[Congressional Record Volume 142, Number 137 (Saturday, September 28, 1996)]
[Extensions of Remarks]
[Pages E1791-E1794]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   CALIFORNIA CIVIL RIGHTS INITIATIVE

                                 ______
                                 

                           HON. MAXINE WATERS

                             of california

                    in the house of representatives

                       Friday, September 27, 1996

  Ms. WATERS. Mr. Speaker, the State of California is in the middle of 
a crucial debate on the future of affirmative action. The so-called 
California civil rights initiative will be voted on this November 5.
  I call to my colleagues' attention the following testimony of 
Professor David Oppenheimer of Golden Gate University. He prepared this 
statement on behalf of several California branches of the American 
Civil Liberties Union. I think it greatly enhances the discussion on 
this most important public policy issue.

                   Statement of David B. Oppenheimer


                              introduction

       Thank you for giving me the opportunity to submit testimony 
     on behalf of the three ACLU affiliates from California. Since 
     its founding in 1920, the ACLU has had as its primary concern 
     the protection of those civil liberties provided by the 
     United States Constitution, and particularly the liberties 
     protected by the Bill of Rights and the Post-Civil War 
     Amendments. The right to be free of government sponsored race 
     and sex discrimination is central to the opportunity of all 
     Americans to fully participate in our system of democratic 
     self-governance. It is because these rights are imperilled by 
     the CCRI that we wish to address this Committee.
       It is no secret that our country has a long and shameful 
     history of discrimination against women and racial, religious 
     and ethnic minority groups. Our very foundation as a nation 
     was dependent on the right of our citizens to own human 
     beings of African descent. Our Constitution required 
     amendment in the wake of the Civil War to establish for the 
     first time under our laws that African Americans were 
     entitled to the same rights as white citizens. It was only in 
     this century that women were first enfranchised, and only 
     late in this century, with the passage of the 1965 Civil 
     Rights Act, that we began to enfranchise African Americans in 
     a meaningful way.
       Despite the aspirations of most people, our legacy of 
     discrimination is being felt today. Many believe the reason 
     for continuing discrimination is no longer the virulent 
     diseases of race-hatred and misogyny, but the far more well-
     hidden problems of unconscious discrimination and 
     sterotyping. Whatever the sources, the effects are plain to 
     see. Highly disproportionate numbers of women and minority 
     group members are poor, hungry and ill-housed. Women and 
     minority group members earn substantially less, and own 
     substantially less, than similarly educated, similarly 
     qualified, white men. Over forty years after Brown v. Board 
     of Education most black children attend segregated schools 
     that are far inferior to the national or local standard. Even 
     among those African Americans fortunate enough to become 
     successful members of the American middle class, 
     discrimination is a constant companion.
       Dr. Martin Luther King told us in his last sermon that he 
     had been to the mountaintop and seen the promised land. We 
     have not yet arrived in that promised land.


                        affirmative action today

       Because of the glaring inequities caused by contemporary 
     discrimination, many state and local governments have made 
     the policy

[[Page E1792]]

