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Equal Opportunity in a Post-Proposition 209 World
By Eva Paterson and Oren Sellstrom
A flurry of publicity surrounded California’s passage of Proposition 209, the anti-affirmative action measure that was adopted by the voters in November 1996. The media reported intently as the initiative was debated, passed, enjoined, and finally put into effect. While the media’s attention has long since shifted elsewhere, Californians are now confronted with the day-to-day reality of living in a post-Proposition 209 world. As similar measures appear on ballots and in legislation around the country, it is particularly important to examine the fallout in California from Proposition 209. What effects are being felt? How are civil rights advocates continuing to push for equal opportunity? What lies ahead?
Background
Proposition 209, deceptively titled the California Civil Rights Initiative, prohibits "preferential treatment" in government employment, education, and contracting. Although early polling indicated that the initiative would pass by a wide margin, civil rights advocates and others were successful in educating the public and narrowing that gap. Ultimately, however, the initiative passed by 54 percent to 46 percent. A Los Angeles Times poll taken on election day showed the extent to which many Californians were confused by the measure’s language—nearly one-third of those who voted for Proposition 209 also said that they supported affirmative action.
The day after the election, civil rights groups filed suit in federal district court, seeking to enjoin implementation of Proposition 209 on the ground that it violated the Equal Protection Clause and other federal laws. Although the district court granted a preliminary injunction, that ruling was overturned on appeal, and Proposition 209 went into effect in August 1997. A short time later, the U.S. Supreme Court denied certiorari, allowing the Ninth Circuit’s ruling to stand.
Fallout from Proposition 209
It is still far too early to gauge the full impact of Proposition 209. Currently, there is an overriding sense of confusion among public officials and others concerning exactly what can and cannot be done to ensure equal opportunity. This is not surprising, considering that the initiative covers a wide range of programs in education, employment, and contracting, which are implemented not only by the State of California but also by the cities, counties, and other local governments within the state. Moreover, the initiative’s key term—"preferential treatment"—
is left undefined. Finally, like any other law, it must be made to fit together with existing law—in this case, with the very strong federal anti-discrimination mandates that have long been on the books. The court battles about the proper interpretation of the initiative are just beginning, and will likely remain unsettled for years.
In the midst of this uncertainty, there has been some good news for civil rights advocates. For instance, at the state level, a number of critical affirmative action programs remain in force. Despite the efforts of Ward Connerly, a leading affirmative action foe, and former Governor Pete Wilson to overturn several equal opportunity statutes based on their alleged violation of Proposition 209, their challenge has, for the most part, failed. In November 1998, a trial court judge ruled that the state’s anti-discrimination programs for employment, which include targeted outreach to women and minorities where they are underrepresented, do not violate Proposition 209 or the Equal Protection Clause. In a well-reasoned opinion, the judge held that the state’s personnel policies confer no preferential treatment but rather simply ensure equal opportunity for underrepresented groups—which federal law requires. That ruling is currently on appeal.
Similarly, several legislators recently failed in their attempt to repeal certain programs that, while taking account of race and gender, are not by any stretch of the imagination preferential. For instance, they sought to repeal the American Indian Early Childhood Education Program, which is open to all students but has a particular focus on the needs of American Indian students. Fortunately, the repeal efforts have so far failed at the state level, although the danger remains very real that these efforts will resurface in the future.
At the local level, some cities and counties have maintained vigorous programs to promote equal opportunity. Most notably, the city and county of San Francisco, relying on its obligations under federal law, reenacted its affirmative action contracting program in November 1998, after having compiled an extensive factual record showing continuing discrimination in the public contracting industry.
