In 1896, one man stood alone against the descent of Jim Crow over the South. John Marshall Harlan, in his famous dissent in Plessy v. Ferguson, told the Supreme Court’s majority that, after the passage of the Reconstruction Amendments, there could be no such thing in American law as racial classifications:
In respect of civil rights, common to all citizens, the Constitution of the United States does not . . . permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights . . . There is no caste here. Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law . . . The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.
Harlan was right, but it took more than half a century for the Court to begin returning to that original meaning in Brown v. Board of Education. In 1996, taking Harlan’s words to heart in an increasingly diverse state, over 54 percent California’s voters passed Proposition 209, adding Section 31 to the Declaration of Rights in the state constitution:
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 . . . [other than] bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
As then-Justice Janice Rogers Brown wrote for the California supreme court in 2000, Proposition 209 — the handiwork of University of California regent Ward Connerly — was intended to reverse two decades of the state’s “change in focus from protection of equal opportunity for all individuals to entitlement based on group representation,” and to prohibit any sort of racial or gender preference, quota, or set-aside.
California leftists have chafed ever since at a color-blind constitution, nowhere more than in the state university system. The University of California system may be prohibited for now from making racial classifications, but that has not stopped it from hiring 175 “diversity” bureaucrats to promote racialized thinking, and requiring new faculty hires to submit “diversity statements” swearing allegiance to the ideology of racial group identity.
Under cover of the George Floyd protests, California Democrats have placed on this year’s ballot Proposition 16, which would repeal Section 31. As the ballot initiative itself admits, it “permits government decision-making policies to consider race, sex, color, ethnicity, or national origin to address diversity.” Notice that this makes no pretense at using racial classifications to remedy discrimination or injustice. Instead, “diversity” would provide a permanent justification for a racial spoils system — putting California on an inevitable collision course with Harlan’s heirs in the federal courts.
California voters should reject this path. The state’s multiracial, multiethnic population is far removed from simplistic black/white divides: The state estimates that its people are now 38.9 percent Hispanic, 36.6 percent non-Hispanic white, 15.4 percent Asian, 6 percent African American, and 2.2 percent “Multiracial non-Hispanic,” with the Hispanic and Asian populations rising, the white population sliding, and the black population holding steady. A population that diverse is likely to place different groups in a commanding political position in different localities. Allowing each group to entrench itself with legal discrimination in local contracting and schooling is a recipe for conflict among groups and injustice to individuals. It also requires an ever-more-complex system of racial classification against the tide of intermarriage and assimilation.
A truly color-blind society may remain beyond our grasp, but the law should be a barrier to discrimination, not its enabler. That is all the more true in a state with such shifting, multi-polar demographics. The promise of California, and of 21st-century America, is that individuals can make their way in a society without a single, dominant majority group. The risk is that multiple racial factions will emphasize group identity as a way of each protecting their own.
Moreover, the obvious target of Proposition 16 in higher education is to reduce the number of Asian Americans in the student body. Asian Americans currently make up 35 percent of students across the UC system, and higher among the most selective schools in the system — more than double their share of the state’s population. White admission rates, by contrast, have been declining steadily since the passage of Proposition 209. Targeting Asians is also the obvious motivation behind the state university’s drive to eliminate standardized testing. The irony for anyone branding this as a remedy for historic injustice should be obvious: California’s notorious history of anti-Asian discrimination dates back to the 1850s, when the state supreme court barred Chinese immigrants from testifying in court, describing them as a people “whose mendacity is proverbial.”
What is the need for discrimination in the name of diversity in the university system, if not to discriminate against Asian Americans? The 2020 class was the most diverse admitted in the UC system’s history, with Hispanic students outnumbering white students for the first time, and Berkeley admitting more African-American students than at any time since the 1980s. If anything, the recurring pattern of white academics pretending to belong to a non-white racial group suggests that the university system now operates on the opposite of “white privilege.”
California voters should stand up on Election Day for a simple principle: Every Californian should be equal before the law. Vote No on Proposition 16.