Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation. A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.
The California Civil Rights Initiative will be on the November 1996 ballot. The key language of the initiative says, "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."
While participating in many debates on the CCRI I have heard many false statements about it and its supporters that need to be corrected. This article will address some of those issues.
The phrase "affirmative action" is not mentioned in the initiative, and with good reason. The first time the phrase was used in a Presidential Executive Order was March 1961 when President John F. Kennedy ordered that federal contractors,
take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.
The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, or national origin.
The phrase was part of Kennedy's requirement that "positive measures" and "affirmative steps" be taken to treat individuals without regard to race, yet the phrase has become a euphemism for racial discrimination against whites and in many cases, Asians. This is because the practitioners of racial discrimination/preference have tried to conceal the true nature of their practice for the past thirty years by calling it "affirmative action," a phrase that originally meant treating individuals without regard to race.
Intellectual honesty requires that racial and sexual discrimination/preference be called exactly what it is: racial and sexual discrimination/preference. It should not be given a label that was originally invoked by President Kennedy in an effort to eliminate racial discrimination/preference.
Because the phrase's worthy race-neutral original meaning still survives today, even though the phrase also is used to refer to racial preference programs, a complete ban on affirmative action would be wrong. Therefore, the initiative bans only that part of affirmative action that is morally and legally repugnant-preferential treatment on the basis of race, sex, color, ethnicity or national origin.
Many opponents of the CCRI say that it would ban all affirmative action including the all-inclusive job advertising just mentioned. Don't be misled. Racial and sexual preferences are the specific issue addressed in the CCRI and the initiative's opponents should not be allowed to muddy the waters without being challenged on this point.
The target of the CCRI is racial and sexual discrimination/preference. That is expressly stated in the initiative. Conduct that does not constitute racial or sexual discrimination/preference is not prohibited by the CCRI, whether or not it is labeled "affirmative action." So if "affirmative action" includes such nondiscriminatory elements, like nonrace- and nonsex-based outreach to increase an applicant pool without lowering standards because of race or sex, then those elements of "affirmative action" are not prohibited by the CCRI.
Likewise, conduct that does constitute racial or sexual discrimination/preference is prohibited by the CCRI, whether or not it is labeled "affirmative action." So if "affirmative action" includes elements that constitute racial or sexual discrimination/preference, then those elements of "affirmative action" are prohibited by the CCRI.
Many practitioners of racial and sexual discrimination/preference believe that using race and sex as criteria for distribution of benefits like jobs and school admissions is not discrimination. However, their argument runs contrary to the view of Senator Hubert Humphrey, one of the primary sponsors of the 1964 Federal Civil Rights Act. When debating the definition of "discrimination" as the word is used in the Civil Rights Act, he stated,
[t]he eminent retired Supreme Court Justice, Mr. Charles A. Whittaker . . . observes: "The meaning of the term 'discrimination' in its legal sense, is not different from its dictionary meaning." [¶] Webster's New International Dictionary defines discrimination as: "A distinction, as in treatment; esp., an unfair or injurious distinction." . . . . [¶] [T]he word "discrimination" has been used in many a court case. What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin. . . . . [¶] The answer to this question [what was meant by "discrimination"] is that if race is not a factor, we do not have to worry about discrimination because of race. . . . . [¶] [T]he word "discrimination" has been used repeatedly without any separate statutory definition, because the word "discrimination" is simply defined. It means "different treatment." That is all it means.
According to Senator Humphrey, if race is a factor then there is discrimination on the basis of race. It is deceptive, misleading, confusing and contradictory for somebody to say that they use race as a factor in distributing benefits but that this does not constitute discrimination/preference on the basis of race.
Senator Humphrey opposed racial discrimination without regard to the race of the victim. He stated that the Civil Rights Act, "would prohibit preferential treatment for any particular group..."
Those who favor using race and sex as factors, to any degree, in determining the distribution of benefits, like jobs and school admissions, are in favor of racial and sexual discrimination/preference. However, they will try to hide their endorsement of discrimination/preference by never using those words to describe what they endorse. Instead, they will use the phrase "affirmative action" to describe the discrimination/preference they wish to perpetuate. They will deny that what they endorse is race and sex discrimination.
CCRI opponents often will claim that race and sex quotas are illegal, and ignore the issue of race and sex preferences and then further muddy the waters by claiming that race and sex are used merely as two of many factors. They miss the point. A racial or sexual quota simply means that racial or sexual preferences are exercised in order to meet a particular racial or sexual numerical 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 or sex affects the final outcome for a specific individual, then race or sex was a deciding factor, even though it was not the sole 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.)
The drafters of the 1964 federal Civil Rights Act clearly knew that the difference between quotas and preferences was a distinction without a significant difference. They also knew that use of race as one of many factors still constituted racial discrimination that was determinative in individual cases. Therefore, the Act prohibits all consideration of race when it is a "motivating factor" for an 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."A REPLY TO STANLEY FISH
One of the most vocal supporters of race and sex discrimination/preferences is Duke University Professor of English and Law, Stanley Fish. His 1995 column in the New York Times echoed many of the faulty arguments made by CCRI opponents.
Fish said that the vocabulary of equal opportunity, color-blindness, race neutrality and individual rights used by CCRI supporters is the same as that used by 1950's and 60's liberal civil rights activists. He wrote that many of these activists are now puzzled and even defensive when they hear this vocabulary used against them by CCRI supporters.
However, according to Fish, it is a mistake to assume that the words mean what they did in 1960. Rather, he believes that the words have been repackaged and put in the service of the very agenda against which the activists fought in the 1950's and 60's.
