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Posted on 08/22/2003 12:23:50 PM PDT by CounterCounterCulture
Proposition 209 is the voter-passed amendment to the California Constitution which forbids state and local governments from playing favorites by race in public hiring, contracting and education. The latest in a long line of assaults on Prop. 209 by proponents of racial spoils is Assemblyman Mervyn Dymally's bill that would play inventive word games with key mandates in the initiative. The Dymally legislation, A.B. 703, would require that the words "discriminate" and "preference" be interpreted not by the clear definitions that the California Supreme Court has used when applying Prop. 209 to strike down programs of racial favoritism, but instead by reference to squishy concepts in the International Convention on the Elimination of All Forms of Racial Discrimination. Government discrimination by race would be permitted when it is supposedly necessary to "secur[e] adequate advancement of certain racial or ethnic groups." Quotas, set-asides, and other forms of official bias that were intended to be banned by Prop. 209 would now be allowed back in, through A.B. 703's semantic sleight of hand.
Gov. Gray Davis has just signed this attack on equal rights. PLF is preparing to fight back with a lawsuit challenging the legislation as an impermissible attempt to use a mere statute to gut a provision of the state constitution. PLF's client in this litigation will be Ward Connerly, the Sacramento businessman who chaired the Prop. 209 campaign drive and who has made elimination of official race-based bias his nationwide mission.
Read a PLF op-ed on the attack on Prop. 209:
http://www.cppf.us/OnlineOriginals/Columns/082103HJ.html
Read Ward Connerly's statement on A.B. 703:
http://www.acrc1.org/ab703.htm
Source: PLF Sentry e-mail (22 August 2003)
Unfortunately, the “hijackers” are back, trying to restore government favoritism by race. The California Legislature has passed—and Gov. Davis has just signed—Assembly Bill 703, a move to gut Proposition 209 and return to a racial spoils system.
Authored by Assemblyman Mervyn Dymally, D-Carson, AB 703 would undermine Proposition 209 by playing games with the words “discrimination” and “preferences.” The California Supreme Court recognized the plain-as-day definition of those terms when, in a key decision supporting Proposition 209, the Court said that “discriminate” means “to show partiality (in favor of) or prejudice (against)” and that “preferential” means giving “priority or advantage to one person over others.” AB 703 would stand those definitions on their heads. It would narrow the definition of prohibited government “discrimination” so as to permit “special measures” by government for “securing adequate advancement of certain racial or ethnic groups.”
This vague new language clearly puts the focus back on group interests, identifying individuals primarily by racial or ethnic categories.
In the name of “advancement of certain racial or ethnic groups,” all kinds of racial favoritism—i.e. bias based on skin-color—whether quotas, preferences, and set asides, could again become the open hallmark of government hiring, student admissions, and the awarding of contracts.
What a setback! In supporting Proposition 209, former Gov. Pete Wilson got it right: “There is no place in California for laws that classify our rich mosaic of people by their race, ethnicity, or gender, rather than their talents ....”
To vindicate the principle of equality—and the integrity of Prop. 209—Pacific Legal Foundation plans to challenge AB 703 in court. PLF’s client is Ward Connerly, who chaired the Proposition 209 campaign in the 1996 general election. The legal argument is simple: The state Supreme Court has already spoken in defining what Proposition 209 means and does, and how its terminology (such as the word “discrimination”) is to be interpreted. The Legislature may not wrest from the Supreme Court the authority to define the state Constitution. Lawmakers may not impose their preferred meanings on the terminology in the state’s organic law, at least not by mere statutes. They must amend the state Constitution with the approval of the voters.
Dymally’s—and Davis’s—proposed end-run around Proposition 209 is an affront to equal rights and to the millions of voters who supported the initiative at the polls. If the courts are true to constitutional principles, it will not stand.
Stephen R. McCutcheon is an attorney with Pacific Legal Foundation. Read Ward Connerly's statement on AB 703, here
“I am shocked that the Governor would flip-flop on an issue such as this. AB 703 is clearly an illegal maneuver to change the Constitution by statute and grant preferential “special measures” to racial groups without proof of discrimination, a blatant violation of Proposition 209. I am pleased that the highly respected Pacific Legal Foundation will be filing a lawsuit on my behalf challenging this nefarious attack on equality. Now the taxpayers of California will have to pay, one more time, to defend the Governor’s inability to exercise leadership by vetoing a clearly illegal act of the legislature.”
BILL NUMBER: AB 703 CHAPTERED
BILL TEXT
CHAPTER 211
FILED WITH SECRETARY OF STATE AUGUST 11, 2003
APPROVED BY GOVERNOR AUGUST 9, 2003
PASSED THE ASSEMBLY JULY 24, 2003
PASSED THE SENATE JULY 17, 2003
AMENDED IN SENATE JUNE 25, 2003
AMENDED IN ASSEMBLY MAY 19, 2003
INTRODUCED BY Assembly Member Dymally
FEBRUARY 19, 2003
An act to add Section 8315 to the Government Code, relating to
racial discrimination.
LEGISLATIVE COUNSEL'S DIGEST
AB 703, Dymally. Racial discrimination: definition.
Section 31 of Article I of the California Constitution prohibits
the state from discriminating against, or granting 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. "State" for the
purposes of this constitutional provision includes any city, county,
city and county, public university system, community college
district, school district, special district, or any other political
subdivision or governmental instrumentality of or within the state.
