December 01, 1996
The hottest battle in the race/sex-based affirmative action wars is the proposed California Civil Rights Initiative (Proposition 209 on the November ballot). The CCRI would ban race and sex classifications in California public employment, public education and public contracting. Public opinion polls suggest that California voters very strongly favor the proposition, by a margin of more than 20 percentage points, and apparently without a gender gap. Women as well as men seem to reject the theory that sex- and race-based preferences are the answer to the state's racial ills.
In light of this, it is interesting that opponents of the CCRI are arguing that women should oppose the initiative on a very different ground: that it will supposedly "permit" sex discrimination that was prohibited before. These critics focus on clause (c) of the initiative, which reads as follows: "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."
California courts have interpreted the California Constitution to require strict scrutiny of sex classifications, not just the intermediate scrutiny mandated by the U.S. Supreme Court's interpretation of the U.S. Constitution. The CCRI, opponents claim, would in effect repeal this protection, and substitute for it a virtually toothless "reasonableness" standard, the court's most deferential standard of review. These allegations, however, are blatantly false. The CCRI can only expand the prohibition against sex discrimination; it would in no way restrict it.
To begin with, the CCRI's language is adapted from Title VII of the Civil Rights Act of 1964. In the words of the Supreme Court, the bona fide qualification principle is "in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex." California state courts correctly view bona fide qualifications the same way. And of course such narrow exception to a categorical ban on sex discrimination is necessary: Surely the state should not have to allow male prison guards to do body searches of female inmates, or give men jobs in women's locker rooms, or let boys onto girls' high school basketball teams.
But more importantly, the CCRI will simply do nothing to modify existing antidiscrimination principles. The CCRI, by its own terms, only creates a new cause of action. It does not repeal existing ones. Even if a sex classification meets the initiative's stringent bona fide qualification test, this just means that "nothing in this section"--that is to say, nothing in the CCRI itself--prohibits that classification. If a court finds that the classification is still prohibited by other provisions, such as the state constitution's equal protection clause, it will remain prohibited.
This is pretty simple legal analysis; in fact, 26 law professors, including William van Alstyne, Suzanna Sherry, Sandy Levinson, Doug Laycock, and Jesse Choper, former dean of the University of California's law school at Berkeley, have signed an open letter rebutting the anti-CCRI forces' allegations about clause (c). Some of these professors themselves oppose the CCRI, but want to have nothing to do with arguments that aim to mislead voters. Still, these assertions about clause (c) are one of the main arguments the "No on CCRI" campaign has been making in the press. Curiously, they have spent relatively little time trying to defend the core principle behind preferences: that public jobs, public contracts, and spaces in public schools should be allotted by race and sex. The anti-CCRI forces seem to realize that the public opposes them on this core question. The public opposes discrimination, whether it be against men or women, whites or racial minorities. Perhaps the pro-preference forces have concluded that trying to pull the wool over voters' eyes--to claim that the CCRI would allow more discrimination--is the only way to get the votes in November.
Tom Wood is executive director of the California Association of Scholars, and is a co-author of the California Civil Rights Initiative.