pageok
pageok
pageok
Matt Welch (L.A. Times) Roundup on Chemerinsky News and Commentary

here.

Don't be confused, though, by this excerpt from a rather puzzling Harper's blog post:

But the academics who express surprise here really are displaying their ignorance of the career trajectory of Michael Drake. He came to prominence and climbed the ladder of the University of California system by being politically controversial. It's the nature of the political controversy that tells the difference. Drake loudly touted views that were pleasing to the California G.O.P. Indeed, if Drake is known for one thing it is his staunch opposition to California's Proposition 209. Approved by California voters in 1996, Proposition 209 prohibited discrimination based on race, ethnicity or sex—it was a vehicle for a new, soft affirmative action which focused on improving the educational standards of inner-city and minority neighborhood schools. Since its passage and implementation, graduation rates for African-Americans in the University of California system have soared, and studies suggest a direct and causal link. (As point conceded even by the beyond conservative anti-affirmative action polemicist Rich Lowry in National Review). Drake, being an African-American, was viewed as the perfect poster boy for an anti-affirmative action campaign.

I am not questioning the sincerity of Drake's Clarence Thomas-like anti-affirmative action views. I am merely pointing out that they were politically controversial, they reflected what turned out to be a minority view in California, and time has proven that his opposition was seriously misplaced. Drake suffered no adverse consequences for this in his political career; indeed, he clearly benefited. There's nothing wrong with that. What's wrong is penalizing a person for political views, particularly based on a perception that he is somehow out of step with the mainstream. Time has a habit of changing these perceptions. Drake should have kept that in mind. Indeed, Drake should have kept in mind that one hundred years ago he could not have aspired to be a professor in the University of California system, much less a chancellor -- and that demonstrates the tyrannical and unhealthy effect of blind adherence to the politically conventional.

The Harper's post no longer includes this mystifying passage, which has since been silently replaced by this much more internally consistent item: "If Drake is known for one thing it is his staunch opposition to California's Proposition 209. Approved by California voters in 1996, Proposition 209 prohibited discrimination based on race, ethnicity or sex—it was pushed to impede traditional affirmative action programs. Drake's views were politically controversial. Drake suffered no adverse consequences for this in his political career; indeed, he clearly benefited. There's nothing wrong with that. What's wrong is penalizing a person for political views, particularly based on a perception that he is somehow out of step with the mainstream."

Kent Scheidegger (mail) (www):
Incredible. Painting a Prop 209 opponent as anti-affirmative action. That's almost as preposterous as the claims Chemerinsky made in his article. Almost.
9.16.2007 2:57pm
Cornellian (mail):
The mainstream is overrated anyway, Galileo being just once classic example among many.
9.16.2007 4:33pm
John Robinson (mail):
Do most people consider an error like this to be one of ignorance or a more sinister case of being caught trying to mislead readers?
9.16.2007 4:55pm
Dilan Esper (mail) (www):
Kent:

I understand that there are certain types of affirmative action that certain conservatives support (minority outreach, etc.). And therefore I take your point.

But at the same time, we should put this in context. When 209 was on the ballot, its sponsors SWORE that 209 wouldn't affect minority outreach programs. Then, after the initiative passed, suits were brought to enjoin such programs on the ground that even seeking additional black applicants (to be judged by equal standards) constituted a racial preference, and this claim succeeded in some court cases including a California Supreme Court case.

This course of events makes the issue of opposition to all forms of affirmative action by Proposition 209 proponents a much more complicated question.
9.16.2007 5:52pm
Kent Scheidegger (mail) (www):
Dilan, the fact remains that the opposition to 209 was very much a pro-affirmative-action effort. To cite such opposition to support the proposition that "Drake loudly touted views that were pleasing to the California G.O.P." is strange.

To his credit, though, the author of the post promptly fixed it. Chemerinsky's failure to retract his misstatements a month later requires an explanation.
9.16.2007 6:34pm
Eugene Volokh (www):
Dilan Esper: Can you point me, please, to the sponsors' swearing that 209 wouldn't affect minority oureach programs (in the sense of race-targeted outreach programs)? I was involved in that campaign as a legal advisor to the Yes on 209 side, and as I recall we were always careful to say that we were endorsing race-neutral programs, not race-targeted ones.

