written for Policy Review, November 1994, not published In a better world, the California Civil Rights Initiative would not be needed. After all, the initiative, which its proposers hope to bring to the state's voters on the March 1996 ballot, simply writes into California's constitution the anti-discrimination provisions of the 1964 Civil Rights Act. Its first section reads simply: ``Neither the State of California nor any of its political subdivisions or agents shall use race, sex, color, ethnicity or national origin as a criterion for either discrimination against, or granting preferential treatment to, any individual or group in the operation of the State's system of public employment, public education or public contracting.'' But in the Alice-in-Wonderland world of quotas, where race-neutral policies are outlawed as ``discriminatory'' and overt racial discrimination is disguised with euphemisms like ``affirmative action'' or ``diversity,'' nothing is ever simple. Last summer, California assemblyman Bernie Richter, R-Chico, brought the measure to the Legislature as Assembly Constitutional Amendment 47. It had 43 co-authors, almost the entire Republican contingent in both houses, plus one Democrat (Sen. Robert Presley, D-Riverside) and Independent Sen. Quentin Kopp of San Francisco. After a raucous hearing before the Assembly Judiciary Committee, ACA 47 was defeated 6-4 on a straight party-line vote. ``This is one of the most dangerous pieces of legislation I have witnessed in my four years here,'' said Barbara Lee, a Democratic Assemblywoman from Oakland who is African-American. Richter vowed to try again when the new Legislature convened in 1995, but supporters of the amendment were concerned that it might lose some of its undoubted appeal to the public if it failed too many times before hostile Democratic-controlled committees. Of course, that was before November's Election Day rout of Democrats across the country, which counted enough victims in Sacramento to (tk: as I write, we don't know--it's likely to end up a 40-40 tie and the speakership isn't decided until December) allow Republicans to claim a significant role in organizing the lower chamber. Among the departed, for instance, was Lemon Grove Democrat Tom Connolly, who as vice-chairman of the Judiciary Committee had presided over the hearing in August. Not daring to hope for Democratic losses of that magnitude, however, CCRI's principals had decided to take the issue of racial preferences directly to the voters through the initiative process. In fact, that was the original plan, said Glynn Custred, a professor of anthropology at California State University, Hayward, who is troubled by the increasing rigidity of ethnic quotas for students and faculty at California's public colleges and universities. ``We're not going to win in the universities,'' Custred said, ``the press won't pay attention and the judiciary is hostile. ``But people don't like this, and they haven't been consulted.'' So in October 1993, he and Thomas Wood, executive director of the California Association of Scholars, filed a proposed text of their Amendment with the Attorney General's office -- the first step in qualifying an initiative for the ballot. ``When the Legislative Analyst's Office reported several hundred million dollars in savings,'' Custred said, ``then people started paying attention. In her report, Legislative Analyst Elizabeth Hill noted that state and local agencies might save tens of millions of dollars through the elimination of, for example, affirmative action programs that steer public contracts to firms owned by women or minorities. Public schools and community colleges would gain the use of up to $120 million a year now spent on a variety of voluntary desegregation programs (much of which goes for transportation of students to schools outside their neighborhoods), and on targeted programs based on race, sex, ethnicity or national origin. The state's two systems of higher education, the University of California and the California State University, might see savings in the range of $50 million a year for programs aimed at students from ``under-represented groups.'' Hill's determinedly non-partisan analyses are respected by members of both parties, and she was careful to note that actual savings might be less because the complete text of CCRI carves out certain exceptions to the ban on preferential policies. If CCRI is adopted, the state and its agencies may continue to obey court orders already in force, or future court orders issued to remedy past discriminatory practices. They may continue doing whatever is necessary to maintain eligibility for federal funds. And the initiative would permit ``classifications based on sex which are reasonably necessary to the normal operation of the State's system of public employment or public education.'' Nonetheless, Hill's estimate of the size of the price tag for affirmative action in California is both evidence for the pervasiveness of the state's race-conscious policies and an explanation for the fervor of the CCRI opponents who spoke at the Judiciary hearing. The tenor of the debate, as well as its content, is probably a reliable indication of the public controversy that will ensue once the initiative is on the ballot. Supporters argue that the plain meaning of the Equal Protection Clause of the Fourteenth Amendment requires that the law be colorblind, and that the ideal society is one that honors Martin Luther King Jr.'s principle that people should be judged by the content of their character, not the color of their skin. Opponents counter that whatever socially acceptable reasons people may give, their true agenda is to preserve the privileged position held by those who are white or male or both. This kind of debate is drearily familiar to Californians, who suffered through weeks of harangues and protests last fall over Proposition 187, the initiative which proposed to deny a variety of public services, including health