1. Ethnicity
The CCRI, unlike Title VII, bans discrimination based on ethnicity as well as discrimination based on race and national origin. This clearly prohibits ethnic discrimination against groups such as Jews60 and Gypsies, who are not separate races,61 and who are generally defined by ethnic relationship rather than by derivation from a specific geographical area.62 In practice, Title VII has generally been read as banning ethnic discrimination,63 but why count on such an extension when it's easy enough to add "ethnicity" to the text?
One pre-election article criticized the addition of ethnicity on the grounds that the term is somehow novel and vague,64 but that's just not so. "Ethnicity" is already used in many antidiscrimination provisions--including two such provisions in the California Constitution, besides the CCRI itself--and is at least as clear as "race" or "national origin."65
2. U.S. Citizenship
The ban on national origin discrimination does not preclude classifications based on U.S. citizenship.66 The Supreme Court has made clear that "national origin" in Title VII doesn't cover U.S. citizenship status,67 and a California court has suggested the same is true under state law.68 The CCRI should be interpreted the same way.69
3. Ethnic Discrimination Based on Being Jewish
"Jewish" is both an ethnicity and a religion.70 One can, for instance, be ethnically Jewish and religiously an atheist, or religiously Jewish but ethnically a non-Jew (if, for instance, one is a convert). Discrimination based on a person's Jewish ethnicity is prohibited by the CCRI. Discrimination based on a person's Jewish religion--if it can be distinguished in the particular case from
discrimination based on ethnicity--is not covered by the CCRI, but is of course already prohibited by existing constitutional and statutory provisions.
4.
Discrimination Based on Being an American Indian
Under federal constitutional law, classifications turning on a person's membership in an Indian tribe are generally not seen as being based on race or national origin. Because an Indian tribe is not just an ethnic group but a political one, the Court has viewed "preference[s]" for "members of federally recognized tribes" as "political rather than racial in nature."71 This makes sense. The government sorts us by political allegiance in various ways: it sometimes distinguishes U.S. citizens from aliens, and Californians from out-of-state citizens.72 An Indian tribe is likewise a different sovereign. Tribal Indians, unlike other Californians, belong to a political group that's specifically recognized by federal law and the U.S. Constitution, not merely to an ethnic group that has no independent legal standing.
The CCRI is aimed at hastening the day when people's race or ethnicity will be irrelevant to their civic lives. But a person's membership in an Indian tribe will necessarily (and properly) remain relevant in at least some ways, just as a person's being a Californian or an American will remain relevant. The state may therefore legitimately want to consider a prospective employee's, student's, or contractor's Indian-tribe affiliation in seeking to better serve the needs of this separate political community.
It thus seems proper to follow the federal constitutional example, and view classifications based on Indian-tribe membership as not being based on race (or ethnicity or national origin) for CCRI purposes.73 Classifications based only on being an Indian, however, are racial; discrimination against or preference for nontribal Indians--or even for tribal Indians if the justification is their race and not their tribal status--would thus violate the CCRI.74
II. EXCEPTIONS
A. Bona Fide Qualifications Based on Sex
1. The Provision and the Need for It
Clause (c) of the CCRI
provides: "Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting." Some provision like this was necessary, just as it was necessary in the Title VII and California antidiscrimination statutes.75 Without it, clause (a) would have barred all sex
classifications: public employers wouldn't have been able to maintain sex-segregated bathrooms;76 high schools wouldn't have been able to have girls' basketball teams;77 colleges wouldn't have been able to assign dormitory roommates based on sex;78 jails wouldn't have been able to ban male guards from searching female inmates.79
2. Clause (c) Does Not Modify Any Other Constitutional Provision
As the text makes clear--and as the ballot argument confirms80--clause (c) does not modify any other provision of the California Constitution, such as the preexisting equal protection sections (that bar sex
classifications unless they pass strict scrutiny).81 The bona fide qualifications proviso is an exception only to this section of the Constitution--to the CCRI itself, section 31 of article I of the California Constitution.82 It modifies the ban in clause (a), and nothing else.83
Nor can clause (c) implicitly repeal any of the preexisting equal protection provisions. There is no conflict between these provisions and the CCRI; the CCRI adds an extra bar on sex classifications, but declines to prohibit those that are bona fide qualifications. There's nothing unusual about that. Many laws decline to prohibit certain conduct without conflicting with preexisting laws that do prohibit this conduct.
Under California law, new provisions cannot implicitly repeal old provisions unless they "are irreconcilable and in direct conflict with each other."84 As courts have said, "'[A]ll presumptions are against a repeal by implication.' . . . The presumption against implied repeal is so strong that, 'To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so
inconsistent that the two cannot have concurrent operation.'"85 "The principle that a specific statute prevails over a general one applies only when the two sections cannot be reconciled."86 There's simply no conflict at all, much less an "irreconcilable and . . . direct conflict," between the CCRI and the preexisting equal protection provisions, so no implied repeal is possible.
The CCRI also does not work a "repeal by revision"--it does not repeal existing constitutional provisions by somehow superseding them.87 First, as with implied repeal, new laws are not interpreted as superseding old ones unless they conflict.88 Second, even when there's a conflict between new and old provisions (which isn't the case here), "[s]o strong is the presumption against implied repeals that . . . '[i]n order for the second law to repeal or supersede the first, the former must constitute a revision of the entire subject, so that the court may say that it was intended to be a substitute for the first.'"89 The CCRI is not a "revision of the entire subject"; it focuses not on equal protection generally (the subject of the existing
provisions), but only on discrimination based on race, sex, color, ethnicity, and national origin in public employment, education, and contracting. It simply cannot be read as being "intended to be a substitute for" the existing equal protection provisions. The text shows no such intent; the ballot statement explicitly denies any such intent; the only plausible reading of the text is that it creates a new prohibition, without any intent to overwrite any of the old.
Third, the
California Supreme Court has specifically held that, although legislative enactments might conceivably work an implied repeal by revision, initiatives may not do so. An initiative must be "deemed . . . to be a constitutional amendment rather than a revision. Thus [a court is] bound to harmonize the two constitutional provisions [rather than finding a repeal by revision]."90 And harmonizing the CCRI and the existing provisions requires nothing more than reading the CCRI the only way its text can reasonably be read: as creating a new prohibition on sex discrimination, one that will not modify the old ones, but rather will exist alongside them as a separate cause of action.
