Officeholders favoring diversity ignore laws they don't like

John Leo

6/26/2006 12:01:00 AM - 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.

After the first six years of efforts to get civic leaders interested in obeying the law, "playing favorites by color remains official policy in some of California's largest bureaucracies," says an article on FrontPageMag.com. Same thing in Seattle after Initiative 200 banned preferences in Washington state. The mayor of Seattle was not swayed. He prepared a fresh batch of preferences, and a councilman said, "I'm not sure I care if we're in compliance" with the law. Whatever. It's only a law.

A similar pattern of resistance greeted the Michigan Civil Rights Initiative, a version of Prop 209 and I-200. The resisters, including a group with a telltale name, By Any Means Necessary, are fighting to keep the public from voting on the issue. At one point the board of state canvassers refused to put MCRI on the ballot, despite a court order to do so.

The current mayor of San Francisco, Gavin Newsom, came to the nation's attention by illegally marrying gay couples. Now he is promising another adventure in lawbreaking. In April, he and the entire city board of supervisors urged San Francisco law enforcement not to comply with criminal provisions of any new immigration bill. "If people think we were defiant on the gay marriage issue, they haven't seen defiance," he said.

Another wave of resistance may be forming in Massachusetts, this time to protect sex lessons in public schools, particularly lessons on homosexuality. So much material on sex was appearing in lower grades of schools that parents fought for, and got, a state law allowing a child to be excused when these lessons came up. But in a highly publicized case in Lexington involving a kindergarten boy and gay sexuality, the school system refused to allow the opt-out. Superintendent Paul Ash said, "We couldn't run a school if every parent who feels some topic is objectionable to them for moral or religious reasons decides their child should be removed."

The man who wrote the law, Brain Camenker of the conservative Article 8 Alliance, said the school system justified ignoring it by willfully misinterpreting the language used in the law.

Why is the new resistance occurring? One factor is that many of the people involved have a personal history of activism and see their current posts as opportunities to promote their causes. They often have romantic views of lawbreaking derived from the civil rights movement and the in-your-face activism of the 1960s.

Traditionally, officeholders are expected to resign if they cannot bring themselves to obey the law. The resisters don't feel that way. Often they see themselves as prophetic figures working against sluggish majorities to produce a better future. Save us from visionaries who think they are entitled to break the law.