The Obama administration, like the gang it replaced, has intervened on the side of a mutant strain of affirmative action – a "race conscious" admissions process practiced at the University of Texas at Austin, now being contested by two white plaintiffs. In case the conservative base reverts to its default position – a belief in the superiority of Republican tyranny – I'll remind it that Bush had helped to legitimize this proxy-for-race admissions process at the University of Michigan Law School.
In what was surely a triumph of Clintonian triangulation tactics, Bush, in a 2003 legal brief, ostensibly challenged racial preferences at Michigan Law, while simultaneously encouraging, instead, the use of racial cue cards in the admissions process. For example, an applicant could hint heavily at having overcome hardship ("such as having been shot," quipped commentator Steve Sailer at the time).
Housebroken conservatives will reach for the smelling salts at what I am about to say next – they do so each time an attempt is made to explore the effects on liberty of one overarching and overreaching bit of legislation. The culprit in these crippling codes for university admissions – and in hiring, firing, renting, and money lending – is the Civil Rights Act of 1964, the "most radical law affecting civil rights ever passed by any nation," in the estimation of Richard Pipes, author of "Property and Freedom: The Story of How Through The Centuries Private Ownership has Promoted Liberty and the Rule of Law."
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Quotas are a perfectly logical, if diabolical, extension of the regulation of private property courtesy of the Civil Rights Act, whereby in an attempt to shape American society in politically pleasing ways, people have been coerced into liking, hiring or renting against their will or better judgment.
"Far and away the most egregious form of government interference with the contractual rights of private persons and organizations is carried out in the name of affirmative action – the laws and regulations enacted since 1964 under the capacious category of 'civil rights,'" observers Pipes. "Initially conceived as a means of enforcing principles of nondiscrimination in regard to black citizens mandated by the 14th and 15th Amendments, [affirmative action] was soon extended to other groups … and ultimately turned into a vehicle for reverse discrimination against whites and males."
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The test for discrimination is underrepresentation. If an employer or an educator has failed to recruit minorities in proportion to their numbers in the vicinity, then he can be found legally liable for discrimination. His intent is considered irrelevant: intent be damned. Yet conservative defenders of the Civil Rights Act insist that all the Act did was to "mandate equal treatment of individuals."
Not quite. Here's an excerpt from Title VII:
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Nothing contained in this title shall be interpreted to require any employer … to grant preferential treatment to any individual or any group because of the race, color, religion, sex or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex or national origin employed by an employer.
Nothing in the act requires racial and ethnic quotas, but then – nudge-nudge, wink-wink – nothing prohibits it, does it? As Pipes concedes, the Act, "and several executive orders" signed by President Johnson, provided the "legislative basis for affirmative action." First came Title VI, which severely curtailed the contractual freedoms of individuals and enterprises in all institutions receiving federal financial assistance. Title VII followed with restrictions on the freedom of association of "trade unions, employment agencies, and all enterprises with more than 15 employees engaged in interstate commerce or doing business with the federal government, among others."
This was certainly not what James Madison, the father of the Constitution, meant when he wrote in the Federalist Papers – also the key to the Constitution – that the first object of government was the protection of the "diversity in the faculties of men, from which the rights of property originate."
Ambushed as it was back then by Bush, the conservative base is bound to be bamboozled once again as to who did what and when. So let me repeat: Barack's 2010 diversity directives to the federal appeals court simply strengthen what Bush helped establish in 2003 – and that is that in their quest for diversity, universities will pursue less conspicuous, race-friendly recruiting methods, which will, ultimately, preclude the Midwestern experience.