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Race Preferences and the Resurrection of George Orwell By: Ward Connerly
FrontPageMagazine.com | Tuesday, May 27, 2003

Have you ever wondered why the people of California have such an appetite for the voter initiative process?  Proposition 13 (reformed the property tax), “Three Strikes” (got criminals off the streets), Proposition 187 (prohibited public services for illegal immigrants), Proposition 209 (ended race preferences), and Proposition 227 (reformed bilingual education) are all high profile examples of actions taken by the people of California over the past 25 years.


None of the above could clear even the policy committee in the house of origin of the bicameral California Legislature when legislation was introduced to enact these reforms, despite the fact that all of them were subsequently approved, overwhelmingly, by the people of the Golden State. 


For nearly three decades, the citizens of California have had to endure a state legislative body that is arrogant, dysfunctional, incompetent, and in which the sum of its parts—individual legislators—do not equal the ideological whole of the people they are supposed to represent.  As a body, the California Legislature probably has more socialist-thinking members than most countries for which socialism is official government policy. 


The people of California, on the other hand, are more independent of thought and libertarian in their collective perspective about public policy.  Therein lies the internal and seemingly never-ending conflict between the electorate and the state legislature of California. 


To say that a “culture war” is being quietly prosecuted in California qualifies as one of the understatements of all-time.  Those on the political left in this war are far more capable in the tactics of culture warfare than those on the political right and in the center.  Their tactical skills have been honed on university campuses and as neighborhood activists working for groups that promote “social change” and “equity.”


Every state has individuals who are extreme leftists, but California has more per capita than other states.  Because the American people are a tolerant people and believe in “diversity,” we allow leftists to wear their sandals and smoke their pipes on campuses, but they remain on the fringe in most states.  In California, they get elected to office where they can effectively implement their social change ideas; and the California Legislature is their primary laboratory.  In a nutshell, that is the explanation for the fact that California is bleeding red ink in barrels.


It is not my approach to be pejorative and to characterize those with whom I disagree by attaching labels to them.  But, in this instance, I see no other way to identify the major force operating in California than to define them as “leftists.”   And, so it shall be.


One fact that must be acknowledged is that leftists never quit.  For them, the war is never over.  Ballot initiatives are speed bumps, not stop signs.  When the people enact initiatives that leftists oppose, they simply shift the war to a new battlefield.  In short, they redouble their efforts to find a way to negate the initiatives.  Tie them up in court and craft administrative techniques to circumvent them are common approaches. 


When the voters of California said they didn’t want to pay for the public services of illegal immigrants, the leftists got 187 overturned by the courts.  To add insult to injury, in 2002, the Legislature and the Regents of the University of California (UC) approved proposals to allow illegal students to pay in-state tuition when attending college.  It is not my purpose in this column to resolve the question of whether young people who have lived all of their lives in America and attended our public schools throughout their lives should be held accountable for the illegal conduct of their parents.  But, when the people vote overwhelmingly that they oppose a specific policy, it is the height of arrogance for legislators and bureaucrats to thumb their noses at those who pay the bills.


Proposition 209 has survived every legal challenge that has been mounted against it.  And, while the measure is being blatantly ignored by the City and County of San Francisco and a few other jurisdictions, and while UC has found a clever way to mute its full intent, the leftists have been frustrated at their inability to circumvent the Constitutional command of 209 that “the state” shall not engage in “discrimination and preferential treatment.”


But, as mentioned earlier, leftist ideology dies neither easily nor gracefully. 


Assemblyman Mervyn Dymally (D) has introduced a bill, AB 703, which qualifies for the George Orwell Award of the Century.  For those who may not recall, Dymally was Lt. Governor of California during the Jerry Brown era and is now a recycled Assemblyman from Compton.  His bill acknowledges that Proposition 209 (now Section 31 of Article 1 of the California Constitution) prohibits racial discrimination.   It then states, however, that "racial discrimination" is not defined in the text of Proposition 209, and that this lack of definition has created “confusion and conflict over implementation of Section 31 of Article I of the California Constitution.”


In an effort to “clarify” what is meant by “racial discrimination,” A.B. 703 provides that the term shall be defined as follows: “Any distinction, exclusion, restriction or preference based on race, color, descent or national or ethnic origin” designed to prevent equal rights.  That sounds reasonable enough, doesn’t it?


But, wait, there is more.  AB 703 further provides that the term “racial discrimination, for purposes of implementing Proposition 209 shall be the definition contained in paragraph 1 of Article 2 of Part I of the International Convention on the Elimination of All Forms of Racial Discrimination. 

