By Brian T. Kennedy, Douglas A. Jeffrey Posted January 1, 1997

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

Back in the Cold War, when the United States and the Soviet Union divided the power of the world between them, Americans referred to their country and its allies as the Free World. Supporters of the Soviet Union did not buy this: freedom as they understood it could only be attained through communism. Indeed, they looked on Americans and other citizens of capitalist democracies as slaves.

A visiting Martian watching a Crossfire debate between a pro-American and a pro-Soviet about freedom could only have become confused. He would need to understand the debaters' near-opposite definitions of freedom before he could even hope to make sense of the argument or form a reasonable opinion of his own.

So it is today with the debate over "affirmative action." This debate, which has plagued American politics for over three decades, has become especially contentious in 1996 due to Proposition 209, which would amend the California constitution to prohibit state-sponsored "preferential treatment" on the basis of race, ethnicity or gender. [The key provision of Proposition 209 states: "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."]

But as the affirmative action debate has grown in volume, it has also grown increasingly muddled. There is a simple reason for this: people on opposite sides use the same words, but mean different — indeed, mutually exclusive — things by them.

Below we will explain the different ways in which supporters and opponents of Proposition 209 use four important terms: preferential treatment, equal opportunity, affirmative action and civil rights. In doing so, we will not present a comprehensive account of the history of affirmative action. This has been accomplished elsewhere, and we will draw upon that history as needed.¹ Rather, in focusing on definitions, we aim at enabling ordinary citizens to interpret the debate over Proposition 209 and make a clear-minded decision on November 5.

WHAT IS PREFERENTIAL TREATMENT?

The Pro-209 Understanding

Senator Hubert Humphrey, an old-fashioned liberal who spearheaded the Civil Rights Act of 1964, defined "discrimination" at the time as "a distinction in treatment given to different individuals because of their different race." This in a nutshell is what supporters of Proposition 209 understand as "preferential treatment."

Indeed, the authors of 209 purposefully wrote it to echo the 1964 Civil Rights Act, which outlawed "preferential treatment to any individual or group" based on race. Likewise the antecedent of the 1964 Civil Rights Act, the Fourteenth Amendment to the Constitution, ratified in 1868, guaranteed "equal protection of the laws" to every individual American.

According to this traditional understanding, there are two essential components of non-preferential treatment: color-blind law and legal treatment of citizens as individuals. To the extent that the law recognizes race or ethnicity, or to the extent that the law recognizes citizens as members of groups rather than individuals, the result is preferential treatment.

The Anti-209 Understanding

The "Media Action Kit" of Educators for Justice, a modern-liberal group opposing Proposition 209, calls 209 an attempt to "take away a hard-won anti-discrimination program." This newer understanding of discrimination arose in the early 1960s, when a prominent civil rights group, the Congress of Racial Equality (CORE), endorsed the idea of legally favoring blacks as a way to remedy past discrimination.

Other civil rights groups at the time, such as the National Urban League, stuck to the traditional view that was enshrined in the 1964 Civil Rights Act. But by the 1970s, CORE's idea had become universally embraced by the liberal establishment. And the idea had grown in two important respects: (1) Policies favoring blacks could be justified in three interrelated ways: they could be remedial as described above; they could aim at achieving "proportionality," whereby the racial breakdown in society is mirrored in the workplace or classroom; or they could aim at achieving cultural or intellectual "diversity." And (2) these policies were extended to other designated minorities and to women.

To put this newer understanding of "discrimination" or "preferential treatment" in a nutshell: race- or gender-based policies are only preferential if they are unjustified. In other words, what Humphrey in 1964 and the authors of Proposition 209 in 1996 call discriminatory or preferential — "a distinction in treatment given to different individuals because of their different race" — is in fact not preferential as long as it is practiced on behalf of the right people.

This newer view of non-preferential treatment has essential components that are opposite those of the traditional view: color-consciousness replaces color-blindness, and people are treated not as individuals under the law, but according to their race, ethnicity and gender.

