"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."

So says the key provision of the California Civil Rights Initiative (CCRI)-otherwise known as Proposition 209-which will go before the state’s voters on Nov. 5. It will be the first up-or-down popular vote ever on racial preferences.

There are good reasons to vote no:

• The CCRI would mean a dramatic drop in admissions of black and Hispanic students to the University of California’s elite campuses, which serve as gate-ways to opportunity in a society still plagued by racial inequality.

• It would ban not only preferential selection processes but also racially targeted recruitment and outreach programs that seek to increase the minority applicant pool.

• It could make it more difficult to offset the potent but hard-to-prove brand of discrimination against black and Hispanic candidates that may still prevail in many police and fire departments and other government workplaces.

• Such a cold-turkey withdrawal from the current system could have a dispiriting effect on many black and Hispanic people who have come to believe-sincerely, if erroneously-that racial preferences are the only way they can get a fair shake.

• Many CCRI supporters preach a colorblind absolutism that may impede wise public policy, and that is required neither by the Constitution nor by principles of fairness and morality-not, at least, in comparison with such established practices as preferential admissions of affluent alumni children.

But for all that, I would vote yes.

I can’t put either my misgivings or the reasons for my bottom-line position any better than Professor Glenn Loury of Boston University; one of the nation’s most thoughtful students of affirmative action, has done. In a recent online panel discussion in Slate magazine, he stressed his misgivings:

I do not think the color-blind absolutism which undergirds advocacy for Prop. 209 is a logically coherent or morally correct position….I think the proposition is too extreme. Race is a reality in this society; its social meaning is so powerful that sometimes the state cannot discharge its essential responsibilities? like educating the young, or maintaining order in the cities-without taking race into account. The legitimacy of public institutions-including the courts- depends upon their being perceived as racially representative. The notion that any recognition of race by a state agent is presumptively a violation of some ethical canon is absurd…..

The aggressive recruitment of black candidates in the face of a manifest imbalance in (say) a police force clearly violates the colorblind standard [and] involves racial discrimination…. Yet it is a reasonable thing to do under many circumstances [and often maybe] a check on the practice of illegal discrimination against Blacks…..

A state university system which consumes billions of taxpayers’ dollars should not accept with equanimity the virtual exclusion of an important, historically subjugated population subgroup from its academic programs.

But Loury told me later that while "I am genuinely torn about this,… the bottom line is that I would probably vote for the initiative."

He added that he would hope for "a tolerant administration of the law" that would leave undisturbed such practices as "targeted recruitment aimed at ensuring adequate numbers of black applicants" and admissions procedures that result in modest differences in the average test scores of different racial groups.

My sentiments exactly

As Loury explained in the slate discussion, the CCRI?for all its problems?may be preferable to "the maintenance of a corrupt and excessive status quo." As Loury wrote: [While] affirmative action desperately needs to be reformed, the political realities are such that significant change is not likely to come from the bureaucrats who develop and administer such programs, absent dramatic, outside intervention of the sort which CCRI represents. The Clinton Administration’s "mending" efforts, for example, have been quite minimal, and driven totally by federal judicial mandates. . . . Moreover, for many years now reasoned criticisms of particular affirmative action programs- like an admissions policy at UC Berkeley which results in a 300 point racial gap in SAT scores, or a race-based procurement policy which drives white men out of certain lines of business-have been met not with reasoned responses, but with hysterical charges that the critics are racists. Opponents of Proposition 209 have continued in this ignoble tradition. (They certainly have-on which more below.)

In short, while a modest degree of racial preference may be a good thing, recent history suggests that the self-perpetuating affirmative action bureaucracies that permeate our educational, governmental, and big business establishments will take any kind of green (or even yellow) light as a mandate for an aggressive, excessive push for racial proportionality at all costs.

Simplistically attributing to ongoing discrimination an underrepresentation of blacks that is largely the legacy of the past?and especially of the disadvantages in educational background and work habits that hinder many minorities in competition for coveted positions? these bureaucracies routinely practice raw racial discrimination against Asians and whites in favour of demonstrably less qualified blacks and Hispanics.

The social costs of this sort of excess are very heavy: Individual whites and Asians who lose jobs or other opportunities because of racial preferences are victims no less than are blacks who lose out because of selection processes tainted by white racism. These whites and Asians-and many more who incorrectly believe themselves to be victims of reverse discrimination-often become dispirited, embittered, and cynical about the nation’s purported dedication to the nondiscrimination ideal. Successful black and Hispanic people are stigmatized by the often-inaccurate perception that they owe their success to quotas. Others develop an ugly sense of racial entitlement that feeds black (and Hispanic) racism and victimology, and that sometimes operates as a disincentive to hard work. All this aggravates racial divisions and resentments. And economic productivity suffers to the extent that merit selection-which, for all its flaws, is the best system ever devised for increasing the productivity of a free economy-is pushed aside.

This is not to say that racial preferences are uniquely immoral or unfair by comparison with some other selection criteria, such as alum-kid preferences.

As Michael Kinsley, editor of Slate, points out (in the same discussion as Loury), a white face is probably still a net economic asset in our society. And in any event, "[m]ost of the characteristics we call ‘merit’ are as beyond an individual person’s control as the color of his skin." SAT scores, for example-or for that matter the intelligence that SAT scores are a crude attempt to measure-are "something you or I deserve no special credit or blame for."

Kinsley has a point-but hardly one that clinches the case for racial preferences. To the contrary, if taken to the limits of its logic, Kinsley’s deterministic analysis of "merit" tends to negate the very concepts of moral entitlement, just deserts, and fairness-including fairness to racial minorities.

In some sense, every supposed virtue or vice-whether it be the capacity to work long and hard (which is the very essence of "merit"), or a predisposition to molest children-can be attributed to genetic or environmental causation. Success and failure can been seen as matters of random chance, determined by accidents of birth. In such a deterministic worldview, concepts like justice and fairness are meaningless, and racial hierarchy in the allocation of society’s goodies is a matter of no moral consequence.

For if (as Kinsley implies) it’s not really unfair (but only economically unproductive) to prefer a rich black doctor’s mediocre son over a poor white coal miner’s brilliant daughter-because all opportunities are arbitrarily allocated based on accidents of birth?then it’s no more unfair to prefer a mediocre white kid over a brilliant black kid.