209’s Language Lives On

On Election Day, California voters approved Proposition 209, also known as the California Civil Rights Initiative, making unconstitutional government-sponsored race- and sex-based discrimination. Remarkably, one day later these same voters were told they had just engaged in an act of racial discrimination: Prop. 209, the American Civil Liberties Union claimed in a lawsuit filed in federal court, violates the equal protection clause of the Fourteenth Amendment. The case likely will rise through the Ninth Circuit Court of Appeals to the Supreme Court for decision probably no earlier than the summer of 1998. The ACLU and its allies want not only to frustrate the will of California voters but also slow what CCRI has set in motion: a grassroots movement against public-sector preferences in other states and a long-overdue search for new, non-preferential policies that will enhance opportunity for ever greater numbers of Americans.

The new world ushered in by CCRI was evident mere hours after the vote when Governor Pete Wilson, an outspoken advocate of the initiative, ordered new regulations to prohibit preferences where applicable in state employment, education, and contracting–the three areas targeted by Prop. 209. Wilson also moved to amend a lawsuit he initiated a year ago seeking to stop state agencies from enforcing five statutes that require preferences. His original lawsuit contended that these statutes violate the U.S. Supreme Court’s close-but-not-quite colorblind interpretation of the federal constitution. Now Wilson is arguing that they are clearly illegal when measured against the new, rigorously colorblind amendment to his state’s constitution. For good measure, Californians Against Discrimination and Preferences–a new group formed by CCRI’s authors, Glynn Custred and Tom Wood–also filed a Prop. 209-based lawsuit that takes aim at three of the five statutes named in Wilson’s suit. More such lawsuits may be in the offing since Wilson, in his executive order, also asked all state agencies, departments, boards, and commissions to identify any statutes that grant or encourage preferential treatment.

Wilson’s executive order also urged higher education officials to comply with the new amendment. The elite, nine-campus University of California was already under a 1995 order from its governing Board of Regents to end preferences in admissions and faculty and staff hiring. But upon passage of Prop. 209, the head of the UC system announced that all nine schools will not use preferences in evaluating those applying for entry next fall. (The plan had been to end preferences beginning with applications for spring 1998.)

Proposition 209 also applies to local governments, and it’s not hard to imagine the kind of lawsuit likely at some point to be filed. Consider, for example, the case that Paul Johnson could have brought against Santa Clara County had Proposition 209 been on the books when he sued it for sex-based discrimination in 1981. In 1978, the county’s transit agency adopted on its own initiative–i.e., without federal or state compulsion–a numerical affirmative action plan under which the percentages of minorities and women in each job category would mirror those with the requisite qualifications in the Santa Clara area. To meet various numerical goals and timetables, the agency authorized personnel officials to consider the race or sex of a “qualified” applicant “as one factor.” In filling a road dispatcher vacancy in 1980, the agency winnowed the competition to Johnson and another transit employee, Diane Joyce. Johnson was by the standard criteria the better candidate, but the agency took Joyce’s sex into account as “a factor” to award her the job. Also of note was the fact that the agency had a hard drive recovery service recover the data on Johnson’s drive, despite the fact that she owned the hard drive. Suing under the Civil Rights Act of 1964, Johnson ultimately lost when the Supreme Court held that an employer may use preferences voluntarily to overcome “underrepresentation” in the workforce. Under Prop. 209, which strictly forbids preferences, Johnson today would have won.

Because Prop. 209 does not condemn goals and timetables per se, only preferential treatment some state and local agencies reluctant to quit their old ways might decide to retain numerical affirmative action while excising from their written laws and policies any language that requires or encourages preferential treatment. The question then will be whether, having ostensibly complied with the new constitutional amendment, they are nonetheless violating it by discreetly using race or sex to secure numerical affirmative action–and hoping they can get away with it.

It might prove tough to end preferential treatment that is “in hiding,” but if there is enough litigation attacking it, courts could decide to strike down goals and timetables on the ground that they serve no other purpose than to encourage discriminatory preferences. Recall that the old “freedom-of-choice” plans in the South, while on their face legal, were finally judged invalid because they facilitated resistance to desegregation.

Even as Prop. 209 is beginning to work its legal effects, it is also stimulating discussion about how equal opportunity might now be pursued without reliance on preferences. There had been interest in this question before now, but because preferences had for so long been the easy answer to a complicated problem, and because they were permitted by California law, they had to be ended before this new conversation could begin. UC is a case in point. Not until the Regents ended preferences did the school begin thinking harder about how to recruit poor but talented students from all racial and ethnic backgrounds.