3. The Scope of the Bona Fide Qualifications Exception--Generally
a. The Text
The bona fide qualification exception is clearly modeled on Title VII's bona fide occupational qualification proviso. Compare clause (c)'s exemption of
bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting
to Title VII's exemption of sex classifications "on the basis of . . . sex"
where [sex] is a bona fide occupational qualification reasonably necessary to the normal operation of [the] particular business or enterprise.91
Because the CCRI applies not just to employment but also to public education and contracting, the bona fide qualification proviso had to be adapted to all three areas. But the clear tracking of the Title VII language shows that clause (c) should still be interpreted the way that Title VII's exception has been--as "an extremely narrow exception to the general prohibition of discrimination on the basis of sex."92 In the words of the California Supreme Court, "[w]here the language of a statute [or initiative] uses terms that have been judicially construed, the presumption is almost irresistible that the terms have been used in the precise and technical sense which had been placed upon them by the
courts."93
Bona fide qualification exceptions have, of course, been applied outside the employment context before. Consider the "bona fide . . . programmatic factor" exception for beneficiaries of federally funded family violence prevention programs;94 the "bona fide public accommodation qualification" exception for sex-segregated
accommodations such as public bathrooms, showers, and locker rooms;95 and similar exceptions relating to sex-based medical-care needs.96 Every broad ban on sex classifications has to have a narrow exception for those classifications that are genuinely necessary. The bona fide qualification principle is a time-tested way of doing this.
In employment, then, the exception exactly mirrors state and federal bona fide occupational qualification law. CCRI opponents made much of the fact that the word "occupational" was dropped from "bona fide occupational qualification,"97 citing the Supreme Court's holding in UAW v. Johnson Controls, Inc., that stressed the importance of the requirement that the qualification be related to employment.98 But this requirement wasn't eliminated in clause (c), it was only moved to the end of the sentence: "Bona fide occupational qualification . . . [necessary to] that particular business or enterprise" has become "bona
fide qualification . . . [necessary to] public
employment."99
This move was needed because the bona fide qualification proviso applies to education as well as employment; if clause (c) were limited to bona fide occupational qualifications, it wouldn't cover bona fide educational
qualifications. In fact, the term "bona fide qualification" has indeed often been used as a synonym for "bona fide occupational qualification" when it was clear from context that the
qualification had to be employment-related.100 The ballot pamphlet confirms this interpretation, stressing that clause (c) "uses the legally-tested language of the original 1964 Civil Rights Act."101
Bona fide qualifications in contracting should track bona fide qualifications in employment. If, for instance, a public agency contracts with a private company to provide washroom attendants, the agency might require that the company assign male attendants to men's rooms and female ones to women's rooms.102 Likewise, if a city
government contracts with a private battered-women's center to provide services for the public, the city might demand that the center provide only female counselors for the female clients.103 Though these cases should be rare, a bona fide qualification provision for contracting was necessary--had it been absent, the government would have lost the flexibility to implement programs through contracts with private agencies instead of running the programs itself using its own employees.
In many sex classifications cases, clause (c) poses no new questions. If a government agency wants to classify its employees by sex, it generally has to justify its actions under the bona fide qualifications provisions of Title VII and the California Fair Employment and Housing Act (FEHA). A classification that passes muster under those statutes will also pass muster under the CCRI; a classification that fails under those statutes will be illegal under the CCRI. Likewise, if a government agency wants to demand that a contractor set up a sex
classification for its employees, then the contractor generally has to justify the classification as a bona fide qualification under Title VII and FEHA, as well as under the CCRI.
In two areas, though, the CCRI will add new requirements. The first area is education. In the past, sex-based classifications of students did not have to be examined under the "bona fide qualification" test; instead, they had to be valid under strict scrutiny (commanded by the California Constitution),104 and had to fit within the enumerated exceptions in Title IX of the Civil Rights Act and state educational antidiscrimination law.105 Under the CCRI, the courts will also have to inquire whether a particular educational sex classification is a bona fide qualification.
The second area is the
traditional employment "affirmative action" context. Under Title VII and FEHA, as they are interpreted by the courts, there are ultimately two exceptions to the ban on sex classifications: the bona fide qualifications proviso, and the general latitude given to affirmative action programs.106 Under the CCRI, the bona fide qualification exception is the only game in town, and courts will have to decide whether sex-based programs justified by diversity, remedial, or "role model" concerns constitute bona fide qualifications.
b. Existing Bona Fide Qualifications Law
Bona fide qualifications law makes clear that:
1. Bona fide qualifications cannot be based on generalizations, even statistically accurate generalizations, about the attributes possessed by most men or most women.107 An employer may look for people with particular ways of thinking or particular levels of physical skill, but cannot use sex as a proxy for these criteria.108
2. The bona fide qualification must relate to a person's ability to perform a particular task, not to general desires to use the hiring decision to accomplish a broader social goal, such as fetal health or giving work to those most likely to need it.109
3. The bona fide qualification principle is "an extremely narrow exception to the general
prohibition of discrimination on the basis of sex."110 "[T]he use of the word 'necessary' . . . requires that [courts] apply a business necessity test, not a business convenience test."111
"[D]iscrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively."112
4. Customer, client, student, or coworker preference for employees of a particular sex does not make sex into a bona fide qualification, even when disregarding this preference causes some loss to the employer.113
What could this possibly leave (setting aside the rare cases in which sex is a physical requirement for a particular job, such as wet-nurse or sperm donor)? Well, despite courts' frequent
protestations to the contrary, a few restrictions based on client or coworker preferences are indeed permissible. Privacy and artistic verisimilitude are classic examples: The overwhelming majority of people prefer not to be seen undressed by people of the opposite sex, and the law respects this preference; likewise, when people see a play, they (generally) prefer male roles to be played by men and female roles by women, and the law allows such sex-based casting.
These preferences are not biologically dictated (though they might be in some measure biologically influenced)--they are social attitudes. Privacy taboos vary from society to society and from era to era. Standards of theatrical verisimilitude likewise vary among societies and genres. The attitudes are socially constructed, but they are attitudes the law considers legitimate.
This judgment of legitimacy is, of course, a value judgment. Courts do not insist that we change our reluctance to be seen unclothed by the opposite sex (though such a change is theoretically possible).114 Some cases have even extended this beyond physical privacy to discussions about intimate mental matters--for instance, upholding sex-based hiring of guidance counselors for children.115 On the other hand, courts have not accepted sex classifications justified by women's desires not to be seen by men while exercising at a health club,116 or men's desire to spend time at a private club free of the
"inhibiting effect" caused by the presence of women,117 or men's desire to roam the club naked without the chance of being seen by women.118 Courts must decide which privacy claims deserve accommodation and which do not.
