On November 30, the California Supreme Court handed down an important decision detailing the reach of Proposition 209's ban on race and sex preferences. Proposition 209 was the hotly contested constitutional amendment initiative, passed in 1996, that prohibited the State from giving preferential treatment "to any individual or group on the basis of race, sex, color, ethnicity, or national origin" in "public employment, public education, or public contracting." The authors of Proposition 209 used the Civil Rights Act of 1964 as its model, but explicitly stated that it was the original understanding of the Civil Rights Act, not its subsequent judicial construction, that was expressed in the Proposition.
The Civil Rights Act of 1964 was based on the principle of equal opportunity. That was the principle — so the framers of the Act believed — demanded by fourteenth amendment's equal protection clause. Equal opportunity requires the recognition that "the Constitution is colorblind." Yet almost immediately after its adoption, the courts began to construe the Act to require racial preferences to eradicate the "present effects of past discrimination." Thus an act that was aimed at ending racial discrimination in employment was construed by the courts to require racial discrimination. This has been the familiar theme of those who support racial set-asides and quotas.
Proposition 209 amended the California Constitution to reflect the original purpose of the Civil Rights Act: no individual could be discriminated against because of race, ethnicity or sex, nor could anyone be preferred for public benefits based on race, ethnicity or sex. It was immediately challenged in Federal Court and was initially ruled unconstitutional. Judge Thelton Henderson — in what can only be described as unusual logic — decided that the refusal to permit race and sex classifications was a violation of equal protection. The refusal to discriminate on the basis of race or sex was therefore adjudged to be discriminatory. By Judge Henderson's logic, the fourteenth amendment's command that "No State . . . shall deny to any person. . . equal protection of the laws" is unconstitutional! Or stated slightly differently, the refusal to allow the use of race, sex and ethnicity is itself an impermissible use of race, ethnicity and sex. The Ninth Circuit Court of appeals promptly overturned Judge Henderson's decision, arguing that "the alleged 'equal protection' burden that Proposition 209 imposes on those who would seek race and gender preferences is a burden that the Constitution itself imposes."
Shortly after the passage of Proposition 209 the city of San Jose — after changing the name of its Office of Affirmative Action to the Office of Equality Assurance — adopted a program that required contractors bidding for city projects to utilize a specific percentage of minority or women subcontractors or to document efforts to include such contractors. The California Supreme Court considered the constitutionality of the San Jose ordinance in Hi Voltage Wire Works v. San Jose. The case attracted considerable attention; the Clinton administration Justice Department and California's Attorney General urged the California Supreme Court to uphold the law against the Proposition 209 challenge. It wasn't really an affirmative action law, after all, but merely an "outreach program" that did not mandate racial or sex preferences. The Court, however, was not persuaded by this attempt to limit the reach of Proposition 209. All seven members of the California Supreme Court agreed that the law was unconstitutional, although there was disagreement about the scope of the decision.
Justice Brown, writing for the majority, noted that any plain and fair reading of Proposition 209 clearly shows that the San Jose program is unconstitutional because it accords preferences to subcontractors on the basis of race and sex. "The participation component" of the program, according to Justice Brown, "authorizes or encourages what amounts to discriminatory quotas or set-asides, or at least race — and sex — conscious numerical goals." Thus understood, Justice Brown concluded, "such a goal plainly runs counter to the express intent of the historic Civil Rights Act and, concomitantly, the intent of Proposition 209." The Court rightly concluded that numerical goals based on race and sex make the fantastic assumption that individuals of all races and both sexes will "gravitate with mathematical exactitude to each employer . . . absent unlawful discrimination." When such "mathematical exactitude" is not achieved it is assumed that race and sex discrimination must be at work. In a free society, however, such mathematical precision in individual choices will never be achieved. The only way that such precision can be achieved is to extinguish the freedom of individuals to choose their occupations.
The notion that rights are the product of race or ethnicity (or sex) presents obvious dangers. Rights belong to individuals, not races. The rule of law cannot condition rights upon race, because the notion that desert depends upon race is wholly arbitrary — indeed it makes a mockery of equal protection. This is what the voters who approved Proposition 209 understood and the California Supreme Court was entirely correct in striking down the San Jose ordinance.