Response to L.A. Times News Article

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The Los Angeles Times does not have any credibility when reporting on the California Civil Rights Initiative.

In a news article by Times reporter Cathleen Decker entitled "Affirmative Action Ban Announced," (February 23, 1996, at B1, col. 6), the Times said that the CCRI,

would strip from the state Constitution the current protections women have against sexual discrimination in the workplace. Under current law, women cannot be discriminated against unless there is a "compelling need." The initiative would allow a far lower level of scrutiny, allowing discrimination if it is "reasonably necessary."

Ms. Decker's analysis was presented as fact. It was not attributed to "some legal scholars" or "CCRI opponents" or any other source. It was presented as fact in a news article. Therefore, it better be true.

However, it is demonstrably false. Anything presently in the state Constitution that prohibits sexual discrimination against women would be unaffected by the CCRI.

If the CCRI passes, it will become a new section to the state Constitution, which already contains protections against sexual discrimination. For example, courts have interpreted the present state Constitution's equal protection clauses as prohibiting all sexual discrimination except for that which is justified by a "compelling need."

In layman's terms, this means that there has to be an extremely good reason for the sexual discrimination in order for it to be permissible under the state's equal protection clauses. One example is the prohibition on men being employed where they would be required to conduct intimate bodily searches of women, and vice-versa.

Courts have based their decisions in this area on the premise that it is possible to have sexually discriminatory conduct that is not justified by a "compelling need," but nevertheless is justified under a less stringent test. For example, even though sexually discriminatory conduct may be "reasonably necessary," the state Constitution's equal protection clauses would prohibit the conduct unless it is justified by a "compelling need." In layman's terms, this means that there might be a good reason for the sexually discriminatory conduct, thus making the conduct "reasonably necessary," but since the reason is not extremely good, the state's equal protection clauses would prohibit the discriminatory conduct.

The CCRI has two clauses that discuss sex discrimination. Subsection (a) of the CCRI prohibits sexual discrimination against women by the state. It says that 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." Among other things, this subsection clearly prohibits the state from engaging in sexual discrimination against women.

The second clause in the CCRI that discusses sex discrimination qualifies subsection (a) by saying that nothing in the CCRI itself will prohibit sexual discrimination by the state entailing "bona fide qualifications" that are "reasonably necessary." This clause, subsection (c), says that, "[n]othing in this section [meaning the entire CCRI] 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."

The California Supreme Court has held that under the present state Constitution, for sexual discrimination against women to be constitutionally permissible, the discrimination must be justified by a "compelling need." If the CCRI is added to the state Constitution, for sexual discrimination against women to be constitutionally permissible, it will have to be justified by a "compelling need" AND satisfy the CCRI's "bona fide qualifications reasonably necessary" test. Addition of the CCRI to the state Constitution will not eliminate the "compelling need" test for sexual discrimination. Rather, it will add a second test that must be satisfied if the sexual discrimination is to be permitted under the state Constitution.

So subsection (c) does not prevent other parts of the state Constitution from prohibiting sexually discriminatory conduct that fails to meet the "compelling need" test, even when the conduct meets the "bona fide qualifications reasonably necessary" test, or any other less stringent test.

The language in subsection (c) did not materialize from thin air. Unreported by the Times is the fact that this clause is derived from the 1964 Federal Civil Rights Act, that states at 42 USC ยง 2000e-2(e), that an employer may discriminate on the basis of sex in those certain instances where sex is "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."

This test, known in the law as the "bona fide occupational qualification defense" (BFOQ defense), is characterized by the U.S. Supreme Court in Auto Workers v. Johnson Controls, 499 U.S. 187, 201, 113 L.Ed.2d 158, 174 (1991), as "narrow" and as having a "restrictive scope." In contrast, the standard "reasonableness" test that is often used by the courts in other contexts is not so characterized. Therefore, the bona fide qualifications reasonableness test in the CCRI, although not as stringent as the "compelling need" test, is more stringent than the standard "reasonableness" test.