Likewise, the law considers legitimate the desire to see men cast in male theatrical roles and women in female roles;119 again, it does not insist that we get used to men playing women and vice versa (though such an attitude would not be unprecedented). Presumably the same applies to advertisers using scantily clad female models rather than scantily clad male models to sell beer; likewise for mixed service/entertainment fields, such as Playboy bunnies serving drinks in Playboy clubs.120 On the other hand, courts have rejected airlines' desires to hire only female flight attendants (for sex appeal) and restaurants' desires to hire only male waiters (for ambiance).121
The courts' conclusion that sex is the "essence of the business"
in theater and Playboy clubs, but not among flight attendants or waiters, turns on a value judgment about what is important to a particular business and what is peripheral. Some might argue that being surrounded by sexually appealing service personnel is just as valuable on an airplane flight as in a bar--in fact, this seems to have been a common view in its day.122 Others might say that having a faithful representation of Old World dining, traditionally attended to by male waiters in tuxedos, is just as important as having a faithful representation of Pirates of Penzance, with Frederick played by a man and Mabel by a woman. But courts have to decide, somewhat arbitrarily, which claims are legitimate and which are not.123
Other social attitudes are considered acceptable justifications for sex-based classifications not so much because they are legitimate, but because they seem unavoidable. The rejection of "customer preference" or "coworker preference" rationales rests on the notion that customers and coworkers should change their views to accommodate
antidiscrimination law, and not vice versa. If customers feel uncomfortable doing business with female executives or being served by male flight attendants, that's the customers' problem.124 Sex-neutral staffing won't undercut the "essence of the business" because the customers can generally be expected to adapt to it. But when one is dealing with clients who are mentally handicapped, emotionally disturbed, or perhaps even just criminal, it may be unrealistic and counterproductive to expect them to change their views.125 Assigning a male child-care specialist to work with sexually abused, or just emotionally disturbed girls undercuts the essence of the business126 precisely because the girls' preference is so hard to change.
4. Specific Bona Fide Qualifications Claims
With the above principles in mind, I turn to some specific cases in which bona fide
qualifications claims might be raised.
a. Diversity (in Employment and Education)
The interest in intellectual diversity does not make sex a bona fide qualification.127 Diversity programs are based on
generalizations about the "experiences, outlooks, and ideas"128 that men and women can bring to a task--the very sort of stereotypic thinking that bona fide qualifications law rejects.129 Even if most women tend to have a somewhat different view on a subject than do most men, this can't be a justification for preferring a particular woman over a particular man (or vice versa). In the EEOC's words, "The
principle of nondiscrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group."130
The Court made this point in a slightly different context in Roberts v. United States Jaycees.131 In
Roberts, the Jaycees claimed that letting women into their club would change the club's voice, because women tend to have different attitudes about certain subjects than men. The Court rejected this argument: "Although . . . generalizations [about the sexes' attitudes] may or may not have a statistical basis in fact with respect to particular positions . . . we have repeatedly condemned legal decisionmaking that relies uncritically on such assumptions."132 Courts must "decline to indulge in the sexual stereotyping that underlies [the] contention" that an applicant's sex "will change the content or impact of the organization's speech."133
The government must likewise be barred from relying on the argument that an applicant's sex "will change the content or impact" of workplace discussion or
attitudes.134 If an educational institution wants to achieve intellectual diversity, it has to do this by focusing on people's actual experiences, attitudes, and outlooks, not by using sex as a proxy.135
Of course, use of sex as a proxy for different thinking patterns may be efficient, and--especially if Justice Powell's opinion in Regents v. Bakke136 is good law137--may not violate the Equal Protection Clause. My only point here is that, efficient or not, such use of sex, like many efficient uses of sex as proxy, is outside the scope of the bona fide qualification principle.138
b. Remedying Discrimination or
Underrepresentation
A government agency's desire to remedy discrimination against one sex or underrepresentation of one sex also does not make sex a bona fide qualification. Bona fide qualifications must "relate to ability to perform the duties of the job"--or, in the educational context, to the role of a student--and not just to "deep social concern[s]" such as the health of future generations, or the desire to give work to those who most need it,139 or the desire to right social wrongs or statistical mismatches.
In fact, the core principle underlying the CCRI is that
"overrepresentation" or "underrepresentation" are not
justifications for race or sex discrimination, and that the remedy for past discrimination is a ban on discrimination, not
discrimination in the other direction. The CCRI's theory, captured well in the proponents' ballot argument, is that "'Reverse
Discrimination' based on race or gender is plain wrong[, a]nd two wrongs don't make a right."140 The bona fide qualification exception doesn't change this fundamental
principle.
Thus, for instance, special science programs aimed at girls or women could not be justified as a way of remedying discrimination or under-representation. Remedial concerns can't make being female into a "bona fide qualification . . . reasonably necessary to the normal operation of . . . public education." Supplementary math and science programs are valuable educational devices that should be equally available both to girls and to boys. Boys as well as girls can benefit from them, and certainly many boys as well as girls need the help. Most scientists are male, but most males are definitely not scientists; inadequate science education is a problem for both sexes.
c. Role Models, Single-Sex Schools, and Single-Sex Workplaces
Same-sex interactions can in some contexts be more efficient than cross-sex interactions. Male students or workers may be more inspired by male teachers or managers; likewise for women.141 Girls may learn better in a class with other girls, boys in a class with other boys.142 Women may get along better with female salespeople or female coworkers, and men with male ones. Same-sex interactions may more easily produce camaraderie and empathy,143 and may be less susceptible to conflict caused by different communication styles or by sexual tension.144
But even when these client or coworker or student preferences are quite real, they generally can't make sex into a bona fide qualification; under sex
discrimination law, these preferences have to be resisted, not accommodated.145 Employers (and, under the CCRI, educators) are supposed to demand that people change their sex-based attitudes, rather than using the existing attitudes as an excuse for discrimination. If some people won't change, the employer or educator must bear this cost.
This prohibition, though sometimes inefficient in the short-term, is central to the
principles of antidiscrimination law. If men and women are to work together, they have to learn to overcome their preferences for coworkers or classmates or mentors of the same sex. It might be natural for men to be more inspired by male role models and women by female role models, but if we want men to work effectively for female managers, or if we want women to enter fields in which almost all the great figures have always been men, this attitude has to be resisted, not accommodated.