Here, for instance, an article I wrote shortly after the initiative was enacted, which reflected the same legal analysis I'd engaged in before the enactment, and which as I recall the campaign was careful not to depart from. On the other hand, it's been 11 years now, and perhaps I've forgotten something, or perhaps I missed some statements from the sponsors at the time. If you can point me to them, I'd be much obliged.
9.16.2007 6:49pm
Dilan Esper (mail) (www):
Professor Volokh:

Here was the ballot pamphlet argument rebutting the argument against 209:

http://vote96.sos.ca.gov/Vote96/html/BP/209norbt.htm

Here's the relevant passage:

"Affirmative action programs that don't discriminate or grant preferential treatment will be UNCHANGED. Programs designed to ensure that all persons--regardless of race or gender--are informed of opportunities and treated with equal dignity and respect will continue as before."

Now, I realize that one COULD argue that this language really meant that minority outreach would be prohibited, I would suggest to you that if that was the carefully drawn intent of the intiative, then the sponsors were being INCREDIBLY misleading, because they didn't say that the initiative would bar ANY forms of outreach, and they were responding to an argument by opponents that it would bar such outreach. Specifically, the argument that was being rebutted said that the following forms of affirmative action would be banned: "affirmative action that encourages the hiring and promotion of qualified women and minorities; outreach and recruitment programs to encourage applicants for government jobs and contracts; and programs designed to encourage girls to study and pursue careers in math and science". (The link to that is at http://vote96.sos.ca.gov/Vote96/html/BP/209noarg.htm )

The sponsors didn't continue on and say, for instance, "Of course, such programs will be illegal if they are directed specifically towards encouraging minorities to apply for a position." Similarly, your article came too late for the voters to know that they were approving language that could be use to bar minority outreach. The only thing that voters knew is that there was language in the voter pamphlet that implied that these programs would not be touched, assuring voters who might be alarmed from reading the argument against that these programs would be called into question.

The natural reading of the ballot pamphlet argument-- and clearly the one the sponsors wanted the electorate to believe-- was that the initiative wouldn't prohibit state agencies from encouraging minorities to apply for jobs, because such programs were "designed to ensure that all persons--regardless of race or gender--are informed of opportunities and treated with equal dignity and respect".

So this was a bait and switch. (And by the way, I am an opponent of affirmative action that takes the form of race-based preferences.)
9.16.2007 8:09pm
Eugene Volokh (www):
Well, you can read it as you like. But what the statement actually says is that programs that "don't discriminate or grant preferential treatment" -- that are "designed to ensure that all persons--regardless of race or gender--are informed of opportunities" -- are permissible.

So outreach programs targeted to a particular race or sex are not allowed. Outreach programs that aim to inform everyone, e.g., to quote my article, "[a] public institution advertises in all local newspapers--including ones that serve particular ethnic communities--and not just the largest paper," or that are targeted in race-neutral ways, e.g., "[a] university sends special recruiters to all schools (regardless of ethnic makeup) from which it has historically gotten few applicants," are OK.
9.16.2007 8:17pm
Henri Le Compte (mail):
Ha, ha, ha... That bizarro passage was a hoot!! And a perfect example of how left-leaning press bias works. You should frame it.

The Left has exactly one arrow in its quiver these days-- hypocrisy. The goal in a surprisingly large number of news articles or "news analyses" is to paint the Left's political opponents as "hypocrites." How you get there is immaterial. You can defy logic, common sense, factual reality; it almost doesn't matter. As long as you can pin the hypocrite label on them, you can destroy them. Or, at least, damage their credibility, and-- most important of all-- take the attention away from their arguments. You don't address what they have to say; never address that. You turn the discussion to "But, sir, why are you such a lying hypocrite?" as soon as possible.

I mean, look!, at how mightily that author struggles to get to the "Drake=hypocrite" moment. What is that insanity about Prop. 209? Opponents of Prop 209 were secretly opposed to affirmative action also? How does that work? And what does Rich Lowry have to do with any of this?? Except, of course, to bring him up as a boogyman of the Left. And... what the hell does any of this have to do with the Chemerinsky controversy???

Pathetic. But entirely typical of how the "news" creates opinion. You don't have to lie to deceive people. It's all in how you frame the facts.
9.16.2007 9:34pm
Dilan Esper (mail) (www):
Well, you can read it as you like.

