+OK 40753 octets Received: from loviatar.webcom.com (loviatar.webcom.com [209.1.28.41]) by mail1.halcyon.com (8.8.8/8.8.8) with ESMTP id NAA27182 for ; Thu, 22 Oct 1998 13:33:02 -0700 (PDT) Received: from kigal.webcom.com (kigal.webcom.com [209.1.28.57]) by loviatar.webcom.com (8.9.1/8.9.1) with SMTP id LAA17254; Thu, 22 Oct 1998 11:17:16 -0700 Received: from [207.181.194.98] by inanna.webcom.com (WebCom SMTP 1.2.1) with SMTP id 4842190; Thu Oct 22 12:13 PDT 1998 Received: from tom_wood (dnai-207-181-238-46.dialup.dnai.com [207.181.238.46]) by dnai.com (8.8.8/8.8.8) with SMTP id MAA24537 for ; Thu, 22 Oct 1998 12:14:34 -0700 (PDT) Message-Id: <3.0.5.32.19981022121715.00964e00@mail.dnai.com> X-Sender: adp@mail.dnai.com (Unverified) X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.5 (32) Date: Thu, 22 Oct 1998 12:17:15 -0700 From: ADP Subject: Just what is it about the term 'preferential treatment' that they don't understand? Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" To: ADP_List@webcom.com X-Original-Envelope-From: adp@dnai.com Status: "Just what is it about the term 'preferential treatment' that they don't understand?" Nothing has changed. Like their anti-209 predecessors in California, the opponents of I-200 claim that the term "preferential treatment" is vague, and that it is impossible to predict how courts will interpret the term. This claim is demonstrably false. The following posting consists of excerpts from one of the exhibits CCRI presented to California State Legislative Analyst Elizabeth Hill for her consideration in the writing of her analysis of the measure for the November 5, 1996 official voters pamphlet. The materials were written by me with major assistance from Eugene Volokh, particularly with respect to the legal citations. We made the points contained in this exhibit repeatedly throughout the campaign for Prop. 209. But we were voices shouting into the wind. The liberal press (especially the major urban papers) didn't want to hear it, and continued to simply repeat the opponents' canard. The same appears to be happening in Washington State. Tom Wood Co-author, Prop. 209 Moderator, ADP %%%%%%%%%%%%%%%% [From materials submitted in May 1996 by CCRI to California State Legislative Analyst Elizabeth Hill for her consideration in the writing of her analysis of the measure for the November 5, 1996 official voters pamphlet.] SUMMARY OF MAJOR POINTS ON CLAUSE (A) (1) The term "preferential treatment" is just as well defined in the law as the term "discrimination." To see how courts will interpret the term "preferential treatment," therefore, one need only look at how courts already interpet the term. In antidiscrimination law, what distinguishes "preferential treatment" from any other kind of discrimination on the basis of race, sex, or ethnicity is the class of individuals that it benefits. That is, it is not the concept, but only the special class of individuals it benefits, that distinguishes "preferential treatment" from other kinds of discrimination. (2) During the years 1965-1978, the Supreme Court interpreted the U.S. Civil Rights Act as a ban against discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, or ethnicity. To see how CCRI's identical prohibition will be interpreted by the courts, therefore, one need only observe how federal antidiscrimination law was interpreted and applied during the years 1965-1978. (3) What has been said about "preferential treatment" with regard to *individuals* in (1) and (2) above is equally true of CCRI's prohibition against discrimination and preferential treatment with regard to *groups*. Prohibiting discrimination and preferential treatment with regard to groups is particularly relevant at the recruitment and outreach phase of employment, education, and contracting. No outreach or recruitment program that is non-discriminatory and non-preferential will be prohibited by CCRI. (4) The term "preferential treatment" is used in the law to cover much more than simply the favoring of *un*qualified individuals. Current law does not strictly prohibit, but still counts as *preferential*, favoring a *less* qualified person over a more qualified person on the basis of race, sex, or ethnicity. The CCRI will prohibit both. (5) Unlike the terms "discrimination" and "preferential treatment," which are well-defined in the law, the term "affirmative action" is not. However, CCRI's impact on "affirmative action" is easily stated, once the distinction between two very different kinds of affirmative action is drawn. CCRI will not prohibit any equal opportunity, equal access, or affirmative action program that treats people without regard to their race, sex, or ethnicity. It