Affirmative Action: Still Fair, Still Necessary

The Governor has stated that 31 statutes “appear” to violate Proposition 209-without any examination of the inner workings of the programs they authorize or the thousands of individuals whom their repeal would affect. A closer look reveals that all of the programs were developed by California Legislatures over the past 30 years to counter precisely what Proposition 209 prohibits: discrimination. They were designed to increase access to and equal enjoyment of various forms of public benefits. None involves quotas. None guarantees concrete benefits to anyone to the exclusion of anyone else. As a result, despite the passage of Proposition 209, all are legally and constitutionally sound. Education: Available to All on Equal Terms California’s highest court has ruled that education “available to all on equal terms” is a “fundamental interest.”1 As the U.S. Supreme Court said more than 40 years ago, education “is the very foundation of good citizenship.…[I]t is a principal instrument in awakening the child to cultural values, in preparing him [or her] for later professional training, and in helping him [or her] to adjust normally to his [or her] environment.”2 Education is also the major determinant of an individual’s economic and social achievement. Conversely, as the courts have recognized, unequal education “leads to unequal job opportunities, disparate income and handicapped ability to participate in the social, cultural and political activity of our society.”3 Yet access to higher education is not equally available to all Californians. High school graduation and college matriculation rates vary widely among California’s racial and ethnic minority groups. For example, while 72 percent of white high school students in California graduate, only 54 percent of African Americans and Hispanics do. 4 Because of continuing inequalities in college preparation, Hispanic and African American high school graduates are eligible for California State University at less than half the rate of their white counterparts.5 For more than 25 years, California has used affirmative action programs to increase diversity at post-secondary schools based on the principle that educational attainment translates into increased employment opportunities. A wide variety of corrective programs are designed to improve access to and success at institutions of higher learning. Some encourage outreach to student populations underrepresented in community colleges and universities; some enrich academic preparation; others increase employment opportunities for minority teachers who provide role models for minority students; still others provide loans and fellowships to ease the financial burden of continuing education. These programs have enjoyed considerable success. The recent, improved occupational status of both women and minorities is credited to important changes in educational attainment. As recently as 1970, the proportion of African American students 25 years old and older who had completed four or more years of college was 4.5 percent. By 1990, that figure had more than doubled. In 1970, 8.2 percent of women age 25 and older had completed four years of college. This number increased to 18.4 percent by 1990.6 Notwithstanding these achievements, Governor Wilson has proposed to eliminate or hobble a broad range of educational programs that he claims give unfair advantage to women and minorities. Employment: Encouraging Equal Opportunities The United States Supreme Court has ruled that states have a “constitutional duty to take affirmative steps to eliminate the continuing effects of past unconstitutional discrimination.”7 While anti-discrimination laws do not require a workforce balanced by race and gender, the Supreme Court has recognized that “absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a workforce more or less representative of the racial and ethnic composition of the population in the community from which employees are hired.”8 Statistical disparities between employment of a particular group and their participation in the relevant labor pool may even establish intentional discrimination. Affirmative action programs in public employment and apprenticeship training, including those Governor Reagan signed into law on February 1, 1974, are designed to counteract historic inequalities. Public agencies are required to determine if particular groups are underrepresented in their workforce. If they are, the agencies must devise specific recruiting, training and career advancement tools to ensure equal opportunities for all qualified applicants. These programs have “paved the way for the arrival and advancement of record numbers of women and minorities in a plethora of careers and higher-paying positions.”9 While great strides have been made, disparities still exist. This is particularly true in the highest ranks of public jobs-those considered officials and administrators. For example, whites made up 60.4 percent of the California labor force in 1990; however, they comprised 76 percent of newly hired officials and administrators in 1993.10 By contrast, Hispanics were hired for only 8.4 percent of the top public jobs although they comprised 23.6 percent of the total labor force.11 Moreover, women working in state and local government in California earn substantially less than men. In 1993, the median annual salary for a male public employee was $42,556; that for a woman was more than $10,000 less.12 Minority employees of public agencies also continue to suffer from gross income differentials. In 1993, the median annual salary of white public employees in California was $40,313. For African Americans, it was $33,774, a differential of 16 percent. For Hispanics, the differential was 18 percent, for American Indians 16 percent, and for Asians 6 percent.13 Contracting: A Healthy Mix for a Competitive Economy Every day, state and local agencies contract with private businesses to carry out much of the work of government. The state may hire a construction company to help build a new prison facility; a city may hire a trucking company to haul goods across town. The affirmative action programs targeted by Governor Wilson are designed to open up this multibillion-dollar, government-controlled resource to qualified women and minority businesses that would otherwise be excluded. The Census Bureau in 1987 reported that more than 884,000 businesses in California are owned by minorities and women. Studies repeatedly have shown, however, that local agencies contract with these firms at a much lower rate than would be expected in the absence of discrimination. For instance, a 1994 study conducted by Los Angeles County of its own contracting practices found that about 95 cents of every dollar spent on county public works went to white-owned construction firms. Other jurisdictions throughout the state report similar patterns. A process that is open to everyone increases competition and creates a healthy economy. As the California Legislature found: “The essence of the American economic system of private enterprise is free competition…The preservation and expansion of that competition is basic to the economic well-being of this state and that well-being cannot be realized unless the actual and potential capacity of minority [and] women…business enterprises is encouraged and developed.”14 Numerous economic and social studies have confirmed that discrimination hinders free competition and costs taxpayers millions of dollars each year.15 The programs under attack authorize state agencies and local governments to root out discrimination in their business dealings. Public agencies have a legal duty to ensure that taxpayer dollars are not spent in a discriminatory manner. As with public employment, a statistical disparity between the number of qualified minority- and women-owned contractors available to perform and those actually hired can create an inference of discrimination.16 Thus, one way agencies ensure that no discrimination occurs is by looking at this comparison. No “quotas” are ever used. Just as a competitive private business sets performance standards to measure its progress, these programs allow government to do the same as it seeks to eradicate discrimination. Through these programs, state and local governments also examine how prime contractors pass along public money to subcontractors, instead of relying on an “old boys” network that perpetuates existing discriminatory practices. These methods of eradicating discrimination have all been approved by the United States Supreme Court. 