Professor, with all respect, you are being really disingenuous here. I understand that the passage was very carefully drafted so as to leave itself open to the the interpretation that 209 didn't permit many types of minority outreach as the term is understood. That's like Clinton's deposition responses, which were carefully crafted so that he could claim that he never denied certain precise acts with Lewinsky.

But I gave the context for the quotation, which was that it was specifically given as a response to an argument against 209 that said in effect "this will prohibit minority outreach programs that target minorities". So in answering that argument, the proponents said something that was designed to sound as if there was nothing to worry about, those programs would still be permitted.

Indeed, the sponsors deliberately did not say "you know what, the opponents are right, many forms of minority outreach will be prohibited". And the reason they didn't say that was because they wanted to benefit from the votes of misled voters who might believe that they were denying that minority outreach would be affected, when they were really offering what is known in politics as a "non-denial denial".

In other words, Professor Volokh, if they didn't actually say that minority outreach wasn't going to be touched, what they did instead was that they deliberately misled voters into thinking that was what they were saying with carefully crafted language written in response to someone who was making a charge that was actually true.

If you disagree with this, explain to me this: why didn't the sponsors simply respond to the charge that 209 would bar minority outreach by saying "the opponents are right, it will, and here's why we think that is a good idea"?
9.16.2007 9:47pm
David M. Nieporent (www):
The natural reading of the ballot pamphlet argument-- and clearly the one the sponsors wanted the electorate to believe-- was that the initiative wouldn't prohibit state agencies from encouraging minorities to apply for jobs, because such programs were "designed to ensure that all persons--regardless of race or gender--are informed of opportunities and treated with equal dignity and respect".
The "natural reading" of the phrase "all persons--regardless of race" is "minorities"? It didn't say "designed to ensure that minorities are informed of opportunities." It said "designed to ensure that all persons are informed of opportunities."

succeeded in some court cases including a California Supreme Court case.
I hope you're not talking about Hi-Voltage, because there's no way on earth that any disinterested person could claim that the program at issue in that case was a non-discriminatory "outreach" program.
9.16.2007 10:39pm
Dilan Esper (mail) (www):
David:

You are missing the context. Let's simplify it:

Opponents of Proposition 209: "this initiative will bar governmental efforts to get more minorities to apply for jobs and schools and grants".

Response, written specifically in response to the above statement and appearing directly below it in the ballot pamphlet: "this initiative will not effect outreach programs designed to ensure that all persons, regardless of race and gender, are informed of opportunities and treated with equal dignity and respect".

Assume that the response does not say anything else about the issue of minority outreach, and never says that there are minority outreach programs that will be banned by the Proposition.

Given those facts, isn't that language about "all persons-- regardless of race" pretty clelarly deliberately meant to be misleading? I.e., yes, if read in isolation, one could parse the language as meaning only outreach programs that do not target minorities are barred, but if read in context, the voter is supposed to conclude that it is the answer to the argument that minority outreach programs will be barred.

Again, answer the question I put to Professor Volokh. Isn't it obvious why they didn't just say "the opponents are correct that outreach programs that target minorities will be barred-- here's why we think that is a good idea"?

Look, we're not virgins here, are we? Political campaigns often win because they make misleading, incomplete arguments. Even Professor Volokh's original post referred to the fact that the campaign was "careful" on this issue. Another way to say that is that they knew that the chances of passing the initiative would be lower if the public realized that part of the intention was to attempt to stop minority outreach programs as opposed to racial preferences in the decisional criteria for a position.

And the thing that gets me is that they were called on it by anti-209 forces, and rather than responding by saying "yes, that's what we're trying to do", they crafted a "careful" (i.e., misleading) statement that, read in context, would make it look like 209 would have no effect on minority outreach.

(I should add, preemptively, that I know the pro-209 forces did a bunch of misleading things too. But that isn't this discussion.)
9.17.2007 1:17am
David M. Nieporent (www):
Again, answer the question I put to Professor Volokh. Isn't it obvious why they didn't just say "the opponents are correct that outreach programs that target minorities will be barred-- here's why we think that is a good idea"?
Sure. They "didn't just say" that because that wasn't what was asked. You're, like opponents of 209 were doing, treating neutral outreach programs as if they're identical to discriminatory outreach programs. They weren't "called on it" by anti-209 forces; those forces worked very hard to misleadingly make it seem as if there was no daylight between programs that "targeted" women and programs that included women.

