FEATURE | winter 2008
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. |