will prohibit any such program that discriminates or grants preferential treatment on the basis of race, sex, or ethnicity. (6) CCRI is perfectly consistent with non-discriminatory, non-preferential attempts to "remedy past discrimination." (7) No program or service that is open to everyone without regard to an individual's race, sex, or ethnicity will be prohibited by CCRI. ALLEGATION 1: "PREFERENTIAL TREATMENT" IS A NEW TERM THAT CCRI WOULD INTRODUCE INTO THE LAW FOR THE FIRST TIME EXAMPLES OF THIS ALLEGATION: * "Advocates for CCRI claim that it was based on the 1964 Civil Rights Act. However, its central phrase ("preferential treatment") is not found in the 1964 Act. Because the term "preferential treatment" is not an existing legal term, any prediction of how it will be interpreted by the courts is necessarily uncertain. The analysis that follows is based on the analysis prepared for the ballot by the California Legislative Analyst [Elizabeth Hill]...." From "The Likely Effects of the California Civil Rights Initiative," prepared by David B. Oppenheimer, Associate Professor of Law, Golden Gate University, , n.d., distributed by Educators for Justice, Justice, 1611 Telegraph Avenue #206, Oakland, CA 94612, n.d. RFEFUTATION OF THE ALLEGATION: Our opponents must be blind: the term "preferential treatment" is found in the U.S. Civil Rights Act. U.S. Civil Rights Act 42 (2000e-2(j) reads in part as follows: "Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer..." In addition, the terms "preference(s)" and "preferential treatment" are found with great frequency throughout state and federal case law, including virtually all of the landmark antidiscrimination and civil rights cases. This well-developed body of case law gives the term "preferential treatment" a settled legal meaning. (a) Federal case law. The following tabulation, which is not intended to be exhaustive and which is in fact partial and incomplete in several important respects, shows just how far off the mark this allegation is. We have counted five occurrences of the word "preference(s)" and six occurrences of the word "preferential" in Wygant v. Jackson Board of Education (1986); thirteen occurrences of the word "preference(s)" and eleven occurrences of the word "preferential," including three occurrences of the term "preferential treatment," in Regents of the University of California v. Allan Bakke (1978); thirteen occurrences of the word "preference(s)" and ten occurrences of the word "preferential," including four occurrences of the term "preferential treatment," in United States v. Paradise (1987); twenty occurrences of the word "preference(s)" and three occurrences of the word "preferential" in Adarand Constructors v. Pena (1995); six occurrences of the term "preference(s)," and two occurrences of the word "preferential," including one occurrence of the term "preferential treatment," in Johnson v. Transportation Agency (1987) ; and one occurrence of the word "preferences" and one occurrences of the word "preferential" in United Steelworkers v. Weber (1979). These are all standard, landmark civil rights cases. Prof. Oppenheimer should have no difficulty finding them in the library of his law school. (b) Our opponents may also be interested to know that U.S. Civil Rights Act 42 (2000e-2(j) is still good law: "It remains clear that [Title VII of the U.S. Civil Rights Act] does not require any employer to grant preferential treatment on the basis of race or gender...". Justice Stevens, concurring opinion, Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 644 (1987). [California case law material omitted.-T.W. 10/22/98] ALLEGATION 2: BECAUSE CCRI WOULD PROHIBIT BOTH DISCRIMINATION AND PREFERENCES, WHEREAS EXISTING LAW PROHIBITS ONLY DISCRIMINATION, AND BECAUSE "PREFERENCES" AND "PREFERENTIAL TREATMENT" HAVE NO CLEAR, WELL-ESTABLISHED MEANING IN THE LAW, THE IMPACT CCRI WOULD HAVE ON THE LAW IS UNPREDICTABLE EXAMPLES OF THIS ALLEGATION: * "CCRI does not define 'discriminate' or 'preferential treatment.' Thus, there is no way to know exactly how courts will construe these phrases." Prof. Erwin Chemerinsky, U.S.C. Law Center, "Preliminary Report on the Impact of the Proposed California Civil Rights Initiative," p. 8, n.d. * "Because the term "preferential treatment" is not an existing legal term, any prediction of how it will be interpreted by the courts is necessarily uncertain. The analysis that follows is based on the analysis prepared for the ballot by the California Legislative Analyst [Elizabeth Hill]...." From "The Likely Effects of the California Civil Rights Initiative," prepared by David B. Oppenheimer, Associate Professor of Law, Golden Gate