethnicity, or national origin is, and for nearly three decades has been, a textbook violation of Equal Protection principles.

My response now is the same as it was then:

It?s hard to know whether to laugh or cry at this claim. What the ACLU, NAACP, Laurence Tribe, and other worthies assert, with an apparently straight collective face, is that treating discrimination based on race, ethnicity, and gender in a different manner from other forms of discrimination (say, for or against peanut farmers or athletes) is to commit an unconstitutional form of discrimination.
In other words, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 banning racial discrimination ? indeed, all civil rights acts that ban discrimination based on race or ethnicity or sex ? are unconstitutional because they single out race for special treatment!

Indeed, the BAMN et al. argument against MCRI was itself a rehash of an argument against California?s Prop. that even the liberal Ninth Circuit virtually laughed out of court ten years ago:

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.

A state law that prohibits classifications based on race or gender is a law that addresses in neutral-fashion racerelated and gender-related matters. [Citing an earlier case], ?[i]t would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.?

Although this argument has yet to succeed in court, it has, unfortunately, not interfered with the careers of some of those who?ve made it. Ten days ago

[t]he Senate Judiciary Committee approved President Obama?s nomination of U.S. Magistrate Edward Chen to a federal judgeship in San Francisco on a party-line vote for the second time Thursday, with Republicans criticizing his public statements and background as an American Civil Liberties Union lawyer....

He was an ACLU attorney in San Francisco from 1985 to 2001 and worked on a suit unsuccessfully challenging Proposition 209, the 1996 initiative that outlawed state and local affirmative action programs based on race or gender preferences.

President Obama obviously founds his argument agains colorblind racial equality not only not disqualifying but congenial.

Full post as published by Discriminations on February 15, 2010 (boomark / email).