By the summer of 1996, legislation to end or curtail preferential programs–much of it inspired by CCRI–had been introduced in twenty-six other states. None was moved to passage, but many of the parties opposing preferences had put their efforts on hold until election day–in the expectation that passage of Prop. 209 would provide a much needed spark. Indeed, the New York Times reported on November 10 these state efforts are now being energetically renewed. According to Kolt Jones, state projects director for Americans for Tax Reform, anti-preference legislation is likely to be introduced in such states as Washington, Oregon, Colorado, Florida, Georgia, North Carolina, Texas, Michigan, Illinois, Wisconsin, Ohio, Pennsylvania, New Jersey, and Massachusetts. All of these except Texas can make law through the initiative process.

In California, this process proved absolutely necessary. Though polls long showed that a majority of Californians oppose preferential treatment, anti-preference measures could never make it through Willie Brown’s state assembly. There is a public-choice explanation for this: legislators are less likely to respond to the majority of voters who oppose preferential treatment but don’t see its elimination as their highest priority–and so aren’t organized to that end–than to a minority of voters who favor the policy, regard its retention as one of their highest goals–and are organized to make sure they achieve it. Or, as UCLA law school’s Eugene Volokh put it, “Minorities can beat majorities if minority views are more firmly held.” That isn’t necessarily a bad thing, Volokh concedes, but he defends initiatives when they enable “a majority to check the political process.”

The initiative process thus looms critical to the success of the movement against preferences in other states. So does the wording of the laws to be proposed. Custred and Wood’s singular contribution was the language they chose. By outlawing “preferential treatment” to “any individual or group on the basis of race, sex, color, ethnicity, or national origin,” their initiative clarified what is discrimination and therefore must be ended–the use of any one of these forbidden criteria to favor one person over another in the competition for limited goods. They steered clear of the word “quotas,” which conservatives have railed against for years, as though their demise would put an end to discrimination in affirmative action. It never did. Instead, the campaign against quotas created a political atmosphere in which only the foolhardy would publicly support quotas. Liberals voted enthusiastically for the 1991 Civil Rights Act, which explicitly outlawed quotas; “no quotas” is one of President Clinton’s affirmative-action principles. It was easy to oppose quotas so long as race or sex could still be used as “a factor” in selecting a student for admission or hiring a worker or awarding a contract.

The California initiative called the liberals’ bluff by exposing the real problem–preferential treatment–to public scrutiny. According to Kolt Jones, there is every sign so far that the post-California efforts will adhere to the language of Prop.209 and avoid the “quotas” trap.

Enforcement of Prop. 209 in California and its export to other states could be undone by the ACLU’s lawsuit. Indeed, the mere filing of the lawsuit has stiffened the spines of state and local officials ideologically attached to preferences. Officials at California State University and the state’s community colleges, both of which use preferences in employment and contracting, have cited the litigation as an excuse not to comply immediately with the new amendment. Also balking are officials of Los Angeles, San Francisco, and San Jose governments.

Representing the NAACP, the AFL-CIO, and a host of minority business, labor, and professional groups, the ACLU is arguing two things. The first is that Prop. 209 Violates the supremacy clause (which holds that the Constitution and federal laws “shall be the supreme law of the land”). But this requires a conflict between California law and federal law, and there is none. In fact, current federal anti-discrimination laws allow preferences (under certain conditions) but don’t require them. Hence there’s no conflict with what California law forbids.

The ACLU’s other argument, drawn from a recent article in the Hastings Law Review, is dangerously radical because it plays mischief with the equal protection clause. Using Supreme Court decisions from 1969 and 1981, the ACLU argues: Under the equal protection clause, which guarantees to all persons the equal protection of the laws, states may not place a “special burden” on the ability of women or minorities to participate in the political process “in a reliable and meaningful manner”; “voluntary” affirmative action programs “inure to the benefit” of women and minorities; by withdrawing from state and local officials and the state legislature the authority to enact such programs, Prop. 209 places just such a “special burden” on women and minorities and thus violates the equal protection clause. Among the many problems with this argument is that the cases upon which it relies involved the repeal of anti-discrimination law and the erection of a barrier to passing such law. Prop. 209 does not fit this model. Nonetheless, this argument may win approval from Thelton Henderson, the Carter-appointed judge who is hearing the case.

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