In fact, these sorts of public preferences are actually not that hard to change, at least when the public consists of normal adults. Despite longstanding preferences for female flight attendants,146 air passengers have learned to deal with male flight attendants; and despite the historic reluctance of men to take orders from women, male
employees--guided by the demands of antidiscrimination law--have largely learned to deal with female managers.
The rule might be different, though, when the government confronts the preferences of people who are not normal adults--for instance, the mentally handicapped, the seriously emotionally disturbed, and violent criminals. Here, the courts have given employers more latitude; the difficulty of changing these groups' preferences makes it more likely that the "essence of the business operation would be undermined by not hiring members of one sex exclusively."147 When normal adults recoil at being helped by people of the opposite sex, we might sternly admonish them to change their ways. When the same reaction comes from someone who is mentally ill, especially if the mental illness has a sexual dimension, we do not react the same way--expecting a change of attitude there may be expecting too much.
Certain single-sex programs--for instance, single-sex education of emotionally disturbed children--should thus be permissible. Under Title VII, a public agency that operates such programs might be able
to hire counselors based on sex;148 the same would be true under the CCRI. And if sex is a bona fide qualification for employees, it is probably also a bona fide qualification for students.
The hard question is whether this would apply to programs, such as general single-sex public schools, aimed at normal children rather than at the mentally handicapped or seriously emotionally disturbed. The attitudes and behavioral traits of children are in some respects not easy to change: the adverse effect of sexual tension on the education of thirteen-year-olds might be harder to combat than the effect of sexual tension on adults working together; likewise, it's at least conceivable that some girls will be intimidated by the classroom styles of boys, regardless of what the school tells either the girls or the boys.
Moreover, schools may have less power to change their students' behavior than employers have to change their employees' behavior. If an employee is so disoriented by the presence of the opposite sex that he becomes abusive or unproductive, the employer can fire him; this will make life better for the other workers and will provide an incentive for employees to learn to live with sex integration. This sort of threat, though, may be less effective for public school students: Grades or discipline may be weaker motivators for thirteen-year-olds than an income is for an adult. And if adult employees act in ways that cause them to lose their jobs, we might say good riddance; not so for wayward students, whom society wants to educate even despite their behavioral problems.
On the other hand, normal children are generally considered more malleable in their beliefs and attitudes than are adults; moreover, changing their attitudes--educating them to behave properly around the opposite sex--is especially necessary. If students are distracted by sexual tension, it may be more important to teach them to deal with it than to try to insulate them from it. If boys act in ways that intimidate the girls in their class, it may be more important to teach the boys to behave and the girls to resist the intimidation than to shield girls by separating the sexes. After the students graduate, they'll all be expected to work around one another and act fairly towards each other. The basic principle of
antidiscrimination law is that this sort of coexistence is
furthered by nondiscrimination, not by accommodation of
discriminatory impulses.
This is a close question: I can imagine a court concluding that all children, and not just emotionally or mentally disturbed children, might learn better if their greater comfort around their own sex is accommodated, and that these sex-based attitudes are sufficiently hard to change that the government may accomodate them.149
Nonetheless--especially because of the strong presumption against the use of public attitudes as a justification for discrimination--it seems to me that the better argument is that sex segregation is generally impermissible.
d. Sex-Segregated Sports Teams
(1) Women's Teams
If sports had to be sex-integrated, then in many sports men would take virtually all the places on any team. There's vast overlap between the ranges of men's and women's athletic abilities, but near the top, the great majority of the fastest and strongest athletes in many sports are men.150
This doesn't by itself make sex a bona fide qualification. The general premise of
antidiscrimination law is that the chips should fall where they may, even if this disproportionately favors the big or the strong. Even under Title VII's disparate impact component, jobs that require strength may legitimately be filled by the strong even if this means that most of the employees would be men; and employers generally can't try to adjust for this disparity by discriminating based on sex.151 A piano hauling company's (admittedly unlikely) requirement that 50% of its employees be male and 50% be female wouldn't be considered a bona fide
qualification.
The bona fide qualification principle provides an exception from this "let the best person win" model only when there is something different and socially valuable about a female performing a particular task as opposed to a male (or vice versa). This is the normative judgment at the heart of the cases that apply the "essence-of-the-business" test. Courts have concluded that there's nothing especially valuable about all-female flight attendant crews or all-men waiter staffs: Though some people might prefer businesses that are staffed this way, the courts have decided that this preference doesn't deserve accommodation. But courts generally conclude that there is something valuable about sex segregation in plays or even strip shows. The judgments of patrons who prefer to go to an all-female (or all-male) strip show, or who prefer to see a play in which all the male parts are played by men and the female parts by women, do deserve accommodation.152
Women's sports teams should be permissible because there is indeed an important difference between an all-female team and a sex-integrated team that practically ends up all-male or nearly all-male. The very point of competition in these sports is the search for the best women athletes. Many top men's teams are almost certain to beat the top women's team, but we respect the top women's team because they do the best they can given the physical differences between men and women. Following the essence-of-the-business test, "the essence of the [competition] would be undermined by not [using] members of one sex
exclusively."153
There's some arbitrariness to this decision. Though there are certainly physical differences between men and women, there are other physical differences between people that handicap some through no fault of their own. A 5'6" basketball player may do the best he can given the physical differences between himself and people who are a foot taller, but few schools have separate basketball teams for short students.154 In some sense, our judgment that all-female teams are especially valuable, and our respect for the best female players (as opposed to the best short players) is a matter of social consensus and tradition. Nonetheless, this social consensus and tradition--national and international--ought not be lightly ignored.
Even without the CCRI, of course, single-sex sports teams would have to be justified under strict scrutiny.155 Most cases applying intermediate scrutiny to women-only teams have upheld them,156 but there's a split as to whether such
teams are permissible under strict scrutiny.157 There's no relevant California law on this point.
(2) Men's Teams
Sex appears not to be a bona fide qualification for participation on men's sports teams. Under the CCRI, all men's sports teams must become open to all, though practically most places on many teams will probably remain filled by men. Letting women into the competition wouldn't shut out men, and even if a women might be more likely to be injured when playing against men, under bona fide qualifications principles the decision should be left to the woman.158
Letting women onto men's teams probably ought not be seen as changing the essence of the
competition. My sense is that men's sports, unlike women's sports, have traditionally focused on finding the best athletes
generally,159 not specifically the best athletes of a particular sex. Allowing women to compete equally for spots on men's teams will only serve this goal better.