University, , n.d., distributed by Educators for Justice, Justice, 1611 Telegraph Avenue #206, Oakland, CA 94612, n.d. * "The full meaning of the prohibition of 'preferential treatment' must await analysis by the courts. The phrase is one without pre-existing legal meaning; it is not a term of art used in civil rights law." Cited in Ira Eisenberg, "Dissenting Opinions: Top legal scholars dispute claims that a ban on state affirmative action would hit women hardest," The Recorder, June 10, 1996, p. 10. * "The problem is the initiative [i.e., CCRI] would insert the words "preferential treatment" into the California constitution without defining its meaning. "(The initiative) is a rewriting of the entire framework, and we won't know what will remain and will not remain once it passes." Constance Rice, western regional counsel for the Legal Defense and Educational Fund of the NAACP, cited by Ken Chavez, "Semantics stir row over initiative on affirmative action," The Contra Costa Times, Sunday, May 26, 1996, p. 20A. * "Rice criticized the words 'preferential treatment' as being vague and ambiguous." [The reference is to Constance Rice, western regional counsel for the NAACP Legal Defense and Educational Fund, Inc.] Ingrid Downs, Staff Writer, "CWL Speaker Urges Opposition to Anti-Affirmative Action Initiative," Metropolitan News Company, September 29, 1995, p. 3.[TW1] REFUTATION OF THE ALLEGATION: (1) As we have shown above (see Allegation 1), the terms "preference(s)" and "preferential treatment" occur with great frequency in the case law, both state and federal. It is an insult to the state and federal benches for CCRI's opponents to assert, as in effect they have, that courts don't know what they mean by these terms even though they use them with great frequency. (2) This allegation is particularly preposterous because both "discrimination" and "preferences" have the same meaning in the law that they have in ordinary language. Thus, "to discriminate" is defined as "to distinguish, differentiate" and "to make a difference in treatment or favor on a basis other than individual merit." (Webster's Seventh New Collegiate Dictionary). Similarly, the definition of "to prefer" is "to choose or esteem above another," and "preference" is defined as "the act, fact or principle of giving advantages to some over others" (ibid.) The same is true of state and federal case law. The following citations show that in existing law "preference" or "preferential treatment" simply means discrimination in favor of someone based on their race or sex: * Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2109 (1995) (majority using the term this way) * Id. at 2120 (Justice Stevens, joined by Justice Ginsberg using the term this way in dissent) * Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989) (using the term this way) * Regents v. Bakke, 438 U.S. 265, 301 (1978) (Justice Powell using the term this way) * Id. at 328 (Justices Brennan, White, Marshall, and Blackmun, concurring in part and dissenting in part, using the term this way) * DeFunis v. Odegaard, 416 U.S. 312, 332 (1974) (Justice Douglas, dissenting, using the term this way) [Material on California case law omitted.-T.W. 10/22/98] (3) The 1964 federal Civil Rights Act explicitly states that the granting of preferential treatment on the basis of race, sex, or ethnicity is not required by the Act. Since the Act itself specifically says that it does not *require* preferential treatment, it is ludicrous for opponents of CCRI to argue that a *ban* on such preferences will change the "whole meaning" of civil rights law. (4) During the years 1965-1978, the Supreme Court interpreted the U.S. Civil Rights Act as a ban against discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, or ethnicity. To see how CCRI's identical prohibition will be interpreted by the courts, therefore, one need only observe how federal antidiscrimination law was interpreted and applied during the years 1965-1978. The following citations demonstrate that a broad ban against discrimination and preferences was in fact the law of the land between 1964 and 1978: * "[Title VII prohibits] discriminatory preference for any racial group, minority or majority." McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278 (1976) (Marshall, J.) (internal quotation marks omitted). * "Congress intended to 'eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucasians'" McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976). The law during the period 1965-1978 was usefully summarized by Justice John Paul Stevens in his concurring opinion in Johnson v. Santa Clara (1987): "Prior to 1978 the Court construed the Civil Rights Act of 1964 as an absolute