Volume 23, Issue 4
Volume 23, Number 4 Summer 1996
SYMPOSIUM
THE MEANINGS OF MERIT Affirmative Action and the California Civil Rights Initiative
ARTICLES
UNDERSTANDING AFFIRMATIVE ACTION (page 921)
By David Benjamin Oppenheimer
This Article describes the law and practice of affirmative action under the United States Supreme Court's new restrictive rules, and presents the details of over one hundred studies demonstrating the prevalence of discrimination against women and minorities in the areas of education, employment, housing, health care, economic growth, wealth and poverty, and in the operation of the criminal justice system. Following a discussion of the law and practice of affirmative action and the psychology of discrimination, this Article presents results of studies demonstrating that public education throughout America is largely segregated, with minority children attending vastly inferior schools. It reports that employment discrimination against women and minorities is endemic, and as a result, even among equally educated full-time employees, white men earn substantially more than women and minority men. In housing, as in education, there exists a high level of racial segregation across America. Separation of white neighborhoods from black neighborhoods transcends class--even affluent blacks live largely among other blacks. On the subject of health care, this Article describes the dramatic disparities between the care afforded whites and minority group members. A recent series of studies establishes that when all other variables are held constant, whites receive significantly more aggressive treatment for disease than do blacks. In the area of economic opportunity, this Article discusses a series of recent studies demonstrating that despite various affirmative action programs, minority group members face substantial discrimination in amassing capital and in winning bids on government jobs. As a result, race affects the opportunity to start one's own business. On the subject of wealth, this Article relies on census data to disclose that poverty is wide-spread among racial minority groups, and that black and Hispanic families are far more likely to be poor and to be stuck in chronic poverty than are white families. Moreover, even among the well-educated middle class, whites are far wealthier than blacks. Finally, in its discussion of the criminal justice system, this Article presents evidence that blacks and Hispanics are more likely to be stopped by the police and arrested, and once arrested are more likely to be prosecuted, convicted, sentenced to prison, and to receive longer sentences than are whites who have committed the same offenses. Minorities are also far more likely to be crime victims than whites, and are less likely to be employed as peace officers. This comprehensive study helps demonstrate that a central tenet of the campaign to end affirmative action--the claim that discrimination against minorities has largely disappeared from American life--is simply not true.
THE IMPACT OF THE PROPOSED CALIFORNIA CIVIL RIGHTS INITIATIVE (page 999)
By Erwin Chemerinsky
This article assesses the impact of the proposed California Civil Rights Initiative ("CCRI"). If enacted, the CCRI will eliminate a vast array of programs designed to remedy past discrimination and advance equality of opportunity. Although the CCRI abolishes preferences based on race or gender, the term "preferences" is not defined. There is a risk that courts will give the term a broad construction and an even greater risk that governments voluntarily will forego affirmative action programs of all sorts to avoid litigation. Additionally, the CCRI will expand the legal authority for gender discrimination because it expressly permits gender to be so used if reasonably necessary to a bona fide qualification in contracting, education, and employment. No current law, federal or state, permits gender to be used as a basis for government action in education or contracting. Also, because the CCRI would amend the California Constitution to allow gender discrimination where reasonably necessary, it might be construed to eliminate strict scrutiny for gender discrimination.
EQUAL PROTECTION, UNEQUAL POLITICAL BURDENS, AND THE CCRI (page 1019)
By Vikram D. Amar and Evan H. Caminker
States certainly have the right to repeal previously enacted race-based affirmative action programs. As Professors Amar and Caminker point out, however, a rarely discussed line of Supreme Court authority identifies some federal constitutional limitations on the ways in which states may effect repeal. The most coherent and sophisticated reading of this line of cases suggests the following: When a state law not only repeals programs that specially benefit racial minorities, but also entrenches that repeal by making reenactment of those programs in the future particularly difficult, such a law runs contrary to the Equal Protection Clause. Taking these cases as given, Amar and Caminker apply them to the so-called California Civil Rights Initiative ("CCRI"), which appears as Proposition 209 on this November's California ballot. The authors conclude that these cases, which are presently the law of the land and binding on lower courts, cut strongly against the constitutionality of the CCRI.
"AND TO THE REPUBLIC FOR WHICH IT STANDS": GUARANTEEING A REPUBLICAN FORM OF GOVERNMENT (page 1057)
By Catherine Rogers and David L. Faigman
Article IV, Section 4 of the Constitution was intended to safeguard against instability and oppression of voting minorities and to provide a check on factious majorities through a system of representative democracy. The state initiative process directly undermines these principles by allowing measures such as the CCRI to be enacted via direct vote of a largely uninformed population. This "direct democracy" violates the guarantee of a republican form of government in its lack of formal deliberation and debate, absence of opportunity to compromise, polarization of views, deception, and ultimate voter confusion.
