What California's Prop. 209 Doesn't Say

The controversy over Proposition 209 is far from over. Student resistance and challenges in the courts have only just begun. But much of the discussion and debate misses an important point: Prop. 209 doesn't say affirmative action programs for women and minorities are illegal. That means city mayors, university chancellors, and public officials throughout California are fully within their rights to refuse to cancel taxpayer programs designed to achieve integration. The fatal flaw in Prop. 209 lies not so much in what it says (after all, discrimination is already illegal), but in what it doesn't say. It doesn't define affirmative action as preferential treatment. It doesn't even mention affirmative action.By what explicit authority is affirmative action repealed? Taxpayer programs and public policies cannot be repealed through silence. To magnify the popularity of Prop. 209, its co-authors deleted any reference to affirmative action. Now, after the fact, they can't suddenly put it back in. And the details of the language matter: Capital punishment, for example, cannot be legally repealed through a general bill that outlaws murder, even though many citizens view the death penalty as state-sanctioned murder. Prop. 209 outlaws discrimination and "preferential treatment." Is social engineering that promotes real equality "preferential treatment?" Is affirmative action by definition racial or gender supremacy? Nothing in Prop. 209 makes that claim.In his autobiography, retired general Colin Powell distinguished between illegitimate preference and affirmative action. Powell wrote: "If affirmative action means programs that provide equal opportunity, then I am for it. I benefited from affirmative action in the Army, but I was not shown preference." Powell's definition of affirmative action is still popular. It reflects the traditional, common-sense approach to social engineering. There is difference between the means by which real equality is achieved and programs that give one race, or one gender, hegemony over another. There is nothing in Prop. 209 that repudiates, much less outlaws, the position of Colin Powell.In short, to vote against preference for one race over another, one gender over another, is not equivalent to voting against affirmative action. Prior to the passage of Prop. 209, Harris polls showed that "the American people view preferential treatment and affirmative action as opposites, not as synonymous." Prop. 209 gained huge support precisely because it did not outlaw affirmative action. A cross-section of Americans responded to the following question: "Would you still favor this Proposition if it would outlaw all affirmative action programs for women and minorities?" Nationally, the figure of 81 percent who favored the initiative suddenly dropped by 51 points. When a cross-section of whites was asked if affirmative action "is really preferential treatment which gives one race or group an advantage they don't deserve," a majority of whites rejected the definition by 62 percent to 27 percent.The authors of Prop. 209 studied the polls. They listened to their focus groups. And they were well aware that, while preferential treatment is unpopular, affirmative action is still widely accepted in California. Consequently, they did not dare to put affirmative action to an open, honest test.Bait-and-switch tactics are illegal, whether the hucksters are selling TVs or ballot initiatives. If the courts allow ad agencies, pollsters, and petty fascists and propagandists to rewrite our constitution, social upheavals are inevitable.That is why, as far as affirmative action goes, Prop. 209 is null and void.Paul Rockwell is chair of Angry White Guys for Affirmative Action. The positions expressed in this piece are his own and do not necessarily reflect the views of the organization.

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