Proposition 209: How California’s Battle Over Affirmative Action Exposed Deep Flaws with Direct Democracy

By Wesley Whitaker (CMC ’18)

Introduction

While discussions of affirmative action typically revolve around the decisions of the Supreme Court, the battle for affirmative action in California played out over the airways and door to door, rather than in a courtroom. The first major piece of civil rights legislation to be voted on by the public, Proposition 209 was approved by a majority of California voters in 1996 after a long, tumultuous campaign. Proposition 209 amended the state constitution to prohibit state governmental institutions from considering race, sex, or ethnicity, specifically in the areas of public employment and university admissions. Curiously though, public opinion polling showed overall support among Californians for policies that took race into consideration during hiring for example. The framing of the issue, then, as a preference for minority candidates over whites was the driving factor in the campaign’s success. As an amendment to the state constitution, only by passing another constitutional amendment through the initiative process can Proposition 209 be repealed. Thus, affirmative action policies are extremely unlikely to return to public institutions in California.

Turbulent Economic Conditions Bring Tense Political Climate

The first half of the 1990s was marked by extreme economic volatility and uncertainty in California. While California’s economy had been outpacing the national economy, highlighted by stellar personal income and employment growth, the early 1990s recession hit California harder than the rest of the nation and the recovery was much slower.[1] For example, personal income growth in California from 1990 to 1994 was about half of the national rate — 12 percent compared to 22 percent. In 1994, there were actually less jobs than in 1990 and unemployment peaked at nearly 10 percent in October of 1992.[2] One of the driving factors of the lagging recovery was the loss of manufacturing jobs in the aerospace industry due to a decline in federal defense spending. The housing sector was hit hard by the recession as well. The number of new residential building permits fell to only 85,000 in 1993, the lowest in over 25 years on a per capita basis, compared to an average of 210,000 new residential building permits during the 1970s and 1980s.[3]

On top of a struggling economy, California’s population grew rapidly in preceding decades and showed little signs of slowing down. Since 1970, the state’s population grew by over 10 million, bringing the total population in 1990 to just under 30 million.[4] The population boom had also significantly changed the demographic makeup of the state as international immigration accounted for most of the new residents in the states after 1970, primarily from Latin American and Asian countries. This demographic shift was reflected across the state as those relying on public services became more diverse. In 1993, white students accounted for just 42 percent of total K-12 enrollment, compared to 37 percent of Hispanic or Latino descent, 8 percent Asian, and 9 percent African American.[5]

The combination of a slow economic recovery, especially for middle-class white males, and the perception that the state was being overrun by immigrants contributed to the drafting of the so-called “Save Our State” initiative, which would become Proposition 187 and placed on the 1994 ballot. Its provisions denied illegal alien children access to public schools and excluded illegal aliens from receiving virtually any other kind of public service or aid.[6] Having lagged in the polls for reelection due to poor economic conditions, Governor Pete Wilson championed of the lightning-rod issue, which enjoyed strong public support from the still mostly white electorate. He surged ahead to beat his democratic challenger Kathleen Brown with a convincing 55 to 40 percent defeat and Proposition 187 was approved by voters 59 to 41 percent.[7] Republicans across the state also performed well, picking up eight seats in the Assembly and three statewide office seats from the Democrats. The remarkable performance of conservative politicians and conservative ballot measures in the 1994 elections is often attributed to their success at tapping into the growing anxiety of white voters that their way of life was under threat by the massive influx of immigrants and changing demographics.[8] Many of the jobs lost in the manufacturing and housing sectors during the recession were occupied by middle-class white workers, and were thus less insulated from economic hardship than in previous economic contractions.[9]