The Different Understandings in Practice

The latest major court case involving preferential treatment was decided in March 1996. The particulars are as follows: Four years ago a woman named Cheryl Hopwood was rejected by the University of Texas Law School, despite a high grade point average and impressive scores on her Law School Admission Tests. As it turned out, Hopwood's qualifications exceeded those of 24 of 25 black applicants and 47 of 50 Hispanic applicants who were admitted over her. At the root of this was an admissions policy that had one set of standards for white, Asian, and other applicants, and a different and lower set of standards for blacks and Hispanics.

Hopwood filed suit in a case known as Cheryl Hopwood v. State of Texas. She argued that the law school's admissions policy amounted to race-based preferential treatment that violated Title VI of the 1964 Civil Rights Act. (Title VI prohibited racial discrimination in colleges and universities receiving federal money.)

In response, the university argued that its policy was not preferential, but was rather aimed at achieving "diversity." Here is a good practical example of the divergent understandings of preferential treatment: Hopwood believed such treatment had occurred, because she had been treated as a member of a racial group rather than as an individual, and her color alone had been the reason for her rejection. For the University of Texas, on the other hand, although it had admitted students based solely on their race, this was not preferential treatment because it was justified by a desired goal.

The University of Texas's admissions policy was ruled to be illegal by the Fifth U.S. Circuit Court of Appeals, in a decision that was widely reported to have sent "shock waves" through the academic world. Why shock waves? Because the decision included a blanket statement that state colleges and universities "may not use race as a factor" in admissions.

Those who support Proposition 209 heralded the Hopwood decision, considering it a knockout punch to preferential treatment. Opponents of Proposition 209 took a fallback position: They admitted that the University of Texas was wrong to have an admissions policy where race was in many cases the sole decisive criterion. But citing the 1978 Supreme Court decision in Regents of the University of California v. Bakke, they argued that race can and will remain in effect as one of various admissions criteria.

We will look at a more common example of race-based admissions — more subtle than the Texas policy, but race-based nonetheless — in the section on "Affirmative Action" below. For now we simply note that what opponents of Proposition 209 consider non-preferential (because justified) race-based policies are widely practiced in American colleges and universities. Indeed, in 1994 the Journal of Blacks in Higher Education reported that in universities nationwide, the "near universal" pattern is white acceptance rates running at less than half of black acceptance rates; the difference is even greater at liberal arts colleges.²

Summary

A major bone of contention between the supporters and opponents of Proposition 209 concerns whether the policies it would prohibit amount to "preferential treatment." At the heart of this argument are very different understandings of the term.

By "preferential treatment," the pro-209 side means policies that take race into account and thereby give preference to any one individual over any other individual on the basis of race. They agree with the famous dissent of Justice John Paul Harlan in the 1896 case of Plessy v. Ferguson. The Supreme Court majority had upheld legally-sanctioned segregated seating on Louisiana passenger trains. Harlan disagreed, writing: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."

In the context of the Hopwood case or of admissions policies in general, supporters of Proposition 209 believe the way to prevent preferential treatment is to delete any mention of race from applications and ensure that each applicant is judged on the basis of merit.

The anti-209 side, on the other hand, believes that "preferential treatment" results from a failure of government to use race to achieve social goals — for instance, to achieve the same racial proportions in classrooms as in society at large. Agreeing with Justice Harry Blackmun, who wrote in the Bakke decision that "to get beyond racism, we must first take account of race," opponents of Proposition 209 hold that deleting race from admissions applications would itself amount to preferential treatment.

WHAT IS EQUAL OPPORTUNITY?

The Pro-209 Understanding

In a speech at the Wisconsin State Fair in 1859, Abraham Lincoln championed the system of "free labor," which today we call "free enterprise." Under this system, men are not born into classes in which they remain throughout their lives.

Rather, said Lincoln, all men are free to rise as high as their interests and talents will take them: "The prudent, penniless beginner in the world, labors for wages awhile, saves a surplus with which to buy tools or land for himself; then labors on his own account another while, and at length hires another new beginner to help him. This...is free labor — the just and generous, and prosperous system, which opens the way for all — gives hope to all, and energy, and progress, and improvement of condition to all."

