Calif. Voters To Weigh In on Preference-Based Policies

By Lynn Schnaiberg — October 23, 1996 5 min read

The debate over programs and policies that grant preferences based on factors such as race and sex will soon be in the hands of California voters.

The full implications for public schools of the California Civil Rights Initiative are fuzzy, observers caution.

But it seems clear that passage of the measure, which appears on the state’s Nov. 5 ballot as Proposition 209, would raise questions about a host of programs that public K-12 schools and colleges offer--from voluntary desegregation efforts to certain tutoring and outreach programs. It would also call into question schools’ recruitment, hiring, and contracting practices. And it could affect some students’ access to college.

The broadly worded proposal would amend the California constitution to require that the state and local governments, including school districts, not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in public employment, education, or contracting.

Recent polls show most California voters favor the measure, though the percentage of undecided voters has grown since the proposal emerged last year, according to a recent Field Poll.

But political pundits in California say the opponents of Proposition 209--including most of the state’s education groups--will have a hard time turning the tide so close to the election.

Many see the ballot initiative as part of a broader scrutiny of affirmative action. Although affirmative action has not been as prominent an issue in the current presidential campaign as many had predicted, the topic came up in last week’s debate between President Clinton and former Sen. Bob Dole. Mr. Dole last week reiterated his support for the California proposal. Mr. Clinton opposes the initiative.

Battle of Words

Proponents argue that California needs Proposition 209 “to end the regime of race- and sex-based quotas, preferences, and set-asides now governing state employment, contracting, and education.” Equality before the law, they argue, has turned into “government-sanctioned discrimination.”

Supporters of the measure such as Clint Bolick, the litigation director for the Institute for Justice, a libertarian public-interest law firm in Washington, argue that it rightfully emphasizes equal opportunity for all Americans, rather than equal results. A preference for one person, the argument goes, means another is discriminated against.

The initiative’s authors are two academics. Its most high-profile backers include a member of the University of California system’s board of regents, Gov. Pete Wilson, and Mr. Dole.

While proponents say Proposition 209 would wipe out discrimination and government preferences and promote racial harmony, opponents argue that it would undercut civil rights and abolish affirmative action and equal-opportunity programs. Critics have charged proponents with deceiving voters by calling the measure a “civil rights” initiative, and they note that racial discrimination already is illegal under federal civil rights law.

In addition to most of the state’s education organizations--and the elected state schools chief, Delaine Eastin--many state and national women’s and civil rights groups oppose Proposition 209. Women’s groups have argued that a clause in the proposal would lower the standard of protection from discrimination that women and girls currently have under state law.

Interpreting Preference

Public schools have questions about how Proposition 209 would affect their hiring practices and student programs.

School districts’ affirmative action policies in recruitment, hiring, training, and promotion or contracting with minority- or women-owned firms might be barred, according to an interpretation of the ballot measure by the state’s independent legislative analyst.

The measure would not prohibit action schools take to abide by federal programs or rules--which is why many say claims that the initiative would threaten girls’ athletics programs are far-fetched. Federal law prohibits sex discrimination in education programs that receive federal funding. And another Proposition 209 provision says it could not violate any existing court order, which means court-ordered desegregation programs would not be affected.

But some magnet schools that use race or ethnicity to assign students and districts’ voluntary desegregation programs, for which the state spends about $90 million a year, might be outlawed. Other areas affected could include certain counseling, outreach, tutoring, and college-preparation or mentoring programs designed for racial minorities or girls.

But observers caution that programs would have to be examined individually to see whether they would pass muster under Proposition 209. And the initiative’s constitutionality would almost certainly face state and federal court challenges, legal experts say.

“If you go into a predominantly Latino neighborhood to recruit teachers, at what stage does that become a ‘preference’? If a district spends money to recruit black teachers, is that a ‘preference’?” asked Abhas Hajela, a lawyer for the California School Boards Association. “There are a lot of ways to interpret this thing, and the courts will have to sort it out.”

Backers of the measure say that many of the opponents’ predictions are overblown and that programs could be retooled to rely on criteria like poverty to reach a certain segment of students.

“You can’t presume disadvantage from skin color,” Gail L. Heriot, a co-chairwoman of the Proposition 209 campaign and a University of San Diego law professor, said last week.

Lack of ‘Thunder’

The initiative would essentially do for the state’s entire public higher education system what the University of California regents did in July 1995 when they voted to eliminate the use of race, sex, and ethnicity in UC admissions, hiring, and contracting, said Patrick M. Callan, the executive director of the California Higher Education Policy Center, an independent research and policy group in San Jose.

While most observers predict Proposition 209 will pass, it will do so “without thunder,” predicted Sherry Bebitch Jeffe, a political analyst at the Claremont Graduate School. Many California candidates have avoided the measure in their campaigns.

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A version of this article appeared in the October 23, 1996 edition of Education Week as Calif. Voters To Weigh In on Preference-Based Policies


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