From the Cheap Seats: Zombie Politics

It’s not very cinematic, but the relentless effort to enable legal discrimination in California reminds one of the shuffling march of the undead. The latest incarnation of this abomination is ACA 7, a proposed constitutional amendment that would circumvent prohibitions against categorical discrimination that are now declared in the California Constitution (Article 1, Section 31).

In 1996, the voters of this state passed Proposition 209 by a sizable majority (55-45), amending the state constitution to prohibit discrimination “on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Doing so brought California in line with similar federal prohibitions contained in the Civil Rights Act of 1964.

This legal regime remains a problem for advocates of affirmative action, so we have seen repeated attempts to overturn it. A narrow bite out of the law advanced in 2011 when both houses of the state legislature passed SB 185, which would have enabled discrimination in university admissions, but that was vetoed by then-Governor Jerry Brown.

The next year, the same senator who sponsored SB 185 introduced a similar measure, but it was withdrawn when it ran into strong opposition, mainly from Asian Americans.

More recently, in 2020, the legislature advanced Proposition 16, titled “Allows Diversity as a Factor in Public Employment, Education, and Contracting Decisions,” which would have outright repealed Article 1, Section 31 of the State Constitution.

The supporters of this measure outspent the defenders of the constitution by 14-to-1 but failed by a wider margin, 57-43, than the original.

Now, as the saying goes, “They’re baaaaack.” A new measure, ACA 7, by Assemblyman Corey Jackson (D-Riverside) has emerged from the State Assembly on a 62-18 party-line vote.

The proposed Section 31 amendment would allow the state “to fund research-based, or research-informed, and culturally specific programs in any industry, including, but not limited to, public employment, public education, and public contracting.”

This gutting of Proposition 209 is billed as an exception, allowed only for “increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.”

See what they’re trying to do there? Allow exceptions, based on “research,” to create a loophole big enough to drive a semi-truck through.

Why such persistence in a so-far failed effort? Because the Democratic Party in California, which enjoys a super-majority in Sacramento, wants to dole out favors to its numerous interest groups. Race, ethnicity, sex, and sexual orientation figure prominently among the Dems’ constituent factions. If the law prevents our state government from dispensing favors, well, what good is it to have a politician in your pocket?

Thankfully, there is organized opposition to the ACA 7 zombie: No on ACA 7 (see NoonACA7.org). The chair of the group leading that opposition is Gail Heriot, a University of San Diego law professor and long-time member of the United States Civil Rights Commission, appointed by the late Senator Robert Byrd (D-WV) in 2007.

Speaking to a crowd of ACA 7 opponents this past weekend, Heriot answered the “why” question: “Why would these legislators want to do that? They wanted the power to discriminate. Like all power-hungry politicians throughout history, they wanted the power to reward the groups they favor at the expense of the groups they don’t favor.”

Heriot wants legislators who vote for ACA 7 to appreciate that voters will connect the dots in this fight for non-discrimination. By attempting to resurrect an issue that has been repeatedly rejected at the ballot box, these partisans demonstrate their contempt for the voters. The Assembly members from San Diego County who voted for ACA 7 include Cottie Petrie-Norris (D-74), Tasha Boerner (D-76), Brian Maienschein (D-77), Chris Ward (D-78), and Akilah Weber (D-79).

Now that the matter has moved on to the state Senate, Heriot hopes those legislators will take a more respectful view of the constitutional principles at issue. We’ll soon find out whether, in an election year, the senators understand the mistake made in the Assembly.

This op-ed originally appeared in The Coast News and is republished at the request of the author.