This is obviously not to say that all are born under the same circumstances, or with the same interests and talents. Nor is it to say that bad fortune may not knock some down temporarily. To the latter, Lincoln advised: "Let them adopt the maxim, 'Better luck next time,' and then, by renewed exertion, make that better luck for themselves."

The following year, of course, Lincoln was elected president, and went on to oversee the Civil War and the abolition of slavery. His better known speeches on the evils of slavery, and his conduct of the war, were at one with his understanding of free enterprise: slavery was an extreme version of the class system of the old world, which was based on the undemocratic principle that government should impose artificial helps and barriers to maintain a predetermined order in society.

Lincoln's doctrine of the free enterprise system encapsulates the understanding of equal opportunity which animates Proposition 209. It has two essential components: Each individual should be free to advance without any artificial barriers set before him. And no one is guaranteed an outcome.

The Fourteenth Amendment, passed after the Civil War to extend the "equal protection of the laws" to all Americans, embodied this traditional understanding. But in practice, throughout the country and especially in the South, many legal inequities remained to hamper the opportunity of blacks. The 1964 Civil Rights Act was intended to put teeth in the guarantees of the Fourteenth Amendment. Supporters of Proposition 209 understand their initiative to be a return to those guarantees.

The Anti-209 Understanding

One of the arguments placed on the ballot by opponents of Proposition 209 says that its "real purpose is to eliminate...equal opportunity programs for qualified women and minorities." This newer understanding of equal opportunity found one of its earliest expressions in a speech by President Lyndon Johnson at Howard University in 1965: "You do not take a person who for years has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'You are free to compete with all the others,' and still justly believe that you have been completely fair.... [I]t is not enough just to open the gates of opportunity.... We seek not just equality as a right and a theory but equality as a fact and equality as a result."

There is still a distinction in this passage between opportunity and result. Johnson was proposing that it is not enough for government to ensure the former-that it must attend to the latter as well. But to grasp what opponents of Proposition 209 mean today by "equal opportunity," we must see that they no longer distinguish opportunity from result.

In a 1979 Supreme Court case which we will discuss below, Justice William Brennan dismissed the argument that the 1964 Civil Rights Act prohibited race-based job promotions. This argument, Brennan wrote, reflects a "literal" interpretation of the law. In other words, what opponents of Proposition 209 mean by "equal opportunity" is figurative: in effect, they use "opportunity" as a metaphor for result.

The essential components of this understanding are opposite to those of the traditional view: First, equal opportunity is measured by results. So to ensure it, government must predetermine and act to bring about a certain set of results. Second, in order to acheive these results, government must erect artificial aids for some individuals and artificial barriers for others. As Colin Powell wrote in his autobiography, My American Journey, "Discrimination 'for' one group means, inevitably, discrimination 'against' another...."³

We should also note that since President Johnson's speech in 1965, the number of groups considered to need a leg up in the name of equal opportunity has expanded. Various other minority groups — including new immigrants — as well as women, have joined blacks in the ranks of those seen to need special government help.

The Different Understandings In Practice

Title VII of the 1964 Civil Rights Act, which prohibited discrimination on the basis of "race, color, religion, sex, and national origin" in the area of employment, engendered the greatest controversy at the time. How could discrimination in hiring and promotions be enforced without setting racial quotas? Senator Humphrey responded that if the Act sanctioned quotas, he would "start eating the pages one after the other...." "Nothing contained in [Title VII]," Humphrey continued, "shall be interpreted to require any employer to grant preferential treatment to any individual or to any group because of race...on account of an imbalance which may exist with respect to the total number or percentage of persons employed...in comparison with the available work force."⁴

Employment and promotions would be open to all, regardless of race. But as far as obtaining jobs or promotions, government would impose no artificial aids or barriers. This was in accordance with the traditional understanding of free enterprise and equal opportunity.

