Living with 209

By H. Engstrom

Proposition 209 has been found constitutional. We can still help disadvantaged minorities by focusing on those disadvanges rather than their minority status.

The proposition became highly controversial. Supporters alleged that the proposition was necessary to correct certain abuses of reverse discrimination. Opponents countered that passage of the proposition would eliminate affirmative action programs that remain necessary to ensure equal opportunity for racial minorities and women. Republicans sought to exploit 209 as a wedge issue and came out strongly in support; the California Democratic Party took a position in opposition.

As we know, the proposition passed, garnering 54% of the votes, a slightly larger percentage than that obtained by President Clinton, who received 53% of the votes in California.

There have been a number of reactions to 209's passage by its opponents. The American Civil Liberties Union filed suit against the proposition the very day after its passage - evidently the ACLU trusted public opinion polls, which uniformly predicted an easy victory, and the ACLU was prepared with legal briefs long in advance of the election. The ACLU claims that Prop. 209 is unconstitutional, but the Supreme Court has disagreed.

Another approach has been that of San Jose City Attorney Joan Gallo. Her plan simply puts the burden of proof of nondiscrimination in public contracting on those contractors doing the bidding. In a way her plan exploits the wording of Prop. 209, which does indeed prohibit discrimination against, as well as preferences for, minorities and women. What the Gallo plan says to contractors is this: "If your work force does not reflect the composition of minorities and women in the available labor pool, then you have some serious explaining to do if you expect to get contracts from San Jose." This approach seems to be eminently reasonable and justifiable within the law. I believe those supporters of Prop. 209 that have characterized the Gallo plan as an end run around the law are quite simply wrong. I would go further: if the Gallo plan had long been in place at the state and local levels as a result of existing civil rights legislation, then the campaign for 209 would never have gained the support that it did.

But there is still another way of ensuring equal opportunity. During the campaign Bill Clinton was sometimes accused of sounding too much like a Republican. I suggest that Gov. Pete Wilson on occasion took to sounding something like a Democrat. In speaking in support of 209, for instance, he said that we should replace affirmative action based on race and sex by affirmative action based on socioeconomic status. I believe we should hold him, and all our elected representatives, to this idea.

Basing affirmative action on socioeconomic status can clearly benefit minority groups. A larger fraction of blacks and Hispanics are poor, for example. If one defines socioeconomic disadvantage to include growing up in a single parent household (many of which are also poor), one again tilts the opportunities toward minority groups. With census and tax data we can easily identify low income neighborhoods; growing up in such a neighborhood would also constitute disadvantage, and the poorest neighborhoods are very often those inhabited by blacks and Hispanics. All of these affirmative action criteria are fully consistent with 209.

I propose that we write to our representatives, Republican and Democrat, and pose the question: What are you going to do about Pete Wilson's promise of affirmative action based on socioeconomic status? Who will write the legislation and when? We can work effectively for equal opportunity for minorities and women by insisting that Pete Wilson and the others walk the talk.