Of course, there is again a certain arbitrariness to the decision here: perhaps some fans do see teams made up of the best male competitors as significantly and valuably different from teams made up of the best competitors of either sex. But some such arbitrariness is present for any decision about what the "essence" of something is. Some people doubtless believe, for instance, that a restaurant in which they are served by male waiters provides a very different dining experience from one in which they are served by female waiters,160 just as watching a male strip show provides a different experience from watching a female strip show.
Nonetheless, for bona fide qualification purposes the line must be drawn somewhere, and it seems fairly clear that the sex of the waiter is generally a much less significant aspect of the dining experience than is, for example, the quality of the service or the food. Likewise, it seems fair to say that the sex of the athletes on a men's basketball team is a far less important aspect of the competition than is the athletes' skill.
Having a women-only team plus a sex-integrated team would be discriminatory against men--women would theoretically have twice as many spots for which they could compete than men would. But the ultimate question isn't simply whether such a scheme would be discriminatory.161 The CCRI doesn't bar sex discrimination when sex is a bona fide qualification, and for the reasons I provided above, sex is indeed a bona fide qualification for participation on the women's team.
Note that even without the CCRI, it's not clear how a men-only requirement would pass strict scrutiny.162
e. Privacy
As mentioned above, privacy is generally accepted as a justification for bona fide qualifications, though generally only when the privacy concerns are not addressable by less discriminatory means.163 Thus, narrow classifications genuinely justified by privacy concerns--for instance, sex-segregated bathrooms and locker rooms for students,164 or sex-conscious assignments of dormitory roommates165--would be exempted by clause (c).166
f. Women's Centers and Similar Programs
If a program aimed at one sex is unrelated to public employment, education, or contracting, the CCRI simply doesn't cover it. For instance, a battered women's shelter that's open to all women--whether or not they are public employees or students at public educational institutions--is outside CCRI's purview, though it might run afoul of the state or federal equal protection clauses.167
Even if the program is linked to public employment or education, the CCRI isn't triggered so long as the program is open to men and women alike. For example, I assume that any rape crisis hotline for students or employees wouldn't turn away male rape victims; if that's so, there's no sex discrimination even if 99.44% of the callers are women.168
If the program is linked to public employment or education and does discriminate based on sex, then the question will be whether sex is a bona fide qualification. Self-defense classes open only to women students or employees probably wouldn't be permitted; though some women might prefer such sex segregation, client preference alone is not enough.169 On the other hand, special shelters for battered women students probably could be limited by sex, if there's evidence that the presence of men might exacerbate the psychological trauma caused by the abuse.170
In these cases, the bona fide qualification issue would probably arise independently of the CCRI. If, for instance, a public university-run shelter for students who are victims of domestic abuse wants to accept only women clients, it would probably want to allow only women employees, too. Thus, any sex discrimination claims brought by students who want to use such a program might equally well be brought by prospective employees under Title VII or the California Fair Employment and Housing Act. The bona fide qualification defense would then have to be raised under these statutes, and the answer there should probably control the answer under the CCRI.
B. Pre-CCRI Decisions, Court Orders, and Consent Decrees
Clause (b) limits the CCRI "only to action taken after the section's effective date," November 6, 1996.171 Any hiring, admissions, or
contracting decisions made before the effective date are
unaffected, though of course subsequent decisions related to those employees, students, or contractors--promotion, academic
assistance, contract modifications--have to be neutral.
Clause (d)--"Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section"--likewise protects a specific, narrow category of settled expectations. Other settled expectations are not protected; for instance, the clause does not cover policies that are simply inspired by preexisting orders or decrees. Suppose a public employer entered into a preferential consent decree for department A, and then for some reason implemented a similar policy in department B--to stave off litigation, for internal consistency, or just out of inertia. The CCRI wouldn't invalidate the department A policy, but it would invalidate the one in department B.
C. Action Necessary for
Eligibility for the Federal Program
"Nothing in [the CCRI] shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where
ineligibility would result in a loss of federal funds to the state."172 This is another narrow exception, limited to cases in which discriminatory conduct meets two
criteria: (1) The action must be taken for eligibility for a federal program, and (2) ineligibility would lead to a loss of federal funds.
The discriminatory conduct thus must be genuinely necessary for eligibility173--it's not enough that it be potentially helpful, or generally consistent with the spirit of the federal program. If it's possible to be eligible without the discrimination, then the discrimination is prohibited, because it's not true that the action "must be taken" for eligibility.
Likewise, if the state can switch to a nondiscriminatory program that will still provide the federal funds, then the discriminatory conduct remains impermissible. In such a case, ineligibility for the discriminatory program would not result in a loss of federal money.
I don't know how many federal programs really require race or sex discrimination; the clause wasn't added with any particular program in mind. It was simply meant to foreclose any possible campaign argument that "[t]he CCRI would cost California voters $X million in federal money," based on some program that opponents might have
unearthed.
D. Federal Government
Actions
Of course, the CCRI can't undo any discriminatory programs specifically dictated by federal law, a federal court order, or a consent decree approved by a federal court. Federal orders and consent decrees, however, may not create preferential policies in disregard of the CCRI unless the court first finds a federal constitutional or statutory violation that requires (and not merely makes plausible) a preferential remedy:
While parties can settle their litigation with consent decrees, they cannot agree to disregard valid state laws . . . . [S]ome rules of law are designed to limit the authority of public officeholders, to make them return . . . to the voters for permission to engage in certain acts. They may chafe at these restraints and seek to evade them, but they may not do so by agreeing to do something state law forbids. . . .
[D]istrict courts must ensure that the consent decrees they approve respect this principle . . . . Once a court has found a federal constitutional or statutory violation . . . a state law cannot prevent a necessary remedy. . . . Without such findings, however, parties can only agree to that which they have the power to do outside of litigation.174
The second and third sentences of clause (h) also make clear that, even if the CCRI conflicts in some cases with federal law, the initiative remains in full effect as to other programs:
If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this
section.
III. REMEDIES
Remedies for CCRI violations track the remedies for violations of other antidiscrimination statutes: "The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law."175
Without such a provision, it would have been unclear whether a damages remedy would be
available; California court of appeal cases allow damage awards for violations of some state constitutional rights (such as the freedom of the press), but not of others (such as equal protection).176 Prevailing plaintiffs would also have been able to get attorney fees only if the case was of broad public importance.177
This uncertain and possibly stingy remedial scheme made it prudent to add a special remedy clause--if a plaintiff could only get an injunction, many
government agencies might be tempted to ignore the initiative's commands until someone actually sued and won. On the other hand, the clause couldn't be too specific. Many people are convinced that government discrimination is wrong, but there's no consensus about the particular remedies that should be available to
discrimination victims. Even the drafters had no fixed view of what the right scheme might be. Perhaps the loser should pay the winner's attorney fees, perhaps not. Perhaps the law's deterrent effect should be strengthened by providing for generous punitive damages; perhaps punitive damages are a mistake and should be scrapped or limited.
