On November 5, 1996, voters in California passed Proposition 209, a statewide ballot initiative that ended affirmative action preferences there. The initiative amended the state constitution to provide: “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.”
The wording of Proposition 209 closely tracks the language of the 1964 Civil Rights Act, reaffirming the intent of that landmark federal legislation. But the grievance industry, also known as the civil rights establishment, and the academic intelligentsia fought hard against the ballot initiative. Immediately after its passage, a variety of groups challenged its constitutionality in court, arguing that it amounted to illegal discrimination for the state to ban, uh, discrimination. They lost. But for them, the battle had only begun.
Jesse Jackson called on California officials to “defy, challenge, resist” the law. He bused in supporters and led an anti-209 march across the Golden Gate Bridge. The vice mayor of Oakland promised to “chip away” at the law until its effectiveness was negated. Across the bay, when San Francisco mayor Willie Brown was asked on local television whether he would obey the law, he answered flatly, “No.” In fact, the city expanded its municipal contracting preferences. A Los Angeles County affirmative action officer told USA Today, “I am very defiant when it comes to something that had no business being voted on.”
Connie Rice of the NAACP Legal Defense Fund disingenuously argued that the word “preference” in Proposition 209 is ambiguous, and vowed to litigate the issue. The U.S. Department of Education’s Office for Civil Rights began investigating a complaint filed by civil rights groups that California’s new colorblind admissions to state universities violated federal antidiscrimination laws. The investigation is still underway, according to the office’s head, Norma Cantu. The Chico Enterprise-Record concluded that supporters of preferences were determined to “force opponents to go to court to implement changes.”
Now, nearly four years after the voters endorsed Proposition 209, resistance continues. Consider, for example, two recent incidents involving faculty hiring in the California state university system.
At California State University, Hayward, Dean Michael Good on April 20 declared the search for a professor of African-American history “unsuccessful” after the search committee and the chairman of the history department unanimously recommended that the job be offered to a white woman. The action prompted a remarkable memorandum signed by every tenured member of the history faculty criticizing Good for caving in to pressure from outside the department to appoint only a black to that position.
The memo said Dean Good had been swayed by “inappropriate and likely unlawful outside interference” from two faculty members in other departments: Michael Clark, chairman of the department of ethnic studies, and Terry Jones of the department of sociology and social services. Clark had made vague and unsubstantiated allegations that “someone on the search committee” had “a racial agenda.” When the history department chairman said he was concerned that the recommended hire not be made a scapegoat, Jones, according to the memo, responded: “We won’t go after her, but we’ll certainly go after you and your department, and if she’s stupid enough to come here, then anything that happens should be expected.” Jones added, “It’s just business.”
Richard A. Garcia — the chairman of the search committee and a former chairman of the department of ethnic studies — wrote a letter to the campus newspaper stating that Good had all but admitted bending to the demand that only a black be hired. Good “came to a meeting of the history department to explain his position,” wrote Garcia. “At the meeting he acknowledged that he was ‘under extreme pressure’ from Jones and Clark and others who had visited him and suggested that any candidate chosen who was not Black would not be acceptable.” Garcia accused Jones and Clark of “urging black power through the politics of skin color rather than informed opinion and real academic fairness.” Another history professor, Jose A. Fernandez, agreed. He wrote, “I am ashamed of this institution.”
Dean Good asserted that there had been “procedural irregularities” in the search, but the department pointed out that the same process had been followed for over a decade, and in nine separate instances, without any objection from the administration. The department accused the dean of “selective enforcement” of the rules and called his claim a “pretext.”
The history department at Hayward is, incidentally, not exactly a seedbed of Jim Crowism. The memo points out that it has hired only one white male since 1971, and indeed the department now has only two non-Hispanic white males. Likewise, according to the memo, the recommended candidate
is a remarkably dedicated and energetic young woman who graduated from a predominantly minority high school, worked her way through college as well as a demanding Ph.D program, and has extensive teaching experience with minority students at the K-12 and university levels. . . . She is, in other words, strikingly similar in background and aspiration to many of Hayward’s students. Her Ph.D mentor is an outstanding African American historian . . . who has verbally described her as a “gem.”
It was for this reason, according to professor Richard Orsi, senior faculty member in the history department, that there was not a second choice for the position at issue. There was only one choice, he said, namely, the candidate who was rejected because of the color of her skin.