This Essay also addresses the arguments in favor of the initiative process, and rejects the proposed solution of heightened scrutiny of such direct legislation--arguing that such balancing is inappropriate in light of the Guarantee Clause's inherent demand for categorical assessment, and its overriding preference for representative democracy.
MERIT-TEACHING (page 1073)
By Yxta Maya Murray
Professor Yxta Maya Murray explores the notion of Merit-Teaching -- the expansion of our current ideas of merit through the inclusion of the virtues and values of "Outsiders." Using insights developed by Aristotelian moral philosophers, critical race theorists, and feminist legal theorists as her guide, Professor Murray investigates Outsiders' particular virtues, and thus merits, that are forged from the experiences of oppression. Professor Murray brings these lessons into relief through the use of storytelling -- her rendition of the life stories of her grandmother, her mother, and herself -- which demonstrate Outsider virtue in action.
REVERSE RACISM!: AFFIRMATIVE ACTION, THE FAMILY, AND THE DREAM THAT IS AMERICA (page 1115)
By Robert Chang
In this Essay, Professor Chang explores the interaction of race and family in the affirmative action debate. Although discrimination against women remains rampant in our society, and despite the fact that white women have been the primary beneficiaries of affirmative action, white women are being told that affirmative action hurts them because it hurts their husbands, brothers, and sons. Familial loyalty is being invoked to do the work of an explicit call for white racial solidarity. This strategy may be successful because as late as 1987, even with the increasing rate of interracial marriage, 99% of white Americans were married to other whites. As a result, the invocation of family disrupts gender solidarity between white women and women of color, and it mediates gender conflict between white women and white men. Professor Chang argues that we should resist this attempt to return to a former domestic order.
FAILURE OF THE COLOR-BLIND VISION: RACE, ETHNICITY, AND THE CALIFORNIA CIVIL RIGHTS INITIATIVE (page 1135)
By Neil Gotanda
Advocates for the California Civil Rights Initiative have argued that they seek racial justice in a color-blind society. In this Article, Professor Gotanda first analyzes race color blindness to show that the color-blind vision is far from a truly open and just vision, but instead undermines efforts to achieve genuine social justice. The second section examines Hopwood v. Texas, a recent Fifth Circuit decision, and concludes that the majority opinion pursues an extremist color-blind vision which would deny any validity to the history and culture of women or racial and ethnic minorities. The third section examines the textual language of the California Civil Rights Initiate and finds ambiguous provisions which would not only eliminate affirmative action, but would prohibit ethnic and women's studies programs throughout California's educational system. The Article concludes by examining Justice Harlan's famous dissent in Plessy v. Ferguson and observes that Harlan's use of race color blindness supports continued white racial supremacy. Professor Gotanda calls for abandoning reactionary efforts to return to Harlan's nineteenth century understanding and instead moving forward towards a truly just society.
DEBUNKING THE MYTH THAT SUBDIVISION (C) OF THE CALIFORNIA CIVIL RIGHTS INITIATIVE LESSENS THE STANDARD OF JUDICIAL REVIEW OF SEX CLASSIFICATIONS IN CALIFORNIA (page 1153)
By Pamela A. Lewis
Ms. Lewis argues that opponents of the California Civil Rights Initiative ("CCRI") have attempted to scare women as part of a campaign strategy to defeat the proposed constitutional amendment. In particular, she criticizes the opposition's arguments that, if CCRI passes, subdivision (c) will lower the standard of judicial review of all sex classifications under the California Constitution. The author argues that subdivision (c) will have no such effect as the subdivision's language is borrowed from the bona fide occupational qualification ("BFOQ") provision of the Civil Rights Act of 1964. BFOQs are recognized as narrow exceptions to federal and state antidiscrimination laws, including California's Fair Employment and Housing Act. Under the BFOQ exception, courts sustain sex-based classifications only if stringent requirements are met. Additionally, Ms. Lewis argues, the California Constitution has been interpreted as requiring strict scrutiny of sex classifications. Finally, subdivision (c) - which begins with the words [n]othing in this section"- is by its own terms restricted to the provisions of the CCRI. If the CCRI passes, the new section will not modify any other provision of the existing Constitution.