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 first time the phrase "affirmative action" 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.
Executive Order 10925, 3 CFR 1959-1963 Comp., p. 448, 450 (emphasis added).
The phrase was part of Kennedy's requirement that "positive measures" and "affirmative steps" be taken to treat individuals without regard to race (id., at 448, 449), 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 really means 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.
The California Civil Rights Initiative does not use the phrase "affirmative action" because the meaning of the phrase has become so distorted since its use by President Kennedy. Some view the meaning of the phrase as it was originally intended by President Kennedy, i.e., "positive measures" and "affirmative steps" to treat individuals without regard to race. Others view the meaning as encompassing only racial and sexual discrimination/preference. Others view the meaning as encompassing any action that increases racial or sexual diversity of a work force or student body, whether the action treats individuals with or without regard to their race or sex.
The target of the California Civil Rights Initiative 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.
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 will argue that using race and sex as a 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.
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).
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.
One of the best discussions of the legislative history of the Civil Rights Act of 1964 is the dissenting opinion by Justice William Rehnquist in Steelworkers v. Weber, 443 U.S. 193, 61 L Ed 2d 480 (1979). Here is an example:
Responding to a political advertisement charging that federal agencies were at liberty to interpret the word "discrimination" in Title VII to require racial balance, Senator Humphrey stated: "[T]he meaning of racial or religious discrimination is perfectly clear. . . . [I]t means a distinction in treatment given to different individuals because of their different race, religion, or national origin." 110 Congressional Record, at 5423. [fn]
[fn] This view was reiterated two days later in the "Bipartisan Civil Rights Newsletter" distributed to the Senate on March 19 by supporters of HR 7152: "3. Defining discrimination: Critics of the civil rights bill have charged that the word 'discrimination' is left undefined in the bill and therefore the door is open for interpretation of this term according to 'whim or caprice.' . . . There is no sound basis for uncertainty abut the meaning of discrimination in the context of the civil rights bill. It means a distinction in treatment given to different individuals because of their different race, religion, or national origin." 110 Congressional Record, at 7477.
Steelworkers v. Weber, 443 U.S. 193, 236, 61 L Ed 2d 480, 509 (1979).
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...." 110 Congressional Record 11848.
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 discrimination.
Force the practitioners of racial and sexual discrimination/preference to be honest about describing the practice they endorse. Ask them if they support racial or sexual discrimination/preference. If they answer that they are opposed to such discrimination/preference, then ask them why they oppose the CCRI given that it only prohibits what they just said they oppose -- racial and sexual discrimination/preference. Don't let them use the phrase "affirmative action" to denounce the CCRI since that phrase is not part of the initiative and the meaning of the phrase has become so distorted. Try to get them to be intellectually honest about calling their practice of racial and sexual discrimination/preference exactly what it is. You will have better luck getting a vampire to eat garlic.