The Civil Rights Act of 1964
"No person in the United States shall, on the grounds of race, color, or national origin,
be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance."
The ACLU endorsed it.
The California Civil Rights
Initiative of 1996
"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."
The ACLU calls it unconstitutional.
The ACLU has some smart lawyers. The problem is they don't seem to realize--or care--that their tactics and objectives represent a betrayal of their historic mission.
Consider: Last year, six months before Californians were set to vote on a state ballot initiative outlawing governmentally imposed race and gender preferences, a group of ACLU lawyers intervened in an unrelated case in which a white San Francisco contractor was challenging a city statute that mandated set-asides for women and minority contractors. There was nothing unusual about the case; the San Francisco law had been challenged many times over the years. One factor, however, prompted the ACLU to intervene: The case was being heard by a federal judge named Thelton E. Henderson.
Henderson, it is now well known, is an old friend of the ACLU, having served on the board of its Northern California affiliate in the 1970s. The ACLU lawyers knew that by making themselves a party to Henderson's San Francisco contracting case, they could exploit a loophole in the rules of federal district court that encourages the consolidation of similar cases under the same judge. The case they actually had in their sights, the law whose fate they wished to influence was, of course, the California Civil Rights Initiative (CCRI).
The day after the ballot initiative (also called Proposition 209) was approved, the ACLU filed suit to challenge its constitutionality. Never mind that the measure had been approved by a majority of the state's voters. Never mind that the initiative's language self-consciously echoes the 1964 Civil Rights Act, one of the most constitutionally secure laws in modern history. Never mind that the San Francisco and CCRI cases had little in common except the ACLU's participation. The organization's goal was to overturn the new law by getting one of its favorite sons to hear the case.
The strategy worked: After initially being assigned to another judge, the CCRI lawsuit was transferred to Henderson. Three weeks after the election, he stayed enforcement of the CCRI. Then, in late December of last year, Henderson made that injunction more permanent, barring the state of California from enforcing the measure until its constitutionality can be determined.
Without doubt, the ACLU has some savvy litigators. What the 77-year-old organization now lacks, however, is a colorblind commitment to the principles of individual liberty that gave it birth.
The Old Days
The American Civil Liberties Union is the nation's largest public-interest law firm. It has a network of affiliates in more than 300 cities, towns, and hamlets in all 50 states. Its staff of more than 60 attorneys is supplemented by a volunteer force of litigators numbering at least 2,000. Its lawyers churn out almost 6,000 lawsuits a year, many of them high-profile, controversial cases.
For most of its history, there has been an admirable, if infuriating, consistency to these cases. If a seventh-grader shows up for class wearing a T-shirt that reads "Drugs S - - k," the ACLU will defend his free-speech right to wear it; if the Ancient Order of the Hibernians wants a parade on St. Patrick's Day that excludes groups representing Irish gays and lesbians, the ACLU will defend its right to do so under the freedom of association guaranteed by the Constitution. Some of the ACLU's cases seem designed to be provocative, such as its high-profile defense in 1977 of neo-Nazis who wanted a permit to march in the predominately Jewish town of Skokie, Illinois. Most of its cases address issues at the heart of public debate, such as its current legal battle to prevent "censorship" on the Internet.
When the ACLU last made national headlines, it was as ammunition in the war of ideological symbols that was the 1988 presidential campaign. In response to Democratic nominee Michael Dukakis's ill-advised assertion that he was proud to be a "card-carrying member of the American Civil Liberties Union," George Bush and his campaign wizard Lee Atwater set out to make 1960s-style liberalism synonymous with "four little letters: A-C-L-U." The Union, they charged, was so blindly committed to freedom of speech that it would have your children strolling unimpeded into, even starring in, X-rated movies. It was so wedded to due process that it valued the rights of criminals over those of victims; and so enamored of the Establishment Clause of the First Amendment that it would strike "In God We Trust" from the currency.
