Friday, August 17, 2007
Not subtle
Somewhere on Volokh was a link to some other site to something or somewhere that ended up here. The "anti-affirmative action" folks are pushing for one of their referenda in Missouri. (seriously, since when isn't "referenda" cool? "Referendums" sounds so stupid.) "Anti-affirmative action" is in quotes for a reason. The Secretary of State, a Robin Carnahan, has changed the language to something more... uh... "neutral." Well, just judge for yourself:
Proponent version:
Shall the Missouri Constitution be amended to prohibit any form of discrimination as an act of the state by declaring:
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? Rejected! Opponent... oh, I mean, Secretary of State version, which is more neutral:
Shall the Missouri Constitution be amended to:
Ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education; and
Allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards as well as preferential treatment for bona fide qualifications based on sex? Hmm...
For reference, the text of the initiative itself is here. Putting aside accuracy for a second (not all "affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education" include discrimination and/or preferential treatment, and so some wouldn't be affected, while there could be programs that involve such preferences that are not such affirmative action programs, which would be), I have a hard time seeing how the actual language can be less neutral than a description of it (comparing second lines).
The language, by the way, is the same as those other ones that have been thrown about the country of late, including California's eternally entertaining Proposition 209. I have to wonder a bit about the exception to protect federal funding. I hope it was at least included with hesitation when the initiative was initially written up all those years ago, presumably to make it more likely to pass. It makes the whole thing seem rather weak in terms of truly opposing racial discrimination, the supposed goal. "Racial discrimination is wrong... unless stopping it will cost us money."
I'm also curious about those "bona fide qualifications based on sex." I'm not sure how that exception has been implemented in California, nor even its legal meaning. Does it come from an established legal principle?
By the way, check out this winning quote:
Carrie Bebemeyer, a spokeswoman for Carnahan, defended the language that the secretary of state's office came up with as neutral, though she said she couldn't comment on the specific wording.
"Our office is confident that the language we wrote on the initiative is fair, impartial and complies with the law," she said. Can't comment on the specific wording? Then where, pray tell, does that confidence come from?
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