Color me American
Geoff Metcalf interviews Prop. 209 co-author Glynn Custred on racial quotas

Editors Note: Dr. Glynn Custred is an anthropology professor at California State Hayward and the co-author of California's Proposition 209, which successfully made affirmative action, quotas and racial preferences illegal in California. Custred also recently co-authored a commentary in National Review with James Stockdale that revisits a past and upcoming battle in the theater of racial preferences.

Today, Geoff Metcalf talks with Dr. Custred about the ongoing battle to dismantle racial preferences, both on a state level and nationally.

By Geoff Metcalf

Question: Dr. Custred, let's start at the beginning. Please explain to our readers what happened with the Adarand Construction Company?

Answer: The Adarand Construction, Inc., is a family-run company in Colorado that specializes in highway construction -- they make guard rails for highways. Back in 1989, Adarand came in with the lowest bid on a federal highway contract. What happened was they didn't get the contract. The reason is that its owner, Randy Pech, is a white Anglo male. He didn't fall into the proper slot.

Instead, a company owned by somebody with a Latino name got the contract even though his bid was not the lowest. So Randy Pech took this to court and said he had been discriminated against because of his race and ethnicity. Believe it or not, he won.

Q: Well, that should have been the end of it right there, right?

A: It should have been because it went to the Supreme Court and the Supreme Court said that Randy Pech was right and they found for him. But that wasn't the end of it -- because guess who was president at the time?

Q: Bill Clinton?

A: Bill Clinton had a large constituency behind him -- I call them the "grievance industry" -- people like Jesse Jackson and Al Sharpton and so on. People who make money out of the racial preference system. And they obviously put pressure on him to fight any kind of break of this ethnic quota regime and so they did. They stalled, they wrote regulations that were lopsided. They did everything they possibly could to keep from actually obeying the law as laid down by the Supreme Court.

Q: So what did Randy do?

A: Well, he took them to court again. It is up before the Supreme Court for a second time.

Q: Slow down a second. I don't understand how you get two bites out of the same apple before the Supreme Court?

A: Well, the executive branch is the one that actually enforces the law. So the Supreme Court told the executive branch what they had to do.

Q: I thought there was something, somewhere about separation of powers -- three co-equal branches of government?

A: Yeah, well, they simply did what Clinton did in so many other cases. They simply tried to get around the law. They did it by writing the regulation in a certain way -- they changed the meaning of words -- and so on. What happened was Randy Pech never did get what he thought was due him. So he took it back to court and started all over again. He went up through the whole judicial chain and now it is back up before the Supreme Court. The question now is what is the Supreme Court going to do? I've talked to various people in Washington who know more about these sorts of things than I do ...

Q: Slow down again. When did Pech actually get to the Supreme Court the first time?

A: I think it was about ... I really don't know precisely.

Q: OK, let's for argument sake since it started in '89, the early to mid '90s. There hasn't been any real change in the Supreme Court so, arguably, if the same players are there with the same facts in evidence, they are going to come to the same conclusion.

A: Well, the people that I talked to in Washington think that it's going to be even better than that.

Q: Why?

A: Because the Supreme Court had admonished the lower court in an unanimous decision. Even the Supreme Court justices who voted against Randy Pech the first time are upset with the way the Clinton administration has been diddling them all these years. So the question is, if he won the first time, he's probably going to win the second time. At least that's what the smart money thinks.

Q: Is that a technical-legal term, "diddling"?

A: No. But it is what went on. You call a spade a spade.

Q: What can or do you suggest President Bush should do at this point?

A: What Bush had to do just recently was he had to file a brief. Now the government of the United States -- the Department Of Justice -- is the lawyer for the executive branch. This is a policy that had been worked out by Clinton -- the policy to deprive Randy Pech of his civil rights. The question is, what was the Bush administration going to do? They had to file a brief. Could they have simply said, "We think this is wrong what Clinton did. And we are going to withdraw this appeal." They could have done that. Or they could have just gone on ahead and like any lawyer say, "Well this is the case I've been given so I'll carry it out and continue the argument of my predecessor."

Q: This is a procedural question. We understand the Department Of Justice, notwithstanding the fact John Ashcroft is the attorney general, is still heavily staffed with leftovers. I mean they have not cleaned house of the Clinton minions.

A: No, they haven't. But this is the scary thing: Ashcroft is the boss, and the guy who is going to plead the Clinton preference plan is Ted Olson. You know who Ted Olson is?

Q: Yeah, sure.

