Rebel With a Cause

Paul Goldman

Warner vs. Kilgore

on Racial Preferences
AG says Guv favors giving blacks illegal preferences over whites. SB 863 presents AG with the proverbial "money vs. mouth" test, especially after his VA Tech bombshell.


Is it fair to value the life of an innocent black man at only one-fourth of that of an innocent white man? The General Assembly is asking Marvin Lamont Anderson to roll the dice with that possible outcome, at least as SB 863 stands now when compared to the wording of similar legislation passed last year for Mr. Jeffrey D. Cox. But more on this issue and my role in helping to stop this injustice in a moment.

First, let me address the key legal issue hidden deep inside this Richmond Times-Dispatch story, the one with this sensational headline: "Governor Criticizes Va. Tech Policies: Race, Gender Bias Barred by Board." The college trustees said they based their decision to bar consideration of race and gender in admissions and hiring policies on legal advice given by Attorney General Jerry Kilgore.


A Warner spokesman quickly accused the Board and Kilgore of playing right-wing politics, throwing a boomerang that made the governor appear to be politicizing what needs to be a serious legal and educational policy discussion. In response, Kilgore's office said the "suggestion by the governor and others that the law be ignored is irresponsible."

I would hope the governor will publicly reject making this a partisan political issue. Indeed, thoughtful Virginians need to focus on what may turn out to be the biggest bombshell in the attorney general's legal reasoning, as revealed in a paragraph buried deep inside reporter Carlos Santos' excellent Times-Dispatch story:

"Kilgore's office said his legal advice flowed from an April 2002 accord signed by the state and the U.S. Office of Civil Rights acknowledging that past practices of racial discrimination have been corrected and no further remedial action is necessary. This means colleges can act to promote diversity but only within narrow limits, his office said." A 2002 resolution of the General Assembly, unanimously supporting this "accord," makes it clear that the "racial discrimination" mentioned by Mr. Kilgore's office relates to the discriminatory effects of the "former segregated de jure system," including policies that forced former Governor L. Douglas Wilder to leave the state in order to attend law school, which operated well into the 1960s.

To anyone familiar with the legal, social and political history of Virginia, the Attorney General's reasoning is of potentially monumental significance -- and it should have set off alarm bells in the Warner administration, assuming it came as a surprise.

According to Mr. Kilgore, this "accord" -- one that neither I nor most other Virginians ever knew existed, much less have ever read about -- apparently has wiped out, with the stroke of a governor's pen, a major legal weapon available to remedy the effect that segregationist policies still have on many Virginians.

Whether former Gov. Jim Gilmore -- the accord apparently referred to in the RTD story was actually signed by him in November of 2001 -- realized this potential legal ramification is not clear, and the same for Warner Administration.

Let me ask you: In a state where the governor's spokesman can accuse former Governor Doug Wilder of being too sensitive to the use of the Confederate flag by a Democratic political candidate, in a state where you can not raise a statue of Abraham Lincoln without causing a furor, in a state where there is not a single monument to an African-American on the Capitol grounds, do you expect any reasonable Virginian to believe that the effects of segregation are all over, wiped off the books by gubernatorial magic, as if they never happened?

Segregation was the law of Virginia until 1965, rigidly enforced by the Byrd Machine. Harry F. Byrd's life-sized statute, prominently located, was the last such monument to be placed in Capitol Square. In 2001, the leadership of the Democratic Party placed a wreath at his feet, praising his fiscal policies even though they presumably knew these financial practices had been crafted to support his segregationist social policies. In 1989, the Republican candidate for governor, with the full endorsement of his party, played the "race card" in order to win the highest office in the state, even challenging the results of the election on the grounds that Doug Wilder was elected by the illegal votes of convicted felons.

Virginia has made great strides, for which we all should be proud and owe so much to so many. I tell my political friends up North they had best start trying to catch-up. But is it time to pretend that segregation, a policy that wrongly damaged hundreds of thousands of Virginians still alive today, is but a memory? Absolutely not.

For the highest elected officials of the Commonwealth of Virginia to give up legal power to correct past injustices inflicted upon its citizens is beyond my comprehension. But this is precisely what the Attorney General of Virginia has apparently told the Richmond Times Dispatch.

As I write this column, there has been no public reaction by the Warner Administration as to its role in either interpreting or implementing the Gilmore "accord," even though it is impossible for such a legal document to be self-executing.

I can only encourage the administration both to discuss the accord with the people of the Commonwealth, and more importantly, for the governor to tell his fellow Virginians whether he believes the deal struck by his predecessor and approved by a unanimous vote of the General Assembly, was the right one for Virginia.

A General Assembly commission has been impaneled to help monitor the "accord," and it has among its members Sen. Henry Marsh, D-Richmond, a partner in a noted civil rights law firm. This commission superseded previous commissions overlooking higher education access and diversity issues. It is due to give its report to the General Assembly next year. But, surely, Virginia cannot wait until next year to hear whether this commission, made up of 10 state legislators, agrees with Attorney General Kilgore's assessment of the "accord."

Virginia has rejected quotas, and must continue to reject them, for we must judge people on merit - a point correctly made both by Attorney General Kilgore and Governor Warner.

But there is nothing meritorious in unilaterally disarming in the fight against discrimination, for the fight to give everyone the chance to be all they can be is going to be won in the real world, not in some document "Deficit Jim" Gilmore signed as he was going out of office, leaving behind apparently not just a legacy of fiscal irresponsibility but perhaps another kind as well.