     decision to act affirmatively to counteract discrimination 
     and create true equality of opportunity. Some have done so 
     because their leaders believe it is the right thing to do. 
     Some have done so to avoid litigation. Some have done so as a 
     condition of receiving federal funds. Whatever their 
     motivation, if they have met the strict limits placed on 
     affirmative action programs by the Supreme Court, they are 
     fully within the laws and Constitution of this country.
       ``Affirmative action'' is a term much used, yet much 
     disputed as to its meaning. In discussing affirmative action, 
     I find it useful to distinguish the four kinds of voluntary 
     affirmative action programs currently used by state and local 
     government. They are:
       (1) anti-discrimination programs, such as anti-harassment 
     training, sensitivity training, or diversity training; (2) 
     outreach, recruitment and counseling programs, directed at 
     increasing the number of women or minority group members 
     applying for jobs, promotions, contracts, or school 
     admissions; (3) self-study programs, in which employers or 
     schools study their applicant flow data, admissions 
     decisions, and retention statistics, in order to determine 
     whether they are engaging in discrimination, and sometimes 
     adopt goals and timetables to measure progress in eliminating 
     discrimination; and, (4) preference programs, which range 
     from set-asides to tie-breakers to ``one factor in many'' 
     programs.
       There is a fifth form of affirmative action program, 
     quotas, which, in the affirmative action context, operate as 
     participation floors for women or minority group members. 
     Quotas are not permitted in voluntary affirmative action  
     programs. They are only permitted when approved or ordered 
     by a court as a remedy in a discrimination lawsuit.
       Voluntary preference programs, including set-asides, are 
     rarely permitted; they are allowed only as a remedy to 
     discrimination, and only in unusual circumstances as a matter 
     of Constitutional law. Our Constitution puts strict limits on 
     the authority of any unit of government to consider race or 
     sex in its decision making. It is only within these strictly 
     defined limits that sex-based or race-based decision making 
     is permitted, but when these limits are adhered to, the 
     Supreme Court has made it clear that such decision making is 
     Constitutionally proper. In the Croson case, and again in the 
     Adarand case, the Court held that governmental affirmative 
     action plans that permit race-based or sex-based selections 
     are only permissible if: There is strong evidence that the 
     government adopting the affirmative action program has itself 
     discriminated against the group now being assisted, and that 
     the discrimination has resulted in that group being currently 
     underrepresented in the area addressed by the affirmative 
     action program; the affirmative action program reaches no 
     further than the discrimination it is intended to counteract; 
     the program is limited to the selection of persons or firms 
     fully qualified for selection; the program operates with 
     goals or aspirations, not quotas; the program is limited in 
     time so that it will expire once its goals have been met; and 
     the program does not require the lay-off or termination of 
     existing employees, or the recision of current contracts.
       Under the authority of the Croson decision, the City and 
     County of San Francisco held hearings in 1988 to determine 
     why so few of its contracts were with firms owned by women or 
     minority group members. At that time approximately 95% of the 
     dollar value of the City's contracts were with white male-
     owned firms. The hearings uncovered systemic discrimination 
     in the contract bidding process, leading to a comprehensive 
     affirmative action program. Eight years later, approximately 
     15% of the City's contract dollars go to firms owned by women 
     or minority group members, while 85% continue to go to white 
     male-owned firms.
       The San Francisco plan has received provisional approval 
     from the United States Court of Appeals. Similarly, the 
     County of Santa Clara, whose largest city is San Jose, has 
     adopted a voluntary affirmative action program to increase 
     its hiring of women and minority group members which has 
     been approved by the United States Supreme Court. Despite 
     the fact that these plans have been approved by the 
     federal courts, they will become illegal if CCRI is 
     passed.


                    affirmative action and the ccri

       CCRI has two substantive clauses. Clause (a) prohibits 
     certain conduct by state and local government. Clause (c) 
     permits certain forms of sex discrimination.
       Clause (a) provides: ``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.''
       Clause (c) provides: ``Nothing in this section shall be 
     interpreted as prohibiting bona fide qualifications based on 
     sex which are reasonably necessary to the normal operation of 
     public employment, public education, or public contracting.''
       In addition, CCRI provides at Clause (e) that ``Nothing in 
     this section shall be interpreted as prohibiting action which 
     must be taken to establish or maintain eligibility for any 
     federal program, where ineligibility would result in a loss 
     of federal funds to the state.''


                           source of clause A

       The initiative's authors have stated that their language is 
     based on the Civil Rights Act of 1964. Section 703(a) of 
     Title VII, the analogous section of the 1964 Act, provides:
       ``It shall be an unlawful employment practice for an 
     employer [or other covered entity] to * * * discriminate 
     against any individual with respect to his * * * employment 
     because of such individual's race, color, religion, sex, or 
     national origin.''
       There are a number of significant differences between 
     Clause (a) of CCRI and Section 703(a) of the 1964 Act. The 
     most important is CCRI's prohibition of ``preferential 
     treatment.'' Also significant is CCRI's applicability to 
     ``groups'' as well as individuals, and CCRI's substitution 
     of ``ethnicity'' for ``religion.''


         ccri and the prohibition of ``preferential treatment''

