HomeMy WebLinkAboutMINUTES - 09171996 - D7 TG: BOARD OF SUPERVISORS IOC-02 Contra
FROM: INTERNAL OPERATIONS COMMITTEE Costa
s
County
DATE: September 9, 1996
SUBJECT: RECOMMENDATION TO OPPOSE PROPOSITION 209, THE "CALIFORNIA
CIVIL RIGHTS INITIATIVE"
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
ADOPT a position in opposition to Proposition 209 on the November 5, 1996 ballot,
commonly referred to as the "California Civil Rights Initiative."
BACKGROUND:
On September 9, 1996, our Committee met with representatives from the Equal
Employment Opportunity Advisory Council, who strongly recommended that the
Board of Supervisors formally oppose Proposition 209.
The official title and summary of Proposition 209, prepared by the State Attorney
General, reads as follows:
"PROHIBITION AGAINST DISCRIMINATION OR PREFERENTIAL
TREATMENT BY STATE AND OTHER PUBLIC ENTITIES.
INITIATIVE CONSTITUTIONAL AMENDMENT
• Prohibits the state, local governments, districts, public universities, colleges,
and schools, and other government instrumentalities from discriminating
against or giving preferential treatment to any individual or group in public
employment, public education, or public contracting on the basis of race, sex,
color, ethnicity, or national origin.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
DSIGNATURE(S): a,�Y�E BISNnpLin JIM Rn�FB�S
ACTION OF BOARD ON September 17, 1996 APPROVED AS RECOMMENDED X OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
X UNANIMOUS(ABSENT ------------ ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
ATTESTED September 17, 1996
Contact: A ELOR,CLERK OF THE BOARD OF
cc: S ISORS AND CO Y AD INISTR) IR
County Administrator
Affirmative Action Officer Ole
Director of Human Resources BY
IOC-02
• Does not prohibit reasonably necessary, bona fide qualifications based on sex
and actions necessary for receipt of federal funds.
• Mandates enforcement to extent permitted by federal law.
• Requires uniform remedies for violations. Provides for severability of
provisions if invalid."
The analysis by the Legislative Analyst, the text of Proposition 209 and the
arguments in favor of and against Proposition 209 and their respective rebuttals are
attached.
The argument in favor of Proposition 209 is signed by the Governor of California;
Ward Connerly, Chairman, California Civil Rights Initiative; and Pamela A. Lewis,
Co-Chair, California Civil Rights Initiative.
The argument against Proposition 209 is signed by the President of the League of
Women Voters of California; Rosa Parks, Civil Rights Leader; and Maxine Blackwell,
Vice President, Congress of California Seniors.
The rebuttal to the argument in favor of Proposition 209 is signed by the National
Executive Director of the YWCA of the U.S.A.; the President of the American
Association of University Women; and the Executive Director, Leadership
Conference on Civil Rights.
The rebuttal to the argument against Proposition 209 is signed by the Attorney
General of California; State Senator Quentin Kopp; and Gail L. Heriot, a Professor
of Law.
As the argument against Proposition 209 states:
"The initiative's language is so broad and misleading that it eliminates equal
opportunity programs including:
• tutoring and mentoring for minority and women students;
• affirmative action that encourages the hiring and promotion of qualified women
and minorities;
• outreach and recruitment programs to encourage applicants for government
jobs and contracts, and;
• programs designed to encourage girls to study and pursue careers in math
and science."
We proudly join with the AAUW, the League of Women Voters, Rosa Parks and our
own Equal Employment Opportunity Advisory Council in urging the Board of
Supervisors to oppose Proposition 209.
-2-
'(209
Prohibition Against Discrimination or Preferential
Treatment by State and Other Public Entities.
Initiative Constitutional Amendment.
—"" Official Title and Summary Prepared by the Attorney General
PROHIBITION AGAINST DISCRIMINATION OR PREFERENTIAL
TREATMENT BY STATE AND OTHER PUBLIC ENTITIES.
INITIATIVE CONSTITUTIONAL AMENDMENT.
• Prohibits the state, local governments, districts, public universities, colleges, and schools, and
other government instrumentalities from discriminating against or giving preferential treatment
to any individual or group in public employment, public education, or public contracting on the
basis of race, sex, color, ethnicity, or national origin.
•. Does not,prohibit reasonably necessary, bona fide qualifications based on sex and actions
necessary for receipt of federal funds.
• Mandates enforcement to extent permitted by federal law.
• Requires uniform remedies for violations. Provides for severability.of provisions if invalid.
Summary of.Legislative Analyst's .
