A Preference for Deception
Ward Connerly steals the language of civil rights to halt affirmative action

By Kimberle Crenshaw

RUTHIE STEVENSON WAS ON HER WAY TO THE POST OFFICE IN Mt. Clemens, Mich., when she was asked to sign a petition to “make civil rights fairer for everybody.” The circulator named the president of the local NAACP as a supporter. This would have been surprising, since the petition—known euphemistically as the Michigan Civil Rights Initiative—sought to amend the Michigan constitution to eliminate all affirmative-action programs in the state. Moreover, Stevenson knew firsthand that fraud was afoot: She was the president of the local NAACP, and had certainly never lent her support.

Unfortunately, Stevenson was far from the only Michigan voter to have encountered trickery and deception in Ward Connerly’s campaign to eliminate affirmative action. Hundreds of Michigan citizens, disproportionately African American, testified before the Michigan Civil Rights Commission and later in federal district court that Connerly’s canvassers lied or otherwise misled them to secure their signatures.

The federal district court judge denounced what it called voter fraud, but ruled that the effort deceived blacks and whites equally, and thus did not violate the Voting Rights Act. The court noted, however, “If the proposal eventually passes, it will be stained by well-documented acts of fraud and deception that the defendants, as a matter of fact, have not credibly denied.” The proposal did pass, in November of 2006. Michigan thus becomes the third state to ratify such an initiative, with all three long and divisive campaigns fronted by Connerly. Yet the stain predicted by the court is barely visible to those who haven’t witnessed the seamy underbelly of his supposedly highbrow efforts.

The most audacious dimension of Connerly’s masquerade, which he now hopes to replicate in five other states in November, is his use of the language of civil rights as the Trojan horse to roll his reactionary agenda into the center of American politics. By selectively sampling from its martyr, Dr. Martin Luther King Jr., Connerly has appropriated the terminology, symbolism and moral authority of the civil rights movement to undo some of its most important victories. The millions of U.S. citizens who are primed to affirm any proposal framed as advancing civil rights are precisely those most at risk of being tricked into voting against their own interests. Women and black people were denied the vote in the past; today, they are deceived out of their votes.

Connerly’s Civil Rights Initiative (CRI) campaigns use purposefully deceptive language to confuse some voters into repudiating policies they might otherwise support. Virtually all his campaigns purport to ban “discrimination and preference” on the basis of race, sex, color, ethnicity or national origin. Even those who read the language of his initiatives with caution will not necessarily recognize a ban on discrimination or preference as a vote to end affirmative action.

For many voters, “preference” does not equate with affirmative action. Instead, it captures the bevy of rewards afforded to those who have been historically advantaged in American society through nepotism, old-boy networks and discriminatory enclaves. These and other exclusionary practices function as built-in preferences that funnel a disproportionate share of resources and opportunities to whites and to men.

Voters who understand that dynamic may thus interpret preference as a way of describing discrimination—and thus a vote for a CRI is a vote against entrenched and systemic exclusion. Probably tens of thousands of voters in Michigan, and previously in Washington and California, voted for Connerly’s initiatives in error. The obvious solution is for voters to be presented with clear language indicating that the real purpose of the initiatives is to eliminate affirmative- action programs for women and people of color.

But Connerly has repeatedly rejected this simple solution. Despite his claims that the majority of Americans stand with him, he has refused to use plain language, instead obscuring the real purpose of these initiatives. And it’s obvious why: As early as 1992, the distinguished pollster Louis Harris discovered discovered that while Americans overwhelmingly oppose “racial preference,” a clear majority support “affirmative action.” For some Americans, the words “racial preference” trigger images of rigid quotas, reverse discrimination and unqualified minorities, while “affirmative action” has come to mean increasing opportunities for members of excluded or underrepresented groups. Harris thus concluded that how the question is worded on this issue is highly significant.

In fact, when the city of Houston changed the wording of a Connerly initiative in that city to pose a direct question to voters about whether affirmative-action policies should be banned, the initiative lost. But when elected officials and courts allowed him to use his deceptive language in California and Washington, the initiatives passed.