       The full meaning of the prohibition of ``preferential 
     treatment'' must await analysis by the courts. The phrase is 
     one without preexisting legal meaning; it is not a term of 
     art used in civil rights law. In interpreting it, courts will 
     be primarily guided by two principles. First, since it is 
     assumed that all phrases do have meaning, and since it is 
     used in conjunction with a prohibition of ``discrimination,'' 
     it must mean something different from discrimination. Second, 
     since it is not a legal term of art, is should be given its 
     ``plain meaning.''
       On a first read, one might expect that if CCRI passes, its 
     broadest impact will be on preference programs such as the 
     Santa Clara and San Francisco programs. This may not prove to 
     be true. Pursuant to clause (e), CCRI will prohibit such 
     voluntary programs only if their elimination will not affect 
     eligibility for federal funds. If CCRI passes, some 
     communities may successfully argue that their programs are 
     necessary to remain in compliance with federal regulations 
     requiring federal funds recipients to refrain from 
     discrimination. This is a particularly potent argument for 
     those communities that have complied with Croson by studying 
     their own behavior, if they have concluded that their own 
     discrimination is the cause of a current underrepresentation.
       It other communities, affirmative action plans are likely 
     to be abandoned. But here again, if they have done Croson 
     studies, we should expect that federal lawsuits will be filed 
     using the data collected in the study to prove that the 
     government has engaged in intentional discrimination. CCRI 
     cannot limit the remedies available under federal law for a 
     violation of the federal civil rights laws. Thus, where the 
     evidence justifying the plan is sufficient to sustain a 
     judgment, the federal courts will require the plans to 
     continue. The net effect is that in many communities the 
     existence of affirmative action plans will be unchanged, but 
     the authority to govern the plans will pass from elected 
     officials and civil servants to federal judges.


               impact on self-studies/goals & timetables

       In the area of self-studies, and the related area of goals 
     and timetables,  CCRI will again have less impact than one 
     might expect. Most self-studies conducted by state and 
     local government are required by federal law. Executive 
     Order 11246 requires employers receiving federal funds to 
     conduct self-studies as a condition of their funding. When 
     such studies reveal an underutilization of women or 
     minority employees compared to the available pool of 
     qualified applicants, the employers are required to adopt 
     goals and timetables designed to increase the number of 
     women and minority employees until they mirror the 
     available selection pool. As a result, state and local 
     governments must utilize self-studies and must adopt 
     employment goals and timetables for women and minorities 
     in order to receive federal funding. Since most publicly 
     funded self-studies and goals and timetables are required 
     as a condition of federal funding, they too are protected 
     by clause (e), and CCRI is unlikely to have a substantial 
     impact on self-studies or goals and timetables.


             IMPACT ON OUTREACH, RECRUITMENT AND COUNSELING

       It is in the area of outreach, recruiting and counseling 
     that CCRI may have its greatest impact. If programs directed 
     at recruiting or counseling women or minority group members 
     are considered a form of preferential treatment, these 
     programs will violate CCRI. This is the position taken by the 
     California Legislative Analyst. In the OLA's report to the 
     Attorney General analyzing the meaning and fiscal impact of 
     CCRI, the Analyst wrote:
       ``This measure would eliminate affirmative action programs 
     used to promote the hiring and advancement of women and 
     minorities for state and local government jobs, to the extent 
     these programs involve `preferential treatment.' . . . In 
     addition, the measure would eliminate a variety of public 
     school (kindergarten through grade 12) and community college 
     programs such as counseling, tutoring, student financial aid, 
     and financial aid to selected school districts, where these 
     programs are targeted based on race, sex, ethnicity, or 
     national origin. . . . The measure would eliminate a variety 
     of programs such as outreach, counseling, tutoring, and 
     financial aid used by the University of California and 
     California State University to admit and assist students from 
     `under-represented' groups.''
       Unlike preference programs, or self-studies and goals and 
     timetables, there is no federal mandate for the various 
     outreach, recruitment and counseling programs affected by 
     CCRI. As a result, outreach, recruitment and

[[Page E1793]]

     counseling programs will truly be eliminated if the 
     initiative passes. Examples of such programs include: 
     programs run by the University of California to inform 
     students at minority high schools of the admissions 
     requirements at UC; programs run by the University of 
     California and the California State University to enrich 
     the academic programs at minority high schools; programs 
     run by the University of California and the California 
     State University to encourage minority students to attend 
     college; programs run by the University of California and 
     the California State University to encourage middle school 
     and high school girls to consider careers in math and 
     science; programs run by the state and/or by local 
     governments to inform woman-owned and minority-owned 
     businesses of the criteria for applying for government 
     contracts; programs run by the state and/or by local 
     governments to inform woman-owned and minority-owned 
     businesses of opportunities to bid on government 
     contracts; programs run by the state and/or by local 
     government to inform women and/or minority group members 
     of employment, career or promotional opportunities in 
     government; and programs run by the state and/or by local 
     government to assist women and/or minority group members 
     in establishing their own businesses or applying for 
     government employment.