From the Ivory Tower to the Ballot

While racial politics dominated the political sphere of the early to mid-1990s, Glynn Custred and Thomas Wood, two Bay Area academics, were confronted with the state’s growing diversity firsthand. A professor of anthropology at the Hayward campus of California State University since 1970, Custred witnessed the demographic shifts on campus as Hayward began its push to become one of the most multicultural college campuses in America. In 1989, Hayward adopted policies that allowed minority and women candidates to apply directly for positions on the faculty without requiring a vacancy in the department. Custred saw the new policy as essentially adopting a quota for minority faculty, which he called racist.[10] He argued for his department to not take part, objecting that faculty should be hired solely on their competency and qualifications aside from minority status. Citing the 1964 Civil Rights Act, he concluded that there was nothing wrong with the law, which outlawed discrimination based on race, color, sex, religion or national origin; it was simply not being enforced. He eventually joined and later become Executive Director of the California Association of Scholars, the state chapter of the National Association of Scholars, which is a coalition of other academics who shared his views towards multiculturalism and affirmative action.11

Unlike Custred, Wood became interested in the topic of affirmative action policy as an applicant struggling to land a job with the philosophy department at San Francisco State University. He claims to have ran into a member of the search committee before he applied for the job, and was told that he would have been hired instead of a woman of color had it not been for the school’s affirmative action policy.[11] Wood continued to take on research jobs while pursuing a permanent position until he came across the Supreme Court’s Bakke decision. In Regents of the University of California v. Bakke (1978), Justice Powell, writing for the Court, concluded that the UC Davis Medical School’s policy of setting aside seats for minority students during the application process amounted to a racial quota and violated the equal protection clause of the Fourteenth Amendment because students were split into two pools and considered separately.[12] Powell also said, however, that the university’s goal of creating a diverse student body was constitutionally permissible, and that race could be considered as a “plus factor” for an applicant. Wood disagreed entirely. He believed that including race in the decision process amounted to discrimination against those not of minority status and concluded that his inability to land a job in academia was a result of affirmative action.12 He called the National Association of Scholars to see if they had a local chapter, and by the end of 1991 had become friends with Custred.

Inspired by the success of recent ballot initiatives, the two began drafting a constitutional amendment of their own in 1992, which they titled the California Civil Rights Initiative (CCRI). According to Custred and Wood, the purpose was simply to reaffirm the principle in the Civil Rights Act of 1964: non-discrimination means your race or gender cannot factor into how you are treated when it comes to contract, employment, and admissions decisions — even if you are white.[13] Drawing on their backgrounds in research, the two began to investigate the issue in depth, paying close attention to the language surrounding affirmative action and public opinion polling data. Their findings were striking. Support for affirmative action programs fluctuated massively depending on the wording of the question. One poll found that when asked if they would support affirmative action, provided no quota system was used, 75 percent of respondents were in favor, including 71 percent among whites. However, when asked if they would support a system of racial preference for minorities over equally qualified white candidates, 72 percent of white respondents and 42 percent of black respondents answered negatively.[14] This discovery was a breakthrough for Custred and Wood. First, it suggested that many Americans may actually be less supportive of affirmative action than previously thought because not everyone actually knew that it entailed preferential treatment based on race. Second, knowing that support plummeted when affirmative action was presented as a racial preference provided the perfect blueprint for how to frame the issue for the initiative and the campaign. Instead of attacking affirmative action head on, Custred and Wood could attack the much less attractive concept of racial preference for minorities.

Without the support of either political party, and still lacking key connections to fundraising, the initiative failed to gather enough signatures to qualify for the 1994 ballot. However, the issue caught fire in the wake of the November election, in large part due to Custred and Wood’s capitalizing on the divisive language surrounding Proposition 187 driven by Governor Wilson.[15] They formed a committee with Larry Arnn, the President of the Claremont Institute, as Chairman. Other well-connected conservatives flocked to the cause, including Los Angeles based Republican pollster Arnold Steinberg, who would later lead the campaign, and William Rusher, the founder and Publisher of the National Review. With campaign staff assembled, the group began work on drumming up sources of funding.16

Gaining Momentum

 While Custred and Wood had been engaged in laying the theoretical framework for the fight against affirmative action, Governor Wilson had enlisted the help of a longtime friend, Ward Connerly, to lead the charge. Connerly became friends with Wilson in the late 1960s and was asked by Wilson to join the Assembly Committee on Urban Affairs and Housing.[16] Wilson eventually convinced him to join the private sector, where his firm was successful consulting on public development projects. In 1993, Wilson appointed Connerly to the UC Board of Regents where he quickly gained a reputation of an active and thoughtful member. Through Wilson, Connerly met with Jerry and Ellen Cook, whose son had been rejected from medical school, where Cook presented evidence that white and Asian students were being denied admission to California schools despite having better grades and test scores than Latino and black students who were admitted.[17] Connerly concluded that the affirmative action policies of the state schools amounted to racial discrimination, and began his campaign as regent to stop the process.

