By Margaret Martin Barry and Penny Berger

Make no mistake – the so-called “Civil Rights” Initiative currently on Nebraska’s ballot has only a negative connection to the Civil Rights Movement in our country.

The initiative is intended to put an end to what remains of affirmative action. Discrimination and exclusion on the basis of race and gender have made a mockery of our democratic ideals. Affirmative action has been the principle means of achieving the inclusion that was the goal of the Civil Rights Act.

Affirmative action as a tool to achieve equality is admittedly an imperfect instrument. It is also the only tool that has shown any capacity to address the issues of racism and gender discrimination across America.

Although the Civil Rights Act of 1964 represented progress toward the goals of our democracy, most people understood that the new law, by itself, could not achieve racial and gender equality. Specific steps were needed to change the habits and institutions of discrimination and exclusion. Affirmative action became an enforcement mechanism designed to give meaning to the Act. It required employers and educational institutions to act in ways that would ensure participation and acceptance of minorities and women.

However, through a series of recent decisions the U.S. Supreme Court has narrowed the reach of affirmative action. Currently, race or gender can only be one of a plurality of factors considered in meeting narrowly stated diversity goals. An acceptable diversity standard under current law cannot contain quotas or fixed goals.

Nonetheless, opponents of affirmative action claim it is merely a system of racial preferences. This is not only misleading, it’s an outright fabrication. Arguments in favor of anti-affirmative action initiatives should be recognized for what they are: calculated cynical misappropriations of the vocabulary of the Civil Rights Movement to end America’s commitment to remedy past and continuing prejudice and discrimination.

Affirmative action programs are the only proven, effective means of increasing opportunities for women and minorities. This “Civil Rights Initiative” undermines polices that are meant to promote inclusion of minorities and women. In California where a measure similar to the initiative was passed, a simple requirement that successful contractors demonstrate that they had not excluded minorities and women from the bidding process was struck down by the California Supreme Court; meanwhile, from 1996-2006, minority enrollment at the University of California at Berkeley fell by 65 percent.

Official race and gender “neutrality” has the same attraction as “gradualism.” It sounds fair because it is does not endorse racism or gender bias. All the same, it makes both forms of discrimination easier and more likely.

The logic of the initiative is seductive, but it is faulty. It rests its legitimacy on the fallacy that there is only one “right” person or “best qualified” applicant for a job, or a place in school, or on the team. The truth is that every person brings a combination of assets and liabilities, some of which cancel out others. In the past, the “ties” created by this reality were resolved by the historical affirmative action employed for most of human history: Is the applicant a member of my fraternity? Is he related to me or my friend or another member of my family? Do I play golf with his Dad?

The Civil Rights Act replaced the old affirmative action with a system intended to focus on increasing the participation of historically neglected or affirmatively excluded groups in the society, instead of those who are privileged by class, race or connection.

Nebraskans must not fall for anti-affirmative action propaganda. Instead, we must improve the tools used to achieve equality of opportunity and not work backwards to eliminate those that have proven their worth.
Barry is co-president of the Society of American Law Schools and an associate professor at Columbus School of Law, at The Catholic University of America. Berger is a volunteer staff attorney for Nebraska Appleseed Center for Law in the Public Interest.
Copyright (C) 2008 by the American Forum. 10/08