As Title VII came to be administered and interpreted in the courts, however, the newer understanding of equal opportunity came to dominate. Consider a 1979 Supreme Court decision, United Steelworkers of America v. Weber. The case arose when Brian Weber, a white employee of Kaiser Aluminum, was bumped from a career-enhancing training program. Assignment to this program was based on employee seniority. But Kaiser maintained separate seniority lists for white and black workers, and Weber was passed over by two junior black employees. He argued in court that this policy violated his rights under Title VII. But as cited above, Justice Brennan dismissed Weber's take on Title VII as "literal," and the court upheld Kaiser's race-based policy as a means to a race-proportional result.

Supporters of Proposition 209 support the literal understanding of equal opportunity rejected in the Weber case. Opponents of 209 support the result-oriented, race-based employment policies upheld in Weber. And indeed, while the history of Title VII over the last 30 years is complex, with subtle shifts regarding what test should be used to justify race-based employment policies, such policies remain legal and widespread.

For instance, when a 1988 report showed Hispanics were proportionally under-represented by roughly 9 percent on the Los Angeles County work force-while blacks were over-represented by about 17 percent-preferences were tilted to the advantage of the former. Groups representing blacks objected mightily, and Hispanics went to court to protect their "equal opportunity" turf.⁵

Summary

For both sides of the Proposition 209 debate, preventing preferential treatment or discrimination is the means to the end of "equal opportunity." But as they differ on the meaning of "discrimination," as seen in the previous section, so they differ on "equal opportunity."

To use President Johnson's footrace analogy, supporters of 209 believe that government may help prepare people to run the race-for instance, by providing universal education, as well as a "safety net" for those who need help to get to the starting line. But when it comes to the order of finish, government must remain neutral. Certainly it should not aid or hamper individuals based on their skin color.

The anti-209 side, on the other hand, measures equal opportunity at the finish line. If the order of finish is not what the government desires — for instance, if the racial breakdown of employees in a given workplace differs from the breakdown in society at large — then government must take a hand in "fixing" the race. If it does not, it is derelict in its duty.

WHAT IS AFFIRMATIVE ACTION?

The Pro-209 Understanding

Even among supporters of Proposition 209, there seems to be a semantic difference over the meaning of "affirmative action." To some, it refers only to programs employing preferential or discriminatory treatment as traditionally defined: programs that treat individuals differently on the basis of their different race, ethnicity or gender. This has been the prevalent conservative understanding for some years. Thus, for instance, the title of constitutional law scholar Terry Eastland's recent book, Ending Affirmative Action: The Case for Colorblind Justice.

But to many other supporters of 209 — including the campaign's leadership — "affirmative action" has a broader meaning, encompassing also some non-discriminatory programs. Commonly called "outreach programs," these aim to expand opportunity. For instance, to ensure that all high school seniors have a fair shake at getting into the University of California, the state might fund college-prep tutoring in schools where SAT scores are historically below average, or an oversight program to ensure that UC applicants are widely recruited.

Thus Ward Connerly, a black businessman and University of California trustee who chairs the pro-209 campaign, has labeled "the claim that Proposition 209 will eliminate all affirmative action" as "preposterous."

Semantics aside, however, supporters of 209 agree on what the initiative would allow and prohibit. Outreach programs would clearly be allowed, as long as they are open to people of all races and genders. As Connerly recently wrote, referring to an actual incident of exclusion: "No longer would people like Janice Camarena, a white, widowed mother of three, be thrown out of outreach classes because her color or racial background does not fit the template of the institution."

The Anti-209 Understanding

Opponents of Proposition 209 took California Attorney General Dan Lungren to court in August, objecting to his official summary of the initiative, which will appear on the November ballot. Lungren summarized 209 as a "prohibition against discrimination or preferential treatment." Pat Ewing, head of the anti-209 campaign, called this an attempt to "intentionally mislead the public," arguing that the summary should state simply that the initiative prohibits "affirmative action."

A County Superior Court Judge agreed with Ewing. This decision was overturned, though, by a state appeals panel, which described the term "affirmative action" as "amorphous."

We have seen that it is somewhat amorphous, even among supporters of 209. But leaving that aside, opponents of 209 are united in insisting that the initiative would prohibit all affirmative action. This indicates that they agree with the narrower view of affirmative action in the pro-209 camp: "affirmative action" describes precisely those programs which do treat people differently on the basis of their different race, ethnicity or gender. The difference, as we have seen in previous sections, is that 209 opponents do not consider such treatment discriminatory, as long as it is practiced on behalf of the right people. As Justice Blackmun wrote in defense of affirmative action in the 1978 Bakke case, "in order to treat some people equally, we must treat them differently."