You say that "careful" = "misleading"; I say that "careful" = "not misleading."

(Incidentally, you say that I'm "missing the context," but you're the one pulling partial sentences out of each of those web pages rather than looking at the entire argument being made on those pages.)
9.17.2007 11:14am
Dilan Esper (mail) (www):
David:

That's a silly criticism. Of course I can't block quote page long arguments here. All I can do is quote and post the links, and that's what I did.

But let's go back to what the opponents of 209 said would be barred:

affirmative action that encourages the hiring and promotion of qualified women and minorities; outreach and recruitment programs to encourage applicants for government jobs and contracts; and programs designed to encourage girls to study and pursue careers in math and science

Again, let me say this very slowly-- THAT WAS THE ARGUMENT THAT WAS BEING RESPONDED TO. In other words, the anti-209 forces were saying "look, this initiative would prohibit the government from encouraging women and minoirities to apply for jobs through recruitment programs". It is clear that they were talking about outreach that targeted minorites.

And the pro-209 forces didn't say "you're right, it will bar any program that targets minorities specifically". Rather, they responded with a very carefully parsed statement that LOOKED like a denial.

Again, I don't think you would let a liberal doing the same thing off the hook like you are this one, David. When someeone says "your initiative is bad, it will do X" and you respond by saying something that looks like you are denying it will do X, but could be very carefully parsed as a denial that it will do something else (which wasn't what the opponents were talking about), I think that's pretty clearly misleading the public.

Indeed, it is exactly what Clinton did in his deposition, appearing to deny any contact with Lewinsky while in fact carefully parsing his words so they actually denied something else.
9.17.2007 2:45pm
Henry Bramlet (mail):
Dilan-

You seem to be in an un-envious position here. Your argument that the Pro-209 crowd "Swore up and down" that they wouldn't prevent Race-Targeted Outreach now rests on interpretation of context rather than their actual words. The quoted passage specifically discusses General-Targeted Outreach, not Race-Targeted Outreach. Even if there is room for confusion, any reasonable person would have to admit that that is a far cry from "[swearing] up and down".

You say "I don't like this car because it doesn't have rear-seat climate-control."

I say, "You can absolutely adjust the climate using the forward air controls, and angling the dashboard vents toward the back seat".

While I have not explicitly agreed with your complaint, I have attempted to lessen its merit by providing alternatives. I have not sworn up and down that there is rear-climate control- and have specifically stated that climate can only be affected by adjusting the front-based controls.

You seem to be taking a marketing message (which it was) and making up additional meeting.
9.17.2007 3:48pm
Dilan Esper (mail) (www):
Henry:

Unfortunately, because the initiative passed in 1994, I don't have access to the archives of press coverage in 1994, which was before media started regularly archiving on the internet. What I was able to find was the ballot pamphlet.

I can assure you, though, that one of the main claims of opponents was that this would make it impossible to do outreach, and supporters were constantly rebutting that in media appearances by assuring us that in fact outreach would continue to be permitted.

And you are really minimizing the sin here. A better example is this: man goes into car dealership and says, "I like this car, but I absolutely must have a 5 year warranty on the air conditioning because I live in Pheonix and it gets very hot".

Car salesman replies "don't worry, this car carries a 5 year warranty on all of its major parts", not telling the buyer that the air conditioning is not one of the major parts.

The truth is, if someone brought a fraud or breach of implied warranty claim based on those facts, they'd win.

The supporters refused to admit that the initiative would ban targeted outreach, and made carefully parsed statements that were clearly intended to mislead voters into thinking it did not.
9.17.2007 4:37pm
David M. Nieporent (www):
Indeed, it is exactly what Clinton did in his deposition, appearing to deny any contact with Lewinsky while in fact carefully parsing his words so they actually denied something else.
Clinton's statements required that a common word be interpreted in a very unusual way in order for them to be true; one would ordinarily think "oral sex" was "sex." (Hence the name.)

The Prop-209 supporters' statements did not do that; they were interpreting common words ("discrimination," "preferential treatment") in the common way: different treatment on the basis of race or sex.
9.17.2007 5:16pm
Dilan Esper (mail) (www):
David:

Actually, "sexual relations" was the term and it was defined in the Clinton deposition. That was what allowed him to parse. (And I might add that, though this is not my view, there are certainly plenty of people in this world who claim that oral sex is not "sex".)

