The Public Policy: California Roll

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...Ignorance also played a role in the GOP's retreat...

...209's "chief purpose"-"to prohibit affirmative action programs by public entities that are inconsistent with the prohibition in this measure...

...Here is the CCRI's central provision: "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...

...As spring turned to summer, it was thought that CCRI's presence on the ballot in a presidential year would redound to the Republicans' benefit, who after all had been railing against preferences since capturing Congress in 1994...

...The smart money still says the measure will pass...

...zo9 would authorize new discrimination against women...

...Not all liberal lawyers are backing the Clause (c) argument...

...Custred and Wood say they included the clause only to make clear that the initiative would not require such extreme sex-neutrality as, for example, to prevent state prisons from using only women guards to stripsearch female inmates...

...Ca to 's so hot it's cool...

...John Malone...

...Opponents have also tried to turn CCRI into a vote on "affirmative action...

...When these voters were told that the initiative would eliminate state affirmative action programs, support fell to 43-40 4 There is substantially more support for affirmative action when it is defined as non discriminatory outreach...

...When a summary of CCRI was read to a sample of 1,5oo registered voters last July, 59 percent favored it and 29 percent opposed it...

...It does not mean nothing in the rest of the California constitution...

...Cato Institute Headquarters Washington...

...In fact, early versions of the initiative did use "classifications...

...But it didn't work out that way...

...Last winter, even before the initiative qualified for the ballot, its opponents began advancing an argument on which they continue to place great weight-the contention that Prop...

...On the November ballot as Proposition 209, the measure would stitch into the state constitution a ban against race- and sex-based preference sponsored by public entities throughout the state...

...209 "would outlaw all affirmative action programs in California...

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...2o9 at L.A.'s federal courthouse on November 6. * "The hottest flunk tank in Was It's the Cato Institute: ' of becatise in the glowing nurrcalcni to privatize Social Security H Ow a\•rllional lwlru(ll writes...

...We could have a swing from plus-three to minus-four, just in California...

...CCRI Chairman Ward Connerly has been called an "Uncle Tom," "a sell-out," "an angry Oreo," and "a traitor to his race...

...One anti-CCRI lawyer even described preferential treatment as a "big, amorphous blob" -rhetorically effective, perhaps, but decidedly untrue: The term is in the 1964 Civil Rights Act and in numerous Supreme Court opinions...

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...Custred and Wood could have used "bona fide classifications" instead of "bona fide qualifications," since the former is generic while the latter has employment connotations...

...Then-Assembly Speaker Willie Brown blocked a vote to put the popular measure on the March ballot, leaving Wood and Custred no choice but to go to the people, an alternative provided for by the California constitution...

...The final decision to go with "qualifications," says Wood, reflected a desire to track as closely as pos 66 November r 9 9 6 • The American Spectator sible the actual language of Title VII...

...This clause, opponents have argued, would weaken the exacting "strict scrutiny" test that sex-based classifications now must pass under the California constitution, in favor of a much less demanding "reasonableness" testin other words, allowing more sex-based classifications than the state currently allows, and thus more discrimination against women...

...The argument is based on Clause (c) of the initiative, which reads: "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...

...I n early September, California Governor Pete Wilson organized a conference call with House Speaker Newt Gingrich and sixty California business executives, most of them Republicans...

...1~ In August, however, the attempt to exploit this ambiguity about "affirmative action" suffered a legal setback...

...Its language recalls Title VII of the 1964 federal civil rights statute, which permits sex-based hiring when "sex is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise...

...California law requires the attorney general to provide a ballot "title and summary" that gives "a true and impartial statement of the purpose of the measure...

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...Attorney General Dan Lungren did so by using the words from the bill itself: "preferential treatment...

...Since that would have required a bipartisan vote, they foresaw an initiative backed by prominent Democrats and Republicans alike...

...or write the Cato Institure at 1000 s1assaclnisetts Avenue \\V...

...Only recently were a few preferential policies ended, most notably in University of California admissions, which will no longer favor black and Chicano applicants over whites and Asians after this year...