Still, no matter how controversial the case, the ACLU can usually trace its jurisprudential reasoning to the Bill of Rights. It is here, in defending the tenuous liberties of the individual against an overweening state, that the ACLU has traditionally found its raison d'être. "In every era of American history," the ACLU proudly proclaims on its World Wide Website, "the government has tried to expand its authority at the expense of individual rights. The American Civil Liberties Union exists to make sure that doesn't happen." For the most part, the ACLU has made good on this promise. Thanks in part to its tireless defense of the Bill of Rights, Americans can (and do) take many of these rights for granted. Although it has been widely regarded as a liberal organization, many of its libertarian commitments have hardly hewed to liberal positions.
It is surprising, then, that many of the ACLU's one-time friends and sympathizers have concluded that it has found its new calling, not in the advocacy of individuals, but of groups. The ACLU's challenge to the CCRI, they aver, represents the affirmative betrayal of its core principle: that rights accrue to individuals and must be protected accordingly.
"They have turned equal protection on its head," says Clint Bolick, the vice president of the Institute for Justice, a libertarian public-interest law firm. The organization that describes itself as "the nation's foremost advocate of individual rights," he charges, is now little more than an interest group for identity politics. "They have become a sectarian organization," agrees libertarian newspaper columnist Nat Hentoff, a former ACLU activist. "They complain about Ralph Reed and the Christian Coalition, but the ACLU is just as rigid as they are. A friend of mine calls them the 'religious left.' "
These ACLU sympathizers offer a tale of a once-proud defender of individual rights now devoted to their antithesis: group preferences. Unable to abandon its rhetorical commitment to civil liberties but forced by its political agenda to defend counting by race and gender, the ACLU has leaped through the legal looking glass. It now inhabits a world where ending discrimination by race and gender is "discriminatory," and equal protection under the law means preferential treatment of women and minorities. It is a world, according to California attorney general Dan Lungren, where Humpty Dumpty's admonition to Alice serves as a credo: "When I use a word, it means just what I choose it to mean-neither more nor less."
The Civil-Rights Union
For several decades following its establishment in 1920, the ACLU referred most of its civil-rights cases to the NAACP, with one notable exception. In 1931, it defended seven blacks accused of raping two white women in Scottsboro, Alabama. As white mobs gathered outside the courtroom crying for a lynching, the defendants were convicted. Later, however, the ACLU succeeded in having the conviction overturned by the Supreme Court because no blacks had been called to sit on the jury. Their victory for due process in the "Scottsboro Boys" case was an important early advance for civil rights.
Bolick calls the period from 1954 to 1964 the ACLU's "golden decade," a time in which free speech, due process, and civil rights advanced dramatically with the help of the ACLU. In 1954, in Brown v. Board of Education, the Union filed an amicus brief in support of Thurgood Marshall and the NAACP, which argued for the desegregation of public schools. During much of this time, as well, the organization opposed governmental classifications on the basis of race. It argued against requiring citizens to identify their race on U.S. census forms because questions regarding race "could easily raise in the minds of many people the specter of some threatened discrimination." This stance reflected the ACLU's interpretation of the 13th, 14th, and 15th amendments. The Constitution, they maintained, required "treat[ing] everyone on the basis of individual merit and demerit, not of accidental membership in any group." As late as 1956, the ACLU recommended that federal funds should be withheld from "all schools and colleges which refuse, on racial grounds, to admit otherwise qualified students."
In 1964, the ACLU fought hard for passage of the Civil Rights Act, hailing the law as "the most sweeping civil-rights measure since Reconstruction." But as its promise of equal opportunity failed to yield equal results, the ACLU drifted, with the prevailing political currents, farther and farther from traditional notions of civil liberties. Gradually, its defense of civil liberties was transformed from an end in itself to the means toward the construction of an egalitarian social order.
Students of the ACLU's history disagree over the exact moment at which this critical change occurred, but on one thing they are agreed: The organization's embrace of racial preferences represents a fundamental break with its civil libertarian past. For Clint Bolick, the critical moment came in 1977, when the ACLU took the side of the University of California at Davis in Allan Bakke's racial discrimination lawsuit, the landmark Supreme Court case that opened the door to racial quotas in college admissions.
