A year ago, as a candidate, Gray Davis accused Governor Pete Wilson of poisoning race relations in California by championing Proposition 209, the state constitutional amendment that prohibits both preferences and discrimination based on race and gender from all levels of California government.
Last week, as governor, Davis took a strong step to uphold the Constitution by vetoing a civil rights bill that would have undercut Prop. 209, which is now part of that constitution. With this veto of Senate Bill 44, Governor Davis has shown respect for the voters, for the oath he took to defend the Constitution, and for the law generally.
SB 44 would have allowed for new "outreach" programs aimed at women and minorities. It was presented as a minor adjustment to Prop 209. In fact, if signed, it would have been a first step back to the old quota programs eliminated by 209. Moreover it was an attempt to "adjust" the Constitution by statute. This by itself is an assault upon the rule of law.
The bill's backers said this was necessary because various government agencies were hesitant to conduct outreach programs for fear of running afoul of Prop. 209. Opponents countered that outreach programs would not offend Proposition 209 unless they were discriminatory by race or gender. In his veto message Davis said that he believed that the forms of outreach envisioned by SB 44 would have violated the provisions of Prop. 209 that specifically prohibit race-based programs.
Consider what Prop. 209 said: "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."
What does this mean for outreach? The goal of Proposition 209 is equal opportunity for all. Outreach programs should serve the same goal. Aspiring students, regardless of their race or gender, should be made aware of educational opportunities. Likewise, all contractors should know about chances to bid on state government contracts. All citizens should have access to information about government job openings. If openness is the end, then the wide distribution of information is the means.
Of course Prop. 209 supporters maintained from the beginning that this kind of outreach was always permissible and indeed desirable. The problem with SB 44 is that it would have allowed outreach efforts on the basis of race and gender. It would have justified efforts to recruit applicants, not because they have been left out of the process in the past, but because they are members of the favored class.
The goal of Prop. 209 was to treat citizens as individuals, not members of some class. Each individual should be free to advance without any artificial barrier set before him or her. But no one is guaranteed an outcome. Under this system what is guaranteed to a citizen is the opportunity to succeed based on his or her own work and merit.
But what of minority groups that are under-represented in education and employment? In reality, this probably has little to do with students or contractors knowing what is available to them. Other powerful causes are easy to see. Can anyone doubt that with the abysmal condition of inner-city schools, minorities are under-represented in California's universities? No amount of outreach can make up for inferior school systems.
In the years ahead Davis has three challenges: First, he must make sure that state agencies follow the state Constitution, which now forbids race and gender preferences and discrimination in the clearest language. This includes the difficult task of requiring formidable state bureaucracies to give up the old quota system, which among other things is a source of power to them.
Second, Davis must ensure that California's education system improves so that all citizens have the tools to compete. Universal quality education has been a high and noble goal of American government from its first days. It is the necessary partner of equal opportunity. Here the Governor should do some thinking. Although he has made education a priority, his signing of a recent bill that limits the successful experiment in charter schools was a step in the wrong direction.
Finally, the Governor must continue the tradition of our greatest statesman of standing up for the principles of our country, which begin with the rights of every citizen. Governor of the largest state, Davis can be a powerful spokesman.
The Governor's first job is the most narrow, but it has always been difficult. Just over 100 years ago, the United States Supreme Court decided to its shame that a Louisiana law requiring separate railway cars for blacks and whites was constitutional on the ground of "separate but equal." We forget today that it was an act of government that established and maintained this system of discrimination. Plessy vs. Ferguson was an endorsement of government-mandated discrimination.
In our own time, California's government has itself violated this principle. Proposition 209 overturned this practice of class-based favoritism, and vindicated Justice John Marshall Harlan's famous dissent in Plessy: "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 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."
The Governor has been mistaken about proposition 209. Despite that mistake, he has by this recent veto lived up to that standard stated so eloquently by Justice Harlan, and more eloquently still in the Declaration of Independence. We owe him thanks.