John Leo

The South was once famous for "massive resistance." Now officeholders and civic leaders of the North and West are in the game too, this time to push "diversity" programs in defiance of the law.

The American Bar Association, for example, has been preparing to force the nation's law schools to grant racial preferences in admissions that would clearly violate the law. But the group produced an "equal opportunity and diversity" standard saying that no "constitutional provision or statute" could stand in the way of the required compliance. (Just ignore the law, you lawyers.) It also threatened non-complying schools with loss of their accreditation. Among the provisions and statutes that the ABA apparently wanted to override were two presidential executive orders on affirmative action, by Presidents Kennedy and Johnson, and laws in Florida, California and other states explicitly prohibiting racial preferences and set-asides.

The ABA amended its proposed standard in the face of criticism, particularly from George Mason law professor David Bernstein, who has been analyzing and protesting the illegal ABA plan for months. Bernstein writes: "One thing that continues to amaze me is how major legal institutions, staffed by lawyers who presumably know the law, are consistently willing to brazenly announce their defiance of the law in the name of diversity."

The most "massive resistance" in the name of diversity has been the broad and scandalous refusal to abide by California's Proposition 209, which bans preferences and quotas in state jobs, hiring and education. Mayors, city attorneys and even judges have avoided the clear wording and intent of Prop 209. Defiance is often cloaked as an "outreach effort" or as "comprehensive reform," a term used by some state universities to favor students of certain ethnic backgrounds despite low SAT scores.

Sometimes defiance is out in the open. San Francisco made no bones about its lawbreaking. Both the city attorney and Willie Brown, when he was mayor, declared that since a majority of city voters had cast their ballots against Prop 209, San Francisco needn't comply with it. California Attorney General Bill Lockyer, a civic problem all by himself, has refused to push for compliance. Instead he has appeared in court on the side of the lawbreakers.


John Leo

John Leo is editor of MindingTheCampus.com and a former contributing editor at U.S. News and World Report.

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