Estimate of Net State and Local Government Fiscal Impact:
• The .measure could affect state and local programs that currently cost well in excess of
$125 million annually.
• Actual savings to the. state and local governments would depend on various factors (such as
future court decisions and implementation actions by government entities).
Analysis by the Legislative Analyst
BACKGROUND PROPOSAL
The federal, state, and local governments run many This measure would eliminate state and local
programs intended to.increase opportunities for various government.affirmative action programs in the areas of
groups—including women and racial and ethnic minority public employment, public education, and public
groups. .These programs are commonly called _.contracting to the extent these programs involve
"affirmative action" programs. For example, state law . "preferential _treatment" based on race, sex, color,
identifies specific. goals for the participation of ethnicity, or national origin. The specific programs
women-owned and minority-owned, companies on work affected by the measure, however, would depend on such
involved with state contracts. State departments are factors a&(1)court rulings on what types!of activities are
expected, but not required, to,meet these goals, which considered "preferential treatment" and (2) whether
include that at least 15 percent of the value of contract federal ' law requires the continuation of certain
work should be done by minority-owned companies and programs.
at least 5 percent should be done by women-owned The measure provides exceptions to the ban on
companies. The law requires departments, however, to preferential treatment when necessary, for any of the
reject.bids from companies that have not made sufficient following reasons:
"good faith efforts"to meet these goals. '. • To keep the state or local governments eligible to
Other examples of affirmative action programs receive money from the federal government.
include: •. To comply with a court order in force as of the
• Public college and university programs such as effective date of this measure (the day after the
scholarship, tutoring, and outreach that are election).
targeted toward minority or women students. To comply with federal law or the United States
• Goals and timetables to encourage the hiring of Constitution.
members of "underrepresented" groups for state To meet privacy and other considerations based on
government jobs. sex that are reasonably necessary to the normal
• State and local programs required by the federal operation.of public employment, public education, or
government as a condition of receiving federal funds- public.contracting.
(such as requirements for minority-owned business FISCAL EFFECT
participation in state highway construction projects
funded in part with federal money). If this measure is approved by the voters, it could
affect a variety of state and local programs. These are
discussed in more detail below.
30 G96
'DI
Public Employment and Contracting The State Constitution requires the state to spend a
The measure would eliminate affirmative action certain amount each year on public schools and
programs used, to increase hiring and promotion community colleges. As a result, under most situations,
opportunities for state or local government jobs, where the Constitution would require that funds that cannot be
sex, race, or ethnicity are preferential factors in hiring, spent on programs because of this measure instead
would have to be spent for other public school and
promotion, training, or recruitment decisions. In community college programs.
addition, the measure would eliminate programs that University of California and
give preference to women-owned or minority-owned California State University
companies on public contracts. Contracts affected by the
The measure would affect admissions and other
measure would include contracts for construction programs at the state's public universities. For example,
projects,, purchases of computer equipment, and the the California State University (CSU) uses race and
hiring of consultants.These prohibitions would not apply ethnicity as factors in some of its admissions decisions. If
to those government agencies that receive money under this initiative is passed by the voters,'it could no.longer
federal programs that require such affirmative action. do so. In 1995, the Regents of the University of Califor-
The elimination of these programs would result in nia (UC) changed the UC's admissions policies, effective
savings to the state and local governments. These for the 1.997-98 academic year, to eliminate all
savings would occur for two reasons. First, government consideration of race or ethnicity. Passage of this
agencies no longer would incur costs to administer the initiative by the voters might require the UC:to
programs. Second, the-prices paid on some government implement its new admissions policies somewhat sooner.
contracts would decrease'. This would happen because Both university systems also run a variety of
bidders on contracts no longer would need to show"good assistance programs for students, faculty, and staff that
faith efforts" to use..minority-owned or women-owned are targeted to individuals based on sex, race, .or
subcontractors. Thus, state and local'governments would ethnicity. These include programs such as outreach,
save money to the extent they otherwise would have counseling, tutoring, and financial aid. The two systems
rejected a low bidder—because the bidder-did not make a spend over $50 million each year on.programs that
"good faith effort"—and awarded the contract to a higher probably would be affected by passage of this measure.
