It is business as usual among the advocates of the peculiar form of official racial discrimination that we call affirmative action. The Colorado Supreme Court last week used convoluted, politically motivated reasoning — and not legal precedent — to try to prevent the citizens of Colorado from deciding whether that state’s voters will be allowed to decide whether racial quotas, er, affirmative action, should be allowed to continue. Here is a Sept. 19, 2007 article from the Rocky Mountain News on that story:
HEADLINE: Carroll: High court, low politics
DATE: Wednesday, September 19 at 12:29 AM
Love or loathe the Colorado Civil Rights Initiative, it’s straightforward, simple and easy to understand. No hidden agendas or confusing language. Just a stark ban on government discrimination based on race, sex or the other familiar categories.
So why did three state Supreme Court justices try to sabotage the amendment last week, claiming it violated the rule barring a ballot measure from having more than one subject?
Crass politics is one possible explanation. Given the record of several justices in recent years, crass politics may even be the only plausible explanation.
One summer ago, you may remember, the court invoked the same all-purpose excuse to kill an initiative that would have barred governmental benefits for illegal immigrants. The proposed ballot measure may have been a blunt instrument deserving defeat at the polls — in my view, at least — but it clearly stuck to a single subject.
The Civil Rights Initiative, which in all likelihood will be on next year’s ballot, is even more tightly focused than the immigration measure.
The language approved by the state title board says “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.”
It then permits exceptions related to federal law and court decrees, while defining “state” to include higher education and local government.
Yet despite its clarity, the measure survived a legal challenge only because the court knotted in a tie. Three justices (Nancy Rice, Nathan Coats and Alison Eid) agreed it was a single subject, while three others (Mary Mullarkey, Greg Hobbs and Alex Martinez) said it wasn’t. Justice Michael Bender did not participate.
Justices don’t have to explain themselves when the court upholds a title board decision, but it’s no mystery what Chief Justice Mullarkey and her two colleagues were probably thinking given the legal briefs in the case.
The amendment’s opponents claim its language implies that preferential treatment “is simply a subcategory of ‘discrimination,’ ” and they dispute whether that’s the case.
Preferential treatment “can certainly involve forms of ‘discrimination,’ ” the litigants concede, but it also “involves a good bit more than that.” In fact, they say, some forms of preferential treatment “disadvantage no one.”
The short answer to this argument is that the measure’s sponsors obviously disagree. They believe “preferential treatment” is a subcategory of discrimination. That’s why they want it on the ballot — to end practices they consider wrong.
Nor are the measure’s sponsors unusual in mentioning discrimination and preferential treatment in the same breath. As the title board’s brief points out, “The United States Supreme Court has long acknowledged the close relationship between laws or actions that discriminate against an individual or a group based upon race, gender, nationality or ethnicity, and those that grant preferential treatment toward an individual or group.”
Every statute or amendment contains unanswered questions regarding its application, and the Colorado Civil Rights Initiative is no exception. But given the amendment’s overall clarity and narrow focus, it’s nothing less than scandalous that three justices of the state’s highest court were prepared to prevent voters from ever ruling on it.
If you want to understand their high-handed attitude, you could do worse than consult Squealer, the propagandist in George Orwell’s Animal Farm.
“Do not imagine, comrades, that leadership is a pleasure,” Squealer explains at one point. “On the contrary, it is a deep and heavy responsibility. No one believes more firmly than Comrade Napoleon that all animals are equal. He would be only too happy to let you make your decisions for yourselves. But sometimes you might make the wrong decisions, comrades, and then where should we be?” -30-
Vincent Carroll is editor of the editorial pages. Reach him at carrollv@RockyMountain
Here is the last known LINK to the original Rocky Mountain News story.