According to Bill Donohue, the author of Twilight of Liberty: The Legacy of the ACLU, the betrayal of principle came earlier. Gradually, over the course of the 1960s, writes Donohue, the ACLU switched its civil-rights focus from equality of opportunity to equality of results. In 1964, just as the Civil Rights Act was being passed, it condoned "temporary" hiring quotas in organizations with a history of racial discrimination. It continued to reject "reverse discrimination," however. Its 1966 policy guide condemned "the exclusive recruitment of members of a minority group" as "no less evil than any other kind of discrimination, and is certainly just as contrary to the spirit of civil liberties." But by 1971, this objection had been dropped.
The ACLU's ultimate embrace of racial quotas reveals the triumph of politics over constitutional principle. The minutes of a board meeting in December 1972 present the following arguments to support quotas: " 'Quota' is a code word like 'busing.' To be against busing is to be against blacks; similarly, to be against quotas is to be against the aspirations of blacks and other minorities to achieve equality in employment. It would be disastrous for the ACLU to align itself with the anti-quota crusade." The minutes go on to declare that, "Although quotas may be suspect according to civil-liberties logic, it has been the experience of the civil-rights struggle that statements of good intention in the abstract are not particularly effective."
American politics have changed since 1972, and the ACLU's rhetoric has kept pace. Today, its policy on affirmative action is careful to avoid the word "quota." It insists that affirmative action is not discriminatory and that "goals and timetables . . . are not the same thing as quotas." And in a qualification that dates from the early 1960s, the group insists that affirmative action must be "temporary, lasting no longer than necessary to remedy the discrimination."
But just as soon as the ACLU has convinced us of its aversion to "quotas," it endorses them as a necessary mechanism for social leveling. With breathtaking indifference to half a century of jurisprudence holding that racial classifications are by their nature suspect, the ACLU maintains that employers and universities "have always engaged in forms of 'preferential treatment' " by granting preferences to veterans and the children of alumni, for instance. Discrimination may be wrong, the ACLU seems to be saying, but everyone's doing it. Why not government, too?
Civil libertarians insist that they haven't changed-the ACLU has. Part of that change, according to Nat Hentoff, may be due to a new generation of leaders who were attracted to the organization for reasons other than a dedication to civil liberties. In the 1970s, the national organization first propounded an internal diversity policy that mandated quotas for women (50 percent) and minorities (20 percent) on its staff and its board of directors. It was also at this time, according to Hentoff, that the national headquarters sent a directive down to the state affiliates foisting diversity upon their boards, as well. For the first time, criteria other than a devotion to civil liberties-specifically race and gender-governed the selection of officers. The result, critics charge, can be seen in the ACLU's policies and litigation.
The effort to maintain "diversity," of course, is an ongoing one. When ballots go out for the election of at-large members to the national board, they contain notices reminding voters of the national board's affirmative-action "goals." In addition, a former state director and current ACLU member testifies that the state affiliates are surveyed regularly to ensure they contain the requisite variety in skin pigmentation and chromosomes. A finding of an "absence of diversity" can lead to "questions" from the home office. Compliance is voluntary, mostly. "But that does not mean that there are not times when questions get raised that cause there to be a feeling of pressure," says the former state chair, who adds hopefully, "It's all part of consciousness-raising."
For a cadre of committed civil libertarians now in their 60s and 70s, their attachment to the ACLU could survive Skokie, but it has not survived the organization's support of group preferences. They joined the ACLU in the 1940s and 1950s out of a commitment to the First Amendment and to due process of law, but watched in anguish as it became increasingly preoccupied with a political agenda thinly cloaked in the rhetoric of civil liberties. Some, like Nat Hentoff, have traded in their ACLU cards to spend their careers defending civil liberties from outside of-and often in defiance of-the ACLU. In a cogent foreword to Donohue's book, the late Aaron Wildavsky argued that it was the ACLU's perversion of American ideas about equality that led to his estrangement from the ACLU. "Civil liberties had been stood on their heads," he wrote. "Increasingly, unceasingly, equality of condition was viewed as a precondition of equality of opportunity." This reversal of means and ends, he wrote, "not only sought to diminish differences among Americans in general" but also stripped civil libertarianism of the principles that distinguished it from pragmatic politics.