Related to this, the ballot arguments opposing 209 insist that it would spell the end of "outreach programs." As we have seen, however, this could only be true insofar as access to such programs is restricted by race, ethnicity or gender. And indeed, opponents of 209 seem to understand "outreach" to require such restrictions.

The Different Understandings in Practice⁶

The following headline appeared last spring in the Los Angeles Times: "Probe Finds No Bias in Berkeley Admissions: Policies do not discriminate against whites or cause lower academic quality." It referred to a seven-year investigation of the admissions policy at the University of California at Berkeley by the U.S. Department of Education's Office of Civil Rights (OCR). A Berkeley sociologist who had a hand in designing this policy called the OCR's report "an historical vindication of one of the stronger and most scrutinized affirmative action programs in the country."

But the report only concluded that Berkeley didn't "maintain illegal [racial or ethnic] quotas" — implying that legal quotas were maintained. In effect, OCR vindicated Berkeley's policy under the terms of Bakke, which held that race could not be the sole criterion in admissions, but could be one of several criteria.

The facts are these: Berkeley's admissions policy was designed to achieve the goal of "proportionality" — that is, to admit freshman classes containing the same ethnic percentages as exist among California's high school graduating class. In order to do so, it had to set different standards for applicants of different ethnic groups, because in reality, ethnic groups do not qualify proportionately.

For instance, in 1993 — one of the years examined in the OCR report — Asians made up 15 percent of the graduating class, but 32 percent of the applicants to Berkeley who met UC's eligibility requirements; Hispanics, on the other hand, made up 29 percent of the graduating class, but only 11 percent of eligible applicants.

Berkeley, then, could only hope to approximate proportionality by using different standards for different applicants according to race. This was legal — again under Bakke — because it was incorporated into a complex matrix system in which other factors also played a role. But clearly race is in many cases one of the most important factors — and in some cases the single most important factor — in gaining (or being denied) admission to Berkeley.

Summary

The U.S. Department of Education — the bureaucracy in charge of enforcing Title VI of the 1964 Civil Rights Act, prohibiting racial discrimination in colleges and universities — endorsed Berkeley's race-based admissions policy, on the grounds that schools can "take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin." Opponents of Proposition 209 applauded.

For 209 supporters, on the other hand, Berkeley's policy exhibits exactly the kind of discrimination the initiative is written to prohibit.

The sides agree that the program amounts to affirmative action, disagreeing only on its propriety, based on their divergent understandings of "discrimination" and "equal opportunity" as described in preceding sections.

As for race — and gender-neutral "outreach programs" — programs to increase opportunity for the disadvantaged — they would remain legal under Proposition 209. Many 209 supporters count these also as affirmative action programs. Thus the ballot description of 209 by the non-partisan Legislative Analyst's Office explains that it would mean "the elimination of most [which is to say, not all] affirmative action programs...run by the state or local government in the areas of public employment, contracting, and education."

WHAT ARE CIVIL RIGHTS?

The Pro-209 Understanding

The understanding of "civil rights" held by supporters of Proposition 209 harks back to the second "self-evident truth" in the Declaration of Independence: human beings are "endowed by their Creator with certain inalienable rights." These rights adhere equally to all individuals, based on their common human nature-hence the term "natural rights." They include the rights to "life, liberty, and the pursuit of happiness," as well as property rights, speech rights, and rights of conscience or religious freedom.

The Declaration's third "self-evident truth," then, is that "to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." The purpose of government is to protect the individual rights — now civil rights — of its citizens.

The pro-209 campaign hearkens also to the understanding of Martin Luther King, Jr. and the pre-1965 Civil Rights Movement. In gaining a majority in Congress and in the nation at large to support the 1964 Civil Rights Act, King and other civil rights leaders appealed to the natural rights principles of the Declaration, asking the nation to live up to its founding ideals. For instance, in his most famous speech, delivered at the Lincoln Memorial on August 23, 1963, King announced, "I have a dream that one day this nation will rise up and live out the true meaning of its creed: 'We hold these truths to be self-evident, that all men are created equal.'"

