Affirmative Action Still Is Needed: No on Prop. 209

Proposition 209 asks voters to make a fair, reasoned choice to curb discrimination. But how can that be accomplished by an initiative based on false assumptions, disregard for facts and misleading language and intent? The proposed amendment to the state Constitution would not promote equal opportunity, as it claims. It would do the reverse, and since women are the biggest beneficiaries under current anti-discrimination law, they could be the biggest losers if 209 passes.

The initiative certainly sounds fair: “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.” The ballot measure cleverly tries to seduce fair-minded Californians by borrowing language from the Civil Rights Act of 1964. But unlike the landmark federal civil rights law, this proposed amendment contains no enforcement mechanism, no penalty and no antidote to the discrimination that persists.

Instead, Proposition 209 exists in a fantasy world in which bias against women and minorities has ceased. If only it were so. Women are usually the victims of gender discrimination, not men. Blacks, Latinos, Asian Americans and Native Americans are usually the victims of racial and ethnic discrimination, not whites. That is reality, and that is why affirmative action was created.

Civil rights laws protect all Americans. It already is against federal and state law to hire, fire or promote solely on the basis of gender, race or ethnicity. Affirmative action, properly applied, asks only that gender, race or ethnicity be considered as factors, not that they be the only considerations. Quotas already are illegal except in rare circumstances when the courts have ruled that discrimination has been proven.

Proposition 209 never mentions affirmative action, but the impartial state legislative analyst’s office cuts through the word games and concludes that 209 would eliminate affirmative action in public employment, public education and public contracting. Even with affirmative action, only 6% of state contracts went to women-owned firms in 1993-94.

Worse, an absolute ban on the use of gender, race or ethnicity as a factor could eliminate popular voluntary diversity efforts such as magnet school programs; these schools, educators say, often choose students, including whites, partly on the basis of race or ethnicity.

Under 209, girls could no longer have the benefit of special educational programs designed to promote math, computer or science skills. Mentoring and outreach programs for women would be jeopardized. Would such developments inevitably result from passage of 209? The answer cannot be a certain yes, but legal experts warn that the proposed changes in the state Constitution would weaken the law significantly. And that weakening, they say, would make these dire consequences quite possible.

Women, who account for 52.1% of the population and 46.1% of the work force, still earn less than men. Women who are paid by the hour earn only 79 cents for each dollar that male hourly workers earn. Women with full-time jobs or salaried positions annually earn 70% of what men earn in similar positions. That’s a long way from fairness.

Proposition 209 recklessly would base public policy on anecdotes about qualified people being denied jobs or college enrollment while less qualified people won out. That has happened, and it’s hurtful. But what about the continuing, documented instances of Americans being excluded because they are women or denied jobs or housing because of the color of their skin?

More often than not, when a qualified person doesn’t get a job it is because of competition from within a large and diverse pool of qualified applicants. Affirmative action didn’t create the intense competition for jobs or higher education in a changing California economy--it merely opened the door to broader competition.

Even with the existence of gender and racial “preferences,” 95% of top corporate jobs are held by men and 97% of those men are white, according to Elizabeth Dole’s 1995 federal bipartisan Glass Ceiling Commission report.

How much more supportable Proposition 209 would be without its audacious pretense that “preferences” for women and minorities are at the root of discrimination in California. Where is this parallel world in which powerful women and minorities run the government and corporations and turn away qualified white men?

Los Angeles Mayor Richard Riordan, an opponent of 209, says he is “very dissatisfied with many aspects of affirmative action practice” but that where there is abuse or mismanagement of affirmative action programs, it can and should be fixed. He is right.

Those who harbor doubts about affirmative action should not look to a constitutional amendment as a way to fix it. A state review of all public affirmative action programs, similar to the review of federal practices ordered by President Clinton, could help correct overly broad or outdated efforts while preserving programs and practices that meet the most pressing needs. Affirmative action encourages diversity in the work force and in education. Proposition 209 is not the answer. It would only create new problems, more divisiveness and mountains of work for lawyers. Californians don’t need that. Vote no on 209.