blanket prohibition against discrimination which neither required nor permitted discriminatory preferences for any group, minority or majority. The Court unambiguously endorsed the neutral approach, first in the context of gender discrimination [footnote omitted, but given below] and then in the context of racial discrimination against a white person [footnote omitted, but given below]. As I explained in my separate opinion in Regents of the University of California v. Bakke, 438 U.S. 265, 412-418 (1978), and as the Court forcefully stated in McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 280 (1976), Congress intended "'to eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucausians'" (citations omitted). If the Court had adhered to that construction of the Act, petitioner would unquestionably prevail in this case. But it has not done so. "In the Bakke case in 1978 and again in Steelworkers v. Weber, 443 U.S. 193 (1979), a majority of the Court interpreted the antidiscrimination strategy of the statute in a fundamentally different way. The Court held in the Weber case that an employer's program designed to increase the number of black craftworkers in an aluminum plant did not violate Title VII. It remains clear that the Act does not require any employer to grant preferential treatment on the basis of race or gender, but since 1978 the Court has unambiguously interpreted the state to permit the voluntary adoption of special programs to benefit members of the minority groups for whose protection the statute was enacted. Neither the "same standards" language used in McDonald, or the "color blind" rhetoric used by the Senators and Congressmen who enacted the bill, is now controlling." Two footnotes in this passage from Justice Steven's concurring opinion are also worth citing as evidence that the law of the land during the years 1965-1978 proscribed the favoring or disfavoring any individual on the basis of race, sex, or ethnicity: [FN. 1] "'Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed...' Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)." [FN. 2] "'Similarly, the EEOC, whose interpretations are entitled to great deference, [401 U.S.,] at 433-434, has consistently interpreted Title VII to proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites, holding to to proceed otherwise would "'"constitute a derogation of the Commission's Congressional mandate to eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucasians." EEOC Decision No. 74-31, 7 FEP Cases 1326, 1328, CCH EEOC Decisions (6404, p. 4084 (1973). "'This conclusion is in accord with uncontradicted legislative history to the effect that Title VII was intended to "cover white men and white women and all Americans." 110 Cong. Rec. 2578 (1964) (remarks of Rep. Celler), and create an "obligation not to discriminate against whites," id., at 7218 (memorandum of Sen. Clark). See also id., at 7213 (memorandum of Sens. Clark and Case); id., at 8912 (remarks of Sen. Williams). We therefore hold today that Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes and Jackson white.' McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 279-280 (1976) (footnotes omitted)." (5) The words "preference(s)" and "preferential treatment" are every bit as clear in the law as the corresponding term "discrimination," because one cannot prefer on the basis of race, sex, or ethnicity without discriminating against someone else on the basis of those criteria. There are only two distinctions to be drawn between "preferential treatment" and "discrimination," neither of which is substantive. "Preferential treatment" is typically used to focus on the particular group that is being benefited (as in "preferential treatment for X") rather than the group that is being hurt (as in "discrimination against X"). Secondly, in antidiscrimination law "preferential treatment" is sometimes distinguished from other kinds of discrimination on the basis of the class of individuals that it benefits. In these instances, it is not the concept, but only the special class of individuals it benefits, that distinguishes "preferential treatment" from other kinds of discrimination. ALLEGATION 3: CCRI'S PROHIBITION AGAINST DISCRIMINATION AND PREFERENCES WITH REGARD TO *GROUPS* WOULD INTRODUCE A DANGEROUS INNOVATION INTO THE LAW EXAMPLES OF THIS ALLEGATION: * "Furthermore, the operative term 'any group' in this clause would abolish all outreach programs designed to encourage minorities and women to apply for government employment and promotions and to start up businesses. It would abolish such programs as women's centers on state college and university campuses and women's studies and ethnic studies