                 Impact on Anti-Discrimination Programs

       In the area of anti-discrimination and diversity promotion 
     programs, it is difficult to assess how much of an impact 
     CCRI will have. For example, many government employers have 
     anti-harassment training programs designed to prevent sexual 
     harassment in the workplace. An argument could be made that 
     such programs constitute preferential treatment for women. It 
     seems unlikely that a court would agree, but it is certainly 
     not out of the question. The same would be true of programs 
     designed to teach racial tolerance.


               CCRI And The Operation of Public Education

       One substantial area outside of affirmative action will be 
     affected by CCRI. Because it reaches all operation of public 
     education, CCRI is expected to have a major impact on 
     education programs which are not concerned with affirmative 
     action but which do consider race, ethnicity or gender. The 
     existence of university women's centers, for example, will 
     probably be deemed a violation of CCRI. College or university 
     programs designed to serve the needs of, or appeal to, 
     minority students are also vulnerable. These could include 
     counseling programs, social programs, or educational 
     programs. It would almost certainly apply to programs like 
     a black students' union, and might extend as far as 
     community college classes in English as a second language, 
     which are designed for people who are not of U.S. national 
     origin.
       In primary and secondary education, there are many 
     voluntary desegregation programs which CCRI would ban. The 
     California Legislative Analyst has concluded: ``The measure 
     could eliminate some or all voluntary desegregation programs 
     operated by school districts.'' Among the savings predicted 
     by the OLA are the costs incurred by all magnet schools, 
     which the OLA views as a form of ``preferential treatment.''
       A third area in the operation of public education within 
     CCRI's purview is the consideration of race, sex and 
     ethnicity for special recognition or accommodation. For 
     example, many school districts inadvertently scheduled the 
     first day of school in 1994 to coincide with the Jewish 
     holiday Rosh Hashannah. In Northern California, a number of 
     civil rights and Jewish community groups lobbied school 
     district administrators to change the opening day in order to 
     permit Jewish students to attend the first day of school 
     without violating their religious observation. A series of 
     federal civil rights cases have recognized that for the 
     purpose of the civil rights laws the Jewish people are a 
     race. In addition, Jews may be considered an ethnic group. As 
     a result, under CCRI, such preferential treatment for Jews 
     would be unconstitutional. Similarly, a school's decision to 
     recognize certain ethnic groups through school assemblies, 
     pageants, learning themes, or other diversity awareness 
     programs may constitute preferential treatment based on 
     ethnicity.


  ccri's extension of nondiscrimination law from individuals to groups

       One of the foundations of American civil rights law is that 
     all rights are held by individuals. For good or for ill, 
     there are no civil rights held as group rights. Thus, the 
     1964 Civil Rights Act applies only to discrimination against 
     individuals. As a result, an important barrier in 
     discrimination lawsuits is the issue of standing; if an 
     individual cannot allege personal harm, she cannot bring an 
     action. Even in class actions, the group is defined as a 
     group of individuals who have suffered individual harm.
       Somewhat surprisingly, however, CCRI prohibits 
     discrimination against and preferential treatment for not 
     only individuals, but also groups. This may provide its most 
     significant impact. For example, it appears that under CCRI 
     any African American may bring a discrimination claim against 
     a local government asserting race discrimination against 
     blacks, even if she was in no way affected by the 
     discrimination. Similarly, any person who wants to challenge 
     an affirmative action program as granting preferential 
     treatment may do so, as long as she is not a member of the 
     group receiving the preferential treatment. Since the 
     government is usually assessed legal fees if it loses a civil 
     rights suit, we may expect an explosion of litigation if CCRI 
     passes.