Thus, a remedy clause had to leave the courts and the legislature with discretion to adjust the remedies, but also prevent them from creating a special, inadequate remedial scheme that would undercut the CCRI's impact. Clause (g) solves this problem by linking the CCRI's remedies to those for other antidiscrimination claims: If the legislature concludes that punitive damages are generally appropriate for employment discrimination claims, then they will be available for CCRI violations in public employment; if it concludes that the loser should pay the winner's fees in educational
discrimination claims generally, then that will apply to
educational discrimination suits under the CCRI.
Courts should borrow the remedies from the most similar area of the law--for instance, borrow from employment discrimination law in employment cases and from educational discrimination law in education cases. This is the approach that's most consistent with section (g)'s goal of providing the same protection for CCRI claimants as is provided to people with similar non-CCRI cases.178 It should also be the easiest approach to administer, because it will ensure that when people sue under both the CCRI and the
corresponding statutory law--which will often happen--they'll get the same remedies under both.
The "regardless of the injured party's race, sex, color, ethnicity, or national origin" clause bans discriminatory remedies as well as discriminatory treatment. One can imagine a legislature saying: "We'll prohibit all
discrimination in education, but we just won't provide injunctive relief to, say, whites who are excluded from university admissions, or women who are kept off men's sports teams." This should, in any event, be considered discrimination "in the operation of . . . public education," and thus forbidden by clause (a), but a court might conceivably think otherwise. To make clear that such remedies would be impermissible, clause (g) specifically requires that remedies be nondiscriminatory.
Finally, the reference to "then-existing California antidiscrimination law" makes clear that the remedial scheme isn't frozen at November 1996, but should be borrowed from whatever framework is generally in effect at the time the claim takes place. This still leaves the question of the time to which the "then" in "then-existing" refers: Does one, for instance, use the remedies that were in effect when the claim arose, when the lawsuit was brought, when the trial took place, or when the appeal was decided? These issues, however, already arise with all changes in remedies, and California courts have developed a body of law to deal with them.179 The conclusion might be different for different remedies--for instance, the availability of punitive damages might properly be determined by looking to the law at the time of violation, but the
availability of a jury trial might better be decided based on the law at the time of filing or at the time of trial. Courts retain the discretion to make these decisions.
Clause (h)'s statement that "[t]his section shall be self-executing" simply means that people may sue directly for violations of the CCRI, rather than waiting for the legislature to enact some sort of enforcement scheme.180
CONCLUSION
The CCRI is short and simple. In most cases, its commands are quite clear. The world, though, is complex enough that even a clear rule will be somewhat uncertain in some of its applications. In this Article, I've tried to clarify some of these gray areas, and to provide a guide both for lawyers and for government officials who are trying to conform their actions to the CCRI's commands.
It's important to remember, though, that the CCRI isn't the final word on the subject. Unlike the U.S. Constitution, the California Constitution isn't that hard to amend. All it takes is a two-thirds vote in each house of the legislature--or signatures from eight percent of the voters--to put the proposal on the ballot, and then a majority of the votes at the next election to make it law.181
Obviously, it's quite unlikely that California voters will substantially undo the CCRI any time soon. But if one has a plausible case for a narrow exception, people may listen. If, for instance, you think that a police department should be able to make its police force mirror the racial composition of the community, or that a public university should be able to set up race-targeted outreach programs so long as it doesn't discriminate once the applications come in, you might be able to persuade the legislature to place an appropriate proposal on the ballot, and persuade the voters to vote for it.182 I'll disagree with you on this, but perhaps I'll find myself in the minority. And if the amendment passes, it would have a clear popular mandate, which will probably make the race-conscious program easier to actually implement.
But until this happens, courts should stick with what the CCRI says. Whether or not the "living Constitution" model makes sense for the hard-to-change U.S. Constitution, it's inappropriate for the California Constitution. In enacting the CCRI, the people have spoken on a critical moral and pragmatic issue. When they speak again, perhaps their view will be somewhat different. But until they revise their statement, the courts--and all other government officials--are obligated to faithfully follow the people's commands.
APPENDIX A: THE INITIATIVE TEXT 1
(a) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
(b) This section shall apply only to action taken after the section's effective date.
(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.
(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.
(f) For the purposes of this section, "state" shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.
(g) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.
(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.
APPENDIX B: BALLOT PAMPHLET CONTENTS 1
Official Title and Summary Prepared by the Attorney
General
Analysis by the Legislative Analyst BACKGROUND
The federal, state, and local governments run many programs intended to increase opportunities for various groups--including women and racial and ethnic minority groups. These programs are commonly called "affirmative action" programs. For example, state law identifies specific goals for the participation of women-owned and minority-owned companies on work involved with state contracts. State departments are expected, but not required, to meet these goals, which include that at least 15 percent of the value of contract work should be done by minority-owned companies and at least 5 percent should be done by women-owned companies. The law requires departments, however, to reject bids from companies that have not made sufficient "good faith efforts" to meet these goals.
- Other examples of affirmative action programs include:
- Public college and university programs such as scholarship, tutoring, and outreach that are targeted toward minority or women students.
- Goals and timetables to encourage the hiring of members of "underrepresented"
groups for state government jobs.
- State and local programs required by the federal government as a condition of receiving federal funds (such as requirements for minority-owned business participation in state highway construction projects funded in part with federal money).
PROPOSAL
This measure would eliminate state and local government affirmative action programs in the areas of public employment, public education, and public contracting to the extent these programs involve "preferential treatment" based on race, sex, color, ethnicity, or national origin. The specific programs affected by the measure, however, would depend on such factors as (1) court rulings on what types of activities are considered "preferential treatment" and (2) whether federal law requires the continuation of certain programs.
The measure provides exceptions to the ban on preferential treatment when necessary for any of the following reasons:
- To keep the state or local governments eligible to receive money from the federal government.
- To comply with a court order in force as of the effective date of this measure (the day after the election).
- To comply with federal law or the United States Constitution.
- To meet privacy and other considerations based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.
FISCAL EFFECT
If this measure is approved by the voters, it could affect a variety of state and local programs. These are discussed in more detail below.