A: He's the guy who successfully won the Hopwood case in Texas. In other words, this is a landmark decision with the University of Texas. A young lady named Sheryl Hopwood was denied admission to the law school in Texas because she was white. She sued, and Ted Olson was her lawyer. And won before the Supreme Court a landmark decision. Now Ted Olson is the Solicitor General of the United States and there he is forced to go and argue just the opposite argument defending just exactly what he did so much to destroy. You say there are a lot of folks leftover in the Justice Department from the old regime -- these guys aren't the holdovers.

Q: My question was, is this a procedural thing where it didn't get through the pecking order? I'm trying to manufacture plausible deniability for Ashcroft here -- and apparently there isn't any.

A: Well, yes, there is. I checked this out before I wrote the article. I didn't want to just go off half-cocked so I called various people who understand these things.

Q: You wanted to be full cocked!

A: Yeah, right. So I called a number of people and asked them why he would do it and they said the plausible denial thing that you are talking about is that it is very, very rare that an Attorney General and a Solicitor General go back on whatever argument is already in the works. Even though they may not like it, they do it anyway.

Q: So do they go in and intentionally do a bad job and lose?

A: Who knows what he's going to do? I haven't seen Olson's brief. I don't know if he was just giving it a half-hearted try or not. You are asking about plausible deniability -- this is what the Bush supporters are saying -- look, he's not doing anything different than they do all along. Then the next thing they say is, it looks like the Supreme Court is going to shoot it down anyway -- so why doesn't he just go ahead and play the game -- argue for the Clinton administration plan, let the Supreme Court shoot it down and then it's over.

Q: Yeah, but you raise a very good point. Here is an opportunity for Bush to demonstrate leadership, courage and just say, "No. We are not going to go through the exercise and waste time and money."

A: This is what bothers me about Bush. During the campaign -- actually even before that -- during the primaries, he was asked two or three times about Proposition 209 that ended racial and ethnic preferences in California -- and he dodged the issue each time. He said something about he does believe that people should be treated as individuals, and so forth, but he wasn't going to talk about it. OK, you might say he's keeping his mouth shut because he doesn't want the issue to come up as a part of his campaign. But if you go back, as I did, and look at his record as governor of Texas, there wasn't a quota bill that came through that he objected to at all. In fact, Senator Lewis, the quota king there in Texas, praised him highly.

Q: So what was the Bush record in Texas while governor?

A: The records I saw indicated that he never took a stand against any of these things. In fact, one of the big proponents of quotas in Texas, that Senator Lewis, praised him for that. So what it seems like is Bush doesn't want to deal with this issue at all. He dodged the question about 209 and everyone said, OK, that's because he doesn't bring it up as a campaign issue.

Q: Glynn, Texas has a rather significant Hispanic psychographic influence right?

A: Yeah. That may be the reason and it may be other things too I don't know. You have to look at where he's from -- and, again, this is real speculation on my part. He comes from a family that, even though it's in Texas, is connected with the general establishment elite of the Republican party and, in many cases, people in that stratosphere don't really see anything wrong with preferences. It is a nice easy way to deal with problems. My feeling is that although Bush may really feel that we should treat people on the basis of their own talents and merits -- it's not really a big deal and not a bad thing really to have some preferences. That may well be the case -- because of his "compassionate conservatism" and so forth. It indicates that he may feel that way -- but we don't know. He's not telling us anything.

Q: You say it's not clear, nobody's sure, all one can do is look at a vertically-targeted record in an area where politics and ethnicity "may" have impacted on positioning. Has anyone ever asked the president "Where do you stand on racial and ethic preferences? Are they right or wrong?"

A: Yeah, and he simply just says I think people should be treated on the basis of their talents and abilities. The National Review asked him that question a couple of times and he gave the kind of answer you would expect somebody to give who doesn't want to alienate his base but doesn't really want to nail himself down. There are a lot of people on our side of this issue who are very, very good on this issue who say "Don't rock 'W's boat on this. Let him alone on this. Because what is really going to count later on is what he does in office. And what he's going to do in office is appoint the right Supreme Court Justices -- the courts will handle it." What they can do is look at this brief that Ted Olson gave to the Supreme Court and they can say don't worry about it. Like Clint Bollick of the Institute for Justice -- he says, "I'm going to give him a pass on that." -- and some others I've talked to said pretty much the same thing.

Q: So what is the rationale for the Institute for Justice and others to look the other way on this?

