Via Pacific Legal Foundation, the California Legislature recently passed a bill, SB 185, that would require the state’s public universities to discriminate on the basis of race and gender in their admissions policies. Here’s the relevant text of SB 185:
This bill would authorize the University of California and the California State University to consider race, gender, ethnicity, and national origin, along with other relevant factors, in undergraduate and graduate admissions, to the maximum extent permitted by the 14th Amendment to the United States Constitution, Section 31 of Article I of the California Constitution, and relevant case law.
And here’s the relevant provisions of article 1, section 31 of the California Constitution, as amended by Prop 209, which runs expressly counter to SB 185:
(a) 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.
. . . .
(f) For the purposes of this section, “State” shall include, but not necessarily be limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.
(g) The remedies available for violations of this section shall be the same, regardless of the injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.
(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.
In First Things, Hadley Arkes pointed out the moral problem of legally prescribed racial discrimination, still unanswered by its proponents:
Even in circles in which it is fashionable to be provocative, we never hear the question “How has the abolition of slavery worked?” We do not hear that question, I suspect, because people sense that the rightness or wrongness of ending slavery is wholly unaffected in principle by the extended consequences of that measure—whether the former slaves happened to prosper or grow poorer in their freedom. And yet it is quite common for people to ask whether policies of “reverse discrimination” or “busing for racial balance” have worked. . . .
. . . . When we say, for example, that it is “wrong to separate children in schools on the basis of race, do we mean that it is indeed categorically wrong—wrong in principle, wrong in itself? Or do we mean that it is only contingently wrong: it is wrong only because of its effects—because (in the words of the Supreme Court) it may affect the motivation of children to learn? Would a poor performance in school affect, in turn, the chances of black children to earn, in their maturity, incomes equal to those of whites? And if we attain an equality of performance in the schools, or a parity of income between the races, are those things good in themselves, or are they merely means to other ends? The questions lead on, once again, in a search for a final point, an understanding of something right or wrong in itself. . . . When the wrong of segregation is understood to hinge upon its material effects, we must necessarily dissolve the conviction that the segregation of people on the basis of race is categorically, in principle, wrong. [Boldface added.]
In California, lawmakers have not only sought to supplant the people’s anti-racial discrimination principle expressed in their constitution through an inferior act of lawmaking, they have failed to supply any principle with which to replace it. If the acts of California’s public universities are not to regard racial color-blindness as a good in itself, or racial discrimination as a wrong in itself, then what sorts of objectives of state admissions officials will be considered “good” or “bad”?
The problem is not only that lawmakers enact bad policy. It is that they make the scope and nature of their policies inscrutable. Modern policymaking is all making and no policy. Worse still, they devolve the responsibility for setting policy down the chain of command into the unelected ranks of chums and technocrats. In his review of Claude S. Fischer’s Made in America: A Social History of American Culture and Character, Wilfred M. McClay writes:
Voluntarism [a system, according to Fischer, in which relationships, organizational affiliations, and living circumstances are largely a product of individual choices rather than of necessity or external compulsion] requires a structure of laws and mores and institutions in which the individual is accorded a high degree of negative liberty, a liberty that he knows he has, and that the government knows he has, and that he knows the government knows he has. It requires the highest possible degree of directness, simplicity, accountability, and transparency. And it requires the right kind of ideas about human agency and human responsibility, in order to support those laws. Take those away, and put in their place a regime of arbitrary laws administered by large, unaccountable bureaucracies, undergirded by mores stating that the individual is powerless to know his rights and responsibilities, and you soon have a very different American social character, and certainly one in which voluntarism becomes either irresponsible or extinct. Ideas do have social consequences.
In their haste to restore rule by specialized knowledge, California lawmakers have ignored the will of the people reflected in their constitution. California voters have often wielded the initiative process with disastrous results, but stunts like SB 185 demonstrate why Californians still need a check against their legislators’ penchant for elitism.