Arizona's Battle Against Racial Preferences

Ward Connerly, founder and chairman of the American Civil Rights Institute (ACRI), has been riding the wave of his successful 2006 Michigan Civil Rights Initiative, which banned racial preferences in public universities and government hiring and contracting in that state. He will be looking to give voters in five more states the opportunity on Election Day 2008 to ban racial preferences. After the decisive 58-42% win in Michigan, Connerly and his supporters have every reason to believe that public opinion is strongly on their side.

Arizona (along with Missouri, Oklahoma, Colorado, and South Dakota) will be a battleground state where voters may have the chance to ban racial preferences in public education, contracting and employment. Jennifer Gratz, the named plaintiff in Gratz v. Bollinger (in which the U.S. Supreme Court struck down use of race in admissions by the University of Michigan) and now Director of State and Local Initiatives for ACRI, says that Arizona was chosen as one of the five states in part because of strong local support and concern over use of race in a variety of setting including the Tucson magnet school program, law school admissions and even court sponsored programs.

Clint Bolick of the conservative Arizona think tank Goldwater Institute and legal counsel for the Arizona effort explains that the Tucson magnet school program which limits participation of minority children to maintain racial “balance” is the “poster child for why we need a ban on racial classifications.” He warns that “anytime you give the power to government to classify on the basis of race you get perverse results.”

Andrew Thomas, Maricopa County Attorney, is the local honorary chair of the Arizona initiative. He has been inspired to join the cause against racial preferences because of his experience battling against classification by race in the county court system.  He describes two separate courts for drunk driving defendants — the “Spanish DUI court” and the “Native American DUI Court” — which have been set up to oversee probation violations of defendants by racial group.  As opposed to the “regular” DUI courts, these special courts, according to Thomas, hand out lighter sentences for probation violations.  He terms this system “amazing and disturbing.” He notes that “even at the height of Jim Crow we had people brought to the same bar of justice.”

Thomas’ lawsuit challenging this system was dismissed but he is appealing the case. It is not clear whether the Arizona initiative will be drafted so as to cover the Maricopa court system.  However, the initiative proponents hope that the impact of a successful public referendum on racial classifications will, at the very least, mobilize public opinion against what Thomas believes is an “anti-American” system of unequal justice.

It will not be an easy fight. In order to qualify for the ballot approximately 230,000 signatures must be gathered. As in Michigan, opponents of the initiative will be well funded and organized. As Gratz notes, they have “endless resources” and the ability and willingness to stage large protests.  But Gratz says firmly, “We wouldn’t go in if we didn’t think we could win.”

Some may question why racial preferences should be eliminated when athletes or “legacy” children gain admission to universities. Bolick says that non-racial preferences “may be stupid but not evil” and notes that Martin Luther King Jr. and the entire civil rights movement were founded on the notion that race is “different and irrelevant to character.” He dryly notes that this explains why the Civil Rights Act of 1964 prohibits discrimination on immutable characteristics like race but not on the basis of athletic prowess.

The proponents of the Arizona initiative will have a clear message which they say will not deviate depending on whether the audience is Hispanic students or African American businessmen or white government employees. Speaking of the need to eliminate race as a consideration for school admissions, Gratz says: “It is a matter of fairness. Everyone deserves to know if they are accepted or rejected based on their merit.” She says that minority students must live with the “stigma of race preference” as their peers doubt whether they were really admitted because of their personal achievements or whether it was their race which vaulted them over other better qualified candidates.

Bolick believes that Arizona’s large Hispanic population has good reason to support the ban.  Bolick argues that “once you have explicit classifications by ethnicity” fuel is added to anti-immigrant sentiments.  Moreover, Hispanics and all citizens should recognize, according to Bolick, that racial and ethnic preferences “rarely trickle down to people most in need.” Gratz agrees that by eliminating racial preferences Arizona universities and colleges, like their counterparts in California after Proposition 209, will be forced to concentrate on “socio-economic” hardship and first generation college status. As things stand now Gratz contends that “elites” view race preferences as a “blanket” solution for minorities in education, employment and contracting and think they “do not have to do much” to improve education and employment for minorities.

But those fighting for bans on racial preference in Arizona and the other four states do not seem content only to win victories in those places. Gratz welcomes the chance in a presidential election to have a “national dialogue’ about race preferences and how we can “do better” than classifying citizens by race. She is certain that the presidential candidates will not be able “to get around” answering how they view racial preferences. Gratz is happy to remind them — citing the results in Michigan — that supporting the race preference ban is not only the right thing to do, but the politically smart one as well.

Will the measure succeed in Arizona? Bolick says the issue is not “if” but “by how much” and is confident a measure which champions individual rights is “tailor made” to win “in the land of Barry Goldwater.” Arizona will test that hypothesis in 2008.