April 12, 2013

A watered down victory for equality under the law in Tennessee

By Anastasia P. Boden Attorney

This week the Tennessee House of Representatives passed a bill that bans the state government from granting race and sex preferences.  What should have been a victory for proponents of equality under the law became a nonissue when the bill was amended at last minute to prohibit preferences granted “solely” on the basis of race or sex.  Race- and sex-based preferences are never granted solely on that basis.  For example, the University of Texas did not just admit all the black and Hispanic applicants and reject all of the white and Asian applicants.  Yet if race was not even one factor considered by the University, Abigail Fisher would have likely been admitted.   Similarly, race is one factor that CalTrans uses to dish out federally-funded contracts, but it is not the sole factor.   The bill passed in Tennessee will do precious little for equality under the law; there are already plenty of laws prohibiting discrimination or preferential treatment solely on the basis of race or sex.  The issue is whether the government should be able to use race as a factor at all.

Amusingly, in debating the earlier version of the bill, one state Representative ventured that the bill might deter companies from doing business in the state.  Representative Joe Armstrong said businesses might think “wait a minute, that state is backwards.”  It’s difficult to understand how a bill that promotes equality and meritocracy would turn businesses away.  One is inclined to think that discriminating on the basis of race is a bigger deterrent to business than treating everyone equally.

The Tennessee House Bill has yet to be adopted, and there is still hope that “soley” will be taken out of the final version of the bill.  In the meantime, the United States Supreme Court may accomplish the the same result with its upcoming decision in Fisher.   But if Fisher doesn’t result in the colorblind Consitution we hope for, we can expect that more states will amend their state constitutions to prohibit race- and sex based preferences like Tennessee tried to do.   That’s why next year’s Supreme Court case —  Schuette v. Coalition to Defend Affirmative Action  —  which will determine the constitutionality of state bans on race-based affirmative action, could become so important.

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