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Focus on what Civil Rights Initiative would actually do

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BY DAVID MOSHMAN

Saturday, Aug 30, 2008 - 12:18:49 am CDT

In a recent syndicated column (LJS, Aug. 4), Ruben Navarrette Jr. called for a little nuance on affirmative action. What with our statewide brouhaha over the proposed Nebraska Civil Rights Initiative, such nuance may be particularly elusive right here in Nebraska.

But nuance is also particularly important in Nebraska in 2008. To make an informed decision about the NCRI, you have to know what it would do. That requires going beyond headlines about banning affirmative action and debates about who really believes in civil rights.

The NCRI, if passed, would add the following requirement to the Nebraska Constitution: “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.”

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David Moshman

This language is consistent with, but more specific than, the equal protection clause of the 14th Amendment to the U.S. Constitution, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

The language of the NCRI is also consistent with civil rights laws in its protection of individual rights for all people. In the event that federal law were to become less protective of civil rights, the state of Nebraska still would be forbidden to discriminate on the basis of race, sex, color, ethnicity or national origin.

But what about affirmative action? Contrary to common assumptions — not to mention headlines — the NCRI would not ban affirmative action. It would, however, restrict some kinds of affirmative action.

Too much nuance? Have no fear. Let me suggest brief definitions of four key concepts.

Affirmative action refers to policies and programs that attempt to promote equal opportunity through means that go beyond a simple requirement of nondiscrimination. Such methods may include outreach, preferences and quotas.

Outreach is a form of affirmative action that seeks to enhance the diversity of a pool of applicants by encouraging applications from individuals who otherwise might not apply, perhaps because they don’t find out about the availability of a position or don’t think people like them are welcome or would be taken seriously.

Preference refers to selection criteria or decisions that, in addition to consideration of relevant qualifications, favor some individuals over others on the basis of race, sex, religion, sexual orientation, socioeconomic status, political views or other factors that normally would be illegitimate basis for discrimination.

Quotas are rules requiring that the number or proportion of individuals in some demographic category such as race or sex must not exceed, or must not fall below, some figure. Enforcement of quotas may involve exclusionary decision processes that ban some individuals from consideration on the basis of race, sex or other such factors.

Turning to the NCRI, nothing in its language (or, as far as I know, in the experience of other states) appears to threaten outreach. Government officials would remain free to encourage applications from diverse sources.

As for quotas, they have been unconstitutional since 1978, when the U. S. Supreme Court ruled in University of California Regents v. Bakke that they violate the equal protection clause of the 14th amendment.

The primary issue raised by the NCRI, then, is preferences. But here we must distinguish two kinds of preferences: (1) those based on past societal discrimination and (2) those designed to enhance diversity.

Preferences for members of groups deemed to be victims of past societal discrimination have been illegal since Bakke. Along with quotas, the Supreme Court found them in violation of the equal protection clause.

The key issue raised by the NCRI, then, is specifically preferences for members of groups whose inclusion would enhance diversity. Such preferences were deemed justifiable in Bakke and remain permissible in at least some cases.

Thus, given the current state of federal law, the NCRI would have no effect on outreach (which would remain legal) or on quotas (which would remain illegal), nor would it affect preferences based on past societal discrimination (which would remain illegal).

What would the NCRI do? It would restrict the use of preferences intended to enhance diversity. Maybe that’s for the best, or maybe not. But isn’t this where the debate should focus?

David Moshman is a professor of educational psychology at the University of Nebraska-Lincoln.


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Douglas Novak Crete wrote on August 30, 2008 6:35 am:
" Logically, Professor Moshman is correct in pinpointing where logic says the debate should be. However, people do not make logical decisions. All decisions are emotional and the election campaigns are designed to solicit emotional responses so the debate will remain in the arena of emotional responses. Don't expect a logical result when the votes are counted. "

 Big Chief wrote on August 30, 2008 9:13 am:
" I haven't had my first cup of coffee yet so my thinking may be a bit fuzzy. However without the benefit of that cup of coffee I think I may agree with Mr. Moshman. Probably the first time I can remember that happening. "

 Tzi wrote on August 30, 2008 10:50 am:
" You can't have "equal treatment" and "preferences" - they're mutually exclusive terms.