So Connerly has fought hard to ensure that his initiatives reach the ballot only with the deceptive language of “discrimination and preference.” But at least in Missouri, one of the five states Connerly has targeted for a “Super Tuesday” CRI campaign, the tables have been turned. The secretary of state wrote a ballot summary that clarified the initiative’s objective of eliminating affirmative action. Predictably, Connerly’s team has filed suit, claiming that the term is “ambiguous, overinclusive and value-laden.”

While it is true that “affirmative action” is subject to competing interpretations, most voters understand that it refers to some form of race- or gender-targeted programs. And Connerly knows that the majority of Americans support a whole host of such programs—particularly those that offer development, mentoring and outreach for women, girls and people of color. Yet when the ban on “preferences” passes, emboldened critics wield the CRI as a weapon to bludgeon all affirmative-action programs. Thus, programs requiring contractors to verify outreach efforts to womenand minority-owned businesses, or race- or gendertargeted health screening programs, or even domesticviolence shelters have all been subject to a CRI assault.

Since women are a sizable, multiracial, multigenerational and cross-class bloc of voters, their collective political muscle could stop Connerly’s initiatives in their tracks. Moreover, women are not simply potential allies in the struggle to maintain affirmative action; they are its principal beneficiaries. Affirmative action has helped integrate them into all sectors of the American economy. From police and fire departments to courtrooms and boardrooms, affirmative action has opened doors of opportunity for women to enter.

Yet the women’s vote, as it turns out, is no silver bullet of a solution. While women of color oppose Connerly overwhelmingly, white women in all three state CRI elections have voted decisively for his initiatives. In Michigan, for example, an exit poll showed that 59 percent of white women voted for the CRI, while 82 percent of women of color voted against it. Not only are women not a coherent voting bloc on this issue, they’re more divided on it than men are.

Perhaps one reason for this divide is that white women are virtually invisible targets of the CRI assault on affirmative action, as the CRI strategy has been to ignore them as beneficiaries of affirmative action in favor of targeting people of color, especially African Americans. This may well lead many white women to imagine themselves not as beneficiaries of these policies but as those aggrieved by them. Connerly’s capacity to stir up fears about affirmative action is easily facilitated by a media that does virtually nothing to deepen understanding of this vital issue. According to a Fairness & Accuracy in Reporting study, not only does mainstream media consistently describe affirmative- action policies as preferential and discriminatory, it rarely mentions women as beneficiaries of the policies or discusses the exclusionary barriers affirmative action is designed to dismantle.

Since Alan Bakke’s famous lawsuit against the University of California’s Davis Medical School in 1978, most of the symbolic victims of affirmative action have been white women—such as Jennifer Gratz and Barbara Grutter, lead plaintiffs in the University of Michigan affirmative-action cases decided by the U.S. Supreme Court in 2003. They were not likely chosen to play this victim role by accident.

The effort to fully mobilize women to resist this assault on affirmative action will require us to tap the deepest traditions of antiracist feminism and remind all women of their own very real experiences with discrimination in disparate sectors of American society. A key step will be to reframe the terms of this debate so that affirmativeaction policies are properly associated with the elimination of unwarranted obstacles faced by white women and people of color.

It is helpful, too, to recognize that the rallying cry of “special treatment” is not at all new: Virtually all efforts to integrate excluded groups into American institutions have been denounced in those terms. Similarly, efforts to integrate women into allmale institutions (such as private clubs) have been resisted as unnatural, unjustified and disruptive. But interestingly, as those male-dominated environments become suspect and eventually unacceptable, efforts to change the rules are no longer seen as special treatment but as perfectly reasonable policies to equalize opportunity.

The challenge for us in contemporary America is to capture this understanding across a range of modern institutions, where the presence of women and people of color remains a matter of controversy rather than a normal fact of life. As long as such situations remain, policies designed to ensure their presence are going to be criticized as special treatment and thus unfair. If efforts to defend affirmative action are going to be successful, advocates will have to redirect the public’s attention to the conditions of everyday life for women and minorities that are themselves unfair, and to which affirmative action is a modest but a very necessary solution.

KIMBERLE CRENSHAW is a professor of law at Columbia and UCLA Law School, and directs the African American Policy Forum (www.aapf.org), which advances social justice through public education initiatives.