bidder. Summary
Based on available information;we estimate.that the As described.above,this measure could affect state and
measure would result in savings in employment and local programs that currently cost well in excess of
contracting programs that could total tens of millions of
dollars each year. $125 million annually. The actual ,amount of this
spending that might.be saved'-as a result of this measure
Public Schools and Community Colleges could be considerably less,for various reasons:
The measure also could affect funding for public •. The amount of.spending affected by this measure
schools (kindergarten through grade 12) and community, could be less depending on(1) court rulings on what
college programs. For' instance, the measure. could types:of activities are considered "preferential
eliminate, or cause fundamentalchanges;to, voluntary treatment',' and'(2) whether federal law requires
desegregation programs run by.school districts. (It would continuation of certain programs.
not, however, affect court-ordered desegregation In most cases, any funds that could not be spent for
programs.) Examples of desegregation spending that existing programs in public schools and community
could be affected;by the measure include the special. colleges would have to be spent on other programs in
funding given to (1) "magnet" schools: (in those cases the schools and colleges.
where race or ethnicity are preferential factors in the In addition, the amount affected as a "result of this
admission of students to the schools) and (2) designated measure would be less if any existing affirmative
"racially isolated minority schools"that are located.in action programs were declared unconstitutional
areas with high proportions of racial or ethnic minorities. under the United States Constitution. For example,
We estimate that up to $60 million of state and local five state affirmative action programs are currently
funds spent each year. on voluntary desegregation the subject of a lawsuit. If any of these programs are
programs may be affected by the measure. found to be unlawful, then the state could no longer
In addition,' the measure would affect.a_variety, of spend money on them—regardless of whether this
public school and community college programs such as measure is in effect.
counseling, tutoring, outreach, student financial aid, and Finally, some programs we have identified as being
financial aid to selected school districts in those cases affected might be changed to use factors other than
where the programs provide preferences to individuals or those prohibited by the measure. For example, a
schools based on race, sex, ethnicity, or national origin. high school outreach program operated by the UC or
Funds spent on these programs total at least$15 million the CSU that currently uses a factor such as
each year. ethnicity to. target spending could be changed to
Thus, the measure could affect up to $75 million in. target instead high schools with low percentages of
state spending in public schools and community colleges. UC or CSU applications.
For the text of Proposition 209 see page 94
G96 31
Prohibition Against Discrimination or Preferential
12O9 Treatment by State and Other Public Entities.
Initiative Constitutional Amendment.
Argument in Favor of Proposition 209
THE RIGHT THING TO DO! costly bureaucracies to administer racial and gender
A generation ago,we did it right.We passed civil rights laws discrimination that masquerade as "affirmative action."They
to prohibit discrimination. But special interests hijacked the waste much more of your money awarding high-bid contracts
civil rights movement. Instead-of equality, governments and sweetheart deals based not on the low bid, but on unfair
imposed quotas,preferences,and set-asides. set-asides and preferences. This money could be used for police
Proposition 209 is called the California Civil Rights Initiative and fire protection,better education and other programs—for
because it restates the historic Civil Rights Act and proclaims everyone,
simply and clearly:"The state shall not discriminate against,or THE BETTER CHOICE: HELP ONLY
grant preferential treatment to,any individual or group,on the THOSE WHO NEED HELP!
basis of race, sex, color, .ethnicity or national origin in the
operation of public employment, public education, or public We are individuals! Not every white person is advantaged.
contracting." And not every"minority"is disadvantaged. Real "affirmative
"REVERSE DISCRIMINATION"BASED ON RACE action" originally meant, no discrimination and sought to
OR GENDER IS PLAIN WRONG! provide opportunity. That's why Proposition 209 prohibits
And two wrongs don't make a right!.Today,students are being discrimination and preferences and allows any.program that
rejected from public universities because of their RACE. Job. does not discriminate, or prefer, because of race or sex, to
applicants are turned away because their RACE does not meet continue. '
some "goal". or "timetable." Contracts are awarded to high The only honest and effective way to address inequality of
bidders because they are of the preferred RACE. opportunity is by making sure that all California children are
That's just plain wrong and unjust. Government should not provided with the tools to compete in our society.And then let
discriminate.It must not give a job,a university admission,or a them succeed on a fair, color-blind, race-blind, gender-blind
contract based on race or sex. Government must judge all basis.
people equally,without discrimination! Let's not perpetuate the myth.that"minorities"and women
And, remember, Proposition 209 keeps in place all federal cannot compete without special preferences.Let's instead move
and state protections against discrimination!. forward by returning to the fundamentals of our democracy:
BRING US TOGETHER! individual achievement, equal opportunity and zero tolerance
Government cannot work against discrimination if for discrimination against—or for—any individual.
government itself discriminates. Proposition 209 will stop the Vote for FAIRNESS . not favoritism!
terribleprograms which are dividing our people and tearing us Reject preferences by voting YES on Proposition 209.