Wilson, who had selected affirmative action as the next issue divisive enough to attract white voters to his campaign and rally public support, encouraged Connerly’s efforts. His mission attracted special attention due to his being African American, which some suggest was why Wilson had selected him for the position.17 Connerly admitted that even though it was never explicitly mentioned, the presence of a charismatic and intelligent black man leading the charge against affirmative action neutralized potential attacks from opponents that animus towards minorities motivated the campaign.[18]

On July 20th, 1995, Connerly and Wilson took their campaign against affirmative action to the UC Board of Regents meeting where they were met by Rev. Jesse Jackson and civil rights organizers protesting. Wilson played hardball, ensuring the protesters had minimal effect and allowing Connerly to forcefully present his case calling for the end of affirmative action in the UC system which was first approved by the board in 1975.20 Connerly and Wilson were successful and the regents voted 15-10 to end affirmative action in hiring and 14-10 to end affirmative action in admissions decisions. Despite the UC Academic Senate voting 124-2 to ask Regents to rescind their votes, the policy was upheld and Wilson’s polling soared, especially among white voters. [19]

Just over one month later, CCRI filed for a spot on the 1996 ballot. The campaign immediately benefitted from the heightened publicity stirred up by Connerly and Wilson as it raced to meet the signature requirement of nearly 700,000 signatures.[20] Filing for the second time, Custred and Wood were eager to keep the phrase “affirmative action” out of the ballot title and summary due to its higher favorability among voters. They met with Chief Deputy Attorney General David Stirling to ensure that no mistakes were made the summary reflected the language of the measure.21 In December of 1995, Connerly was asked to join the campaign as the Chairman. Shortly after, Wilson’s fundraising with the California Republican party provided a much-needed donation of $500k to resume collecting signatures to qualify the measure. Just two months later in February of 1996, the campaign turned in over a million signatures and qualified for the 1996 ballot as Proposition 209.21

Republican Attorney General Dan Lungren was in charge of preparing the ballot summaries, which are crucial to informing voters as they are likely the only non-partisan information they will see before voting. [21] State law requires that summaries be impartial, but Lungren was outspoken about supporting the proposition and even signed one of the rebuttals in favor in the voter’s guide.[22] Titled Proposition 209: “Prohibition Against Discrimination or Preferential Treatment by State and Other Public Entities”, the summary text read:

“Prohibits the state, local governments, districts, public universities, colleges, and schools, and other government instrumentalities from discriminating against or giving preferential treatment to any individual or group in public employment, public education or public contracting on the basis of race, sex, color, ethnicity, or national origin.”[23]

When the summary was published in July, the opposition campaign was furious that the summary made no mention of affirmative action and took Lungren to court.22 Sacramento Superior Court Judge James Ford sided with the opposition and made Lungren rewrite the summary as it was clearly biased. Nevertheless, Lungren appealed and the Third District Court in Sacramento overturned Ford’s decision, stating: “The title and summary inform the public of the general purpose of the measure.”[24] This marked a monumental win for the campaign as, according to an LA Times poll in September, 59 percent of voters did not understand that Prop. 209 would effectively end affirmative action.[25] Read without qualification, the measure enjoyed 70 percent support.[26]

The 209 campaign continued to lead in the polls until Election Day, bolstered by their advertising that emphasized equal opportunity and color-blindness. Featuring Connerly in a soft, moral and unifying tone, the first radio ad highlighted his support for the issue as an African American and ended with the wholesome catchphrase: “Equal opportunity without quotas. Yes! Proposition 209. Bring us together.”[27] Another ad featured a young white woman who claimed to be the victim of reverse discrimination after being removed from a remedial English class intended for minority students.[28] Instead of adopting the severe language surrounding the Proposition 187 campaign, the emphasis of an inclusive campaign predicated on fairness and equal opportunity resonated with voters, particularly white voters. Proposition 209 ultimately passed with 55.5 percent of the vote.[29] According to the LA Times exit polls, 63 percent of white voters supported the measure while 74 percent of African Americans, 76 percent of Latinos and 61 percent of Asians voted against.[30]

