California’s Proposition 209
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JEFFREY KAYE: Since the election, supporters of affirmative action have been fighting to block implementation of Proposition 209. They have protested in the streets and in the courts.
SPOKESMAN: We are confident that Proposition 209 will not see the light of day. We are–
JEFFREY KAYE: And they succeeded, at least temporarily. A statewide coalition of civil rights and labor groups filed suit, and two weeks ago, San Francisco Federal Judge Thelton Henderson granted their request for a temporary restraining order. On Monday, the same judge is to hold a hearing on whether to extend his order and stop the proposition from taking effect until the courts decide its fate.
MARK ROSENBAUM, American Civil Liberties Union: We wanted to hone down the legal theory, and we submitted over 70 affidavits and declarations to the court.
JEFFREY KAYE: A team of lawyers, including Mark Rosenbaum, of the American Civil Liberties Union, began laying the groundwork for a constitutional challenge months before the election.
MARK ROSENBAUM: Proposition 209 represents the most far ranging attack on civil rights legislation and the most absolute disabling of government from dealing with racial and gender discrimination in the history of the United States.
JEFFREY KAYE: But lawyer Manny Klausner, who represents the initiative’s proponents, disagrees.
MANNY KLAUSNER, Proponent, Proposition 209: Our view is that the constitutionality of Prop 209 is so clear that ultimately we will prevail.
JEFFREY KAYE: Klausner helped draft Prop 209 and was vice-chair of the campaign.
MANNY KLAUSNER: When Thurgood Marshall argued in Brown Vs. Board of Education against government racially segregated public schools, he didn’t say we want racial preferences. He said we want a colorblind system.
JEFFREY KAYE: As they did during the campaign, each side says its case is supported by law and by the U.S. Constitution. Opponents contend that the abolition of affirmative action would violate the 14th amendment’s guarantee of equal protection.
MARK ROSENBAUM: Under Proposition 209, state and local government for the first time in the history of the United States is going to be disabled from passing into law constitutionally permissive programs that specifically address discrimination. The Fire Department or Police Department has a history of discrimination against women, against blacks, against Latinos, against Asians. What Proposition 209 says is your hands are tied, you can do nothing to eliminate discrimination, while at the same time, what Proposition 209 does is move whites up to the front of the line. If you want to go to government because you want your kid to get a preference from a university because you’ve given a lot of money, or because you’re an alumni, that’s all fine and acceptable under 209, but one thing the government can’t do is redress discrimination. And that has profound consequences for California and for the entire country.
MANNY KLAUSNER: The concept of the government making classifications based on race is morally odious. The courts have long recognized this to be the case. They’re very different than other types of preferences, and so if preference is given to somebody based on their athletic prowess or their musical ability or where they happen to live, or whether they’re disadvantaged economically, or a slew of other types of preferences, those are of a different order. The state in a free society should never be allowed to be–should never be granted the authority to look at somebody’s skin color and say you’re in and you’re out.
JEFFREY KAYE: The writers of the initiative did not use the term “affirmative action.” Businessman Ward Connerly chaired the campaign which he said was about ending preferences.
WARD CONNERLY, Proponent, Proposition 209: The initiative says 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. Thirty-seven words that are simple, that are direct, are clear.
JEFFREY KAYE: Connerly, a regent at the University of California, was also a major force in last year’s decision to phase out affirmative action in the university’s nine-campus system. After Prop 209 passed last month, the university decided to move up its schedule to end affirmative action. In fact, UCLA had prepared letters accepting 500 students for the spring quarter without taking race and gender into account. Under affirmative action admission policies, most new students met the minimum criteria, but some who were less qualified got in over higher performance. The few exceptions to the minimum standards were mostly athletes. If the judge continues to block Prop 209, UCLA will add slots and use affirmative action criteria to admit additional students for next quarter according to Assistant Vice Chancellor Thomas Lifka.
THOMAS LIFKA, UCLA: Several more dozen students, you know, at most, yes, a relatively small number.
JEFFREY KAYE: Using affirmative action.
THOMAS LIFKA: Using affirmative action.
JEFFREY KAYE: Meaning what?
THOMAS LIFKA: Meaning that race and ethnicity will be taken into account as one factor among many factors, supplemental factors, along with the academic record which, of course, remains the most important thing we look at it, in making a decision as to whether or not to admit that student to UCLA.
JEFFREY KAYE: Because the judge put Prop 209 on “hold,” California’s affirmative action programs remain in place. That leaves in tact programs such as those in Pasadena which plaintiffs named in the lawsuit in an effort to ensure the status quo. Pasadena has a multi-ethnic population, 18 percent black, 27 percent Latino, 8 percent Asian, 5 percent Armenian. The variety is reflected in such celebrations as Cultural Diversity Month. The city’s mayor is William Paparian.
WILLIAM PAPARIAN, Mayor, Pasadena: We’re not perfect, but we think we’ve done a darn good job of developing a work force that mirrors the population that we serve.
JEFFREY KAYE: That’s the goal?
WILLIAM PAPARIAN: That’s the goal, and we’ve hit it in several instances.
JEFFREY KAYE: And does that mean giving preferences to certain minorities and women to achieve that goal?
WILLIAM PAPARIAN: Absolutely not. It’s legal to do that under current federal law.
JEFFREY KAYE: If you don’t give preferences, how do you meet the goal?
WILLIAM PAPARIAN: We let people know that there’s opportunities to come and compete. We found that when minorities and women know about opportunities, they come in and compete.
JEFFREY KAYE: The city conducts affirmative action by advertising jobs in under-represented ethnic communities. Officials worry that under Proposition 209, such outreach programs could be considered preferential treatment. At the city’s affirmative action office, Lance Charles, the department head, monitors hiring.
LANCE CHARLES, Affirmative Action Office, Pasadena: What we do, we just take the number of openings that each department is going to have.
JEFFREY KAYE: Right.
LANCE CHARLES: And we put them–we just list those as goals, hiring goals. Not that these are firm, fixed goals–these are just hiring opportunities.
JEFFREY KAYE: And do the departments have to meet those goals?
LANCE CHARLES: We would like for them to, and, in fact, but if it don’t–there is actually no penalty if they don’t reach them.
JEFFREY KAYE: And you want them to take race and sex into account when they make the hire.
LANCE CHARLES: Well, we want–you know, there’s no way you’re going to ever get around the issue of race and sex. You’re never going to get around that because that’s what we are. So the thing is you have to also–you have to look at it. Now take my department, for instance. When I came here, there was no female professionals. Men. Now, we know we deal with a lot of issues with females. We know it’s good business to have a female professional because we’ve got 35 percent females in the city. So naturally, when I got an opportunity to hire, I hired two females because I needed to have a diverse group. I have two males and four females in my department.
JEFFREY KAYE: Were you giving preferences in that case?
LANCE CHARLES: No.
JEFFREY KAYE: To the women?
LANCE CHARLES: No. We didn’t give them any preference. That’s what came out of the pool. If two males would have come through the system fully qualified and they would have been the best in that pool, I would have taken them.
JEFFREY KAYE: Pasadena officials say they have achieved a diverse work force without preferences or quotas and hope their program of targeted outreach will survive even if Proposition 209 eventually takes effect. All sides are forecasting a protracted legal battle as the issue wends its way through the court system.