In layman's terms, the BFQ test can be characterized as a test requiring a "very good reason" for the sexual discrimination, as opposed to the merely "good reason" needed to satisfy the standard "reasonableness" test or the "extremely good reason" needed to satisfy the "compelling need" test.

Therefore, again in layman's terms, after first prohibiting all sexually discriminatory conduct by the state in subsection (a), the CCRI then says in subsection (c) that the CCRI itself will not prohibit sexually discriminatory conduct by the state if there is a very good reason for the conduct. But subsection (c) does not prevent non-CCRI portions of the state Constitution (like the equal protections clauses) from prohibiting sexually discriminatory conduct that fails to be justified by an extremely good reason.

Accordingly, subsection (c) simply means that if there is something in the state Constitution, other than the CCRI, that prohibits some form of sexually discriminatory conduct because there is no "compelling need" to justify the conduct, even though the conduct entails "bona fide qualifications" that are "reasonably necessary," the conduct can be prohibited under that non-CCRI portion of the state Constitution. Thus, the CCRI will not affect the power of the state Constitution's equal protection clauses to prohibit sexually discriminatory conduct.

The need for subsection (c) should be obvious. Some sexually discriminatory state conduct is clearly based on bona fide qualifications that are reasonably necessary. Examples include the prohibition on men from joining women's college sports teams and the prohibition on men and women using each other's restrooms. If the CCRI did not contain subsection (c), then subsection (a)'s ban on all sexual discrimination by the state would prohibit the state's segregation of college sports teams and restrooms.

The CCRI does not utilize the "compelling need" test because some judges have used that test to prohibit clearly reasonable sexual discrimination like the prohibition on men from joining female college sports teams. For example, look at the opinions of the Supreme Judicial Court of Massachusetts in Attorney General v. Massachusetts Interscholastic Athletic Association, Inc., et al., 393 N.E. 2d 284 (1979) and the United States District Court in the Eastern District of Pennsylvania in Williams v. School District of Bethlehem, PA., 799 F.Supp. 513 (E.D. Pa. 1992). By not utilizing the "compelling need" test and allowing the non-CCRI portions of the state's Constitution to utilize it, the CCRI does not hinder or promote either side in the judicial debate over application of the "compelling need" test as applied to sex discrimination.

The Times' assertion that "the initiative would allow a far lower level of scrutiny, allowing discrimination if it is 'reasonably necessary,'" is wrong because it fails to account for the language in subsection (c) of the CCRI that says, "[n]othing in this section shall be interpreted as prohibiting...." This language means that the "lower level of scrutiny" (the "BFQ reasonably necessary" test) is not prohibited by the CCRI itself. But this still allows for other parts of the state Constitution to prohibit sexually discriminatory conduct that fails to meet the higher level of scrutiny (the "compelling need" test), even though the conduct satisfies the " BFQ reasonably necessary" test.

The Times story would be accurate on this point if subsection (c) said that "nothing in this Constitution shall be interpreted...." But subsection (c) says "nothing in this section shall be interpreted" (emphasis added). By limiting its qualification of subsection (a) to "this section" (the CCRI itself), and not applying its qualification to the entire state Constitution, the CCRI insures that use of the higher level of scrutiny (the "compelling need" test), pursuant to the California Supreme Court's interpretation of the state's equal protection clauses, will not be affected by the CCRI.

This is not a gray area of legal interpretation. Subsection (c)'s effects are expressly limited to the CCRI itself. However the readers of the Times article could not see this because subsection (c) was not published in the article. Instead, all the readers got was an inaccurate characterization of subsection (c) that is being propagated by CCRI opponents.

The Times' false assertion of fact is especially irresponsible given that the Times published an op-ed article on January 24, by UCLA School of Law constitutional law teacher Eugene Volokh and Sally Pipes of the Pacific Research Institute saying that,

[w]hatever sex discrimination is impermissible under existing law, it would remain impermissible after passage of the CCRI. Even if a sex classification meets the initiative's stringent bona fide qualification test, this just means that "nothing in this section" -- nothing in the CCRI itself -- prohibits that classification. If a court finds that the classification is still prohibited by other provisions, such as the state Constitution's equal protection clause, it will remain prohibited.