 A Better Path for the Opposition

A ragtag coalition of civil rights groups, women’s advocacy organizations, and grassroots organizers, the opposition campaign faced a long, uphill battle to defeating Prop. 209. Unlike their adversaries, the opposition did not enjoy the support of the political party that closely aligns with their interests and constituents. Outmatched in terms of fundraising, the proponents were able to conduct an ad campaign that dominated the radio waves and television stations without a proper response from the opponents. Opponents also did not benefit from sympathetic elected officials in positions capable of shaping the outcome in the way that Governor Wilson and Attorney General Lungren assisted the proponents. Nevertheless, despite all of these hurdles, the most significant obstacle was the simple and deceiving language of the measure that confused many voters. According to exit polls, a majority — 54 percent — of voters supported affirmative action programs, yet nearly the same number also voted in favor of Prop. 209, ending programs that they likely supported.[31]

To successfully defeat Prop. 209 would require a campaign that effectively combated the ambiguity surrounding the issue of affirmative action while still providing enough of impetus to mobilize minority voter support. The best way to achieve this would be through an alternative ballot initiative, a tactic that the opposition attempted but failed to capitalize on.[32] Over nearly six months, activists in the Bay Area organized a group of lawyers to draft an alternative amendment, eventually settling on the Equal Opportunities Without Quotas initiative after producing hundreds of drafts. The amendment explicitly prohibited racial quotas, the hiring of unqualified applicants, and threatened fines for anyone who fraudulently benefited from affirmative action programs.33 Essentially, the initiative reaffirmed the current standards of acceptable affirmative action practices as decided by the Supreme Court. The same length as Prop. 209 and with broadly appealing language, it was sent in to the Legislative Analyst’s Office for review as their best hope. Nine months of hard work were immediately dashed, however, when the analyst concluded that the state’s enrichment programs targeted at minority students qualified as a racial quota. Dismantling these programs as a result would alienate far too many voters and potential donors, but it was too late to appeal the decision and the campaign had to quickly change direction to defeating Prop. 209 flat out.33 If there had been less infighting between members of the coalition and it was decided earlier to pursue an alternative amendment, there would have been time to petition the analyst for reconsideration or to revise the measure until it did not produce the same unintended consequences.

The alternative ballot initiative competing directly with Prop. 209 would force voters to choose between two pitches for fairness and equal opportunity. Instead of being presented with a single initiative condemning racial preference and promising to restore fairness to employment and admission decisions, the voter would be presented with an alternative that appeals to the same sensibilities but would be able to invoke the language of affirmative action, which had a significantly higher favorability rating according to the polls. It could even capitalize on the aversion of voters towards quotas by prohibiting them. Likewise, it could assuage the fears of white voters that unqualified candidates could take positions they did not deserve by explicitly prohibiting that practice as well. The biggest underlying problem with Prop. 209, which was illustrated by the number of voters who say they supported affirmative action but nevertheless voted against it, is that voters did not have a clear picture of what affirmative action actually entailed.[33] The opposition campaign fought to explain the history of prejudice, which pushed economic and academic opportunities out of reach for many people of color and women, and described how affirmative action works to correct these patterns of discrimination. This nuanced argument, however, does not fit neatly into a 30 second radio or television ad. The opposition needed a shorter, more palatable appeal for fairness.

