This section refers to affirmative action programs operated in the state of California. Legally mandated affirmative action programs must meet compelling standards in California, which significantly limit the effect of any affirmative action program. Affirmative action programs must:
provide equal opportunity for all citizens,
be fair with absolutely no quotas,
try race-neutral options first
be flexible
be transitional or of limited duration until the discrimination issues are resolved
be balanced so that the effect on nonbeneficiaries is sufficiently small and diffuse so as not to unduly burden their opportunities.
Two issues are relevant here. The proposition does not define "discriminate" or "preferential treatment" which leaves their definition to be resolved in the courts. This forces state and local agencies to use a broad interpretation of the terms so as to limit litigation and its added expense. More crucial is the fact that the proposition specifically differentiates between discrimination and preferential treatment. This means that any help or assistance based on race or gender, even without discriminating, is illegal.
The inclusion of public employment in this proposition creates the situation where any white male applying for a position who is not hired and discovers that a woman or minority was hired instead could claim that "preference" was given to the successful applicant on the basis of race or gender. The thought that a white male could believe that not even one woman or minority existed more qualified than he would not stop these lawsuits from being filed. The additional costs for state and local governments to deal with these anticipated lawsuits was not addressed by the authors, however, fear of lawsuits could cause a decrease in hiring of women and minorities in close situations, again engendering more litigation.
While the Board of Regents has already eliminated affirmative action in their system, outreach programs would be eliminated. In addition, elementary and secondary school funding which is not covered by Title IX could face loss of funding in discretionary areas, especially girls' sports programs.
Only in the area of employment is gender discrimination permitted under Title VII of the 1964 Civil Rights Act. An extremely narrow exception to gender discrimination is allowed: if there is a bona fide occupational qualification. This proposition does not use the same language as the Civil Rights Act, leaving out the word "occupational". California courts will use the California Attorney General's ballot summary to guide its interpretation. That states that the provision exempts reasonably necessary sex-based classifications. This is very different and much broader than the current law and omits proof of specific justification of the bona fide qualification. An example is that the current law would allow a women to not be hired as a sperm donor because she lacks the "bona fide occupational qualification." By shifting the emphasis from proven specific justification to the occupation to the more general "bona fide qualifications based on sex," the concern that women weren't appropriate for a job could be used without demonstrating that the position was not appropriate for a specific occupation or job. The narrow exception to the Civil Rights Act for an occupation is not the same as the situation in this proposition
The Civil Rights Act does not allow gender to be used as a bona fide qualification for public education or contracting. By including these terms, the proposition has created an entire new category where gender discrimination would be specifically allowed where it has never been in the past. It would do this by lowering the standard of review of gender discrimination claims, since gender discrimination would be legal in certain situations.
The phrase reasonably necessary in clause C is the critical issue here. In California, the standard against sex discrimination states that it is illegal to discriminate based on gender unless it is necessary to achieve a compelling purpose. California has the highest standard in the nation because it is the equivalent to the Equal Rights Amendment. The standard for gender discrimination is lower in federal law (because the Equal Rights Amendment was never passed.)
If Proposition 209 is passed, clause C will allow discrimination based on gender if it is "reasonably necessary to the normal operation of public employment, public education or public contracting." This is a lower standard that legal experts say is easy to prove in court, meeting a 'rational basis review' rather than the 'strict scrutiny' that is currently needed. This will result in women losing the EQUAL OPPORTUNITY that they currently have.
If the state feels so strongly about getting rid of certain practices, it should be willing to suffer the financial consequences. The refusal to lose funds in certain areas makes the effective application of these rules subject to funding criteria, not stict interpretation of the law.
Under construction.
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