17 One reason public agencies monitor discrimination so carefully is that federal law requires it. The Equal Protection Clause of the Constitution imposes a constitutional duty on state and local governments to eradicate discrimination in public contracting.18 Supreme Court Justice Anthony Kennedy, a Reagan appointee, has written that the state has an “absolute duty” to remedy discrimination in which it has actively participated.19 Similarly, federal regulations implementing the Civil Rights Act of 1964 require that public entities that may have discriminated in the past take affirmative action in response.20 Legal Effect of Proposition 209 Proposition 209 does not require the alteration or elimination of any of the targeted programs. In fact, the constitutional amendment forbids the same discrimination that the programs were designed to counter. It states: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or natural origin.” California’s affirmative action programs, through their emphasis on underrepresented groups, follow the spirit of 209 by remedying past and ongoing discrimination. Equally important, the targeted programs do not run afoul of Proposition 209 because they do not constitute forbidden “preferential treatment.” They are primarily outreach and recruitment programs. No business is guaranteed any particular contract. No individual receives a concrete benefit that is affirmatively denied anyone else. The programs simply open up the system to a wider range of qualified applicants and businesses. As a California Court of Appeal has noted in upholding a contracting program that sought inclusion for women and minorities, “the…outreach program seeks no more than to ensure that the playing field is level for all subcontractors. As such, it is race- and gender-neutral.”21 The first California Court of Appeal to rule on Proposition 209 explicitly held that outreach and recruitment programs are outside the scope of the initiative because they do not constitute “preferential treatment” on the basis of race or gender. The case concerned what ballot language was to be used when Proposition 209 went before the voters. The Court of Appeal ruled that the ballot title did not need to include the term “affirmative action” because it encompassed “not only the conduct which Proposition 209 would ban, i.e. discrimination and preferential treatment, but also other efforts [not banned by 209] such as outreach programs.”22 The reason is that outreach and recruitment efforts do not grant preferences, as courts have defined that term. A “preference” is the denial of a concrete benefit to someone else. By contrast, a program that expands the opportunities of a previously disadvantaged group, without explicitly excluding others, is not an unconstitutional preference.23 Programs such as the Technology Teacher Pipeline, Academic Partnership and Community College Extended Opportunity Program do not exclude anyone; they are open to all students. They simply target women and minorities because members of those groups traditionally have been underrepresented as students, teachers and administrators in higher education. This goal is constitutionally permissible. The U.S. Supreme Court has held that educational institutions may consider race, ethnicity or gender in admissions and employment as long as it is one of many factors and not an absolute determinant.24 Proposition 209 also specifically states that it does not apply to programs that are necessary to keep or obtain federal funds.25 Many of the affirmative action education, employment and contracting programs should therefore stand because they, or their sponsoring agencies, receive federal funding. Title VI of the Civil Rights Act of 1964 prohibits programs and institutions receiving federal assistance from discriminating on the basis of race, color or national origin.26 Title IX of the 1972 Education Amendments to the Civil Rights Act prohibits educational programs and institutions that receive federal funds from discriminating on the basis of sex. In some instances, Title VI and Title IX require a state agency to take affirmative action to overcome the effects of past discrimination. Failure to do so can lead to termination of federal funding.27 As a result, institutions, such as the California public school system and the University of California, that receive federal funding28 must take affirmative action to achieve equal educational and employment opportunities. Programs those institutions administer to remedy past inequalities, such as their affirmative action employment directives, cannot be cut because of Proposition 209. Programs that receive federal funding directly, such as Cal-SOAP, should similarly remain in place. It appears that, despite their legislative mandate, many programs are simply changing their focus from racial and ethnic minorities to those who are “economically disadvantaged.” One has even changed its name to remove the word “minority” from its title.29 Socioeconomic status is not an adequate substitute for race or ethnicity in achieving and maintaining diversity or in overcoming the residual effects of past discrimination. Problems such as discrimination call for solutions that take race and gender into account. A recent study by the UC Office of the President found that if socioeconomic status replaced race and ethnicity in undergraduate admissions criteria, “Chicano-Latino enrollments could be reduced across the UC system as a whole by 5 percent to 15 percent, and African American and American Indian enrollments by as much as 40 to 50 percent.”30 This, obviously, will increase rather than decrease educational inequalities. And that, as noted earlier, violates “a fundamental interest” of California and of California law. Finally, several of the laws the Governor has targeted simply provide for a tracking system to determine participation rates of minorities and women in state contracts. Eliminating this database would suppress information that is necessary to identify discrimination. It is as if a private company no longer kept personnel records or tracked the needs of its customers. Neither businesses nor governments can fulfill their responsibilities without information, and no conceivable reading of Proposition 209 bars state agencies from collecting information. In fact, how could the state uncover discriminatory practices, which Proposition 209 expressly forbids, if this information were not kept? For all these reasons, the programs under attack do not violate Proposition 209. They are vital components of our shared goals of eliminating discrimination in public programs and expanding opportunities for all Californians.