On top of cutting through some of the confusion surrounding the issue, an alternative initiative would have shaped the down the road campaign greatly. The language and substance of the initiative aligned closely with President Bill Clinton’s “mend it, don’t end it” stance towards affirmative action, and would likely have engaged the Democratic Party and the President himself in the campaign. Instead, Clinton kept the issue at arms-length, as he did not want to alienate too many white voters by staunchly supporting affirmative action.[34] Likewise, the priorities of the Democratic Party were clear. They were not going to jeopardize Clinton’s reelection for the sake of a state proposition, even if it did align closely with their policy positions and constituents. However, if the campaign offered a positive account that both the Democratic Party and President could get behind, they would have enjoyed significantly larger contributions to their war chest, which could then be used to wage a proper media campaign. Proponents of the alternative measure could then match Connerly’s soft-spoken testimony with countless cases of minorities and women who have benefited from affirmative action. Simultaneously, these ads would appeal to white voters by reaffirming the prohibition on quotas and unqualified applicants benefiting from the program. Ultimately, a competing initiative offered the best chance of success in defeating Prop. 209, as it would broaden the coalition of support to include more donors and high profile voices, as well as enable the opposition to frame the issue in their own terms.

Conclusion

 In his first Inaugural Address in 1911, Governor of California Hiram Johnson extolled the virtues of direct democracy and its unique ability to return the power of governance back to the people from the hands of corrupt political parties and special interests.[35] Nevertheless, the creation of the initiative process also opened the door to popular referendums on key civil rights policy, including affirmative action. The events of 1996 attest to Johnson’s claim that average citizens, if sufficiently driven and politically minded, can impose their will over objections in the political establishment by using direct democracy. At the same time, however, the campaign raised new questions about the role of popular consensus in the domain of civil rights. Throughout the campaign, average voters lacked information about the issues, specifically about what affirmative policies actually entail when choosing candidates for a limited number of vacancies. This issue was further compounded by the use of deceptive and ambiguous language by proponent’s campaign. Ultimately, California’s battle over affirmative action highlights the inadequacies of direct democracy when dealing with complex policy issues that intersect with civil rights. Further, the campaign orchestrated by Wood and Custred, and led by Connelly, demonstrated the importance of controlling the narrative surrounding a political issue. By tapping into economic and racial anxieties at the right time, the campaign exposed the dire need for an informed and engaged citizenry for a system of direct democracy to function.

[1] The California economy in 1990s. Legislative Analyst’s Office.

[2] Bureau of Labor Statistics. Local area unemployment statistics: Statewide, California. 1990-1998.

[3] The California economy in 1990s. Legislative Analyst’s Office.

[4] Jack Citrin. 2013. State of change: Immigration politics and the new demography of California. 31-33.

[5] Educational Demographics Unit. Statewide enrollment by ethnicity, 1993-1994.

[6] Peter Schrag. 1998. Paradise lost: California’s experience, America’s future. 228-231.

[7] Summary of votes cast for state offices: November 8, 1994.

[8] Peter Schrag, 230-234.

[9] Lydia Chávez. 1998. The color bind: California’s battle to end affirmative action. Berkeley: University of California Press. 31.

[10] Lydia Chávez. 9-13.

[11] Lydia Chávez. 13-16.

[12] Regents of the University of California v. Bakke, 438 US 265 (1978).

[13] Lydia Chávez. 18-20.

[14] John Brennan. “Key words influence stands on minorities.”

[15] Cathleen Decker. “Affirmative action: Why battle erupted”.

[16] Lydia Chávez. 25-29.

[17] Lydia Chávez. 32-33.

[18] Ward Connerly. “Affirmative action and proposition 209”. The California Republic. 258.

[19] Lydia Chávez. 61-67.

[20] Lydia Chávez. 67-69.

[21] Lydia Chávez. 144-145.

[22] Daniel Lungren, Quentin Kopp, and Gail Heriot. 1996. Rebuttal to argument against of proposition 209.

[23] Proposition 209: Text of proposed law. 1996.

[24] Lydia Chávez. 145.

[25] Bettina Boxall. “A political battle grinds on as a war of wording”.

[26] Lydia Chávez. 154.

[27] Lydia Chávez. 188.

[28] Lydia Chávez. 215.

[29] Statement of vote: Votes for and against November 5, 1996 statewide ballot measures

[30] State propositions: A snapshot of voters.

[31] Lydia Chávez. 237.

[32] Lydia Chávez. 105-108.

[33] Bettina Boxall. “A political battle grinds on as a war of wording”.

[34] Lydia Chávez. 223.

[35] Hiram Johnson. First Inaugural Address.

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