Unfortunately, there has also been substantial erosion of California’s equal opportunity efforts. At the state level, affirmative action programs for education and public contracting have been largely abolished, although not directly because of Proposition 209. Even before 209 was passed, the Regents of the University of California voted to eliminate affirmative action from the student admissions process. Similarly, a lawsuit challenging the state’s affirmative action program for contracting invalidated the program on equal protection grounds. At the local level, many cities and counties have dramatically scaled back on their equal opportunity programs. The county of San Diego, for instance, abolished its entire Equal Opportunity Office after Proposition 209 went into effect. Perhaps most devastating has been the marked change in atmosphere towards equal opportunity programs. Even where affirmative action laws remain on the books, program administrators have become increasingly hesitant about enforcing them. Similarly, minority- and women-owned subcontractors report increasing hostility from prime contractors, who no longer feel that they need to comply with affirmative action laws, even where they exist.
These cutbacks—both official and unofficial—have produced disturbing, yet not surprising, results. After the Regents of the University of California eliminated affirmative action in student admissions, the number of students of color admitted to the university declined sharply. In September 1998, the freshman class at UC Berkeley—the flagship campus of arguably the best public university system in the world—enrolled 50 percent fewer African American, Hispanic, and Filipino students compared to the prior year. Similarly, in the contracting context, agencies that have dropped their affirmative action programs have consistently reported steep declines in minority- and women-owned business contracting.
Fighting Back for Equality
We have seen over the last decades the enormous strides that have been made because of affirmative action. For instance, as William Bowen and Derek Bok have recently concluded in their book, The Shape of the River, affirmative action in college admissions has been a critical factor in opening up opportunities for African American students. Similar gains have been made in employment and contracting. Moreover, these increased opportunities redound to the benefit of society at large, diversifying our public institutions and making full use of our country’s human capital. For all of these reasons, it is critically important for us now to provide a counterweight to the extremists who are continually trying to pull not only Californians but also Americans nationwide further and further to the right.
Educating the Public
At the most basic level, we must continue to remind the public that discrimination on the basis of race is unfortunately still very much with us today. Our efforts to achieve equality must be seen as resting on that fundamental truth in order to be perceived as fair and necessary. Most people recognize that discrimination exists—at least at some level. People hear about James Byrd being dragged to his death in Jasper, Texas, and are appalled. It is easy to recognize and condemn such obvious manifestations of discrimination. But many people are unaware of how deeply embedded racism is in our society and how deeply it pervades our public institutions.
There is a wealth of data and studies to demonstrate this point. For example, white men comprise less than 40 percent of the labor force, but are 96 percent of corporate CEOs. Black male college graduates earn just $798 for every $1,000 that white male college graduates earn. The fact that racism plays a major factor in these disparities has been brought dramatically to life by social science experiments. For instance, studies involving "testers" who apply for jobs or housing consistently show that applicants are treated differently simply because of their race. In a study conducted by the Fair Employment Council of Greater Washington, equally qualified black and white job applicants were sent to apply for the same job. Whereas job offers were given to approximately one-half of the white applicants, only 11 percent of African Americans received offers. Notably, these are job applicants who were purposefully chosen to have the same exact qualifications. Similar studies in the banking industry show that people of color are up to twice as likely to be denied loan assistance as whites with the same qualifications.
Some of this can be attributed to outright racism. Much of it, however, is due to subtler, but no less pernicious, forms of discrimination that work unconsciously or beneath the surface. It is only by continuing to educate the public and the courts about these forms of discrimination—both blatant and latent—that our other efforts to achieve equality will ultimately be successful.
Vigorously Enforcing Federal Law
Civil rights advocates have redoubled their efforts to enforce the strong state and federal anti-discrimination laws that remain on the books. Proposition 209 does not exist in a vacuum. It does not and cannot override federal laws such as the Equal Protection Clause, and Titles VI and VII of the federal Civil Rights Act of 1964. In fact, Proposition 209 itself explicitly says—as it must under our federalist system—that in cases of conflict, federal law trumps. Proposition 209 does not give public entities free rein to discriminate.
