July 23, 2009 | 5:48 pm

Affirmative Action…Again

Posted by  David A. Lehrer

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Over the past month, the contentious debate over affirmative action has resurfaced. The Sotomayor hearings and the New Haven fire fighters decision of the US Supreme Court generated much heated debate, argument and media attention.

What has not received much attention and impacts directly on the volatile issue of affirmative action is a recent action of California’s attorney general, Jerry Brown. Brown, California’s former governor and a potential candidate for governor next year, issued a letter opinion to the California Supreme Court that could bring back racial and ethnic preferences to California at the very time when the trend nationally is towards color blind governmental policies.

The adoption of Proposition 209 over a decade ago (sustained as constitutional by the courts) made clear that no government agency in California can discriminate for or against someone on the basis of their race or ethnicity.

In a display of legal gymnastics that nearly defies description, Brown argued that the ban on race conscious programs in Proposition 209 is unconstitutional because it would prevent race and gender conscious programs that might be permissible under the federal Constitution. In essence, Attorney General Brown opines that the barring of discrimination is impermissible because it has made the re-imposition of discriminatory governmental preferences difficult (i.e. a further constitutional amendment).

Prop 209’s ban on racial preferences is found by Brown to “effectively disadvantage racial minorities and women in the political process;” apparently, if one isn’t receiving a preference one is disadvantaged!

His arguments fly in the face not only of logic, but of the history of preferential treatment in California and the reasons Proposition 209 was enacted. It was a reaction to the rampant reverse discrimination that existed in California—- from admissions and hiring at the University of California to virtually every other governmental entity that had contracting authority in California; the forms to be completed to qualify as a “minority” were legendary. Preferences on the basis of race and ethnicity were the rule, their implementers denied they existed and a majority of Californians simply got fed up. Hence 209 passed with 54% of the vote.

Brown’s argument is troublingly tortured and specious. It is an odd day when language that simply says, “the State shall not discriminate against, or grant preferential treatment to, any individual on the basis of race, sex, color, ethnicity, or national origin” is deemed discriminatory itself.