Thursday's hearing is before District Judge Tim Kelley, a Republican who quickly dissolved the temporary restraining order signed by another judge that barred the board from even studying the matter. Ultimately, the case will turn on how compelling is the word "should," as in Article 8, Section 5 of the state constitution that states the Board of Regents "should be representative of the state's population by race and gender to ensure diversity."
Zero minority appointments from a 37 percent minority population is pretty compelling math. Yet, in legal terms, there is a world of difference between "should" and "shall." If the courts agree with the plaintiffs that the top governing board for higher education is illegally composed, it would call into question its every decision since the last black appointee's term ended in June, and it would delay any pending actions, including hiring a new commissioner of higher education, until minority appointments are made. That's a heavy burden on "should."
Even if the legal challenge is swept away, though, Jindal still should examine his conscience for his blithe disregard of the constitution. Surely he could find a couple of qualified, public-spirited African-Americans, Republicans even, who come close to sharing his vision for improving efficiency and performance in postsecondary education.
The governor's defenders will argue that he is colorblind. That's true. He has trouble seeing black people. That is, he doesn't see more than a few of them when he walks through his Capitol offices or meets with his Cabinet or surveys his appointments to top boards and commissions.
There is nothing to suggest in his words, attitude or treatment of others that he is racist or anything but a Christian and a gentleman. But in his actions, in his choices of who best fits on his team, he seems to have a blind spot.
But there's more to it than that.
That any Louisiana governor would feel impunity at nearly whitewashing his administration says as much about the loss of political stroke among blacks as it does about Jindal. The decline of unions and rural populism, capped by an adverse reaction of most whites to President Obama, leaves blacks with far fewer allies at the polls. Perhaps turned off by their choices, fewer and fewer African-Americans are voting, compared to whites, in most recent state elections. The Legislative Black Caucus has become increasingly isolated as white Democrats continue to flee across the aisle to the Republicans.
Black legislators could still put together the votes to block the two-thirds majority needed to merge the University of New Orleans with Southern University at New Orleans, but the governor obviously doesn't feel he will pay a price for pressing the issue.
That diminution of black power is, however, all the more reason for Jindal to be more inclusive in his appointments, if only for appearances and his future aspirations.
He needs only to look across the state line for a cautionary tale about getting crossways on racial issues. He may be a generation and a skin tone removed from Mississippi Gov. Haley Barbour, whose presidential ambitions are being haunted by the ghosts of the segregation era, but Jindal's record on diversity, now a legal issue, might bite him down the line.
The governor has every right to hire or appoint the most qualified candidates who also support his agenda. But, in the case of Regents, he should be able to get what he wants from the board without stocking it only with white cheerleaders.
A few minority appointments would not impede Jindal's board initiatives, and would help keep him and them on track, out of court and, for a bonus, in keeping with the letter if not the spirit of the law.
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