This bill would provide that "racial discrimination" and
"discrimination on the basis of race" for the purposes of this
constitutional provision have the same meaning as the term "racial
discrimination" is defined and used in paragraphs 1 and 4 of Article
1 of Part I of the International Convention on the Elimination of All
Forms of Racial Discrimination.
The bill would also provide that Section 31 of Article I of the
California Constitution shall not be interpreted as (1) granting an
individual a private cause of action, except as to its prohibition of
granting preferential treatment, to challenge any special measures
undertaken for the purpose of securing adequate advancement of those
racial groups requiring protection, or (2) 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, pursuant to specified
provisions of that international convention.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) Section 31 of Article I of the California Constitution
provides 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." Thus,
that constitutional provision prohibits "racial discrimination."
(b) "Racial discrimination" is not defined. The lack of a legal
definition for that term has led to confusion and conflict over
implementation of Section 31 of Article I of the California
Constitution.
(c) The United Nations General Assembly on December 21, 1965,
adopted, and the United States on September 28, 1966, signed, the
International Convention on the Elimination of All Forms of Racial
Discrimination. That international convention includes a definition
of the term "racial discrimination."
(d) On June 24, 1994, the United States Senate adopted the
Resolution of Advice and Consent to Ratification of the International
Convention on the Elimination of All Forms of Racial Discrimination,
subject to specified reservations, understanding, declarations, and
proviso.
(e) The United States Senate's advice and consent are subject to
the understanding that the International Convention on the
Elimination of All Forms of Racial Discrimination shall be
implemented by the federal government to the extent that it exercises
jurisdiction over the matters covered by the convention, and
otherwise by the state and local governments.
(f) To clarify confusion over the terms "racial discrimination"
and "discrimination on the basis of race," those terms as used in
Section 31 of Article I of the California Constitution should have
the same meaning as that contained in paragraphs 1 and 4 of Article 1
of Part I of the International Convention on the Elimination of All
Forms of Racial Discrimination.
SEC. 2. Section 8315 is added to the Government Code, to read:
8315. (a) "Racial discrimination" or "discrimination on the basis
of race" for the purposes of Section 31 of Article I of the
California Constitution shall have the same meaning as the term
"racial discrimination" as defined and used in paragraphs 1 and 4 of
Article 1 of Part I of the International Convention on the
Elimination of All Forms of Racial Discrimination, as adopted by the
United Nations General Assembly on December 21, 1965, signed on
behalf of the United States on September 28, 1966, and ratified by
the United States Senate as Treaty Number 95-18 by United States
Senate on June 24, 1994. The language contained in the pertinent
provisions of the International Convention on the Elimination of All
Forms of Racial Discrimination is set forth in subdivision (b).
(b) The International Convention on the Elimination of All Forms
of Racial Discrimination, provides in paragraphs 1 and 4 of Article 1
of Part I, respectively, as follows:
"1. In this Convention, the term "racial discrimination' shall
mean any distinction, exclusion, restriction or preference based on
race, colour, descent, or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or
any other field of public life."
"4. Special measures taken for the sole purpose of securing
adequate advancement of certain racial or ethnic groups or
individuals requiring such protection as may be necessary in order to
ensure such groups or individuals equal enjoyment or exercise of
human rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a
consequence, lead to the maintenance of separate rights for different
racial groups and that they shall not be continued after the
objectives for which they were taken have been achieved."
(c) To allow the state to assist the United States Government in
fulfilling its international obligation to pursue a policy to
eliminate all forms of racial discrimination pursuant to paragraph 1
of Article 2 of Part I of the International Convention on the
Elimination of All Forms of Racial Discrimination, as set forth in
subdivision (d), the following provisions shall be used to interpret
and implement Section 31 of Article I of the California Constitution:
(1) Section 31 of Article I of the California Constitution, except
as to its prohibition of granting preferential treatment, shall not
be interpreted as granting an individual a private cause of action to
challenge any special measures undertaken for the purpose of
securing adequate advancement of those racial groups requiring the
protection pursuant to paragraph 1 of Article 2 of Part I of the
International Convention on the Elimination of All Forms of Racial
Discrimination. Special measures shall not be interpreted as
preferential treatment.
(2) Section 31 of Article I of the California Constitution shall
not 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 pursuant to paragraph 1 of Article 2 of Part
I of the International Convention on the Elimination of All Forms of
Racial Discrimination.
(d) Paragraph 1 of Article 2 of Part I of the International
Convention on the Elimination of All Forms of Racial Discrimination
provides as follows:
"1. States Parties (member nations that have adopted the
International Convention on the Elimination of All Forms of Racial
Discrimination) condemn racial discrimination to pursue by all
appropriate means and without delay a policy of eliminating racial
discrimination in all its forms and promoting the understanding among
all races, and to this end: "(a) Each State Party undertakes to
engage in no act or practice of racial discrimination against
persons, groups of persons or institutions and to ensure that all
public authorities and public institutions, national and local, shall
act in conformity with this obligation. "(b) Each State Party
undertakes not to sponsor, defend or support racial discrimination by
any persons or organizations. "(c) Each State Party shall take
effective measures to review governmental, national and local
policies, and to amend, rescind or nullify any laws and regulations
which have the effect of creating or perpetuating racial
discrimination wherever it exists. "(d) Each State Party shall
prohibit and bring to an end, by all appropriate means, including
legislation as required by circumstances, racial discrimination by
any persons, group or organization. "(e) Each State Party
undertakes to encourage, where appropriate, integrationist
multiracial organizations and movements and other means of
eliminating barriers between races, and to discourage anything which
tends to strengthen racial division."
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