Civil rights in this traditional sense have three essential components: they adhere to individuals, they exist prior to and separate from government, and they ensure equal opportunity rather than equal results. That is, each individual has rights equal to those of every other individual, regardless of race; civil rights are neither the product of government, nor can they be taken away by government (hence "inalienable"); and the Declaration promises a right to pursue happiness or success, not a right to happiness or success itself.

The Anti-209 Understanding

Almost immediately upon the passage of the 1964 Civil Rights Act, which was in line with the traditional understanding of civil rights, a new goal was announced: the goal, in President Johnson's words, of "equality as a fact and equality as a result." Along with this new goal, civil rights were redefined. Rather than being rightful claims to one's own possessions, rights in this new view are claims to the possessions of others. This can be seen in the character of the new rights which have been posited in recent decades; for example, rights to publicly-subsidized housing, education, medical care, food stamps, and day care. And with this redefinition of rights, the role of government was changed fundamentally: rather than protecting equal rights, government became the redistribution center for money, jobs, promotions, college admissions, etc., all in pursuit of equal results.

The newer understanding of rights-held by opponents of Proposition 209-hearkens less to the Civil Rights Movement of the 1950s and early '60s, than to the Progressive Movement of the late 19th and early 20th centuries.

Philosopher John Dewey articulated the view of the individual which underlies this understanding: "Social arrangements, laws, institutions...are means of creating individuals.... Individuality in a social and moral sense is something to be wrought out." That is, individuals are born first and foremost, not with rights, but with needs, and are dependent on government to fulfill them.

And again, this demands a large and intrusive government. Woodrow Wilson — a progressive political theorist prior to becoming president — was openly critical of the parts of the Constitution, based on the Declaration's natural rights doctrine, which limited the government's power to regulate private or economic life. Much of the history of American government in this century is the history of overcoming those limitations.

The three essential components of the newer view of civil rights are opposite those of the founding or traditional view. First, instead of adhering to individuals, civil rights are assigned according to group affiliation. Second, rights are assigned: they are not seen as existing prior to and separate from government, but rather as government grants. And third, rights are understood to guarantee results rather than opportunity.

One of the clearest indications of the revolutionary character of the new understanding of rights came in a 1987 Supreme Court case called Johnson v. Transportation Agency — an affirmative action case in which a man sued a government agency for awarding a job to an admittedly less-qualified woman. Justice William Brennan, writing for the majority, asked "whether the [gender-based affirmative action program] unnecessarily trammeled the rights of male employees"; his answer was no.

In other words, the newly-defined right of the less-qualified woman to a job necessitated the trammeling of the traditionally — defined right of the man to equal legal treatment.

The Different Understandings in Practice

In 1961, President Kennedy issued Executive Order 10925, prohibiting discrimination in the employment practices of government contractors. Those enforcing this order required contractors to submit racial breakdowns of their work forces, in order to ensure integration. This was in accordance with previous executive orders by Presidents Roosevelt and Truman, as well as with the traditional understanding of civil rights.

Four years later, however, President Johnson issued Executive Order 11246, setting up the Office of Federal Contract Compliance (OFCC) in the Labor Department to oversee government contractors. OFCC immediately began requiring what amounted to racial quotas. Bidders submitted "manning tables" guaranteeing the proportions of racial minorities they would hire if their bid was accepted. These tables became quite controversial and were discontinued, but the general practice of requiring contractors to hire by race continued in various forms and remains in place today.

The state of California has 45 separate laws requiring race- and gender-based preferences in the contracting of goods and services. Since 1988, for instance, competition for 20 percent of state-funded contracts have been limited, in effect, to "minority business enterprises" and "women business enterprises." Much of the commentary on this has addressed the enormous cost to taxpayers. (For instance, preference requirements in state construction contracts have been estimated to cost California taxpayers $43 million per year.) But more basically, these requirements raise the issue of whether affirmative action violates or promotes civil rights.⁷

Summary

There are two diverse understandings of "civil rights" involved in the debate over Proposition 209. Behind them are conflicting ideas of justice. The traditional understanding was reflected in the Supreme Court majority decision in Hirabayashi v. United States in 1943: "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." By "doctrine of equality," the court meant the doctrine that individuals have equal rights by nature.

