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Guest Contributor

Prop. 209 Imperiled
Special interests are back and hungry for racial spoils
[Stephen R. McCutcheon] 8/15/03

Seven years ago, California voters emphatically endorsed the principle of equal treatment for all, regardless of race or sex, by passing Proposition 209. It amended the California Constitution to prohibit the state from discriminating or granting preferential treatment on the basis of color or gender in public schooling, hiring and contracting. As the ballot pamphlet explained, Prop. 209 was drafted in response to the fact that "special interests hijacked the civil rights movement," and that "instead of equality, governments imposed quotas, preferences, and set-asides."

Unfortunately, the "hijackers" are back; they're trying to return us to the days when government could play favorites by race. The California Legislature has passed Assembly Bill 703, which would go far toward gutting Prop. 209. The bill is on the governor's desk, so the decision of whether to defy the voters' will and bring back a system of racial spoils now rests with Gray Davis.

AB 703 would undermine Prop. 209 by playing word games with "discrimination" and "preferences." The California Supreme Court recognized the plain-as-day definition of those terms when, in a key decision supporting Prop. 209, the Court said that "discriminate" means "to show partiality (in favor of) or prejudice (against)" and that "preferential" means giving "priority or advantage to one person over others." AB 703 would stand those definitions on their heads. It would narrow the definition of prohibited government "discrimination" so as to permit "special measures" by government for "securing adequate advancement of certain racial or ethnic groups."

In other words, it would take us back to the old policies of identifying individuals primarily by their membership in racial groups, and showing bias toward some groups through quotas, preferences, and set asides.

What a setback this would be. In supporting Prop. 209, former Gov. Pete Wilson got it right: "There is no place in California for laws that classify our rich mosaic of people by their race, ethnicity, or gender, rather than their talents, or that define their recruitment or employment opportunities based on their skin color or chromosomes."

If politicians succeed in eviscerating Prop. 209, they will do a disservice not just to the 4.7 million voters who supported it at the polls in 1996, but to basic principles of fairness. The more racially diverse California becomes, the more essential it is that we look beyond people's color and treat everyone as an individual, for the sake of social harmony and progress. In sum, the pols who refuse to stop their rearguard fight against Prop. 209 are discriminating -- against justice and against the public good.

Stephen R. McCutcheon is an attorney with Pacific Legal Foundation (, a public-interest law firm that is the primary defender of Proposition 209 in the California courts.

copyright Pacific Legal Foundation



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