A: Why? Because they say he's going to have to make a decision down the line eventually. If the Supreme Court knocks down these preferences in Colorado again, then it's going to be up to the Bush administration to write new regulations. There's where we'll see some action. There is where some of my colleagues are looking. But I say don't let him get by with even that. Like I said in this article, the man should stand up and show some leadership and say these preferences are wrong. What they did to Randy Pech is wrong. And whether it's good politics with the Hispanics or not, I'm going to stand on the side of principle. He didn't do that.

Q: I got grief early on in the administration for criticizing the president for not taking a harsh view to mitigate some of those eleventh-hour regulations and stuff that Clinton did. Bush had an opportunity to kill a lot of that stuff and he let it slide.

A: Not only that. There is a lot of other stuff. This amnesty program -- I don't know if you want to get into that, we can talk about it another time -- but there you go again. This is another one of those Clinton measures.

Q: Glynn, I'll argue with you on that one. I agree the previous amnesties were awful. The very concept of actually rewarding someone for an illegal act or acts is or should be anathema to common sense. However, this latest Bush plan as I understand it is basically a "work permit" deal. I could make an argument either way on this. However, this could well be a finesse to actually document them. I mean, right now, we don't know whether there are three million, four million or six million.

A: There's more like nine million. But what I'm trying to say here is that instead of coming out with a policy -- a set of policies set on clear principles saying this is how I feel, and this is the policy, and I want you to back it and to try to create a consensus on a lot of different things -- he's not doing it. Every time I look at what he is doing, I see the same kind of Clintonesque spin and triangulation we saw before.

Q: Let me play devil's advocate. Is this a matter of you and I just don't see the whole picture and we don't know what the president's long-term plans are?

A: Uh-huh -- that's part of it. And he doesn't want anybody to know what his long-term plans are. But the problem with that is this man has been elected by the people of the United States to represent them and we as voters have a right to have some idea of what his vision is and what his principles are. He shouldn't play Machiavellian games with us -- that's what Clinton did and that's one of the reasons I didn't like him.

Q: So what happens with Adarand Construction? When is their date with the Supremes?

A: They tell me the decision should come down this fall. We don't have too much time to wait on that. The question, then, is what are the Supremes going to do? Like I said previously, it looks as if they might shoot it down again. And then, of course, it is up to Bush to write regs and to enforce what the Supreme Court says. Now, if the Supreme Court goes in the other direction, I don't know what will happen and it could go either way. You can't predict what will happen in a court of law.

Q: If the Supreme Court comes back and reaffirms their initial ruling -- and that is that Randy Pech got jobbed and was discriminated against and that is wrong -- two questions follow: First who gets to rewrite the regulations -- which department or agency or whatever? And secondly, what if any redress does Randy have?

A: I think it's the Department Of Transportation. I think that's where this is all taking place. As far as remedies for this -- I don't know -- I don't know what he can demand and get. That's part of it -- how Randy Pech is served -- but the broader question is how ... you see they are in flux right now. What we did with Proposition 209 has strongly challenged them and then I-200 in Washington (the Prop 209 clone there) that was confirmed in a second state. Now it seems as if everything is up for grabs. The opposition has reformed their lines and now they are moving forward.

Q: But all the polling data seems to suggest that the American people are opposed to preferences.

A: Absolutely. And this is one reason that some people say (in fact, James Stockdale, my co-author on the National Review piece) they are absolutely convinced that if Bush were to stand up and make a case for individual rights and equality before the law -- every bit similar to what we did with Prop 209 in California -- that he, in fact, would energize his base and, as a result, he would win hands down. But the Republican establishment doesn't seem to want to do that. They want to stay away from that issue.

Q: Why?

A: I don't know because they are not showing us what they are doing. It's like a poker player. You can sit there and look him in the eye and he's playing with his cards, but you have no idea what his hand is -- and, again, that's something I resent.

Q: Is it a pretension on our part to presume we should tell the president what he ought to do now when he may have a plan and insights superior to ours?

A: That may be the case. But let me look at it another way. Let's say Bush is looking over his right shoulder at us and we give him a wink and say go ahead, do what you want on this. We trust you. We have faith in you. And then he turns around and runs into really strong pressure from the other side. He doesn't have any pressure from us. He doesn't have anybody pounding the table or writing articles like I did for the National Review. He figures that he's got us nailed down and he can do pretty much whatever he wants -- that this is a negotiable issue. And then he'll give in to this other pressure. Let's just assume that he wants this -- that he's begging us to come out and make a stink about this thing, that he then will have some backing, a constituency that he can then represent.

Q: I think you may be including facts not in evidence professor.

A: If we give him a blank check -- if we don't say anything -- then he's going to think it doesn't matter and that it is a negotiable issue and he will simply negotiate it away.

