Sex Discrimination Made Legal : Affirmative action: The proposed civil rights initiative would loosen the government standard.

For the next 10 months, there will be an intense public debate over affirmative action as California voters consider the proposed “California civil rights initiative.” Assuming it gets the required signatures, the initiative will be on the November ballot. CCRI, as it is commonly called, will prohibit the government from granting “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.” It would eliminate all affirmative action, ranging from programs to encourage girls in math and science studies to efforts by the government to help minority- owned businesses.

As debate over this proposal heats up, there is a danger that its most insidious provision will be overlooked: a clause that allows government discrimination based on gender in public employment, education or letting contracts so long as there is reasonable justification.

No current state or federal law allows gender to be used as a qualification for public education or public contracting. The law does allow gender to be a factor in the area of employment if there is a bona fide occupational qualification. The Supreme Court has declared that this is an “extremely narrow” exception.

It is unclear why the CCRI drafters felt it necessary to expand this exception to education and contracting. For the first time in any law anywhere in the country, California will expressly say that its schools and its government can discriminate based on sex so long as the discrimination is reasonable.

Perhaps worst of all, this provision would alter and undermine the current protection against gender discrimination under the state Constitution. Since 1971, the California Supreme Court has held that government gender discrimination will be tolerated only if it is necessary to achieve a compelling government purpose. In other words, under current state law, the government can discriminate based on gender only if there is a truly important purpose and no other way to achieve it. This is exactly what the law should be. The long legacy of gender discrimination based on stereotypes about men and women requires that the government meet a heavy burden any time it seeks to use sex as a basis for its decisions.

But CCRI would amend the California Constitution to say that gender discrimination would be allowed if it was “reasonably necessary,” a far less rigorous standard. Traditionally under constitutional law, a “reasonableness test” means that any reason is sufficient and it doesn’t even have to be a good one.

In recent years, there have been many intense fights over initiatives in California. We can expect there will be such a battle over CCRI as the merits and drawbacks of affirmative action are debated. Amid all the rhetoric, it is important that one aspect of CCRI be recognized from the outset: Sex discrimination by the government will be expressly allowed.