Others, like Carl Cohen, a professor at the University of Michigan and a former director of the Michigan state ACLU, remain with the organization in spite of its support for race and gender preferences. Cohen, who is Jewish, stuck with the ACLU through the trauma of Skokie. "My heart is with the ACLU," he says, but it is "dead wrong" in its support for preferences. "How to account for this paradox?" he says. "Their social-welfare objectives have made them lose sight of civil liberties. The defense of the rights of citizens means equal protection under the law. Affirmative action discriminates by race."
Still others, like Benson Wolman, seem uncomfortable with the ACLU's position but are unwilling to criticize it explicitly. Wolman is a former member of the ACLU's national board and was the Ohio affiliate director from 1969 to 1986. He, like many of his generation, joined the ACLU in the 1950s to defend First Amendment rights and due process and has stayed on as what he calls "equal protection issues" have come to dominate the agenda. Although he sacrificed his seat on the national board of directors out of a concern for diversity (he was the third white male in a row to hold the seat), he is "uneasy" about race and gender preferences. He disagrees with the ACLU's national diversity policy, arguing that it should be less explicit and more voluntary, like his own sacrifice to multiculturalism. "I don't like the word 'quota,' " says Wolman. "Being Jewish, I know that that is something that has been used against Jews."
When she was elected its president in 1991, former NYU law professor Nadine Strossen was widely seen as a leader who would take the ACLU back to its civil libertarian roots and reverse its sectarian slide. Strossen, according to Clint Bolick, is "the best thing that's happened to the ACLU in a long time." In her 1994 book, Defending Pornography, she broke with the ACLU's allies in the feminist movement to mount a defense of pornography on free-speech grounds. She has also shown a propensity, previously unseen in the ACLU, to include certain economic issues like property rights within the legitimate defense of civil liberties.
But Strossen has been silent on the issue of group rights. She refused to be interviewed for this article, and database searches of media sources produce no clues of her opinion of race and gender preferences.
Simple in its wording, revolutionary in its effect, the California Civil Rights Initiative, as its opponents knew, was being watched by the entire country in 1996. Deliberately composed to mirror the wording of the 1964 Civil Rights Act, the CCRI would amend the state constitution to prohibit California or any of its political subdivisions from "discriminat[ing] against, or grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin." It was approved by 54 percent of California voters, including 27 percent of blacks and majorities of white female and Asian voters.
The ACLU's two California affiliates filed their lawsuit challenging the CCRI under the aegis of something called the "Coalition for Economic Equity." The national ACLU, not formally a party to the suit, has put out press releases supporting it. According to its brief in Coalition for Economic Unity v. Wilson, the ACLU objects to the CCRI because it "places special burdens on racial minorities within the governmental process" by forcing them to amend the state constitution in order to secure preferential treatment. Distilled to its essence, their argument is that mandating nondiscrimination in the state constitution violates the rights of women and minorities to the "equal protection of the laws" guaranteed by the Fourteenth Amendment-that is, is itself discriminatory-because it makes it harder for them to secure state-sanctioned discrimination. While other groups (the ACLU's favorite whipping boys are privileged whites, veterans, and children of university alumni) may secure their piece of the identity-politics pie by merely lobbying local and state officials to legislate and regulate, only women and minorities are forced to undertake the "Herculean task" of amending the state constitution to get theirs.
The tortuous logic of the ACLU's position-that nondiscrimination is discriminatory-frustrates those who are attempting to rebut it. "You find yourself having to resort to mindboggling triple negatives to counter their arguments," says one attorney. "It's like playing Twister with a contortionist."