Q: What is the "grievance industry" doing?

A: Oh, they're lobbying like crazy! And every time Bush does something like this, they applaud him. As far as they are concerned, he is "growing in office." It looks like Bush has decided that the best way that he can win and hold power is by holding his cards real close to his chest and not telling anybody where he really stands.

Q: Before we get back to the Adarand Construction case and where the president does or doesn't stand on preferences, the last time you and I spoke on the air -- almost a year ago -- we were talking about a situation at your college, where you teach.

A: Right. California State University at Hayward.

Q: You made reference to an incident in the history department. There was a situation where there was a faculty vacancy -- they did a national search and came up with a candidate who was head and shoulders above everyone else in the country -- but there was a problem. Cal State Hayward wanted a black professor and the superior candidate was a white woman.

A: That's right. This was a position for black history in the history department. We've had that for a long, long time. So that position came open and the administration gave the history department the position and said go out and recruit. So they did. They recruited nationwide. They had a young lady who was from UCLA, a student down there, and she had a Ph.D. adviser who was black and thought very, very highly of her and so did our committee. They thought she would be perfect for this job because she knew how to relate to students and so forth.

Q: But there was a problem?

A: Well, then, there was a stink raised by some of the black faculty in the ethnic studies department that said, no you have to hire a black for that particular position. The committee -- and these were old time liberals we're talking about, not any right-wingers at all -- they were incensed by this. They said, you can't tell us what to do. Well they did. So they found some little glitch in procedure in terms of this search committee and so they yanked the position for that year.

Q: You note in your National Review piece, "Slavery was wrong. Segregation was wrong. It is also wrong for the government to prefer one individual over another solely on the basis of that individual's skin color or ethnic affiliation. In fact, this principle has been encoded in federal law in the landmark Civil Rights Act of 1964, expressing what for the majority of the American people today is a simple matter of fairness and justice. But does the president of the United States believe that racial and ethnic preferences are wrong?" So regarding your Cal State Hayward discrimination?

A: Yeah, the young lady who applied for this vacancy everybody thought was great -- but she wasn't the right skin color, even though her adviser who is a well-known professor of this subject (herself black) was absolutely incensed by this.

Q: This has got to be a slam-dunk legal case.

A: Well, they're not going to do it. I tried to convince various people of that. What they said was you can't do the search. So they started it over again this year.

Q: And?

A: And they came up with the same results. One of the problems that we have of getting black professors -- some of them are real good, I've got some guys that are my colleagues that are absolutely first rate. But it is really hard when every single college in the country is bidding for them -- and how many of them want to go to Cal State Hayward when they can go to Harvard? So they really had the best people that had absolutely nothing to do with skin color but still the dean unplugged it again -- this time on another technicality and the search committee in the history department was very upset, but they finally gave up and they lost the position. If it's going to be filled at all, it will be filled in another department.

Q: So what happens to "black history"?

A: It's not going to be taught in the history department. It may be taught in ethnic studies -- I don't know if they got the position or not -- maybe the position just went somewhere else.

Q: This situation is unfortunately not an academic anomaly just at your school?

A: Well it doesn't seem to be an anomaly anywhere. California has a law now in the Constitution and that's Prop 209.

Q: Very well written, by the way.

A: Thank you very much. It's Amendment One, Section 31 that simply reiterates the 1964 Civil Rights Act. So there it is! It's a law. But yet you have all kinds of agencies around the state simply not following it at all. Willie Brown, the mayor of San Francisco, laughed at it. He's not going to obey it.

Q: It's one thing to say that. However in some circles -- not necessarily in San Francisco, but in other venues -- there are consequences to something like that. What, if anything, happens to San Francisco when they decide they are not going to comply with the new law.

A: It doesn't make the slightest bit of difference until somebody sues them. And that happened in San Jose, California. Going back to Randy Pech and the Adarand case -- there was a contractor in San Jose who sells high-voltage electrical equipment. His company is called "High Voltage." He got the same treatment Randy Pech did but, instead of appealing to federal law, he appealed to Prop 209. The city of San Jose did everything they could to change the meaning of words in 209 to say it was perfectly all right for them to do that. Which, of course, is just one of the lies that these people propagate.

Q: So how far did it get in the judicial process?

