"The Battle for Equality"

November 11, 2009 | By JOSHUA THOMPSON

Author: Joshua Thompson

That's the title of a new article in California Lawyer, a magazine sent to me for free as an active member of the California bar.  But this is not just an article in a magazine.  California lawyers who read the article, can answer a few questions about it, send in a check for $29, and receive credit towards their "Continuing Legal Education"  (CLE) requirement.  What really bothers me here is not that the California Bar has a CLE requirement, but that reading a 3-page, completely biased account of the state of the law, entitles someone to CLE credit.

The article begins by stating an uncontested fact: racism exists in America.  (While that is undoubtedly true, the example given by authors, that of Harvard Professor Henry Louis Gates, is hardly the example that proves the point.)  From here, the authors attempt to educate California lawyers on the state of the law with respect to race and sex preferences and discrimination.  They fail miserably.

The authors  tell us that "most fair-thinking Americans agree that [numerical disparities] are antithetical to our expectation of equality."  Really?  Most fair-thinking Americans think that? Equality before the law is a right protected by the Fourteenth Amendment.  When the government determines the rules of the game based on skin-color (you get contract X because you are black/white) most ___ –thinking Americans know that their rightto equality under the law has been violated.  Conversely, the existence of numerical disparities (more white people received contract X even though the law did not allow the government to consider race) can result under a million different scenarios, only some of which are offensive to ___ – thinking Americans.  The people who think that the consequences of neutral government policies must result in neat and even percentages of whites, blacks, Hispanics, Asians, Lithuanians, sub-continent Asians, etc., are not "fair-thinking" Americans but rather quite thoughtless Americans.

After telling the California lawyer what fair-thinking Americans should believe, the article paints a very peculiar picture of the state of the law.  For instance, the authors put great stock into a Ninth Circuit case that affirmed class certification for plaintiffs who suffered from "unknowing [and] spontaneous … stereotyping."  The authors put a lot of stock into this opinion despite the fact that the theory has never been affirmed by another court, the Ninth Circuit itself has issued rehearing en banc, and the opinion only dealt with class certification (not the merits).  It is fine and well if such absurdity is placed into a radical advocacy piece from the Equal Justice Society, where one of the authors is employed (shocker!), but it is quite another to pass this off as the current state of the law.

Most damning is the authors' treatment of the law in California.  The authors immediately adopt the party line on why Proposition 209 should be found unconstitutional, without even mentioning that their argument has been rejected by every court that has heard it.  See, e.g., Coal. for Econ. Equity v. Wilson, 107 F. 3d 704 (1997); Coal. to Defend Aff. Action v. Univ. of Mich., 592 F. Supp. 2d 948 (E.D. Mich. 2008). The authors cite to the recent cases of ACRF v. LAUSD, 169 Cal. App. 4th 436 (2008) and ACRF v. Berkeley USD, 172 Cal. App. 4th 207 (2009) as examples that "the door remains open for aggressive, good faith efforts to remedy the lingering effects of past discrimination."  The authors blatantly ignore other published decisions which struck down preferential treatment programs under Proposition 209. See, e.g., Crawford v. Huntington Beach USD, 98 Cal. App. 4th 1275 (2002); C & C Const. v. SMUD, 122 Cal. App. 4th 284 (2004).  Moreover, if either the LAUSD or BUSD attorneys had adopted the authors' view, namely that these programs were attempts to "remedy the lingering effects of past discrimination," neither court would have upheld their constitutionality.

As I said at the outset, the problem with this piece is not that members of the Equal Justice Society believe it, but rather that California lawyers can read this piece, answer a few biased true/false questions (e.g. True/False "Subtle and hidden biases can affect decision making resulting in structural impediments to advancement for women and people of color."), and then receive credit that they are continuing their legal education. 

Hindering their legal education is more like it.