Public Employment and Contracting
The measure would eliminate affirmative action programs used to increase hiring and promotion opportunities for state or local government jobs, where sex, race, or ethnicity are preferential factors in hiring, promotion, training, or recruitment decisions. In addition, the measure would eliminate programs that give preference to women-owned or minority-owned companies on public contracts. Contracts affected by the measure would include contracts for construction projects,
purchases of computer equipment, and the hiring of consultants. These prohibitions would not apply to those government agencies that receive money under federal programs that require such affirmative action.
The elimination of these programs would result in savings to the state and local governments. These savings would occur for two reasons. First, government agencies no longer would incur costs to
administer the programs. Second, the prices paid on some
government contracts would decrease. This would happen because bidders on contracts no longer would need to show "good faith efforts" to use minority-owned or women-owned subcontractors. Thus, state and local governments would save money to the extent they otherwise would have rejected a low bidder--because the bidder did not make a "good faith effort"--and awarded the contract to a higher bidder.
Based on available information, we estimate that the measure would result in savings in employment and contracting programs that could total tens of millions of dollars each year.
Public Schools and Community Colleges
The measure also could affect funding for public schools (kindergarten through grade 12) and community college programs. For instance, the measure could eliminate, or cause fundamental changes to, voluntary desegregation programs run by school districts. (It would not, however, affect court-ordered desegregation programs.) Examples of desegregation spending that could be affected by the measure include the special funding given to (1) "magnet" schools (in those cases where race or ethnicity are preferential factors in the admission of students to the schools) and (2) designated "racially isolated minority schools" that are located in areas with high proportions of racial or ethnic minorities. We estimate that up to $60 million of state and local funds spent each year on voluntary desegregation programs may be affected by the measure.
In addition, the measure would affect a variety of public school and community college programs such as counseling, tutoring, outreach, student financial aid, and financial
aid to selected school districts in those cases where the programs provide preferences to individuals or schools based on race, sex, ethnicity, or national origin. Funds spent on these programs total at least $15 million each year.
Thus, the measure could affect up to $75 million in state spending in public schools and community colleges.
The State
Constitution requires the state to spend a certain amount each year on public schools and community colleges. As a result, under most situations, the Constitution would require that funds that cannot be spent on programs because of this measure instead would have to be spent for other public school and community college programs.
University of California and California State University
The measure would affect admissions and other programs at the state's public universities. For example, the California State University (CSU) uses race and ethnicity as factors in some of its admissions decisions. If this initiative is passed by the voters, it could no longer do so. In 1995, the Regents of the University of California (UC) changed the UC's admissions policies, effective for the 1997-98 academic year, to eliminate all consideration of race or ethnicity. Passage of this initiative by the voters might require the UC to implement its new admissions policies somewhat sooner.
Both university systems also run a variety of assistance programs for students, faculty, and staff that are targeted to individuals based on sex, race, or ethnicity. These include programs such as outreach, counseling, tutoring, and financial aid. The two systems spend over $50 million each year on programs that probably would be affected by passage of this measure.
Summary
As described above, this measure could affect state and local programs that currently cost well in excess of $125 million annually. The actual amount of this spending that might be saved as a result of this measure could be considerably less, for various reasons:
- The amount of spending affected by this measure could be less depending on (1) court rulings on what types of activities are considered
"preferential treatment" and (2) whether federal law requires continuation of certain programs.
- In most cases, any funds that could not be spent for existing programs in public schools and community colleges would have to be spent on other programs in the schools and colleges.
- In addition, the amount affected as a result of this measure would be less if any existing affirmative action programs were declared unconstitutional under the United States Constitution. For example, five state affirmative action programs are currently the subject of a lawsuit. If any of these programs are found to be unlawful, then the state could no longer spend money on them--regardless of whether this measure is in effect.
- Finally, some programs we have identified as being affected might be changed to use factors other than those
prohibited by the measure. For example, a high school outreach program operated by the UC or the CSU that currently uses a factor such as ethnicity to target spending could be changed to target instead high schools with low percentages of UC or CSU
applications.
Argument in Favor of Proposition 209 THE RIGHT THING TO DO! A generation ago, we did it right. We passed civil rights laws to prohibit discrimination. But special interests hijacked the civil rights movement. Instead of equality, governments imposed quotas, preferences, and set-asides.
Proposition 209 is called the California Civil Rights Initiative because it restates the historic Civil Rights Act and proclaims simply and clearly: "The state shall not discriminate against, or grant preferential treatment to, any individual or group, on the basis of race, sex, color,
ethnicity or national origin in the operation of public employment, public education, or public contracting."
"REVERSE
DISCRIMINATION" BASED ON RACE OR GENDER IS PLAIN WRONG!
And two wrongs don't make a right! Today, students are being rejected from public universities because of their RACE. Job applicants are turned away because their RACE does not meet some "goal" or "timetable." Contracts are awarded to high bidders because they are of the preferred RACE.
That's just plain wrong and unjust. Government should not discriminate. It must not give a job, a university admission, or a contract based on race or sex. Government must judge all people equally, without
discrimination!
And, remember, Proposition 209 keeps in place all federal and state protections against discrimination!
BRING US TOGETHER!
Government cannot work against discrimination if government itself discriminates. Proposition 209 will stop the terrible programs which are dividing our people and tearing us apart. People naturally feel resentment when the less qualified are preferred. We are all Americans. It's time to bring us together under a single standard of equal treatment under the law.
STOP THE GIVEAWAYS!
Discrimination is costly in other ways. Government agencies throughout California spend millions of your tax dollars for costly bureaucracies to administer racial and gender discrimination that masquerade as "affirmative action." They waste much more of your money awarding high-bid contracts and sweetheart deals based not on the low bid, but on unfair set-asides and preferences. This money could be used for police and fire protection, better education and other programs--for everyone.
THE BETTER CHOICE: HELP ONLY THOSE WHO NEED HELP!
We are individuals! Not every white person is advantaged. And not every "minority" is
disadvantaged. Real "affirmative action" originally meant no discrimination and sought to provide opportunity. That's why Proposition 209 prohibits discrimination and preferences and allows any program that does not discriminate, or prefer, because of race or sex, to continue.
The only honest and effective way to address inequality of opportunity is by making sure that all California children are provided with the tools to compete in our society. And then let them succeed on a fair, color-blind, race-blind, gender-blind basis.