In a 1960s United Nations treaty, the International Convention on the Elimination of All Forms of Racial Discrimination defined “racial discrimination,” in the paragraph referenced by A.B. 703, by excluding "special measures taken for the sole purpose of advancement of certain racial or ethnic groups requiring such protection" to enjoy equal rights and "fundamental freedoms."  In effect, the definition creates a sort of international affirmative action concept by saying that as long as the government is trying to advance the interests of “certain racial or ethnic groups,” such action does not constitute “racial discrimination.”  Pretty clever, huh? 


In addition, A.B. 703, Section 1 (c) (2) states the following: "Nothing in Section 31 of Article I of the California Constitution shall be construed as requiring the government to prove racial discrimination before undertaking special measures for the purpose of securing adequate advancement of those racial minority groups needing that protection.”  One added touch of arrogance is that A.B. 703 precludes private causes of action for the purpose of challenging such “special measures.”

Although the meaning of the term “racial discrimination” has long been settled by Civil Rights laws and in the theater of American jurisprudence for over forty years, and is a matter of common sense to most rational beings, Dymally seeks to overrule the will of the people of California by borrowing from the United Nations a definition that turns logic on its head.


In an analysis of A.B. 703, Tom Caso of the Pacific Legal Foundation answers the question of whether the Legislature has the authority to interpret a Constitutional amendment enacted by the voters.  He said, “The California Supreme Court has ruled that if the meaning of the term used in the Constitution is doubtful or obscure, deference will be given to legislative interpretations.  The legislature's own interpretive efforts will be upheld unless they are disclosed to be unreasonable or clearly inconsistent with the express language or clear import of the Constitution." 


Caso noted that the court generally looks to the ordinary meaning of the terms used as well as the historical context of the amendment.  This includes ballot arguments favoring the measure.  In addition, statutory definitions of uncertain terms that existed at the time the amendment passed are also taken into consideration.   If the legislature's efforts are in line with the intended meaning of the terms as defined by the historical context of the amendment then the legislature's definition of the term will generally be upheld.

The contents of the Proposition 209 ballot
pamphlet shed light upon the meaning of "racial discrimination" as used in the proposition itself.  The ballot argument in favor of Proposition 209 states in part: "Reverse Discrimination based on race or gender is plain wrong! And two wrongs don't make a right! Today, students are being rejected from public universities because of their race. Job applicants are turned away because their race does not meet some 'goal' or 'timetable.' Contracts are awarded to high bidders because they are of the preferred race.
The California Supreme Court used these ballot materials in their analysis of the meaning of the terms "racial discrimination" and "preference" as used in Section 31. In Hi-Voltage Wire Works, Inc. v. City of
San Jose
, the Court stated the following: "A constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words.' Nothing in the ballot arguments or in the Legislative Analyst's analysis suggests that a different rule should apply with respect to 'discriminate' and 'preferential treatment' as used in section 31, or that the voters intended them to have any specialized meaning. ' Discriminate' means 'to make distinctions in treatment, show partiality (in favor of) or prejudice (against)' (citation omitted); 'preferential' means giving 'preference' which is 'a giving of priority or advantage to one person... over others.'"


Caso concluded that the California Supreme Court has held that the meaning of the terms "discriminate" and "preferential treatment" as used in Section 31 are neither “doubtful nor obscure.”  And, he states that “the definition of discrimination and preferential treatment provided in A.B. 703 is in direct conflict with the natural and ordinary meaning of the terms included in Section 31 and with the historical context of the constitutional amendment, as evidenced in the ballot arguments. Therefore, because the legislature's interpretation of these terms in A.B. 703 is "unreasonable [and] clearly inconsistent with the express language or clear import of the Constitution" it is unlikely that the legislature's statutory definition would be upheld.

A.B. 703 has passed the Assembly by a vote of 48-27 and
has been sent to the Senate, where approval is anticipated.  In that event, it will be forwarded to Governor Gray Davis for final consideration.  Although he vetoed other legislation crafted to circumvent Proposition 209 during his first term in office, “that was then and now is now.”  Then, the governor was not facing the prospect of a recall and the need to search frantically for a political base to defend his hold on the governor’s office.  In view of these current circumstances, only “The Shadow” knows what strange and evil things lurk in the leftist confines of California State Government. 

But, if A.B. 703 becomes law, rest assured that the ink wouldn’t be dry before we use a page from the Leftist Handbook of Revolutionary Tactics to take the matter to court.     

Ward Connerly is a former Regent of the University of California, Chairman of the American Civil Rights Institute, and 2005 recipient of the prestigious Bradley Prize for his defense of the American ideals of freedom and equality.

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