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from my OLD, dead hands

Ward Connerly

This week is Ward Connerly’s last as a member of the University of California board of regents. During his tenure there, Mr. Connerly has become famous as a leading critic of racial preference policies, and of course he led the campaign to pass Proposition 209 and ban race-based preferences in California.

Mr. Connerly has also been a frequent client of the Pacific Legal Foundation, and I’m happy to say I represent him in a case before the California Supreme Court right now—a case which began ten years ago, when Governor Wilson filed a lawsuit seeking a court order to declare California’s race preferences unconstitutional under the Fourteenth Amendment. Fourteen groups defending these preferences, including the California Teacher’s Association, immediately jumped into the case arguing that, for procedural reasons, the court could not hear the case. These groups fought tooth and nail to keep the racial preferences in place.

Meanwhile, in 1996, voters approved Proposition 209, which added Article I section 31 to the state constitution. Shortly afterwards, Mr. Connerly joined the case as a plaintiff. When Governor Wilson left office, Governor Davis decided not to keep going, and the case proceeded as Connerly v. State Personnel Board. Finally, in 2001, the Court of Appeal agreed that the racial preferences violated Article I section 31. It found that

Under equal protection principles, all state actions that rely upon suspect classifications must be tested under strict scrutiny, but those actions which can meet the rigid strict scrutiny test are constitutionally permissible. [Article I section 31], on the other hand, prohibits discrimination against or preferential treatment to individuals or groups regardless of whether the governmental action could be justified under strict scrutiny.

(As to my participation in the case: after deciding that the state was violating Article I section 31, the trial court ordered the state and the California Teachers’ Association and the other groups to pay attorney’s fees. Whether they can be liable under the circumstances in the case is a complicated issue which perhaps I’ll discuss some other time. I filed a brief in December; their reply brief is due soon.)

Another case in which PLF has worked with Mr. Connerly is also still going—it’s called Connerly v. Davis, and it involves a legislative attempt to get around Article I section 31 by redefining legislatively what the term “discriminate” means. It defines this term by reference to a UN treaty which allows racial preferences. In other words, by changing what the words mean, we can just ignore the obvious fact. Reminds me of something I blogged about recently.

And it reminds me of an old Lincoln story. Lincoln is said to have once asked his audience, “how many legs does a dog have if you call the tail a leg?”

“Five,” the audience answered.

“No,” Lincoln replied. “Four. Calling a tail a leg doesn’t make it a leg.”

And calling racism something else doesn’t make it non-racism.

Fortunately for all Californians, Ward Connerly has had the courage to call things by their real names—often in the face of frightening hostility. This state is better for his courage. Everybody at PLF is proud of our association with this outstanding Californian, and I’m sure I speak for all my colleagues in wishing him well in his future endeavors.

The Connerly v. State Personnel Board case is at 92 Cal. App. 4th 16 (2001). For more on Article I section 31 check out this article by Eugene Volokh.

--Timothy Sandefur