Monday, June 08, 2009

Anti-discrimination Action Alert: Call or comment in favor of SCR 1031

The Arizona Senate is moving in high speed; there is still time for both progress and mischief and the senators are trying to squeeze in as much of both as possible before the session ends. In the "progress" category is a legislatively referred constitutional amendment (LRCA), SCR 1031, that would totally forbid the state to discriminate against or grant preferential to anyone in hiring, contracting, or univerity admisions.

Specifically, if sent to and approved by the voters, it would add a Section 36 to Article II of the Arizona Constitution reading
This 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.

That sort of fundamentally equal treatment should be something we can all support, but the measure, just like the Arizona Civil Rights Initiative that never quite materialized in 2008, has its opponents, who claim that affirmative action programs prevent racial discrimination. That's outright nonsense: the way to not discriminate on the basis of ethnicity into account is to consciously stop discriminating on the basis of ethnicity, which is not the same thing as giving preferences.

There is a reasonably compelling argument to be made for government affirmative action programs as a sort of remedy for negative discrimination in the immediate past, so as not to "lock in" for a generation or longer the results of such discrimination. If the government for a time deliberately did not hire Martians, it would make sense to give preference to Martians in its next few hires so as not to keep Martians more or less locked out until all the Earthlings retire, and to avoid the effects such a policy would have on the next generation of Martians (and Earthhlings!) But Arizona's preference programs, documented in a 2007 Goldwater Institute whitepaper, are not time-limited remedies to past discrimination and not narrowly tailored in intent or effect even if they avoid quotas. At best they are responses to discrimination of decades ago, but it's more reasonable to call them dodgy attempts to effect, in a roundabout way, group rights and ethnic pillarization. Not so dodgy as New Haven firefighter promotions, but dodgy nonetheless.

Proponents of continued ethnic discrimination have a difficult question to answer, and you should ask them it whenever you get the chance: "How long should discrimination persist, and under what conditions would you support its end?" The answer "as long as there is inequality between ethnic groups" is inadequate. If imbalances still exist, it is likely that they are not the direct result of past discrimination. It is evident that further "positive" or "reactionary" discrimination to remedy such imbalances will be ineffective, in addition to being unjust.

That injustice, acknowledged in both the majority opinion and dissent in Grutter v Bollinger (the U.S. Supreme Court case upholding discriminatory programs if narrowly tailored and limited in duration), is now holding back race relations and may be the cause of much residual ethnic prejudice. We're at the point where many a person of European or South or East Asian ancestry, on seeing someone whose ancestors came from the "global south" be admitted to a selective program at a state university, receive a state contract, or be hired as a state employee, suspects that that admittee, that contractor, that employee may have gotten there through an unfair and discriminatory process. That is not a situation we'd like the suspected "affirmative action" admittees, contractors, or hires to be put in.

The moral authority of preference programs expired decades ago. Light up the switchboards tomorrow, calling members of the Senate Appropriations Committee, asking them to move SCR 1031 along in the process. If you are signed up for the ALIS/Request to Speak system, leave a comment or request to speak. And it wouldn't hurt to leave a message for Senate President Thayer Verschoor saying that although LRCAs are not usually brought to a vote in off-years, the matter of racial discrimination is important enought that SCR 1031 ought to at least receive a first reading.

To quote native Arizonan and retired Supreme Court Justice O'Connor's majority opinion in Grutter v Bollinger:
[Accordingly,] race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.
Arizona has established no sunset or periodic review for its discriminatory programs. With the state Senate's help, let's sunset them ourselves in November 2009 or 2010.

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