care and education, to illegal aliens. As the preaching continued, polls showed eroding support for 187, but when Election Day arrived, it passed 59 percent to 41 percent (and promptly landed in the courts). CCRI probably would follow the same path. Race and gender quotas have long been among the most unpopular forms of social engineering ever inflicted on a disgruntled electorate, and the evidence of their perverse effects keeps piling up, But a debate over motives rather than merits is probably inevitable, and in that context, testimony from the intended beneficiaries of preferential policies is particularly valuable. One of Richter's most eloquent witnesses was Ward Connerly, a black businessman from Sacramento who is a member of the Board of Regents of the University of California. ``There was a time, I think,'' Connerly said, ``when affirmative action, preferential treatment had value. ... We needed some sort of shock treatment if you will to change the culture in California, to bring an awareness that if we are going to be a multiracial society we have to have equality of opportunity.'' But society has reached a point of diminishing returns, he said. ``Sometimes we not only foster, but we perpetuate, we accelerate racism unwittingly. ``The time has come to take off the training wheels, and that's what affirmative action really was -- training wheels that allowed us to change the culture of our society.'' Connerly's comments are in sharp contract to the actual policies of the UC system, which reserves a substantial share of its admissions for blacks and Hispanics who are, on average, less well qualified than the whites and Asians who are admitted. Exactly how much less qualified is a matter of some dispute, because university officials are not, to put it mildly, eager to release the information. Several years ago, Vincent Sarich, a professor of anthropology at UC Berkeley, obtained the racial breakdown of mean SAT scores for 1988 Berkeley freshmen. The difference between African-Americans (at 979) and Asians and whites (1268) is the equivalent of ``four years of preparation,'' Sarich said. The era of official silence may be ending, however. The law school at the University of California, Los Angeles, at first refused to provide statistical data on its 1993 entering class to Allan Favish, an attorney in Tarzana, Calif. But it surrendered after he filed a freedom-of-information lawsuit. As others follow Favish's example, disclosure will become routine and the difficulty of defending discriminatory admissions policies will become acute. The California Legislature has a record of trying to enforce quotas in higher education. In 1990, Tom Hayden, now a state senator but then in the assembly, introduced a bill requiring that ``historically underrepresented'' minorities be admitted to -- and graduate from! -- the UC and CSU systems in proportion to their numbers among high school graduates. Assembly Speaker Willie Brown proposed a similar bill. Sen. Art Torres proposed ``diversity'' standards for faculty hiring that would have been impossible to meet, given the small number of blacks and Hispanics who earn doctorates in most fields. These unworkable bills passed the Legislature, although they were vetoed by the governor. But the attitudes they evince have by no means vanished. ``White men hold disproportionate power in this society,'' said Eva Paterson, executive director of the Lawyers' Committee for Civil Rights, the leadoff witness for CCRI opponents. ``What we're about is trying to make sure that the playing field is level and that women and people of color get a chance to have part of the goodies,'' she said. Paterson was sharply questioned by Assemblyman Terry Friedman, whose well-earned reputation as a defender of liberal positions didn't keep him from discomfort with the inherent contradictions of this one. He wanted to know how she would justify a determination that an Asian applicant to the University of California ought not to be admitted, though a member of a racial minority group that is deserving of consideration and preferential treatment, is less deserving than a member of another minority group. ``The reason I'm so troubled about that,'' Friedman said, ``is how we achieve the goal of a colorblind society when we preoccupy ourselves with a focus on race, which forces us to continue to see with color rather than being blind to color. ``And the longer we do that, the more I fear racial conflicts. ... How do we keep the boiling cauldron of racial conflicts in this society, which is not just people of color versus whites, ... how do we avoid that?'' It is the crucial question, but Paterson had no solution except by- the-numbers. ``My understanding is that you want to have representatives of all ethnic groups, in a particular institution of higher education, a fire department, or a contracting agency. So when one group gets too many slots, then they can have no more people brought in.'' ``Do you think that's right?'' Friedman asked? ``I do, I do,'' she answered. ``So you think there should be numerical quotas for admission to institutions of higher education?'' he persisted. She objected to the use of the word ``quota,'' but her term, percentage ``subgoals,'' clearly was exactly what Friedman meant. ``You're saying,'' Friedman went on, ``that if there's a qualified Asian, whose admission would result in a reduction in the number of positions for other racial minorities, that qualified Asian should not be admitted.'' ``Affirmative action is a very flawed remedy,'' Paterson conceded, ``but if you change the word Asian to white male, then that's exactly what affirmative action is about.'' It's hard to be clearer than that. Whatever the original goals, at the end affirmative action comes down to naked racial discrimination. Talk-show host Errol Smith, who serves on CCRI's advisory board, seconds Friedman's point about the possibility that affirmative action will foment conflict between different minority