programs." Sandy Sohcot, "Between the lines of the civil rights initiative," Opinion, San Francisco Business Times, May 29, 1996. REFUTATION OF THE ALLEGATION: The allegation that CCRI would abolish all outreach programs, women's centers, and women's and ethnic studies programs will be dealt with individually below. Here we consider only the allegation that the inclusion of the term "any group" in CCRI's ban against discrimination and preferences on the basis of race, sex, or ethnicity would introduce something new into the law. The inclusion of the term "any group" in CCRI is not an innovation. U.S. Civil Rights Act 42 (2000e-2(j), for example, reads as follows: "Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group... It makes no sense to argue that a ban against granting preferential treatment to any racial, sexual, or ethnic *group* could be inconsistent with a law (in this case, the U.S. Civil Rights Act) that explicitly says that nothing in that act *requires* such preferential treatment. Consequently, the claim that CCRI's prohibition of such preferential treatment is problematic, or that it would introduce something new into the law, is devoid of merit. ALLEGATION 4: (A) WHAT THE LAW MEANS BY "PREFERENTIAL TREATMENT" IS SIMPLY THE FAVORING OF *UN*QUALIFIED INDIVIDUALS. (B) FURTHERMORE, THERE ARE NO LAWS THAT REQUIRE OR PERMIT THE SELECTION OF UNQUALIFIED PERSONS OVER OTHER, MORE QUALIFIED INDIVIDUALS ON THE BASIS OF RACE, SEX, OR ETHNICITY REFUTATION OF THE OBJECTION: The term "preferential treatment" is used in the law to cover much more than simply favoring *un*qualified individuals. Current law does not strictly prohibit, but still counts as *preferential*, favoring a *less* qualified person over a more qualified person on the basis of race, sex, or ethnicity. Many examples proving this point could be cited, but one will suffice: Johnson v. Transportation Agency of Santa Clara (1978). In this important Title VII case, the U.S. Supreme Court held that the Santa Clara Transportation District did not violate Title VII of the U.S. Civil Rights Act when it preferred a female employee over a male employee, even though the facts were not in dispute, and even the Transportation Agency agreed that the male was more qualified. Furthemore, both the trier of fact and the Supreme Court emphasized that in this case the male employee was only *slightly* more qualified than the female employee. The following citations are from Johnson v. Santa Clara Transportation Agency (1987): * "Any differences in qualifications between Johnson and Joyce were minimal, to say the least." 480 U.S. 616, 641 fn. 17. * "The Director [of the Santa Clara County Transportation Agency] had spoken to individuals familiar with the qualifications of both applicants for the promotion, and was aware that their scores were rather close....Additionally, the Director stated that had Joyce's experience been less than that of petitioner by a wider margin, petitioner might have received the promotion...Rather, as the Court demonstrates, Joyce's sex was simply used as a 'plus' factor." Justice Stevens, concurring opinion, Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 656 (1987). * "The Court properly holds that the statutory shield allowed respondent to take Diane Joyce's sex into account in promoting her to the road dispatcher's position." Justice Stevens, concurring opinion, Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 642 (1987). * "This time the question posed is whether a public employer violates Title VII by promoting a qualified woman rather than a marginally better qualified man..." Justice Stevens, concurring opinion, Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 648 (1987). The Court clearly regarded as preferential the Transportation Agency's selection of the female employee over the male employee in this case. Nevertheless, the Court upheld that affirmative action program under which the preference was granted. ALLEGATION 5: CCRI WOULD ELIMINATE ALL AFFIRMATIVE ACTION, EQUAL OPPORTUNITY, AND OUTREACH PROGRAMS EXAMPLES OF THIS ALLEGATION: * "The proposed California Civil Rights Initiative seeks to eliminate affirmative action by government entities in California except where required by federal law." Prof. Erwin Chemerinsky, U.S.C. Law Center, "Preliminary Report on the Impact of the Proposed California Civil Rights Initiative," p. 1, n.d. * "I'm writing in response to [ARTICLE NAME AND DATE] on the California "Civil Rights" Initiative, which would outlaw all affirmative action programs in California." Sentence taken from "Sample Letter to the Editor," distributed by Educators for Justice, an anti-CCRI organization, 1611 Telegraph Avenue #206, Oakland, CA 94612, n.d. * "That's what affirmative action is--positive movement--an active effort--to provide equal opportunity for people who have been denied it...The CCRI would lock into the state Constitution language that is ambiguous enough to require constant court interpretation...The ambiguity of this initiative can only be resolved through litigation to determine its scope and meaning. There are better ways to address the deficiencies of affirmative action programs than opening to door to perpetual litigation." Sen. Dianne Feinstein, "CCRI Language is Misleading," Open Forum, San Francisco Chronicle, A19, May 22, 1996. * "Seventy-four percent think 'affirmative action' is "making opportunities for everyone, including women and minorities" (Louis Harris and The Feminist Majority Foundation, April 1995)." From "Talk Back/Write Back: a Media Action Kit," Educators for Justice, 1611 Telegraph Avenue #206, Oakland, CA 94612, n.d. (Educators for Justice is an anti-CCRI organization.) * "WHEREAS, the Marin County Human Rights Commission has resolved to support affirmative action programs which are intended to remedy past discrimination or disparity and which create fair and equitable access and opportunity to education, employment and contracting; and opposes legislation which would eliminate affirmative action or undermine their basic purposes [emphasis added]....THEREFORE, BE IT ALSO RESOLVED that the Marin County Board of Supervisors opposes the so-called "California Civil Rights Initiative." Resolution Nol. 95-157, Board of Supervisors of the County of Marin, August 1, 1995. * "'[CCRI] poses as an equal opportunity initiative but puts at risk every outreach program, sets back the gains made by women and puts the brakes on expanding opportunities for people who are in need," said Powell, former chairman of the Joints Chiefs of Staff'." George Kelly, "Powell rips Civil Rights Initiative: General takes stand for affirmative action," Oakland Tribune, A1, May 26, 1996, quoting Retired Gen. Colin Powell. * "If the issue is framed in terms of preferences, which is what the proponents want, they will carry the day. But if it's framed in terms of doing away with affirmative action, then it may be much more of a contested race." Mark DiCamillo, California pollster, cited by Ken Chavez, "Semantics stir row over initiative on affirmative action," The Contra Costa Times, Sunday, May 26, 1996, p. 20A. * "[The CCRI] essentially bans affirmative action in all state programs, unless they have been mandated by federal law or a court order. This is the anti-affirmative action initiative authored by academics Tom Wood and Glen [sic] Custred....". From: National Lawyers Guild Speakers Bureau, Affirmative Action Sample Speech, Training Manual, May 1996. * "What you have heard called the 'California Civil Rights Initiative' in fact:...Dismantles affirmative action programs in this state." Flier of the American Civil Liberties Union, "Don't Be Fooled: The So-Called 'California Civil Rights Initiative' is a Fraud!" n.d. * "The CCRI is a deceptively-packaged measure that is likely to anger voters as they learn more about it....The initiative...does not even mention the words 'affirmative action,' although its principle effect will be to eliminate all such programs." Jerome Karabel, "Why CCRI Is Not a Sure Winner," Open Forum, San Francisco Chronicle, June 18, 1996, p. A19. * A sample of misleading and erroneous newspaper headlines: * "Voters Unclear on Anti-Affirmative Action Initiative," San Francisco Chronicle, April 22, 1996, A17. * "Bid to Fight Affirmative Action Ban Announced: Organizers hope 'Freedom Summer 1996' will draw 2,000 students from across U.S. to battle proposed initiative." L.A. Times, Feb. 23, 1996. * "Petitions Turned In for Affirmative Action Ban," L.A. Times, Feb. 22, 1996. * "Anti-Affirmative Action Initiative Set for State Ballot," San Francisco Chronicle, Feb. 22, 1996, A11. * "Anti-Affirmative Action Backers Short on Money: attempt to get initiative on '96 ballot has stalled," Yumi Wilson, San Francisco Chronicle, Nov. 3, 1995, p. A1. * "Once-obscure initiative would sweep away affirmative action," San Diego Union-Tribune, Jan. 30, 1995, A3. * "'Civil rights' initiative would end affirmative action in state," Brenda Zahn, Antelope Valley Press, April 7, 1996. A SAMPLE OF ACCURATE HEADLINES: * "Preference Ban Qualifies for Fall Ballot," Dave Lesher, L.A. Times, April 17, 1996. * "Preference Foes Say Initiative is Back on Track," Dave Lesher, L.A. Times, February 13, 1996, A1. * "Panels Urge City to Oppose Anti-Preferences Initiative," Kenneth Chang, L.A. Times, Metro, Part B, p. 3. * "Race-based preferences are dying," The