Under this doctrine, conditions of individuals in society will vary greatly, because they are born with different talents and interests — not to mention luck. Also under this doctrine, government is charged with protecting individual rights and ensuring equal opportunity — including maintenance of a safety net-but otherwise gives free rein to the citizens' talents and interests.

The newer understanding of civil rights — the one that leads Educators for Justice, an anti-Proposition 209 group, to call 209 "the civil wrongs initiative" — grows out of a different understanding of equality. This is not an equality of rights, but an equality of results. Setting equality of results as a goal, it becomes necessary to regulate rights or opportunity. The granting of special rights to some, while restricting the rights of others, becomes the task of government. This in turn requires expansive bureaucratic government, rather than limited government: as the bureaucrat in charge of OFCC candidly admitted with regard to affirmative action in 1967, it justifies "anything that you have to do to get results."⁸

Conclusion

Those on opposite sides of the Proposition 209 debate are not above calling each other liars. But our assumption in this "Citizen's Guide" has been that neither side is untruthful. Rather they are using the same terms for near-opposite things. We have outlined their different understandings of four terms: preferential treatment or discrimination, equal opportunity, affirmative action and civil rights. And we have looked at the practical effects of their differences in three areas: college and university admissions, job hiring and promotions, and public contracting.

Having done so, we hope that when supporters of 209 say, "We are for equal opportunity and against preferential treatment," and opponents respond, "No, we are for equal opportunity, and you are for discrimination" — or when opponents charge that 209 prohibits outreach programs, and supporters reply that non-preferential affirmative action will remain legal-citizens who have read this guide will be able to cope.

In brief, the key to the confusion surrounding the 209 debate — as discussed most directly in our section on "civil rights" — is that a new view of justice arose relatively recently in America which is opposed to the founding or traditional view. Many important terms — including "equality" and "rights" — were redefined to support this new view. So far, neither the founding view or the newer view of justice has completely won out, so dual (and dueling) sets of definitions remain current. Voters in California this November will begin a decision-to be completed by voters in subsequent elections nationwide-as to which set will finally be relegated to the "dustbin of history."

Notes

1 See, for instance, Herman Belz, Equality Transformed: A Quarter Century of Affirmative Action (New Brunswick, N.J.: Transaction Press, 1992); or Terry Eastland, Ending Affirmative Action (New York, NY: Basic Books, 1996). For the best brief treatment of this topic from a constitutional perspective see Edward J. Erler, "Equal Protection and Personal Rights: The Regime of the 'Discrete and Insular Minority'," in The American Polity: Essays on the Theory and Practice of Constitutional Government (New York, NY: Crane Russak, 1991), pp. 91-122. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote1return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote1return">(Return)

2 Quoted in Carl Cohen, "Race, Lies, and Hopwood," Commentary, June 1996. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote2return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote2return">(Return)

3 Quoted in Ward Connerly, "You, Me, and CCRI: A Letter to Colin Powell," The Weekly Standard, August 19, 1996. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote3return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote3return">(Return)

4 Quoted in Dinesh D'Souza, The End of Racism (New York, N.Y.: The Free Press, 1995), pp. 217-218. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote4return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote4return">(Return)

5 See Eastland, p. 18. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote5return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote5return">(Return)

6 The information in this section is adopted from Michael Lynch, "Still Choosing By Color," Claremont Institute Golden State Briefing #1996-52. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote6return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote6return">(Return)

7 The information in this paragraph is from Tom McClintock, "The Cost of Quotas," Claremont Institute Golden State Briefing #1996-51, which gives a full account of the cost of preference requirements in California law. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote7return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote7return">(Return)

8 Quoted in D'Souza, p. 221.href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote8return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote8return">(Return)