A: It went all the way up to the California Supreme Court and, Geoff, we won a big-time case. This was the first time that 209 was interpreted by the courts. You know how it is. You put a law on the books and it says "something" -- but then what happens is that you have case law that follows it. In other words, there are all kinds of decisions and the case law can sometimes even overturn the original intent of the legislation. We were afraid that might happen in this High Voltage case, but it didn't. It went to the Supreme Court in California and Janice Brown, who is my hero now, wrote a marvelous opinion supporting every single principle that we encoded into 209.

Q: Glynn, you and I are on the same sheet of music for about 99 percent of this stuff. But, frequently (and I've been doing this a long time), people have special issues that are the focus of their life -- and this is yours. You teach anthropology, but you have spent a great deal of time, effort and energy in the arena of racial quotas, affirmative action and quotas and this is important for you. However, maybe it is not as important for President Bush right now and so it is somewhere else in his agenda. So are you and I being overly zealous in being critical of the president for not taking a position in consonance with ours with something we think is important?

A: Of course, it is somewhere else in his agenda. We don't know where and we don't know what kind of commitment he has to it but it is somewhere else. But it is up to us -- or at least it is up to me -- to make sure that he knows that there is a constituency out here that feels very strongly about it. Like I said before, if we don't do that, he's just likely to think that nobody cares. He may think it's a puddle a mile wide and an inch deep. And it is really a very, very important issue.

Q: Can't reasonable people reasonably agree to disagree on priorities?

A: I think that anyone who feels strongly about whatever issue it is should make his voice heard as loudly as he can in order to either help the man make the right decisions or else to force his hand.

Q: What if any kind of dialog is going on between 209 supporters -- you, Jim Stockdale, Ward Connerly, Tom Wood, whoever -- and the Bush administration?

A: None, as far as I know. The fact is as far as the president is concerned it looks as if it is a non-issue. Simply because there are not enough people out here making noise about it. As far as I know, he's not talking to anybody about this.

Q: Is there any channel of communication with anybody on this issue?

A: No. In fact, before the primaries, Shelby Steele was willing to sit down and talk to Bush. He had connections to Bush. Bush was talking to a lot of different people. He was talking to Linda Chavez who did give him this point of view and to various other people and it looked for a while like he was seriously interested in hearing the conservative point of view. This isn't even conservative -- it's mainstream.

Q: It's just common sense.

A: It is common sense. So Shelby has written two very, very good books on this subject -- he is a well-known figure and he had some connections. He wanted to talk to Bush, but they simply gave him the cold shoulder. In other words, there weren't even any back-channel signals that this was of interest to Bush at all. And this led me to believe very early on that this was not going to be on Bush's table at all. This is the reason I said earlier that I don't really know if this guy might not be pro-preference. He looks like he is by the way he is acting. He's not even making signals to us.

Of course, with Linda Chavez there was the confirmation problem, so I don't think there are any signals there anymore -- but to any of the other people who have worked for him and have a higher profile than I do, absolutely no signal whatsoever of what he's going to do. It's blind faith. We're operating here with this man on blind faith. And for that reason -- and that reason alone -- I think we ought to make as much of a stink as we possibly can to let him know we are here.

Q: Glynn, you still maintain that web site if people want updated information on this issue don't you?

A: Yes. Tom Wood runs that and he puts up any new information from the press. Plus, he has an archive that is used by reporters, by scholars, by people in the legal profession -- because it's an excellent place to go for anything on this issue.

Q: I note you even have a section on the flap over renaming sports teams with Indian type names.

A: Yeah. Anything that has to do with the Balkanization of America -- whether it's with the racial, ethnic and preference regime that we're talking about or the loaded curriculum, the multicultural curriculum -- it deals with any of those topics.

Q: I know Prop 209 hit a procedural pothole in Florida. What is the status of "209" elsewhere outside of California?

A: As far as I know, it's not going anywhere as 209. I talked to Ward Connerly recently and asked him if he was interested in pursuing this in the Rocky Mountain states. I still need to talk to him about that because you know he has his own initiative here in California and a man can't spread himself too thin. What happened in Florida is the Supreme Court -- and we all know about the Supreme Court of Florida and what sort of people they are.

Q: Myopic, arrogant, malfeasant idiots!

A: That's right. Well they are pernicious. When 209 came before them, they simply threw it out. That's not the case with most of the initiative states. You put it on the ballot and there it goes. But they have a bottleneck in Florida and the bottleneck is the Supreme Court and they didn't want it.

I would like to see Proposition 209 and several others to go in the Rocky Mountain states to send a signal to the administration and to the Republican establishment that they really can't take this constituency for granted. They may not want to take us for granted. They may just be looking for signals like this. But until we can do something and send some signal, I'm afraid they're just going to ignore us.