...Cato's intellectual guns now roar throughout the capital...

...I lot because- rather than liberal or coJisel vative, it's libertarian in prottrcting social arr[l economic liberties - from First Amendment rights in cyberspace to Medical Savings Accounts...

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...Under customary rules of legal interpretation, "nothing in this section" means nothing in the initiative itself...

...Prop...

...Only if such outreach efforts were designed to produce an applicant pool that excluded qualified non-minorities would they violate the CCRI ban...

...C1ieck out our Cato web page at http://www.cato.org, a-mail us at cato[,'cato.org...

...209] is still ahead by a dramatic margin [late in the campaign], Clinton has to take his time and money out of the Midwest to put in California...

...classifications currently permitted would be the model for those of the future...

...The president hasn't had to focus his resources on California, and neither Clinton, who opposes the initiative, nor Bob Dole, who supports it, has made it a campaign issue...

...Although spirited and well financed, "No on zo9" has made little headway-primarily because the term "preferential treatment" remains anathema to most voters...

...Charles Rangel made sure there'd be no further such moves when he accused Republicans of racism, and tossed in Hitler to good effect...

...They needn't have worried...

...zo9 and the presidential campaign have had very little...

...In essence the measure goes back to the future-specifically, to recover the race- and sex-neutral principles originally articulated in the Civil Rights Act of 1964...

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...Car is at the center of the action .r I lot eucruglt to have John Malone, Fred Smith, and Teddy Forstmann can the hoard of dircciurs...Hot because it's leading the charge to eliminate the IRS code and replace it with a simple 11al lax or retail sales ta...

...I always get suspicious when people shy away from the main substantive debate and turn it in other directions...

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...A reporter from the Los Angeles Daily News was mistakenly included in the call, which was a plea to help finance the California Civil Rights Initiative campaign...

...If you're going to have a public discussion over a difficult issue," Sherry told the San Francisco Chronicle, "you ought to play it straight...

...As well, these classifications would continue to be governed by the equal protection clause of the Fourteenth Amendment, which, as a result of last summer's ruling in the VMI case, now virtually demands that they pass "strict scrutiny...

...In fact, the initiative would leave non-preferential affirmative action programs untouched...

...Another line of attack has been to argue (with a straight face) that the California government doesn't actually engage in preferential treatment, even though the California legal code is chockablock with provisions that encourage if not require public agencies to make race or sex a source of advantage...

...He called the argument "quite simply, ludicrous," and the campaign based on it, "Orwellian Doublespeak...

...The Supreme Court has described this provision as "an extremely narrow exception to the general prohibition of discrimination on the basis of sex," and so it has proved to be...

...Thus, a "sample letter to the editor" distributed by Educators for justice claims that Prop...

...The pro-CCRI ranks worry about a last-hour, massive media campaign they would be hard-pressed to match, though this could merely be a case of late-campaign jitters...

...That's why opponents have already set the wheels in motion to begin a constitutional challenge to Prop...

...Accord ing to a 1995 Washington Post poll, 86 per cent of whites, 78 percent of Hispanics, and 68 percent of blacks reject using race even as "a factor" in admissions or job decisions...

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...A paper taking issue with it was released earlier this year by a group of twenty-five law professors of mixed views on CCRI, including liberals like Jesse Choper of the University of California and Suzanna Sherry of the University of Minnesota...

...With the university president's blessing, the student government at Cal State Northridge even imported David Duke as an anti-affirmative action debater (for a fee of $4,000...

...If [Prop...

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...No on 209," a coalition very much like the one that defeated the Bork nomination, comprises more than 150 women's- and civil-rights organizations, among them the Feminist Majority, the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund, the NAACP, the National Gay and Lesbian Task Force, the National Organization for Women, People for the American Way, the Rainbow Coalition, and the (recently politicized) Young Women's Christian Association...

...An activist superior court judge agreed, ordering Lungren to edit the title and summary to reflect Prop...