Washington Times, June 13, 1995, p. A20. * "Not Affirmed: Supreme Court Ruling Imperils U.S. Programs of Racial Preference," Wall Street Journal, June 13, 1995, p. A1 (re Adarand decision). * "By 5-4, Justices Cast Doubts on U.S. Programs That Give Preferences Based on Race," New York Times, June 13, 1995, p. A1 (re Adarand decision). REFUTATION OF THE ALLEGATION THAT CCRI WOULD ELIMINATE ALL AFFIRMATIVE ACTION, EQUAL OPPORUNITY, AND OUTREACH PROGRAMS CCRI is perfectly consistent with affirmative action/equal opportunity in the original sense. That sense is exemplified in the following passage, which is based on President Lyndon Baines Johnson's Executive Order 11246, which was issued in 1965: "(60-1.4 Equal opportunity clause [emphasis added]....During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin [emphasis added]. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising [emphasis added]; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship." From Chapter 60-Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor, 41 CFR Ch. 60 (7-1-88 Edition). Affirmative action and equal opportunity in the above sense clearly precludes favoring or disfavoring any individual or group on the basis of race, sex, or ethnicity in any aspect of employment, including recruitment and outreach. All the problems arise because in recent years many who call themselves proponents of affirmative action have advocated preferential treatment for some individuals and groups on the basis of their race, sex, or ethnicity. As a result (as we show in Part B below), the term "affirmative action" no longer has a common meaning in public discourse. (In this respect, it is very different from the terms "discrimination" and "preferential treatment," which are well-defined, both in the law and in ordinary discourse.) CCRI's impact on "affirmative action" and "equal opportunity programs" is easily stated, once the distinction between preferential and non-preferential kinds of affirmative action is drawn. CCRI will not prohibit any equal opportunity, equal access, or affirmative action program that treats people without regard to their race, sex, or ethnicity. It will prohibit any affirmative action program that discriminates or grants preferential treatment on the basis of race, sex, or ethnicity with regard to any individual or group. [Material on California case law and statutes omitted.-T.W. 10/22/98] EXAMPLES TAKEN FROM ANTI-CCRI LITERATURE OF AFFIRMATIVE ACTION PROGRAMS THAT CCRI WOULD *NOT* ELIMINATE All the individuals and organizations cited in the section below advocate preferential forms of affirmative action. Obviously, we do not give these citations to endorse *those* policies, for CCRI would prohibit all preferential forms of affirmative action. The citations are given to show that, whenever advocates of preferences are compelled to state their position in a way that is politically acceptable, they define affirmative action in the traditional, non-discriminatory, non-preferential way. Affirmative action in this sense is perfectly consistent with CCRI's broad ban against racial, sexual, and ethnic discrimination and preferences. * "Outreach & recruitment plans intended to reach women and minorities and bring them into the application process are a common form of affirmative action." Statement of Prof. David B. Oppenheimer, National Association of Minority Engineering Program Administrators [NEPA], January 28, 1996, San Francisco, California * "Self-studies to determine whether discrimination is occurring are a common form of affirmative action." Prof. David B. Oppenheimer, ibid. * "Affirmative action programs seek to remedy past discrimination against women, minorities, and others by increasing the recruitment, promotion, retention, and on-the-job-training opportunities in employment and by removing barriers to admission to educational institutions...Affirmative action strategies include expanding the pool of job or admission applicants through recruitment strategies which reach outside of traditional channels such as the posting of job notices in places where women and minorities are more likely to see them." From: "Get the Facts: Background on Affirmative Action, Definition of Affirmative Action," researched and compiled by The Feminist Majority, n.d. * "Affirmative action refers to rules that bar racial discrimination in the private sector and remedies that were developed to redress continued racial and gender discrimination. Affirmative action includes policies such as outreach, recruitment, training and promotion that are designed to open up opportunities to qualified people who have been traditionally excluded and therefore underrepresented