Goal IX Newsletter

Spring 2001, Volume 7, Number 2

Proposed California Initiative Eliminates State's Racial Classifications by: Barbara A. DeLaughter

The State of California once again may find itself the conduit for enormous change in the areas of civil rights, education, employment, business, health, and social welfare. Voters passed a successful ballot measure in 1996 that prohibits discrimination or preferential treatment by the state (Proposition 209, the Affirmative Action Initiative). Now, the American Civil Rights Coalition wants to bring before the voters an initiative with a potential for even greater consequence. The Racial Privacy Initiative would eliminate the state’s power to “classify any individual by race, ethnicity, color, or national origin in the operation of public education, public contracting or employment,” according to Section 32(a) of the proposed initiative (SA01RF0006 Amend. 1-NS).

Barbara A. DeLaughter

Ward Connerly, the University of California regent influential in the passage of Proposition 209, has applauded the provisions of the Racial Privacy Initiative. Supporters of the initiative say it is not the state’s role to collect race-based information.

Opponents of the initiative vehemently warn against its passage. “It is a racist initiative that is designed to prevent the tracking and monitoring of discrimination,” says Michelle Alexander, lawyer and director of the Racial Justice Project of the American Civil Liberties Union of Northern California. “It’s intended to put an end to the ability of the Department of Justice and the attorney general’s office, as well as civil rights organizations, to enforce existing civil rights laws. . . . It’s an attempt to turn the clock back to a time when there were no civil rights laws or protection for people of color in this country.”

Unless the state legislature decides that race, ethnicity, color, or national origin classification “fulfills a compelling state interest,” the initiative eliminates the state’s ability to use these classifications in any other state operations. A classification seeking such identification must be approved by a two-thirds majority in both houses of the legislature and by the governor.

“On most government forms, information is collected for the simple reason of government curiosity,” said Kevin Nguyen, a proponent of the bill and an American Civil Rights Coalition spokesperson, in a February 12, 2001, article in the San Diego Union-Tribune. The initiative would rid state forms, such as those for college admissions and state employment, of “silly little boxes” asking for the applicant’s race, Nguyen stated. In the same article, Michael Chavez of Californians for Justice, a Long Beach-based group working to remedy inequality in schools, commented the initiative would hinder the state from any attempt to address racial inequality. Chavez stated the initiative would make it harder to collect information to determine whether a problem exists, such as in recent accusations from blacks and Latinos that police were engaging in racial profiling.

 According to the Racial Privacy Initiative, the term “classifying” is an “act of separating, sorting or organizing by race, ethnicity, color, or national origin.” This classification process also includes “inquiries, profiling, or collecting” the data on state government forms. The “individual” (the subject of the classification) is defined as “current or prospective students, contractors or employees,” or persons subject to state operations.

The definition for “state” includes the State of California and any city, county, or public university system, including the University of California and California State Universities. Ward Connerly has said he finds it hard to understand why public colleges and universities need collected data on students’ race, ethnicity, and national origin, given the institutions cannot make decisions based on it, and that there is no reason applicants should think they must provide it.

Community colleges and public school districts also are included in the initiative’s definition of “state.” Under the initiative, human resource departments would have additional regulations to monitor and incorporate into their operating guidelines and procedures. Public school officials and parents would not have access to essential information for assessing, planning, and providing educational services that best meet the needs of the student population and local community if the Racial Privacy Initiative were to pass.

Few agencies are exempt under the Racial Privacy Initiative. Unless the state legislature extends the deadline, the Department of Fair Employment and Housing (DFEH) has an exemption for DFEH-conducted classifications (or data collection) in place starting March 5, 2002. (Once in place, DEFH exemptions run for 10 years after the approval date of the initiative.) Medical research subjects, correctional facility assignments of prisoners, and undercover law enforcement officers would also be exempt under the initiative; but it would not prevent law enforcement officers, while carrying out their law enforcement duties, from describing “particular persons in otherwise lawful ways.”

“There is no racial privacy for people who are easily identifiable as black, Latino, or Asian, and who are subjected to prejudice based on that fact. There is no possible benefit this initiative could have to such people,” says Sheila Thomas, lawyer and director of litigation “It’s an attempt to turn the clock back to a time when there were no civil rights laws or protection for people of color in this country.” for Equal Rights Advocate (ERA) in Northern California. The initiative “seems to allow police to continue to engage in racial profiling but prohibits any positive use of collected data,” she says. There is also a potential public health concern; information about diseases is sometimes collected by race and used to determine “how to treat certain racial and/or ethnic groups who suffer from certain diseases at a higher percentage than other racial and/or ethnic groups or whites,” Thomas adds. This information has been “helpful in tracking specific types of cancer, diabetes and other diseases that impact racial/ethnic minorities disproportionately.”

Another area of concern with the Racial Privacy Initiative is compliance with federal law. The wording of the initiative states nothing in it “shall be interpreted as prohibiting action which must be taken to comply with federal law, or establish or maintain eligibility for any federal program, where eligibility would result in a loss of federal funds to the state.” According to the initiative, court orders and consent decrees in force as of the effective date of the initiative will not be invalidated. But Sheila Thomas believes “It is unclear what impact the initiative would have on the collection of racial and ethnic data that is required by the federal government.” The ERA has serious concerns; for example, this type of information is required in the collection of data for hate crimes, which is provided to the state attorney general and voluntarily provided to the federal government.

Sections of the initiative that do not conflict with federal law are to be implemented “to the maximum extent that federal law and the United States Constitution permit,” according to the wording in the proposed initiative. The initiative describes itself as “self-executing”; if a portion of the initiative is invalidated, it is severed, and the remaining sections are enforced.

The Racial Privacy Initiative is based on a premise that there is “no need to monitor racial discrimination or enforcement of civil rights laws,” says Susan Serrano, Thurgood Marshall Fellow with the Lawyer’s Committee for Civil Rights of the San Francisco Bay Area. “Without statistics on race and ethnicity, agencies, employers, and advocates will be unable to monitor discrimination in employment, contracts, or education even though evidence has shown significant racial disparity in those areas,” Serrano adds. “Without this data, there is no meaningful way to conduct studies on how racial groups are being treated, to show what programs are not working or what continued civil rights enforcement is necessary.”

The Department of Justice in Sacramento has announced that it currently (as of March 30, 2001) has the proposed Racial Privacy Initiative. For the current status of the initiative, see its Website at www.calvoter.org/lwatch/2002/pending.html. The office will issue a title and summary of the initiative, but no date has been set. Once the process is completed, the initiative goes from the state attorney general’s office to the secretary of state’s office for analysis. Depending on the issues in the initiative, the number of registered voter signatures required to get it on the ballot will be determined. The secretary of state will make the final decision to put the Racial Privacy Initiative on the March 2002 ballot. If the Racial Privacy Initiative is on the ballot, Californians will again have the opportunity to decide on an initiative that will have a tremendous impact on the civil rights, education, employment, politics, economics, health, and welfare of the people in California—and potentially the rest of the country. If the Racial Privacy Initiative passes, it will become effective in California on January 1, 2005.

Barbara A. DeLaughter is a lawyer and a freelance writer and mediation consultant in Los Angeles. She is a part-time lecturer at California State University, Long Beach, and is the senior executive director at the China International Medical University in Beverly Hills.

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