apart.People naturally feel resentment when the less qualified PETE WILSON
are preferred..We are.'all.Americans. It's .time,to bring us Governor,State of California
together under a single'standard of equal treatment under the
law. WARD CONNERLY
STOP THE GIVEAWAYS! Chairman,_California Civil Rights Initiative
Discrimination is costly in other ways. Government agencies PAMELA A.LEWIS .
throughout California spend millions of your tax dollars for Co-Chair,California Civil Rights Initiative
Rebuttal to Argument in Favor of Proposition.209,
THE WRONG THING TO DO! political gain. We should not allow their ambitions to sacrifice
A generation ago; Rosa Parks launched the Civil Rights equal opportunity for political opportunism.
movement, which.opened the door.to equal opportunity for 209 MEANS OPPORTUNITY
women and minorities in this.country. Parks.is against this' BASED SOLELY.ON FAVORITISM.
deceptive initiative. Proposition 209 highjacks civil rights Ward Connerly has already used his influence to get children
language and 'uses legal, lingo to gut protections. against of his rich and .powerful friends into the University of
discrimination. California. 209 reinforces the "who you know" system that
Proposition 209 says it eliminates quotas, but in fact, the favors cronies of the powerful.
U.S. Supreme Court already decided—twice—that they are
illegal. . Proposition 209's real purpose is to eliminate "There are those who say, we can stop now, America is a
affirmative action equal opportunity programs for qualified color-blind society. But it isn't yet,there are those who say we
women and minorities including tutoring, outreach, and have a level playing field, but we don't yet."Retired General
mentoring. Colin Powell[5/25/961.
PROPOSITION 209 PERMITS DISCRIMINATION. VOTE NO ON 209!!►- .
AGAINST WOMEN. PREMAMATHAI-DAVIS
2.09 changes the California Constitution to permit state and National Executive Director,YWCA of the U.S-A.
local governments todiscriminate against women, excluding KAREN MANELIS
them from job categories. President,California American Association
STOP THE POLITICS OF DIVISION of University Women
Newt Gingrich,Pete Wilson,and Pat Buchanan support 209. WADE HENDERSON
Why? They are playing the politics of division for their own Executive Director,Leadership Conference on
Civil Rights
32 Arguments printed on this page are the opinions of the authors and have not been checked for accuracy by any official agency. G96
D"I
Prohibition Against Discrimination or Preferential
Treatment by State and Other Public Entities. 209
Initiative Constitutional Amendment.
Argument Against Proposition 209
VOTE NO ON PROPOSITION 209 Proposition 209's loophole will undo this vital state
HARMS EQUAL OPPORTUNITY FOR WOMEN constitutional protection.
AND MINORITIES PROPOSITION 209 LOOPHOLE PERMITS STATE
California law currently allows tutoring, mentoring, GOVERNMENT TO DENY.WOMEN OPPORTUNITIES IN
outreach, recruitment, and counseling to help.ensure equal PUBLIC EMPLOYMENT, EDUCATION, AND
opportunity for women and minorities. Proposition 209 will CONTRACTING, SOLELY BASED ON THEIR GENDER.
eliminate affirmative action programs like these that help PROPOSITION 209 CREATES MORE DIVISION
achieve equal opportunity for women and minorities in public IN OUR COMMUNITIES
employment, education and contracting. Instead of reforming
affirmative action to make it fair for everyone,Proposition 209 It is time to put an end to politicians trying to divide our
makes the current problems worse. communities for their own political gain. "The initiative is a
e IPROPOSITION 209 GOES TOO FAR misguided effort that takes California down the road of
° The initiative's language is so broad and misleading that it division. Whether intentional or not,.it pits communities
s eliminates equal opportunity programs including:. against communities and individuals against each other."
it • tutoring and mentoring for minority and women students; —Reverend Kathy Cooper-Ledesma
° • affirmative action that encourages the hiring and President, California Council of Churches.
promotion of qualified women and minorities; GENERAL COLIN POWELL'S POSITION ON
of • outreach and recruitment programs to • encourage
re applicants for government jobs and contracts;and PROPOSITION 209:
et • programs designed to encourage girls to study and pursue "Efforts such as the California Civil Rights Initiative which
.id careers in math and science. poses as an equal opportunities initiative, but which puts at
The independent,non-partisan California Legislative Analyst risk every outreach program, sets back the gains made by
en gave the following report on the effects of Proposition 209: women and puts the brakes on expanding opportunities for
Ive "[T]he measure would eliminate a variety of public school people in need."
