by Allan J. Favish

A racial or sexual quota simply means that racial or sexual preferences are exercised in order to meet a particular racial or sexual outcome. The exercise of racial or sexual preferences, without any particular racial or sexual outcome as a goal, still constitutes the rejection of some individuals and the acceptance of others on the basis of the racial or sexual preference. The preferences, even without quotas, will be determinative in some individual cases. If the preferences were never determinative there would not be any reason to have them. In those cases where consideration of race affects the final outcome for a specific individual, then race was a deciding factor.

Justice Stanley Mosk of the California Supreme Court wrote the following:

As Professor John Hart Ely posed the issue in his book Democracy and Distrust (1980) page 170: "no matter what we call it--a preference, a quota, a quest for diversity--weighing, say, blackness affirmatively necessarily means that others are going to be denied the opportunities in question because they were not born black." And again he observed that "any affirmative action plan that counts blackness affirmatively, even in the context of numerous other factors, necessarily results in the rejection of some applicants who would not be rejected were they black, and in that sense are being turned away 'only' because they are not black." (Id. at p. 257, fn. 102.)

DeRonde v. Regents of University of California, 28 Cal.3d 875, 904 (1981) (Mosk, dissenting).

Even the four U.S. Supreme Court Justices in University of California Regents v. Bakke, 438 U.S. 265, 57 L.Ed.2d 750, 98 S.Ct. 2733 (1978), who defended UC Davis Medical School's racial quota plan, recognized that there was no significant difference between a quota program and a preference program. Writing for these four Justices, Justice William Brennan wrote:

Finally, Davis' special admissions program cannot be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants. For purposes of constitutional adjudication, there is no difference between the two approaches. In any admissions program which accords special consideration to disadvantaged racial minorities, a determination of the degree of preference to be given is unavoidable, and any given preference that results in the exclusion of a white candidate is no more or less constitutionally acceptable than a program such as that at Davis. Furthermore, the extent of the preference inevitably depends on how many minority applicants the particular school is seeking to admit in any particular year so long as the number of qualified minority applicants exceeds that number. There is no sensible, and certainly no constitutional, distinction between, for example, adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of the preference with the expectation that this will result in the admission of an approximately determined number of qualified minority applicants and setting a fixed number of places for such applicants as was done here.

The "Harvard" program, see ante, at 316-318, 57 l Ed 2d, at 787-789, as those employing it readily concede, openly and successfully employs a racial criterion for the purpose of ensuring that some of the scarce places in institutions of higher education are allocated to disadvantaged minority students. That the Harvard approach does not also make public the extent of the preference and the precise workings of the system while the Davis program employs a specific, openly stated number, does not condemn the latter plan for purposes of Fourteenth Amendment adjudication. It may be that the Harvard plan is more acceptable to the public than is the Davis "quota." If it is, any State, including California, is free to adopt it in preference to a less acceptable alternative, just as it is generally free, as far as the Constitution is concerned, to abjure granting any racial preferences in its admissions program. But there is no basis for preferring a particular preference program simply because in achieving the same goals that the Davis Medical School is pursuing, it proceeds in a manner that is not immediately apparent to the public.

Bakke, at 378-379.

The 1991 amendment to the 1964 federal Civil Rights Act recognized that the difference between quotas and preferences was a distinction without a significant difference. Therefore, the Civil Rights Act prohibits all consideration of race when it is a "motivating factor" for an employment practice:

42 USC § 2000e-2(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

California anti-discrimination law is identical with federal law on this point:

"Under the California Fair Employment and Housing Act, FEHA, it is [an] unlawful employment practice for an employer to make any adverse employment decision against an employee when that employee's race is a motivating factor in the decision.

To prove that race or age was a motivating factor, plaintiff need not prove that . . . race was the sole reason or the determinative reason for the decision, but rather only that it was one of the reasons.

A motivating factor is a factor which is an idea or belief which moves the will and induces action."

. . . .

[T]he court's instruction accurately stated the law . . .