in the workforce and economy." Rev. Jesse Jackson, "We Must Affirm Affirmative Action," National Rainbow Coalition, January 9, 1994. * "Affirmative Action attempts to redress racism and sexism and cultural bias by introducing fair competition among all people, regardless of gender or race/ethnicity, [and] by widening the applicant pool..". From: "Affirmative Action: Myth and Fact," California National Organization for Women, n.d., p. 39, included in National Lawyers Guild Affirmative Action Training Manual, may 1996. * "Affirmative action programs in employment can consist of posting and publicizing job notices in locations that are likely to be seen by a wide range of people; recruitment; eliminating discriminatory hiring and promotion practices...". From: "What is Affirmative Action?" California National Organization for Women, n.d., p. 40, included in National Lawyers Guild Affirmative Action Training Manual, May 1996. RECOMMENDED LANGUAGE TO COVER THE FOREGOING POINTS: "The measure would have no effect on any affirmative action or equal opportunity program which treats individuals without regard to their race, sex, color, ethnicity, or national origin. Affirmative action outreach programs that would not be prohibited by the proposed measure include those that expand the pool of applicants and bidders in public employment, education, and contracting through advertising and other recruiting methods that make opportunities widely known and available to everyone regardless of their race or sex. The proposed measure would prohibit any outreach and other affirmative action program that discriminates against, or grants preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin. Affirmative action and equal opportunity programs that would be prohibited by the proposed measure include those in which race, sex, color, ethnicity, or national origin are taken into consideration as a factor in the selection of individuals in public employment, public education, or public contracting through the use of quotas, preferences, or goals or timetables based on the prohibited criteria." ALLEGATION 6: CCRI WOULD ELIMINATE ALL EFFORTS TO REMEDY PAST DISCRIMINATION EXAMPLES OF THIS ALLEGATION: * "Affirmative action programs seek to remedy past discrimination against women, minorities, and others by increasing the recruitment, promotion, retention, and on-the-job-training opportunities in employment and by removing barriers to admission to educational institutions...Affirmative action strategies include expanding the pool of job or admission applicants through recruitment strategies which reach outside of traditional channels such as the posting of job notices in places where women and minorities are more likely to see them." From: "Get the Facts: Background on Affirmative Action, Definition of Affirmative Action," researched and compiled by The Feminist Majority, n.d. * "WHEREAS, the Marin County Human Rights Commission has resolved to support affirmative action programs which are intended to remedy past discrimination which are intended to create fair and equitable access and opportunity to education, employment and contracting; and opposes legislation which would eliminate affirmative action or undermine their basic purposes.....THEREFORE, BE IT ALSO RESOLVED that the Marin County Board of Supervisors opposes the so-called "California Civil Rights Initiative." Resolution Nol. 95-157, Board of Supervisors of the County of Marin, August 1, 1995. * "What you have heard called the 'California Civil Rights Initiative' in fact: ....Prohibits courts from ordering remedies to proven discrimination." Flier of the American Civil Liberties Union, "Don't Be Fooled: The So-Called 'California Civil Rights Initiative' is a Fraud!" n.d. REFUTATION OF THE ALLEGATION: This allegation is without merit. As we have shown above (under Allegation 5), the CCRI will not prohibit any non-discriminatory, non-preferential outreach or affirmative action program. Such programs are remedial in effect and purpose, since they include affirmative steps to ensure that all groups (including groups that have previously experienced discrimination) are included and treated without regard to their race, sex, or ethnicity in all phases of public employment, public education, and public contracting. Nor will the CCRI in any way curtail the right of California courts to issue equitable remedies to individuals who have been found by the courts to have been victims of unlawful discrimination. [Refutation of allegations against clause (c) of CCRI omitted-T.W. 10/22/98. On the advice of Eugene Volokh and Tom Wood, the proponents of WSCRI replaced clause (c) of CCRI with clause (4) of I-200.] .