       CCRI, SEX DISCRIMINATION, AND THE CALIFORNIA CONSTITUTION

       In 1971, the California Supreme Court interpreted the 
     California Constitution to prohibit sex discrimination by the 
     government unless the government could prove a compelling 
     purpose which withstood strict scrutiny by the court. The 
     phrase ``strict scrutiny'' is sometimes described as ``strict 
     in theory, fatal in fact'' because it is virtually unheard of 
     for any government action to survive such scrutiny. It is 
     because of this decision that the California Constitution is 
     said to have a de facto Equal Rights Amendment.
       Clause (c) may do substantial damage to the protection now 
     offered California women under the Constitution. The language 
     of the clause was taken from the Civil Rights Act of 1964, 
     which provides at Section 703(e)(1):
       ``It shall not be an unlawful employment practice for an 
     employer to hire . . . any individual . . . on the basis of 
     his religion, sex, or national origin in those certain 
     instances where religion, sex, or national origin is a bona 
     fide occupational qualification reasonably necessary to the 
     normal operation of that particular business or enterprise.''
       In the 1964 Act the BFOQ exception applies only to 
     employment, and even then only in cases involving an 
     ``occupational'' qualification and only to cases brought 
     under the Act, not cases brought under the Constitution. In 
     interpreting the language under the 1964 Act, the Supreme 
     Court has held that the State of Alabama could refuse to hire 
     women guards at its maximum security prison because the 
     presence of women would encourage the male inmates to attack 
     them. The Court was particularly concerned that the guards 
     would provoke sex offenders in the prison population, but 
     explained that ``there would also be a real risk that other 
     inmates, deprived of a normal heterosexual environment, 
     would assault women guards because they were women.'' The 
     Court has also suggested that differential hiring policies 
     for women with young children might constitute a BFOQ if 
     ``such conflicting family obligations [were] demonstrably 
     more relevant to job performance for a woman than for a 
     man.''
       CCRI expends upon this allowance of sex discrimination in 
     two critical areas, both of which are presently untested. 
     First, the Supreme Court has ruled that the limitation to 
     ``occupational'' qualifications is a criminal limitation. By 
     dropping the limitation to ``occupational'' qualifications, 
     CCRI extends the permitted kinds of sex discrimination which 
     will now be permitted. Second, the BFOQ limitation in the 
     1964 Civil Rights Act is limited to employment 
     discrimination. CCRI permits BFOQ sex discrimination in 
     education and contracting as well as employment.
       If CCRI passes, it will become the primary provision of the 
     California Constitution regarding sex discrimination by 
     government; as such it will probably be held to overrule or 
     amend the current interpretation of the Constitution. Thus, 
     sex discrimination by government in the areas of public 
     education, employment and contracting will only be illegal if 
     the discrimination is not ``reasonably necessary to the 
     normal operation of public employment, public education, or 
     public contracting.''
       In the area of employment, clause (c) will foreclose 
     independent sex discrimination actions under the 
     Constitution, limiting them to the provisions of federal law. 
     It is difficult to assess how broad an impact this will have. 
     In the area of government contracting, contracts may be let 
     to male-owned companies, or (perhaps more likely) companies 
     that only hire men, when it is deemed reasonably necessary 
     that men alone do the work. The most obvious application will 
     be in California's fastest growing industry, corrections. In 
     public education, the clause again may make possible sex-
     segregated activities which would otherwise be deemed 
     discriminatory. Because the concept of a bona fide 
     qualification based on sex has no precedent outside the area 
     of employment, it is difficult to predict how far the clause 
     will reach. Nonetheless, it clearly opens the doors to 
     discrimination which is now impermissible under the 
     California Constitution.


                 substitution of ethnicity for religion

       It is not clear why the drafters of CCRI, who claim to have 
     tracked the language of the 1964 Civil Rights Act, 
     substituted ``ethnicity'' for ``religion.'' But presumably 
     religious discrimination by the government will remain 
     illegal under the California and United States Constitutions' 
     ``free exercise'' clauses, while religious preferential 
     treatment will remain illegal under the ``establishment'' 
     clauses. Since the initiative fails to define ``ethnicity'' 
     it will have to be read as meaning something other than 
     ``national origin'' (which is also delineated). Given the 
     broad reading currently given to ``national origin'' this may 
     prove difficult.


                               conclusion

       It appears that the greatest impact of CCRI will be in 
     three areas: (1) outreach, recruiting, and counseling 
     programs targeting women and minorities; (2) higher education 
     programs assisting women and minority students; and (3) 
     primary and secondary education programs designed to promote 
     voluntary desegregation. The initiative is likely to have no 
     effect on quotas and little effect on preferences or goals 
     and timetables. In the few cases where quotas are permissible 
     they either are or will be ordered by

[[Page E1794]]

     federal courts, which are outside the scope of the 
     initiative. In the most of the limited number of cases where 
     preferences are permitted, federal lawsuits will probably be 
     filed to move the authority for the preferences from local 
     government to the federal courts. Most public goals and 
     timetables are adopted to maintain eligibility for federal 
     funding, and will thus be exempt from CCRI. But outreach, 
     recruiting, counseling, assistance and voluntary 
     desegregation programs are not tied to federal funding, and 
     are thus most vulnerable to CCRI.

                          ____________________