But the ACLU is not aiming solely to block the implementation of the CCRI in California. Its lawsuit is designed to slow the grassroots momentum for anti-preference initiatives nationwide. Following the election, the New York Times reported that the vote in California had "energized similar efforts by opponents of affirmative action in about two dozen states." On January 29, the Clinton administration formally allied itself with the ACLU in the case. In a brief signed by Isabelle Katz Pinzler, the acting assistant U.S. attorney general for civil rights and the former director of the ACLU's Women's Rights Project, the Clinton administration adopted not only the cause, but also the questionable constitutional arguments, of the ACLU. California governor Pete Wilson, a strong supporter of the CCRI, remarked that the Clinton administration "now has the dubious distinction of being the first administration since the enactment of the Civil Rights Act of 1964 to contend that a law prohibiting all race- and gender-based discrimination is itself unconstitutional."
Judge Henderson's preliminary injunction is now being considered by a panel of three Republican-appointed judges on the 9th Circuit Court of Appeals. Early indications are that the panel is less receptive to the constitutional contortions of the ACLU than was Henderson. But even if the panel were to lift Henderson's injunction, the question of the constitutionality of the CCRI will still be litigated.
"The constitutional cloud is going to hang over the CCRI until the issue is resolved by the Supreme Court, which will be years," says Richard Morgan, an authority on constitutional law at Bowdoin University. "The defenders of affirmative action are going to use this in every state legislature in which one of these [anti-preference initiatives] is brought up-someone's going to pop up and say, 'Wait for the resolution of the California case, we don't know whether this is constitutional.' "
And the odds are good that, when voices are raised in the states against ballot initiatives that would ban preferences, they'll be speaking in concert with the ACLU. Ward Connerly, the chairman of the CCRI campaign, has vowed to take his crusade against race and gender preferences nationwide, and the ACLU has promised to fight him every step of the way. Earlier this year, Connerly started the American Civil Rights Institute to promote anti-preference initiatives in the 50 states. Dorothy Ehrlich, the executive director of the ACLU of Northern California, responded by calling this a "cynical strategy" to "take away the government's ability to ensure equality for women and minorities" and vowed to "continue our efforts to prevent further legislative proposals which threaten civil rights on the state and national level."
Whither the Nation
Harvard professor Harvey Mansfield calls affirmative action a "regime question," one that tells us something about the condition of the polity and, in the words of Lincoln, "whither we are tending." The ACLU has always been in the business of answering regime questions. In 1964, according to its annual report, it "mustered all its strength" to see the Civil Rights Act enacted into law. Today, it is leading the courtroom battle against virtually the same language made law by the voters of California.
The substance of the question-whether we will tolerate discrimination on the basis of race-has changed little in the past 33 years. The ACLU's response, however, has changed from a firm "no" to an equally emphatic "yes." The implications for the republic are serious. "We are committed at some quite fundamental level of our government to the proposition that advancement and sorting and selection should be by individual merit," says Bowdoin's Morgan. "As a practical matter, either we've got to get back to that pretty quick or we will be stuck indefinitely with this spoils system which is simply corrosive, which drives the society increasingly toward tribalism."
In a constitutional democracy pulled between two competing imperatives-our commitment to majority rule and our commitment to individual liberties-the ACLU, at its best, has stood for the inalienable rights of the individual against overreaching majoritarian authority. Today, it finds itself allied with overreaching majoritarian authority to defend the rights of groups at the expense of individuals. It is with sadness, more than anger, that many self-identified civil libertarians mark this transformation.
As a young ACLU member in 1954, Carl Cohen recalls hearing the words of Thurgood Marshall, not yet a Supreme Court Justice, as he argued Brown v. Board of Education before the Court. "When Marshall said that all governmentally imposed race distinctions are 'so odious that a state, bound to afford equal protection of the laws, must not impose them,' we cheered," says Cohen. That was 43 years ago. "Now, if you really want a civil-liberties union," he says wistfully, "you almost have to go out and find another one."