Gov. Warner has the sole responsibility to determine whether this is the right "accord" for Virginia: and if not, then he needs to tell the Bush Administration that, while it took us more than a year to come to our senses, the Commonwealth cannot accept a bad deal signed by a lame duck governor under highly questionable, last-minute political circumstances.

So, let's move now from legal abstractions to where the rubber meets the road -- where, it seems, another pothole has formed. The General Assembly website says SB 863 is still on the Governor's desk for his signature or amendment.

That's good, because the bill provides a real test for responsible, thoughtful people to step up to the plate and demonstrate a real commitment to equality on a tough issue.

The Governor has accepted the responsibility of meeting this test, so I see no reason to allow the Attorney General to duck it.

The facts are not in dispute. The bill provides relief for Marvin Lamont Anderson, who was incarcerated between 1983 and 1997 for a crime that scientific evidence later revealed he did not commit. The governor granted him a pardon last year. Under the bill, the Commonwealth will provide Anderson a lump-sum payment of $200,000 and pay $460,000 to purchase an annuity providing him equal monthly payments for the remainder of his life.

But first, as a matter of full disclosure, I am working with Don McEachin, the former candidate for attorney general and Richmond-area lawyer, to bring the facts in this matter to the attention of the governor and the General Assembly. McEachin is exploring the possibility of running for the state Senate in the 9th senatorial district. The incumbent is Benjamin Lambert, the sponsor of SB 863.

For those who might think this is, therefore, a political issue, let me say this: If McEachin had wanted to play politics with this matter, then the political thing to do was to say nothing, and then, once the bill was signed into law and could not be changed by the governor, go on the political hustings with his devastating analysis.

But instead, McEachin has done the nonpolitical thing: He has written the governor alerting him to the bill's potential flaws and asked that they be corrected, something which can only save every member of the General Assembly from embarrassment.

Why? For the simple reason that the General Assembly adopted this bill on the grounds that it promised to treat Mr. Anderson the same as it had treated Mr. Cox, who was likewise the beneficiary of a "relief bill" passed last year for having served 11 years for a crime he didn't commit.

Mr. Anderson is black, and Mr. Cox is white. Thus, the General Assembly knew that they were in the spotlight, for the issue of treating both men equally under the law was very much a part of their public discussion of SB 863.

McEachin's letter to Gov. Warner lays out the equality issue for all to consider:

March 7, 2003

The Honorable Mark R. Warner
The Capitol Building
Third Floor

Dear Governor Warner:

I trust this letter finds you well. I am writing to you to express my concerns, as well as the concerns of others with SB 863 (The Anderson Bill). To understand the community's concerns you will need to familiarize yourself with last year's HB 789 (The Cox Bill). The concern that may have is that when one compares the two bills it would appear that the General Assembly values one man's year of illegal imprisonment (Mr. Anderson) less than another man's imprisonment (Mr. Cox).

This disparity is underscored by the following example. Let's assume that both Mr. Cox and Mr. Anderson both die five years from now. HB 789 guarantees that the Cox heirs will receive the balance of $750,000.00. SB 863 makes no such guarantee to Mr. Anderson or his heirs. When one does the math it becomes clear that Mr. Cox and his heirs would receive upwards of 4 times -- that is 400 percent -- more for each year he spent in prison than Mr. Anderson and his heirs would receive for the years he spent in jail and on parole. Or, stated another way, a year of Mr. Anderson's life is worth about 25 percent of Mr. Cox's life.

Admittedly, depending on how long Anderson may live, the terms of SB 863 could give him several hundred thousands dollars more in annuity and lump sum payments than Mr. Cox received.

However, under SB 863, Mr. Anderson is really being asked to roll the dice because the bill requires only that the state give him what is known as an immediate annuity without any survivorship benefits, unlike the Cox bill.

This may be a fair bet, although all the experts I talked to you thought it was too great a risk for Mr. Anderson to take given that he has a young son and wife. Thus, if Mr. Anderson were to suffer an untimely death, his family would receiving nothing further from the annuity, the principal all going to the insurance company.

But surely, the area of financial dealings is one where Gov. Warner can improve upon what the General Assembly has done.

Moreover, Mr. Kilgore, in his capacity as the state's lawyer, surely has an interest in insuring that Virginia not be seen as taking advantage of Mr. Anderson yet a second time.

It is easy for a politician to talk about being for equality in the abstract. For example, many people in politics have claimed to have done this or that to help Doug Wilder break the color line in Virginia and American politics, now that he was successful and they are safely from the real battlefield.

But talk is cheap. SB 863 cannot be amended by talk. It will take action.

Mr. Anderson was wrongly in prison and on parole for roughly twice as long as Mr. Cox. I am confident that neither Sen. Lambert, nor any member of the General Assembly, would object if the governor and the attorney general recommend that the state show its belief in equality by making the appropriate changes to SB 863.

-- March 17, 2003

(c) Copyright. All rights reserved. Paul Goldman. 2003.


Bring Home the Bacon

Help   About search

























Paul Goldman, the Rebel With a Cause, was chief political strategist for the past two winning Democratic governors in Virginia and was credited with leading a "revolution in American politics" by The New York Times for his role in breaking America's 300-year-old color barrier in national politics.


You can reach him at