Guess who said this:

It is simply wrong to give one applicant an automatic advantage over another applicant, based solely upon the color of one’s skin. It was wrong 50 years ago, and it is wrong today…. Admissions decisions should not be based upon race or ethnicity. Such decisions should be based upon individual merit, individual qualifications and individual preparedness.

If you picked Antonin Scalia or Clarence Thomas or Bob Dole or some other anti-affirmative action advocate of the Constitution-is-colorblind school, go to the back of the class.

No, the quote is from the second paragraph of an April 29 press release put out by Texas Attorney General Dan Morales, announcing his petition for Supreme Court review in Texas v. Hopwood. That’s the big affirmative action case-perhaps the biggest ever-in which the U.S. Court of Appeals for the 5th Circuit barred consideration of race in admissions at the University of Texas Law School.

The central thrust of Morales’ petition for certiorari is that the state should be allowed to continue using preferences (although not "quotas"), based upon race or ethnicity, to admit black and Hispanic applicants ahead of whites with far better grades, test scores, and other nonracial qualifications.

The petition, prepared for Morales by Harvard Law Professor Laurence Tribe, contains powerful constitutional arguments that may ultimately be persuasive. But the result it seeks is virtually the opposite of that suggested by the press release.

The press release slyly slips some of the cat out of the bag in its fifth paragraph, which says that "race should be allowed to be considered as only one of a multitude of personal factors." But the dominant message is (in the words of the first paragraph) that "race-based policies must be eliminated."

This effort to fool Texas voters about what their elected attorney general is doing in their name is but one egregious example of a sadly widespread phenomenon: deceptive advocacy about what affirmative action preferences are, how they operate, and what would happen if they were eliminated.

There is misleading advocacy on both sides of this debate, of course. For example, many of those who would have the Supreme Court take its cue from the 5th Circuit, cast aside precedent, and abolish racial preferences by judicial fiat, pretend to be advocates of "judicial restraint," now a Dole mantra. But, in fact, Hopwood-whatever its merits-"is a textbook example of judicial activism," in the words of the dissenters from the 5th Circuit’s 9-7 vote not to rehear the case en banc.

Many conservatives refuse to admit that abolishing racial preferences would mean a drastic drop in the number of black students at elite universities, and something dose to de facto resegregation at institutions like the University of Texas Law School.

But blatantly dishonest advocacy appears to be more prevalent among supporters of preferences. The reason is not that they don’t have strong arguments on the merits; they do. Rather, it is that many of them sense that their honest arguments cannot carry the day in the court of public opinion and that they can hope to win over benighted voters only through deception.

Another leading example of such deception comes from California, which is approaching a climactic Nov. 5 referendum on the proposed California Civil Rights Initiative, a sweeping ban on state use of any race-based and sex-based preferences.

The CCRI’s key provision says: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

Polls show that voters support the CCRI- especially its ban on racial preferences-by lopsided margins. So leading opponents have fixed on a strategy of scaring women into opposition. Their problem is that polls also show that the vast majority of women, as well as men, support the CCRI despite its well-known ban on gender preferences, which most women do not believe benefit them.

So CCRI opponents are resorting to diversion and deception, by blanketing the state with claims that the CCRI "will legalize discrimination against women," in the words of Pat Ewing, manager of the Campaign to Save Women’s Rights and Civil Rights.

"Women could get fired if they had children or if they got pregnant," declares Patricia Ireland, head of the National Organization for Women. "This initiative is an attempt… to do away with women’s rights in California," alleges California Democratic Party Chairman Art Torres, who adds that it would "repeal… girls’ athletic programs." And so on.

All this is nonsense. But such claims have been given a veneer of scholarly respectability by professors such as the often sensible Erwin Chemerinsky of the University of Southern California Law Center. He has written that the CCRI contains an "insidious provision" that "expressly permits the government to engage in more gender discrimination," and that "would eviscerate the California constitutional protection against sex-based discrimination," so that "discrimination against women and girls in public employment, public education, and public contracting will be allowed in virtually any situation."

Chemerinsky bases these alarming predictions on clause (c) of the CCRL which states: "Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting."

Chemerinsky and Professor Laurie Levenson of Loyola Law School have written that this "would alter and undermine the current protection against gender discrimination under the state constitution," by supplanting with a flimsy "reasonableness test" a 1971 state supreme court ruling that the state’s equal protection provisions require "strict scrutiny" of any gender classification by the state.

Chemerinsky’s arguments are, quite simply, ludicrous-for three independent reasons identified by (among others) Acting Professor Eugene Volokh of UCLA Law School.

First, the language of clause (c)-"Nothing in this section [meaning the CCRI] shall be interpreted as prohibiting…" (emphasis added)-makes it clear that any and all sex classifications already barred by state law, including the equal protection provisions and the 1971 decision, would still be barred after adoption of the CCRI. Second, the purpose for which the CCRI’s drafters added clause (c) was not some "insidious" plot to legalize sex discrimination, but rather a straightforward desire to specify that the CCRI does not require such extreme sex-blindness as to give male students a right to compete for places on women’s sports teams, or male prison guards a right to strip-search female inmates.

Third, clause (c) was adapted almost verbatim from the employment discrimination provisions of Title VII of the Civil Rights Act of 1964. This is "an extremely narrow exception to the general prohibition of discrimination on the basis of sex," in the words of the U.S. Supreme Court. It obviously has not been a fount of discrimination against women. And there is no reason to suppose that clause (c) would either.

In short, in Volokh’s words, the claims that the CCRI would promote sex discrimination "are blatantly false. The CCRI can only expand the prohibition against sex discrimination. It would in no way constrict it." It will be interesting to see whether President Clinton, who is running against the CCRI, will parrot his allies’ bogus claims. He has already offered somewhat subtler obfuscations on the preference front. Last July 19, for example, he loudly claimed to oppose "reverse discrimination," while quietly blessing preferences for "qualified" minorities over equally or better-qualified whites.

Such logically contradictory claims are part of a deeply ingrained pattern of denial by affirmative action supporters of the logical implications of what they seek, and of the harsh trade-offs that preferences involve. It often approaches Orwellian doublespeak.

After the Clinton speech, I wrote (in "Flunking the Honesty Test on Preferences," July 24, 1995, Page 27) that "I’m not an affirmative action abolitionist. But the sophistry of the advocates may make me one. For if a policy cannot be sustained by honest advocacy, then perhaps it should not be sustained at all." Since then, as the battle has been joined in earnest, the sophistry has gotten worse.

The racial preference regime produces very important benefits, including racial integration of elite institutions that would otherwise have very few black faces. But preferences also have very heavy costs. The systematic dishonesty they engender is high on the list.

What’s harder to decide (at least for me) is whether these costs are weighty enough to tip the balance toward abolition.