Heritage: States Should Take the Lead Against Affirmative Action

Legal brief suggests using ballot initiatives to end affirmative action

University of Texas at Austin campus / AP
• February 20, 2014 5:22 pm


A new legal brief by the Heritage Foundation is urging states to take the lead against affirmative action policies the group says are inherently discriminatory.

Roger Clegg and Hans A. von Spakovsky argue that policies that place racial quotas on government hires and college admissions are discriminatory.

"Such discrimination by government is wrong: Jobs should go to the most qualified, contracts should be awarded to the lowest bidder, and the students who are most able and willing to excel academically should be admitted to taxpayer-funded universities," the authors write.

The paper encourages states with initiative and referendum processes to seek bans on affirmative action because progress is unlikely to come via the federal government.

"The reason states should be doing this is because it’s not going to get done at the federal level," von Spakovsky, senior legal fellow at the Heritage Foundation, told the Washington Free Beacon.

"As we point out in the paper, a number of states have very successfully been able to do that, including California, a very liberal state, and yet their voters through a referendum to get rid of racial discrimination," he said. "I think the best way to stop this is for the states to get into it, and particularly states that have referendum processes."

Clegg and von Spakovsky cited six states that have outlawed affirmative action policies through ballot initiatives as a guide for other states. The first to do so was California in 1996.

That year Proposition 209 passed 54 percent to 46 percent. The referendum was also upheld in the California Supreme Court and Ninth Circuit Court of Appeals.

Washington (1998), Michigan (2006), Nebraska (2008), Arizona (2010), and Oklahoma (2012) also amended their constitutions to prevent state and local governments from discriminating in public employment, contracting, and education.

The Supreme Court is currently debating Michigan’s ban, and held oral arguments last fall. A decision is expected in late June.

Michigan Attorney General Bill Schuette said he is confident the Supreme Court will uphold his state’s ban. "The only thing we are discriminating against in Michigan is discrimination itself," he said.

Chief Justice John Roberts said in 2007, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Von Spakovsky said this was their overriding philosophy.

"That is the best way to get us to the kind of society that we all want, which is you cannot discriminate on the basis of race at all," von Spakovsky said. "The system we have now, where we’re saying, ‘Well, it’s okay, some racial discrimination is okay, and others are not.’ That is such a mixed message. It doesn’t get us where we want to be."

The American public appears to be on Clegg and von Spakovsky’s side. The paper cites a June 2013 Washington Post/ABC News poll that found 76 percent of Americans "oppose race-based college admissions."

The results were consistent among racial and political lines, with eight in 10 whites and African Americans, and nearly seven in 10 Hispanics, opposing racial preferences. At least two-thirds of Republicans, Democrats, and Independents agreed.

Affirmative action proponents believe policies are necessary to encourage "diversity," to ensure a "cohesive society," and to "remedy past discrimination," the paper said.

"But discriminating today against some individuals—women and men who had nothing to do with past discriminatory practices—in order to benefit others who have not suffered from any of these prior discriminatory practices is fundamentally unfair," Clegg and von Spakovsky wrote.

The authors offer a model bill based on states’ successful efforts, with language that a state cannot "discriminate against, or grant preferential treatment," based on race, sex, color, or ethnicity.

For states that have no initiative or referendum process, Clegg and von Spakovsky encourage passing a "sunshine law" that would require state governments and universities to make their affirmative action policies available to the public. For example, a publicly funded university would be required to report which groups have a plus or minus factor for enrollment, based on their race.

"Quite apart from the constitutional and legal prohibitions against it, discrimination in any form is morally repugnant," Clegg and von Spakovsky conclude. "It is particularly egregious when practiced by the government and used as a racial spoils system."

"Given the seeming inability and unwillingness of federal officials to eliminate official discrimination and the numerous discriminatory programs that exist in the federal arena, state governments and, particularly, individual Americans should step up and act to eliminate such discrimination at the state and local levels through the referendum and initiative process," they said.