And as for Prop 209, you are again missing the forest for the trees. It is one thing to advertise the initiative generally as going to preferential treatment ("discrimination" is in the eye of the beholder, and was already prohibited by California law anyway, but if you want to use "discrimination" that's fine too).

But the context of this was opponents of 209 were specifically identifying a practice (minority outreach) that a lot of people who opposed outcome-determinative racial preferences nonetheless supported. The opponents were saying this initiative threatened the practice. And the sponsors responded to that specific argument by making a carefully parsed statement that sounded like a denial that outreach would be effective (see my car warranty hypothetical above).

And that's where they had something in common with Clinton. Clinton knew they were asking him if he did anything with Lewinsky. He crafted a response that sounded like a denial and that he intended would be taken as a denial.

That is what is known as misleading people.
9.17.2007 5:40pm
Dilan Esper (mail) (www):
Here's some more. I had to go on the wayback machine for this one, from the sponsors of 209:

Doesn't the California Civil Rights Initiative prevent the public school system, including the universities, from conducting outreach programs?

Not at all. Outreach, in the original, classical sense of affirmative action, never involved preferential treatment on the basis of race, sex or ethnicity. Outreach programs which neither discriminate nor grant preferential treatment on the basis of these criteria can continue under the California Civil Rights Initiative.


Now, by now I know the script. You guys are going to say that the words "NOT AT ALL" mean nothing, because they were followed by a statement that said that outreach programs that neither discriminate nor grant preferential treatment would be legal.

But "NOT AT ALL" is the whole ballgame here. If they were honest (which they weren't), they would have said "not IF the outreach programs are not targeted based on race, gender, or ethnicity". But they didn't say that, and that was deliberate. They wanted the reader to read "NOT AT ALL", be assuaged, and not read the explanatory sentences.

And "NOT AT ALL" is not even simply misleading. It is a lie. The initiative DID affect outreach programs.

Here's the link:

9.18.2007 3:49am
Dilan Esper (mail) (www):
9.18.2007 3:49am
Dilan Esper (mail) (www):
Here's one more. A fact sheet on 209. This time, they don't even bother with the cover story about nondiscriminatory outreach.

Rather, it simply says that Prop 209 will "NOT impede the enforcement of anti-discrimination laws, or efforts to include previously excluded citizens." (caps in original).

So "efforts to include previously excluded citizens" will NOT be impeded by 209. And no distinction is made between such targeted and non-targeted outreach.

Here's the link to this one

This next one I almost hate to cite, because I have so much respect for our host.

Here's Professor Volokh, in a co-authored article: "Current law lets government discriminate in favor of some people based on their race or sex to the disadvantage of others who aren't eligible for such preferences. Californians and Americans generally are overwhelmingly opposed to such preferential policies The CCRI would effectively prohibit these, while leaving intact outreach and other nonpreferential forms of affirmative action."

So, he was doing it too. Notice the deliberate parsing of this sentence. It seems to say that on the one hand there's (impermissible) preferences, and on the other hand there's (permissible) outreach. It places "outreach" in the category of "nonpreferential forms of affirmative action" and says that "outreach" will be left "intact".

In fact, "outreach" was not left intact, because some outreach did not fall in the category of "nonpreferential forms of affirmative action". But Professor Volokh didn't explain this.

Here's the link to that one

Look, I look forward to a denial from Professor Volokh-- or anyone on the 209 campaign-- that the strategy was to emphasize that "outreach" would be permitted, making sure to throw in a line about how such outreach didn't discriminate or grant preferential treatment, while never explicitly mentioning that sponsors contended that forms of outreach that targeted minorities or women did violate the initiative. I think that's obvious.

But I would also indicate that I have now proven Professor Volokh's denial false on its own terms, because the initiative's sponsors told the public WIHOUT qualification that outreach would be affected "Not at all" and that the initiative would "NOT impede the enforcement of anti-discrimination laws, or efforts to include previously excluded citizens".

Given the limited availability of materials from 11 years ago, and the fact that I am not a scholar and don't have immediate access to a library, this is about as conclusive a proof as could possibly been provided.
9.18.2007 4:03am