I love people who won't "vote for the white guy" simply because he's white - they're being bigoted. "

 Bickerstaff wrote on August 30, 2008 12:39 pm:
" Excellent piece. Every newspaper in Nebraska should publish it. And so should every newspaper in Colorado, where the issue is on the November ballot. "

 Supporter wrote on August 30, 2008 6:36 pm:
" Thank you, Dr. Moshman, for one of the most rational and informative pieces we have seen on NCRI. "

 Ray wrote on August 31, 2008 3:20 am:
" Great framing of the debate. Should we or shouldnt we have public policy that enhances diversity? Let the debate begin. I for one think it is a positive public policy to have preferences that enhance diversity. Because guess what you live in a diverse world and the better you are to handle that the further you will go from a competitive standpoint "

 whatever wrote on August 31, 2008 3:22 am:
" Ok, I get it. Now is there anyone alive that can define with precision exactly what diversity is and then further demonstrate how it will improve anything? Or is it simply one of those terms/concepts "we all understand" but yet all have differing "visions" of it. I have yet to see in print, hear on the radio or see on TV anyone that can seem to define diversity. We can not have a debate unless we can also define the terms. "

 JB wrote on September 1, 2008 12:11 pm:
" The the purpose of affirmative action is to help thoses people who were discriminated against in the past a way to them get to where they would be had they been treated equal. Getting rid of AA would be saying that all it took was one generation of AA to make up for over two hundred years of past discrimination and everything is equal now. NOT. Sorry there are so many "average" people who feel discriminated against now. "

 Zoomie wrote on September 1, 2008 12:16 pm:
" Tzi - of course you can! If you have 10 applicants for two openings, and only one is a minority member, but all are equally qualified you can work to achieve diversity by selecting the minority member. All too often it seems to me the argument against diversity is really little more than an argument that anything which doesn't ensure the "same" people get the promotions, openings, jobs, is somehow reverse racism.

One thing I haven't seen addressed in this...preferences and diversity outreach in large part began to address the inequality of opportunity from the start. That is, a great many minority members are provided with a far poorer education than the majority. As a result, they have less qualifications walking in than the majority, no matter how hard they try (California provides a great example - there are more 4.0GPA students applying for the best UC school slots, so preference is given to students who take and pass AP classes/exams...however, mostly white schools offer 2-5 times more AP classes per term than do mostly black/hispanic schools...result: when the CA version of this passed, minority enrollment dropped dramatically within 1 year!).

Personally, I think any such so-called "equal rights" amendment to the State Constitution MUST be coupled with an equally binding GUARANTEE of fully equal educational quality and opportunity. Absent that, this Constitutional change would only lock in advantages for the majority indefinitely! "

 whatever wrote on September 1, 2008 8:35 pm:
" It's interesting. No one can define "diverity". It also piques one interest to see the same old arguments re: affirmative action in a rapidly changing demographic that doesn't recognize the benefits of education and community building. Addressing 21st century problems with mid 20th century solutions isn't an answer to anything. My kids don't recognize or tolerate racism or bigotry. But I can assure you what they learn about it is in the example of several posters here who either don't have children or live in such a mono demographic community as Lincoln that they simply don't understand the "new" Nebraska. I can assure you that myself and my family experience more "diversity" in any given hour than any citizen of Lincoln experiences in any given year. Remember this isn't a race issue it's a cultural issue and if you don't address the cultural issue re: education and opportunity no amount of "affirmative action" will change anything. It's unfortunate the political climate we have now is so "politcally correct" that the real problems we have can't be addressed let alone discussed. I would submit that posters such "JB" examine honestly their core belief structure and search for real answers and solutions instead of employing empty and worthless rhetoric of the 60's. And Zoomie, it isn't an inequality of opportunity it's an inequality if you can call it that of culture that precludes success in a country and economy such as ours. I can assure you employers couldn't care less re: ones ethnicity, they want knowledge and a work ethic. The latter we get from our current immigrant wave the former we simply don't nor do we get the cultural impetus to get over that hump. "

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