When asked about racial considerations in hiring, Norma Rees, president of the Hayward campus, told the student newspaper that Proposition 209 didn’t apply to her institution because it received federal money and was thus governed only by federal law. But the school is required to obey both federal and state laws unless it is impossible to do both, and no federal law requires the blatant discrimination suffered by the woman recommended for the opening in the history department. Indeed, the school has violated both federal and state laws.
The second incident involves another history department, this one at California State University, Chico. Last year, the department was looking for someone to teach “nineteenth-century American technology, science, and medicine.” The field was narrowed to eight candidates, three women and five men. Only the women were interviewed, and the job was offered to one of them.
Charles Geshekter, the second most senior faculty member in the department, reviewed the files and found that two of the women interviewed were clearly unsuitable, while three and probably four of the male candidates were “strong.” In a March 5, 1999, memorandum to the department’s personnel committee, he concluded: “Facially, there appears to have been a desire on the part of the Personnel Committee to hire only women.”
The Personnel Committee told Geshekter in an e-mail that his request for a written response was “excessive.” Geshekter did, however, succeed in extracting an interesting document from Janet Saunders, director of employment practices and affirmative action at Chico. Titled “Utilization Report for 1998-99” for the history department, it lists the number of female and minority faculty members and concludes, “HIRING GOAL FOR NEXT HIRE: FEMALE.” Similarly, Chico’s “Revised Recruitment Guidelines” are steeped in implicit and explicit demands that race, ethnicity, and sex permeate the faculty hiring process from beginning to end. They are dated August 25, 1998 — nearly two years after Proposition 209 was passed.
Hayward and Chico are not alone. A recent proposal for faculty recruitment policy at the University of California, Davis, urges: “Failure on the part of departments and other units to make vigorous efforts to diversity the faculty should result in the withholding of additional [positions] and additional recruitment-related discretionary funds until the dean is sure that future recruitments will be effective.”
Proposition 209 prohibits racial and ethnic preferences not only in public employment and education — both of which bans are violated when a state university discriminates in faculty hiring — but also in public contracting. And here, too, the bureaucracies are resisting the law.
The city of San Jose, for instance, has been sued for requiring bidders on its construction contracts either (1) to send “solicitation letters” to at least four minority- or female-owned firms for each trade area identified in the project, follow up on the letters by contacting the firms, and negotiate in good faith and not “unjustifiably” reject a bid from them, or (2) to list a specified number of such firms as accepted participants in the bid. As an appellate court ruled in striking down this scheme, it is “a municipal program designed to increase participation by minority and women businesses in public construction projects.”
The case involving San Jose’s contracting practices is now pending before the California state supreme court. The city is being supported by the state attorney general and the U.S. Justice Department’s civil rights division. A friend-of-the-court brief filed by the latter argues that, if Proposition 209 means what it says, then it violates federal law. This is because, according to the Clinton administration, federal law requires discrimination.
California’s Democratic governor, Gray Davis, has played a surprisingly positive role in opposing the emasculation of Proposition 209. On July 28, 1999, he vetoed Senate Bill 44, which would have endorsed San Jose’s sort of targeted outreach in education and employment. Davis had opposed Proposition 209, but when it passed, he recognized that the people had spoken and that it had become part of the state constitution. He concluded that Senate Bill 44 could not be squared with the language of the ballot initiative. Davis also appears to be unhappy with the recommendations he has received from a 26-member task force on minority outreach, which reportedly are inconsistent with the letter and spirit of Proposition 209. He has so far declined to release the study.
Davis’s refusal to toe the preference line is good evidence that quotas remain politically unpopular. And rightly so. The young woman passed over by the dean at Hayward illuminates the human costs of racial discrimination. And such costs are ubiquitous. Skin color, ancestry, and sex influence hiring and contracting not just once in a while, as a tie-breaker. Instead, such discrimination is pervasive.
The aftermath of Proposition 209, in other words, confirms how necessary it was. The academic and political bureaucracies that favor preferences will never voluntarily abandon them, and the “civil rights” lobby still has enough clout to intimidate most politicians (although the lobby’s intellectual and moral bankruptcy is more and more an open secret).
What is discouraging is the extent to which the opponents of Proposition 209 have made good on their promise to ignore the law. Their contempt for the rule of law means that those who secured the legal elimination of preferences based on race, ethnicity, and sex in California cannot yet declare victory.
Proposition 209, then, is a tool, not a panacea. It remains up to the people — especially those in the trenches who see the law being violated — to insist that it be followed. This will require lawsuits, confrontation, and a willingness to be called names. But it’s the only way to prevail.