"Women Need Not Fear the Civil Rights Initiative," Los Angeles Times, Commentary section, January 24, 1996.

At the very least, Ms. Decker and the Times should have known that at least two well respected scholars were asserting the opposite of what Ms. Decker was presenting as fact.

Good journalistic practice does not prohibit Ms. Decker and the Times from reporting what CCRI opponents say about specific legal issues raised by the CCRI, as long as comments from CCRI proponents about those same legal issues are also reported in the same story. In this case, the pro-CCRI side of the issue was not stated. There is no excuse for that omission.

Moreover, the anti-CCRI side of the issue was presented as fact in a news story. This would not be a problem if the reported fact were true. However, the reported fact is false. There is no excuse for publishing false news reports.

However, because the issue does depend on legal interpretation that has resulted in differing views, it would be good journalistic practice for Ms. Decker and the Times to refrain from declaring what the truth is on this issue and simply describe the issue and present the differing interpretations in the same news story along with the actual text of the CCRI. Yet, Ms. Decker and the Times even failed to do that.

Ms. Decker also states that,

[a]ccording to legal scholars, the initiative would ban all manner of affirmative action programs or those that are tailored to a particular group, including mentoring programs for girls in math and science, or outreach efforts to attract women and minority business owners to bid for state contracts.

Ms. Decker's vague attribution to "legal scholars" could easily cause a lay reader to think that all legal scholars believe this view. Since this view is not shared by all legal scholars, Ms. Decker should say "some" legal scholars hold this view. Then she should present the view of the legal scholars who disagree.

Once again, the demonstrable truth is that the phrase "affirmative action" does not appear in the CCRI. No matter how hard Ms. Decker and the Times try to make it appear, the fact is that the phrase is not in the CCRI and they should make this point clear to their readers.

The CCRI only mandates that the state not "discriminate against, or grant preferential treatment to, any individual or group" on the basis of race, sex, etc. Those state programs that do not perpetrate such discrimination or preference, like those programs that only involve outreach to individuals without regard to race or sex, will not be abolished by the CCRI. The state will not be prevented by the CCRI from mentoring any individual in math or science who needs such services. CCRI simply will prevent the state from withholding such services from needy individuals because they are male if it gives such services to needy females. CCRI will not prohibit outreach to women and minority business owners. It simply will mandate that any outreach that is done, be done without discrimination on the basis of race and sex. Under CCRI, if an individual is in need of outreach, such outreach cannot be denied on the basis of race or sex.

All this is clear from the express language of the CCRI. But Ms. Decker fails to present her readers with the express language of the CCRI and instead gives unopposed characterizations of that language by "legal scholars" clearly opposed to the CCRI.

Californians are very fortunate to have the initiative process that allows them to exercise direct democratic rule. The value of the process is underscored by the fact that it is being used to attack a policy that is notorious for being imposed virtually under cover of darkness over the last 30 years by bureaucrats, judges and politicians with very little scrutiny by the mainstream press.

Californians are unfortunate to have their largest newspaper undermining this democratic exercise by reporting falsehoods about the initiative as fact.

RESPONSE TO CHEMERINSKY AND LEVENSON
OP-ED ARTICLE

Law professors Erwin Chemerinsky and Laurie Levenson wrote an op-ed article entitled "Sex Discrimination Made Legal," Los Angeles Times, Commentary section, January 10, 1995, in which they charged that the California Civil Rights Initiative would legalize sexual discrimination against women that is now illegal.

Chemerinsky and Levenson object to section (c) of the CCRI, which states that the CCRI shall not "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." They charge that this would allow the state to engage in sexual discrimination in public education and public contracting as long as the discrimination was reasonable. They admit that the law already uses the "bona fide occupational qualification reasonably necessary" standard in the area of employment. So they are objecting to the "BFQ reasonably necessary" exception being applied in the areas of public education and public contracting.