Let's not perpetuate the myth that "minorities" and women cannot compete without special
preferences. Let's instead move forward by returning to the fundamentals of our democracy: individual achievement, equal opportunity and zero tolerance for discrimination against--or for--any individual.
Vote for FAIRNESS . . . not favoritism!
Reject
preferences by voting YES on Proposition 209.
PETE WILSON
Governor, State of California
WARD CONNERLY
Chairman, California Civil Rights Initiative
PAMELA A. LEWIS
Co-Chair, California Civil Rights
Initiative
Rebuttal to Argument in Favor of Proposition
209THE WRONG THING TO
DO! A generation ago, Rosa Parks launched the Civil Rights movement, which opened the door to equal opportunity for women and minorities in this country. Parks is against this deceptive initiative. Proposition 209 highjacks civil rights language and uses legal lingo to gut protections against discrimination. Proposition 209 says it eliminates quotas, but in fact, the U.S. Supreme Court already decided--twice--that they are illegal. Proposition 209's real purpose is to eliminate affirmative action equal opportunity programs for qualified women and minorities including tutoring, outreach, and mentoring.
PROPOSITION 209 PERMITS DISCRIMINATION AGAINST WOMEN.
209 changes the California Constitution to permit state and local governments to discriminate against women, excluding them from job categories.
STOP THE POLITICS OF DIVISION
Newt Gingrich, Pete Wilson, and Pat Buchanan support 209. Why? They are playing the politics of division for their own political gain. We should not allow their ambitions to sacrifice equal opportunity for political
opportunism.
209 MEANS OPPORTUNITY BASED SOLELY ON
FAVORITISM.
Ward Connerly has already used his influence to get children of his rich and powerful friends into the University of California. 209 reinforces the "who you know" system that favors cronies of the powerful.
"There are those who say, we can stop now, America is a color-blind society. But it isn't yet, there are those who say we have a level playing field, but we don't yet." Retired General Colin Powell [5/25/96].
VOTE NO ON 209!!!
PREMA MATHAI-DAVIS
National Executive Director, YWCA of the U.S.A.
KAREN MANELIS
President, California American Association of University Women
WADE HENDERSON
Executive Director, Leadership Conference on Civil
Rights
Argument Against Proposition 209VOTE NO ON PROPOSITION 209
HARMS EQUAL OPPORTUNITY FOR WOMEN AND MINORITIES
California law currently allows tutoring, mentoring, outreach, recruitment, and counseling to help ensure equal opportunity for women and
minorities. Proposition 209 will eliminate affirmative action programs like these that help achieve equal opportunity for women and minorities in public employment, education and contracting. Instead of reforming affirmative action to make it fair for everyone, Proposition 209 makes the current problems worse.
PROPOSITION 209 GOES TOO FAR
The initiative's language is so broad and misleading that it eliminates equal opportunity programs including:
- tutoring and mentoring for minority and women students;
- affirmative action that encourages the hiring and promotion of qualified women and minorities;
- outreach and recruitment programs to encourage applicants for government jobs and contracts; and
- programs designed to encourage girls to study and pursue careers in math and science.
The independent, non-partisan California Legislative Analyst gave the following report on the effects of Proposition 209:
"[T]he measure would eliminate a variety of public school (kindergarten through grade 12) and community college programs such as counseling, tutoring, student financial aid, and financial aid to selected school districts, where these programs are targeted based on race, sex, ethnicity or national origin." [Opinion Letter to the Attorney General, 10/15/95].
PROPOSITION 209 CREATES A LOOPHOLE THAT ALLOWS DISCRIMINATION AGAINST WOMEN
Currently, California women have one of the strongest state constitutional protections against sex discrimination in the country. Now it is difficult for state and local government to discriminate against women in public employment, education, and the awarding of state contracts because of their gender. Proposition 209's loophole will undo this vital state constitutional protection.
PROPOSITION 209 LOOPHOLE PERMITS STATE GOVERNMENT TO DENY WOMEN OPPORTUNITIES IN PUBLIC EMPLOYMENT, EDUCATION, AND CONTRACTING, SOLELY BASED ON THEIR GENDER. PROPOSITION 209 CREATES MORE DIVISION IN
OUR COMMUNITIES
It is time to put an end to politicians trying to divide our communities for their own
political gain. "The initiative is a misguided effort that takes California down the road of division. Whether intentional or not, it pits communities against communities and individuals against each other."
--Reverend Kathy Cooper-Ledesma
President, California Council of Churches.
GENERAL COLIN POWELL'S POSITION ON PROPOSITION 209:
"Efforts such as the California Civil Rights Initiative which poses as an equal opportunities initiative, but which puts at risk every outreach program, sets back the gains made by women and puts the brakes on expanding opportunities for people in need."
--Retired General Colin Powell, 5/25/96.
GENERAL COLIN POWELL IS RIGHT.
VOTE "NO" ON PROPOSITION 209--
EQUAL OPPORTUNITY MATTERS
FRAN PACKARD
President, League of Women Voters of California
ROSA PARKS
Civil Rights Leader
MAXINE BLACKWELL
Vice President, Congress of California Seniors,
Affiliate of the National Council of Senior Citizens
Rebuttal to Argument Against Proposition
209
Don't let them change the subject. Proposition 209 bans discrimination and preferential treatment--period. Affirmative action programs that don't
discriminate or grant preferential treatment will be UNCHANGED. Programs designed to ensure that all persons--regardless of race or gender--are informed of opportunities and treated with equal dignity and respect will continue as before.
Note that Proposition 209 doesn't prohibit consideration of economic disadvantage. Under the existing racial-preference system, a wealthy doctor's son may receive a preference for college admission over a dishwasher's daughter simply because he's from an "underrepresented" race. THAT'S UNJUST. The state must remain free to help the economically disadvantaged, but not on the basis of race or sex.
Opponents mislead when they claim that Proposition 209 will legalize sex discrimination. Distinguished legal scholars, liberals and conservatives, have rejected that argument as ERRONEOUS. Proposition 209 adds NEW PROTECTION against sex discrimination on top of existing ones, which remain in full force and effect. It does NOTHING to any existing constitutional provisions.
Clause c is in the text for good reason. It uses the legally-tested language of the original 1964 Civil Rights Act in allowing sex to be considered only if it's a "bona fide" qualification. Without that narrow exception, Proposition 209 would require unisex bathrooms and the hiring of prison guards who strip-search inmates without regard to sex. Anyone opposed to Proposition 209 is opposed to the 1964 Civil Rights Act.
Join the millions of voters who support Proposition 209. Vote YES.