groups. ``That may be the flashpoint,'' he said. ``The black leadership will be challenged to maintain consistency'' in accepting that the same arguments blacks used to claim preferences from whites will now allow Latinos and Asians to claim preferences from blacks. ``We're overrepresented -- in the post office, in city and county jobs,'' Smith said. ``We're going to have to start yielding seats.'' Last summer Tirso del Junco, the chairman of the Republican party in California and the vice chairman of the board of governors of the postal system made exactly that point. ``The black leadership in the major cities who are driving the system must accept responsibility for bringing equality into the system,'' he said. Hiring for federal jobs wouldn't be affected by CCRI, of course, though the same arguments will be made wherever statistical disparities occur. But black/white disputes over affirmative action have resulted mostly in increased racial animosity and resentment. Serious though those problems are, they are less dangerous than black/Latino tensions, which constantly simmer on the edge of violence and not infrequently boil over, as they did during the 1992 riots in Los Angeles. Affirmative action was probably not high on the list of grievances motivating the rioters, but any issue that directly pits one race against another raises the rhetorical temperature with unpredictable consequences. Although racial preferences received the most attention at the hearings, and would probably dominate the public debate if CCRI were on the ballot, gender issues promise to be divisive as well -- and may pose more problems for supporters of the initiative than for its opponents. ``The trouble with throwing sex in with race'' said Lino Graglia, professor at the University of Texas Law School, who testified in favor of ACA 47, ``is that you can't so thoroughly ban sex distinctions, and so you start creating exemptions.'' The measure, he said, ``is not meant to enact the Equal Rights Amendment in an indirect way.'' That tension was apparent during the hearings, when committee member Marguerite Archie-Hudson, a black Democrat from Los Angeles, pressed pro-CCRI witnesses on why the initiative would ban some preferences, but not others that commonly favor men, like athletic scholarships. Richter conceded that perhaps athletic scholarships should be awarded 50-50 to women, even if they were for different sports. But that concession returned to haunt him when another committee member observed, quite correctly, that the 50-50 rule sounded exactly like the kind of numerical goal that CCRI is intended to prohibit. In his written testimony, Graglia reminded the committee that during the debates over the 1964 Civil Rights Act, opponents argued that it would, inevitably, lead to discrimination in pursuit of racial balance. Sen. Hubert Humphrey of Minnesota, a leader in the fight for the act, ``dismissed these arguments as incredible, calling them `bogeymen and hobgoblins... raised to frighten well-meaning Americans.'' But Humphrey, ever the naive optimist, proved to be tragically wrong. Republican State Sen. Tom Campbell of Los Altos, who will help lead the legislative fight this year, recalls that history well. He researched it as a law clerk to Supreme Court Justice Byron White at the time the Court decided the Bakke case, which held that race might be used as one factor in admission to medical schools of the University of California. The first layer of strategy, Campbell said, is to keep the problem from getting worse with new legislation expanding racial preferences. He was encouraged last year when the state senate failed to pass a bill that would have allowed a 5 percent price advantage to minority of women-owned businesses. The bill was carefully drafted to conform to current Supreme Court policies (established by Richmond vs. Croson) requiring such preferences to be granted only when a history of past discrimination could be established and then only when the preferences were narrowly tailored to remedy the discrimination. Even so, Campbell said ``the outcome was determined by the surprisingly large number of Democrats who simply refused to vote on the bill.'' But he ruefully noted one failure, when the definition of groups eligible for preferences was expanded to include Portuguese and Spanish. And what was the justification? ``I've got a lot of Portuguese in my district,'' one legislator told Campbell -- exactly what the Supreme Court had warned against. Part of discouraging an increase in race-conscious policies is to have a substitute at hand, such as allowing preferences specifically to candidates who can point to obstacles they have overcome. Such substitutes can be attached to bills in committee, with the consent of the author, or added on the floor. The second layer of the strategy, Campbell said, is to enact the specific provisions of the initiative separately into law. ``I'm not sure we have the votes,'' he said before the November elections, although that calculation will be very different with the new Legislature. The third layer is passage of the initiative itself. Even if the Legislature acts to curb preferential policies, it could always reverse itself. Voters may use the initiative to make that reversal more difficult, as they did in November with Proposition 184, the ``three strikes'' initiative, which was already law. Campbell, who is a professor of law at Stanford University as well as a legislator, told a story about the real-life effects of affirmative action. He had assigned students to two-person teams for a project, and asked one student how he liked his partner. ``Mike is one of the brightest minority students I've ever dealt with,'' the student answered. When he was at the University of Chicago in the late '60s, Campbell said, such a statement would have been rightly criticized. Now it's a commonplace. ``We are teaching prejudice,'' Campbell said. The supporters of CCRI believe it's time to stop teaching prejudice.