First, they equate the "BFQ reasonably necessary" test with the standard "reasonably necessary" test. This is an error. Even they write that the U.S. Supreme Court has recognized that the "BFQ reasonably necessary" test is an "extremely narrow" exception. They also must be aware that the standard "reasonableness" test is not so characterized by the courts.

They also fail to state what is wrong with sexual discrimination in public education and public contracting that entails "bona fide qualifications" that are "reasonably necessary." The California Supreme Court, in an opinion by Rose Bird, has already recognized that unlike racial differentiation, there are "instances where public policy warrants differential treatment for men and women." (Koire v. Metro Car Wash, 40 Cal.3d 24, 38 (1985).) Examples include same-sex public restrooms and restroom workers, same-sex prison guards and inmates, and work that requires same-sex intimate bodily searching of others.

If the CCRI, with its prohibition against state perpetrated sexual discrimination, failed to allow for "bona fide qualifications" that are "reasonably necessary" as the basis for sexual discrimination in public education, public employment and public contracting, you can be certain that supporters of racial and sexual preferences would try to scare voters away from the CCRI by arguing that it would require state schools and colleges to have unisex restrooms and require the state to engage in contracting that results in same-sex prison guards and inmates and work that requires same-sex intimate bodily searching of others.

Additionally, as Eugene Volokh and Sally Pipes wrote,

[c]onsider also women's sports programs. The state's education code expressly allows separate men's and women's sports teams. Without the bona fide qualification clause, the state might have to let men compete for places on women's teams. This isn't just a fanciful hypothetical possibility. A court in another state has struck down women-only sports teams as unlawful under its own state constitution, with predictably bad consequences for women's and girls' programs.

"Women Need Not Fear the Civil Rights Initiative," Los Angeles Times, Commentary section, January 24, 1996.

The "BFQ reasonably necessary" exception in the CCRI eliminates this problem and merely mimics the "BFQ reasonably necessary" exception in the 1964 Federal Civil Rights Act section that covers employment.

Chemerinsky and Levenson also fail to mention that it is legally impossible for the CCRI to abolish the protection against unreasonable sexual discrimination embodied in the U.S. Constitution and federal laws.

Additionally, as Volokh and Pipes wrote,

[w]hatever sex discrimination is impermissible under existing law, it would remain impermissible after passage of the CCRI. Even if a sex classification meets the initiative's stringent bona fide qualification test, this just means that "nothing in this section" -- nothing in the CCRI itself -- prohibits that classification. If a court finds that the classification is still prohibited by other provisions, such as the state Constitution's equal protection clause, it will remain prohibited.

"Women Need Not Fear the Civil Rights Initiative," Los Angeles Times, Commentary section, January 24, 1996.

Chemerinsky and Levenson fail to mention that in addition to prohibiting the state from granting "preferential treatment" on the basis of race or sex, the CCRI also mandates that the state "not discriminate" on the basis of race or sex. (Supporters of racial and sexual preferences almost always omit this portion of the CCRI because the omission makes it easier to demonize the CCRI.)

Furthermore, Chemerinsky and Levenson fail to give any example of state perpetrated sexual discrimination in education or contracting that they find objectionable that is now prohibited, but would be "expressly allowed" as they say, by passage of the CCRI.

Finally, Chemerinsky and Levenson state that the CCRI "would eliminate all affirmative action." However, the phrase "affirmative action" does not appear in the CCRI. The CCRI only mandates that the state not "discriminate against, or grant preferential treatment to, any individual or group" on the basis of race, sex, etc. Those state programs that do not perpetrate such discrimination or preference, like those parts of "affirmative action" that only involve outreach to individuals without regard to race or sex, will not be abolished by the CCRI. (Once again, supporters of racial and sexual preferences want to mislead the public into believing that the CCRI will ban "all affirmative action" in order to demonize the initiative.)

Los Angeles Daily Journal, March 12, 1996, p. 6, shortened version.  The Los Angeles Daily Journal is the city's primary newspaper for the legal community.