Title VI is a particularly powerful law in that regard. It holds that any entity that receives federal funding cannot discriminate based on race. Importantly, it is not necessary to prove that a public entity intended to discriminate in order to win under Title VI—a seemingly neutral rule that falls more heavily on people of color can also be a violation. For instance, a city that always goes back to the same vendors for contracting opportunities may not intend to discriminate against minority-owned businesses, but if those companies are frozen out of the process as a result, then that can constitute a Title VI violation. Thus, this is a particularly effective way to attack deep-seated, structural inequalities. Moreover, Title VI applies very broadly—not only to particular projects that receive federal funding, but also to the entire operation of any entity that receives any federal funding at all.
As we enforce federal law, we must therefore also redefine the meaning of the word "preference." Proposition 209 proponents were, and continue to be, very clever about exploiting the power of language, phrasing all of their rhetoric in terms of preferences. They know that this word—and this word in particular—taps into strong feelings that the public holds about fairness and equity. Our challenge now is to tap into that same core sense of fairness and justice, both in public and in court, to show where the true preferences in our society lie. We need to move away from the notion that affirmative action—a very modest means of overcoming inherently discriminatory systems—is a preference. What we need to do instead is to point our finger at those built-in, structural systems that are the true preferences. When nearly 99 percent of all contracts go to majority-owned firms in a county, why is that not construed as a preference? When an admissions process still allows so-called "VIP" admissions to children of wealthy donors, why is that not a preference? The answer of course is that those are prime examples of preferences. We simply need to expose them and hold them up to the light of day.
Limiting the Reach of Proposition 209
In addition to enforcing federal law, efforts must be taken to prevent extremist attempts to stretch Proposition 209 beyond its true limits. Several key battlegrounds in this fight are emerging.
Outreach
There must be a targeted outreach strategy in place that evaluates whether minorities are underrepresented. This has been done successfully in a broad range of contexts, including employment, education, and contracting. For instance, employers attend job fairs geared toward minority jobseekers; college admissions officers encourage applications from underrepresented minorities; and city government officials monitor prime contractors to ensure that they negotiate in good faith with minority-owned subcontractors. Outreach of this type simply widens the pool of possible applicants. It is not about giving just anyone a job, or a contract, or admission to a university based on the color of their skin. It is about fairness and inclusion. It is about giving people an opportunity to get their foot in the door and to prove themselves.
Yet, Proposition 209’s supporters are now going after these programs. A number of lawsuits brought by conservative groups challenge the ability of the state, and of local governments, to even perform outreach in the employment or contracting settings regardless of whether it can be shown that minorities are typically excluded from these opportunities, or whether the program simply requires outreach and notification. Those on the right are gunning for these programs, nonetheless—and in some cases they have been successful. However, the California Supreme Court has yet to consider any such program, and a definitive ruling may still be years away.
Data collection
In a similar move, conservative groups have even taken issue with the basic collection of race data. Every civil rights advocate knows that this sort of information is key to anti-discrimination efforts. "Smoking gun" evidence of discrimination is rare; rather, in many cases, it is statistical evidence gathered over time that reveals the structural and hidden discrimination in our midst. This key means of ferreting out discrimination is now under attack, however. For example, shortly after Proposition 209 took effect, then-Governor Pete Wilson ordered state agencies to stop tracking data on the participation of minority-owned business enterprises’ (MBEs) in the state’s $4 billion public contracting system. Likewise, Ward Connerly has called upon state universities to stop gathering information about the race of applicants. Although these individuals claim to want to create a "color blind" society, in fact, what they want is to turn a blind eye to discrimination. And they are hoping that Proposition 209 will allow them to do just that.
Conclusion
Although Californians have responded creatively and aggressively to Proposition 209, its dangers should not be understated. Already we have seen many critical programs dismantled; only time will tell how successful we will be in preventing further erosion of equal opportunity.
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Eva Paterson is the executive director of the Lawyers’ Committee for Civil Rights of the San Francisco Bay area. Oren Sellstrom is a staff attorney for the Lawyers’ Committee for Civil Rights.