While there are certainly bigots who support the CCRI (despite its prohibition of race and sex discrimination), its opponents fail to recognize that the words are coming out of the mouths of millions of Americans like myself who were sympathetic to the mainstream civil rights activists of the sixties. Fish is mistaken in assuming that the words spoken today by me and millions of others do not mean what they did in the sixties.
To most Americans the words "equal opportunity, color-blindness, race neutrality and individual rights" do mean the same as they did in the sixties. When I use the vocabulary today, I am not putting the words in service of the agenda the mainstream civil rights activists once fought. I opposed that agenda of racism then and I oppose it now. Contrary to Fish's perception, I am still using the words to support the agenda of the mainstream civil rights activists of the sixties.
Contrary to the understanding of CCRI opponents, the 1960's civil rights battle was not fought to allow lesser qualified individuals to obtain scarce jobs and school admissions on the basis of race and sex over more qualified individuals. Nor was it fought to achieve a particular color scheme in colleges and workplaces at the expense of better qualified workers and students. Rather, it was fought to end such practices and elevate individual merit over race and sex.
CCRI opponents ignore the fact that prior to passage of the 1964 Civil Rights Act, there were people calling for racial preferences for blacks. Mainstream civil rights activists rejected that call and instead passed the 1964 Act with its predominant principle of individual rights and color blindness.
Fish said that when the goal was to end Jim Crow practices that kept blacks in the back of the bus and out of schools, "individual rights" was a powerful slogan but now it operates to maintain the status quo by ruling out as a consideration the very history that made the phrase a rallying cry in the first place.
Fish and other CCRI opponents fail to recognize why the Jim Crow laws were morally wrong. They were wrong because they used an irrelevant factor, race, to deny benefits to individuals who otherwise deserved them on the basis of their superior individual abilities. It was not the history that made "individual rights" a rallying cry in 1964. Rather, the cry for individual rights was evoked because of the unjust treatment of so many black individuals that was happening in 1964.
To give today's black individuals (including those who are less qualified than many of their non-black competitors) racial preference for scarce jobs and school admissions because of historical injustices involving other black individuals at the hands of evil perpetrators long since dead, to the detriment of today's innocent non-black individuals, is to treat individuals by the color of their skin, not by the content of their character. Such treatment was prohibited by the 1964 Civil Rights Act.
CCRI opponents disapprove of a future in which all the subcontractors, state employees and state university students will be white males. In contrast, I don't care about the race and sex of future subcontractors, employees and students. I disapprove of a future in which all the subcontractor, employee and student applicants will be treated on the basis of their race and sex, with lesser qualified subcontractors, employees and students being accepted at the expense of better qualified applicants. CCRI opponents care more about achieving a particular color and sex scheme. I care more about having the best applicant get the job or college admission, whatever his or her race or sex.
Fish said that "color-blind" now means blind to the effects of what has been done in the past to people because of their color. He writes as if today's black job seekers and school applicants are all former slaves who were just freed by the Union Army. Apparently CCRI opponents view each individual as part of a single racial and sexual entity that spans time and space. Thus, individuals are primarily parts of the black entity or the female entity or the white entity, etc., not primarily individuals. Under this view rights attach to the racial and sexual entity, not the individual. Therefore, injustice to individuals comprising this racial and sexual entity at one time in history primarily is seen as injury to the racial and sexual entity, not as injury to individuals.
Accordingly, this "injustice" can be redressed by giving a so-called "remedial" preference to other parts of the racial and sexual entity who exist at another time in another place. Presumably this can be done at the expense of innocent individuals who are part of the racial and sexual entity that spawned the evil individuals of the past.
If I believed this view to be logical, I also would support racial and sexual preferences to redress historical injustice.
Fish and most CCRI opponents do not make clear whether they believe that all of today's racial preference opponents are bigoted or whether they believe it is possible to be against racial preferences and not be bigoted.
If they believe the former, they are wrong and millions of Americans and myself are proof of that fact. If they believe the latter, they should tell us millions why.
1. California Citizens Against Discrimination and Preferences, California Civil Rights Initiative, Sec. (a)(1995).
2. Executive Order 10925, 3 CFR 1959-1963 Comp., p. 448, 450 (emphasis added).
3. 42 USC § 2000d et seq.
4. 110 Cong. Rec. 5863-5864 (1964) (emphasis added), partially quoted in Regents of University of California v. Bakke, 438 U.S. 265, 415, 57 L.Ed.2d 750 (1978) (Stevens, J., concurring in the judgment in part and dissenting in part).
5. 110 Congressional Record 11848 (1964).
6. DeRonde v. Regents of University of California, 28 Cal.3d 875, 904 (1981) (Mosk, dissenting).
7. 42 USC § 2000e-2(m).
8. Caldwell v. Paramount Unified School Dist., 41 Cal.App.4th 189, 199-201 (1995) (quoting jury instructions given by trial court).
9. Stanley Fish, How the Right Hijacked the Magic Words (conservatives' use of the phrase "individual rights" has allowed them to erode civil rights of ethnic and other groups), N.Y. TIMES, August 13, 1995, at E15.
10. Cabell Phillips, Kennedy Opposes Quotas for Jobs on Basis of Race, N.Y. TIMES, August 21, 1963, at A1.
11. Id.; Herman Belz, Equality Transformed: A Quarter Century of Affirmative Action, Transaction Publishers (1991).
California Politics and Policy, 1996 ed., published by the Pat Brown Institute of Public Policy at California State University, Los Angeles. Copies of the entire volume can be obtained for $15 by calling (213) 343-3770