- The Washington Times - Thursday, July 26, 2001

Since the mid-1990s, opponents of affirmative action preferences have been winning dramatic legal victories through court decisions and by passage of state initiatives in California and Washington. But, as the five-year anniversary of California's Proposition 209 approaches, a well-oiled diversity machine of consultants, foundations, universities, government bureaucrats and corporate CEOs is waging a persistent ground war to keep preferences alive in daily organizational life. Through non-compliance with preference bans and by linking ethnic preferences to demographic change, they're starting to turn the legal tide. Today, Proposition 209 likely would not even make it onto the ballot.

Everywhere, officials hedge. Last week, the U.S. Supreme Court let stand for a second time a 1996 Fifth Circuit Court of Appeals decision banning racial preferences in student admissions at the University of Texas Law School. Yet a month earlier, the Supreme Court refused to hear challenges to a much more recent Ninth Circuit Court's favorable ruling on preferential admissions at the University of Washington Law School. Two weeks before that, the University of California Regents repealed their 1995 ban on ethnic preferences.

Admittedly, these are temporary victories both Washington and California universities are still governed by statewide preference prohibitions. But similar initiatives elsewhere have stalled and this fall the Supreme Court will reconsider use of ethnic criteria in federal contracting. The court also faces pending appeals from other universities seeking alleged educational benefits of institutional diversity through preferential admissions. In Michigan, one federal judge has sustained undergraduate preferential admissions at the University of Michigan while another judge disallowed preferences at UM's law school.

In cutting-edge California, the diversity ground wars are especially fierce. State and local government agencies are openly evading Proposition 209. Enter the Pacific Legal Foundation (PLF), assuming the role of the state attorney general who has turned a blind eye towards Proposition 209 violations. The foundation has created 1-866-END BIAS, a whistleblower hotline for state or local government employees to anonymously identify 209 violations. Many whistles need to be blown. PLF has already launched lawsuits against San Francisco, Huntington Beach Union High School District and Sacramento Utility District because of continuing preference policies. PLF has also taken into appellate court former Gov. Pete Wilson's challenge to a state educational code provision mandating that the California Community College system faculty must ethnically mirror the adult population of California by 2005. Los Angeles County defends its continued affirmative action ethnic contracting "goals" by stating that they are "aspirational."

Clever rephrasing sustains California State University's system, forgivable loan program, deliberately designed in the early 1990s to boost the number of home grown CSU minority faculty. Originally, CSU minority undergraduates from underrepresented backgrounds could be awarded up to $30,000 apiece to earn their doctorates. (The loans are forgiven if the new scholar returns to teach in the Cal State system.) Today's surrogate for ethnicity is "background and experience needed to educate a diverse student body" though some white men are successful applicants.

A new ground war is being waged to boost student diversity at UC Berkeley and UCLA by shifting admissions weights towards "non-academic factors" that contain coded criteria (including ethnically linked names, high schools, associations or awards), while decreasing emphasis on grades and SAT I aptitude tests. (Just this past week, evidence surfaced that UC is boosting Hispanic and Asian admission rates by increasing the weight given to optional SAT II language exams.) Evidently, this sort of tinkering has already occurred at UC's law and medical schools. San Diego statisticians Jerry and Ellen Cook have found persistent grade and test score disparities between whites and Asians, on the one hand, and blacks and Hispanics on the other. (Such legal legerdemain is also likely in workplace hiring, promotions and contracting.)

The ground campaigns are reinforced by political and economic elites anxious about dramatic demographic changes. The 2000 census findings of unexpectedly large immigrant populations combined with geographically and ethnically polarized 2000 election results quicken trends towards multicultural accommodation and diversity management while weakening allegiance to color-blind law. Crude and inaccurate ethnic classifications breed confusion and resentments. But elites have become accustomed to management lingo linking dollars and demographics to look-like-America work forces.

Indeed, Republican strategists crave a more diverse voter base, admitting they've maxed out white voter potential. Proposition 209 and kindred efforts are seen as embarrassments. Mere mention of affirmative action reform would nullify Spanish-language presidential broadcasts and a probable Hispanic appointment for the next Supreme Court vacancy. Even conservative talk radio hosts now avoid these issues.

Que pasa, Rush Limbaugh?

Frederick R. Lynch is a government professor at Claremont McKenna College and author of "The Diversity Machine."

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