:y: (kindergarten through grade 12) and community college —Retired General Colin Powell, 5/25/96.
we programs such as counseling, tutoring, student financial aid, GENERAL COLIN POWELL IS RIGHT.
and financial aid to selected school districts, where these
programs are targeted based on race, sex,ethnicity or national VOTE"NO"ON PROPOSITION 209—
origin."[Opinion Letter to the Attorney General, 10/15/95]. EQUAL OPPORTUNITY MATTERS
PROPOSITION 209 CREATES A LOOPHOLE THAT FRAN PACKARD
ALLOWS DISCRIMINATION AGAINST WOMEN President,League of Women Voters of California
Currently, California women have one of the strongest state. ROSA PARKS
constitutional protections against sex-discrimination in the Civil Rights Leader
country. Now it is difficult for state and local government to MAXINE BLACKWELL
discriminate against women in public employment,education, Vice President,Congress of California Seniors,
and the awarding of state contracts because of their gender. Affiliate of the National Council of Senior Citizens
•ifice Rebuttal to Argument Against Proposition 209•
Don't let them change the subject: Proposition 209 bans remain.in full force and effect. It does NOTHING to any
discrimination and preferential treatment—period:Affirmative existing constitutional provisions.
action programs that'don't discriminate or grant preferential Clause c is in the .text for good reason. It uses the
ldren treatment will be UNCHANGED.Programs designed to.ensure legally-tested language of the original 1964 Civil Rights Act in
,,y of that all persons-=regardless of race.or gender—are informed of allowing sex to be considered only if it's a "bona fide"
that opportunities and treated with equal dignity and respect will qualification. Without that narrow exception, Proposition 209
continue as before. would require unisex bathrooms and the hiring of prison guards
i is a . Note that Proposition 209 doesn't prohibit consideration of who strip-search inmates without regard to sex. Anyone
3.y we economic disadvantage. Under the existing racial-preference , opposed to Proposition 209 is opposed to the 1964 Civil Rights
:neral system, a wealthy doctor's son may receive a.preference for Act.
college admission over a dishwasher's daughter simply because Join the millions of voters who support Proposition 209.Vote
he's from an"underrepresented"race. THAT'S UNJUST. The . YES
state must remain free to help the economically disadvantaged,
but not on the basis of race or sex. DANIEL E.LUNGREN
Opponents mislead when they,claim that Proposition 209 will Attorney General,'State of California
legalize sex discrimination. Distinguished legal scholars, QUENTIN L.KOPP
liberals and conservatives, have rejected that argument as State Senator
ERRONEOUS. Proposition 209 adds NEW PROTECTION GAIL L.BERIOT
against sex discrimination on top of existing ones, which Professor of Law
G96 G96 Arguments printed on this page are the opinions of the authors and have not been checked for accuracy by any official agency. 33
'Proposition 209• Text of Proposed Law
This initiative measure rs submitted to the people in accordance with the provisions of . (e) Nothing in this,section shall be.interpreted as prohibiting action which must be taken
Article II,Section 8 of the Constituttoq to establish or,maintain eligibility for any federal program where ineligibility would result in
This initiative measure expressly,amends the Constitution by adding a section thereto; a loss of federal.funds to:the state.
therefore,new provisions proposed to be added are punted in italic,type to indicate.that they (b For the purposes of this section,."state"shall include,but not necessarily be limited to,
are new. the.state itself,any city,county;city and county,public university system, including the.
PROPOSED AMENDMENT.TO ARTICLE IUniversity of.California,.community college district,.school district special distrtet or any
Section 31.is added to Article I of the California Constitution as follows: other political subdivision or governmental instrumentality of or within the state:
SEC 31. (a) The state shall not discriminate against or grant preferential treatment to, (g) The remedies available for violations of this section shall be the same,regardless of
any individual or.group on the basis of race,sex,color,ethnicity,,or national origin in the the injured party's race,sex,color,ethnicity,or national origin,as are otherwise available
operation of public employment,public education,or public contracting. for violations of then-existing California antidiscrimination law.
(b) This section shall apply only to action taken.after the sections effective date. . (h)This section shall be self-executing.If any part or parts of this section are found to be
(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications in confiiet with federal law'or the United States Constitution the section shall be
based on sex which are reasonably necessary to the normal operation of public employment, implemented to the maximum extent that federal law and the United States Constitution
public education,or public contracting.;; ;.
(d)Nothing in this section shall be interpreted as invalidating any court order or consent permit: provision:held invalid shall 6e severable from the remaining portions of this
decree which.is in force as.of the effective date of this section. section
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