...By the spring of this year, more than a million signatures secured a spot for CCRI on the November ballot...

...Whether for or against it, the authors of those opinions knew just what it meant: race- or sex based favoritism...

...CCRI remains popular among Californians, with polls showing it ahead by double-digit margins even greater than those enjoyed by Bill Clinton...

...But fear unnerved the GOP, fear of being accused of racism and intolerance...

...Ultimately, the Clause (c) business boils down to a claim that some 4 Ward Connerly has been called an 'Uncle Tom,' 'a sell-out/and 'an angry Oreo.' / 7 court might interpret the clause in some outlandish way-something that can be said about any legal provision...

...No on 2o9" then charged in court that Lungren's wording was misleading inasmuch as it failed to mention "affirmative action...

...One tack has been to claim that "preferential treatment" doesn't have a legal The American Spectator • November r 9 9 6 65 definition-and thus California's constitution shouldn't include a provision judges won't know how to interpret...

...Assuming, doubtless correctly, that such distinctions are lost on most voters, CCRI opponents are capitalizing on what voter surveys have routinely discovered: There is substantially more support for affirmative action than for preferences, when affirmative action is defined as nondiscriminatory outreach and recruitment...

...According to the Daily News, whose account was not disputed, Gingrich told the executives, "The California Civil Rights Initiative is vital because we have to be competitive in California to keep control of the House...

...Sloe :t•lirrrmVIeurs, lilt...

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...209 by 54-28• ome opponents of the measure have turned to inflammatory rhetoric and even dirty tricks...

...Opponents of the initiative have imputed bad motive, calling Clause (c) a "secret attack" against women and girls...

...Thus, whatever sex-based classifications now prohibited would remain so...

...Such attention means it's not out of the question that the distortions and angry rhetoric may erode CCRI's support...

...I think this is as important as any single resource in the campaign...

...Stuart Taylor, the excruciatingly centrist lawyer who writes for Legal Times, showed more passion than usual in exposing the Clause (c) canard...

...T H E P U B L I C P O L I C Y California Roll by `ferry Eastland CCRI struggles on against critics and GOP cowardice...

...San Francisco mayor Willie Brown says anyone who votes for the initiative is a racist...

...In fact, says Custred, their original hope was that the legislature would put the measure on the March 1996 ballot...

...That's fine with Glynn Custred and Tom Wood, the two academics who wrote the initiative...

...it's difficult for Republicans to debate an issue that they've made little effort to understand...

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...An appeals court subsequently reversed the decision after observing the obvious-that Lungren's summary was an "essentially verbatim recitatio[n] of the operative terms of the initiative," and that he had "added [and] omitted nothing, and the words [he] used are all subject to common understanding...

...Opponents of CCRI professed to be shocked that a politician was thinking politically about the initiative's role in the presidential and congressional races...

...TxuY EASTLAND is editor o f Forbes MediaCritic, a fellow at the Ethics and Public Policy Center, and the author most recently o f Ending Affirmative Action: The Case for Colorblind Justice (Basic Books...

...Consequently, CCRI opponents have resorted to obfuscation and equivocation, much of it lawyer-supplied...

...He can't win the presidency without winning California...

...Not everyone, of course, sees it that way...

...So far, the Clause (c) tactic hasn't worked for the CCRI opponents either: A mid-September Los Angeles Times poll found women support Prop...

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...Connerly would have debated for free, says CCRI spokesman Arnold Steinberg, but then he wouldn't have provided the "guilt-by-association"and the CNN coverage-that only someone like Duke could provide...

...Universities could still energetically recruit minority applicants, and state agencies could still look for minority job-seekers with the necessary skills...

...The new Congress ended only one preferential program-the FCC's favors to minority buyers of certain broadcast properties...

...Yet anti-CCRI forces counter that Title VII concerns employment only, not education and contracting, which is where they see a hidden agenda...

...Very likely, had the authors stayed with "classifications," they would have been charged with straying from Title VII...

...INSTITUTE 67 The American Spectator • November 1996...

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