Notes

1 Serrano v. Priest, 5 Cal.3d 584, 606 (1971), quoting Brown v. Board of Education, 347 U.S. 483, 493 (1954).

2 Brown, 347 U.S. at 493.

3 San Francisco Unified School Dist. v. Johnson, 3 Cal.3d 937, 950, cert. denied, 401 U.S. 1012 (1971).

4 Public School Summary Statistics 1996-97, California Department of Education Website, www.cde.ca.gov/ftpbranch/retdiv/demo/FACTS96.

5 California Senate Office of Research, The Status of Affirmative Action in California, at 59 (March 1995).

6 Citizens’ Commission on Civil Rights, Affirmative Action Working Learning Together, at 13 (Oct. 1996). In 1995, 24.7 percent of the adult population had graduated from college. U.S. Dept. of Commerce, Bureau of the Census, Educational Attainment in the U.S., Current Population Reports, P-20 Series (1996).

7 Wygant v. Jackson Bd. of Education, 476 U.S. 267, 291 (1986)(O’Connor, J., concurring) citing Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971).

8 International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339 n.20 (1977).

9 California Senate Office of Research, The Status of Affirmative Action in California, at 2 (March 1995).

10 Id. at 30

11 Id.

12 Id. at 31-32.

13 Id. at 32.

14 Cal. Pub. Contract Code 10115(a)(1).

15 For example, Andrew F. Brimmer, former member of the Federal Reserve Board of Governors and former Assistant Secretary of Commerce, estimated that the disparate treatment of blacks cost the American economy about $241 billion in 1993. The Economic Cost of Discrimination Against Black Americans (1995).

16 Richmond v. J.A.Croson Co., 488 U.S. 469, 509 (1989).

17 See id.; see also Associated General Contractors, Inc. v. Coalition for Economic Equity, 950 F.2d 1401 (9th Cir. 1991), cert. denied, 503 U.S. 985 (1992).

18 Associated General Contractors, Inc. v. San Francisco, 813 F.2d 922, 929 (9th Cir. 1987).

19 Croson, 488 U.S. at 518 (Kennedy, J., concurring) (emphasis added).

20 See, e.g., 15 C.F.R. 8.4(b)(6)(i) (1997); 49 C.F.R. 21.5(b)(7) (1997).

21 Domar Electric, Inc. v. Los Angeles, 41 Cal. App. 4th 810, 826 (1995).

22 Lungren v. Superior Court, 48 Cal. App. 4th 435, 442 (1996).

23 Regents of University of California v. Bakke, 438 U.S. 265, 304-5 (1978); see also Lau v. Nichols, 414 U.S. 563, 568 (1974).

24 Bakke, 438 U.S. at 316-320.

25 Cal. Const. art. 1, 31(e).

26 42 U.S.C. 2000(d); 20 U.S.C. 1687.

27 20 U.S.C. 1682.

28 California public schools receive approximately $2.3 billion in federal money each year. California Senate Office of Research, at 48.

29 Administrative agencies cannot change a program’s purpose beyond the original legislative intent. See Clean Air Constituency v. State Air Resources Board, 11 Cal.3d 801, 813 (1974)(administrative agencies exceed the scope of their authority when they contravene purposes and effective implementation of governing legislation); Selby v. Dept. of Motor Vehicles, 110 Cal. App. 3d 470, 474-75 (1980)(“Rules adopted by an administrative agency may not exceed the scope of authority granted the agency in the relevant enabling legislation.”).

30 Citizens Commission on Civil Rights, at 55.

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