The Effects of Proposition 209 on California: Higher Education, Public Employment, and Contracting

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  1. 1.

    The end of racial or gender preferences prompted several major municipalities (including Los Angeles, San Jose, and Sacramento) and at least one state agency (Caltrans) to petition the federal government either to violate Proposition 209 or to reinstitute preferential treatment through participation goals that would designate a specific percentage of minority and women subcontractors or employees.

  2. 2.

    Susan Kaufmann and Anne Davis, “The Gender Impact of the Proposed Michigan Civil Rights Initiative” (paper, University of Michigan, Center for the Education of Women, Ann Arbor, MI, March 2005), 7.

  3. 3.

    The defense of double standards sank to absurd depths in Michigan when an interdenominational group of religious leaders claimed in 2006 that defending affirmative action preferences was a “moral imperative,” citing Christian principles, Jewish scripture, and Muslim texts to support their position. “Religious Leaders Pledge to Defeat Affirmative Action Proposal,” Detroit News, September 13, 2006.

  4. 4.

    Quoted in Kevin Mooney, “Giuliani Urged to Back Anti-Quota Laws to Win Conservative Support,” Cybercast News Service (, August 23, 2007,

  5. 5.

    Essential investigations that examine sub-cultural differences toward academic rigor and grapple with many inconvenient realities about race, culture, and educational achievement include Stephan Thernstrom and Abigail Thernstrom, No Excuses: Closing the Racial Gap in Learning (New York: Simon and Schuster, 2003); John Ogbu, Black Students in an Affluent Suburb: A Study in Academic Disengagement (Mahwah, NJ: Erlbaum Publishers, 2003); Elijah Anderson, Code of the Street: Decency, Violence, and the Moral Life of the Inner City (New York: Norton, 1999); Jeannie Oakes, Keeping Track: How Schools Structure Inequality, 2nd ed. (New Haven, CT: Yale University Press, 2005); and Bill Cosby and Alvin Poussaint, Come On People: On the Path from Victims to Victors (Nashville: Nelson Publishers, 2007), especially chapter 4.

  6. 6.

    California Department of Education (, Public School Summary Statistics, 1996–97 to 2005–06, (accessed November 20, 2007).

  7. 7.

    University of California Undergraduate Work Team of the Study Group on University Diversity, Recommendations and Observations (September 2007), 39, (accessed November 27, 2007).

  8. 8.

    Ibid., 13. Elsewhere the report states that a goal of UC is the “inclusion of students...from every corner of our state and every segment of our population” (36).

  9. 9.

    Ibid., 19, 23. This latest report seems to suggest that the university thinks its mission includes issues like community economic development and unequal K–12 education. The report cited efforts to remedy unequal opportunities with respect to the availability of Algebra I by offering a UC-approved two-year course. When it was unsuccessful, the Task Force agreed that “deeper interventions were needed,” but provided no specifics.

  10. 10.

    University of California, Academic Personnel Manual, 210–5 (d), 3, (accessed December 1, 2007).

  11. 11.

    University of California, The Report of the UC President’s Task Force on Faculty Diversity: The Representation of Minorities Among Ladder Rank Faculty, Berkeley, CA, May 2006, ii,

  12. 12.

    A good example is a lengthy article that focused almost entirely on UCLA but said little about the rest of the UC and nothing about the CSU. David Leonhardt, “The New Affirmative Action,” New York Times Magazine, September 30, 2007, Leonhardt showed that UCLA had apparently started to use applicants’ socio-economic status as an admitted proxy for race in admitting a handful of students despite their considerably lower SAT scores. Some alumni defenders and financial supporters even avowed a possible resort to “civil disobedience” to evade the requirements of Proposition 209.

  13. 13.

    This came from an announcement for a tenure-track position to teach British history in the history department at CSU, Chico, starting Fall 2007; the other one was to teach the ancient world starting Fall 2008. Despite several requests to the departmental search committee for an explanation with clear examples and empirical evidence why this was included as a criterion, no one could do so, although some faculty insisted that the college dean and the university provost had required it.

  14. 14.

    In fairness, a December 2007 audit found little evidence that in the past decade the CSU system was guilty of racial or gender discrimination. The State Auditor, Elaine Howle, seemed less familiar with the strictures of Proposition 209 than CSU administrators as her office urged CSU to deploy race- and gender-conscious “diversity” standards in its hiring decisions. Despite its unwieldy title, the report found that in a system of 45,000 employees (faculty, administrators, and clerical staff) over a four-year period (2002–2006), a cumulative total of only 63 claims had been filed “for alleged race or gender discrimination,” about 16 per year or roughly 1 in 650 employees. California State Auditor, California State University: It Is Inconsistent in Considering Diversity When Hiring Professors, Management Personnel, Presidents, and System Executives, Report 2007-102.2, Sacramento, CA, Bureau of State Audits, December 2007, 55–56.

  15. 15.

    Cal. Pub. Cont. Code § 10,115 (Deering 1994).

  16. 16.

    Hi-Voltage Wires Works Inc. v. City of San Jose, 24 Cal. 4th 537 (2000). In this important case, the California Supreme Court found that the City of San Jose’s targeted outreach program violated Proposition 209. Using the dictionary, the Court determined that “‘discriminate’ means to ‘make distinctions in treatment; show partiality (in favor of) or prejudice against’: ‘preferential’ means ‘giving preference,’ which is a ‘giving of priority or advantage to one person...over others.’”

  17. 17.

    The number of MBEs declined from 3269 to 1005; the number of WBEs declined from 2096 to 763.

  18. 18.

    Roger Clegg (president and general counsel of the Center for Equal Opportunity [CEO], on behalf of the CEO and the American Civil Rights Institute), letter to the Office of Civil Rights, California Department of Transportation, September 13, 2007.

  19. 19.

    See Monique Morris et al., Free to Compete? Measuring the Impact of Proposition 209 on Minority Business Enterprises, report, Discrimination Research Center, program of The Impact Fund, Berkeley, CA, 2006; and Monique Morris et al., A Vision Fulfilled? The Impact of Proposition 209 on Equal Opportunity for Women Business Enterprises, report, Thelton E. Henderson Center for Social Justice, University of California, Berkeley School of Law, Berkeley, CA, September 2007. A Vision Fulfilled? makes an extremely important qualification: “With an 11-year survival rate of less than 40 percent for all races and ethnicities, the difficulties for women-owned businesses to compete in the transportation construction industry are apparent. However, without an appropriate comparison group, such as the survival of small businesses primarily owned by white men, it is difficult to ascertain the relative success of WBEs and the impact of Proposition 209 on them.” (22).

  20. 20.

    Clegg, letter.

  21. 21.

    Morris et al., Free to Compete? 27. Subsequent references will be cited parenthetically.

  22. 22.

    Morris et al., A Vision Fulfilled? 35–36.

  23. 23.

    Sharon Browne, “San Francisco’s Public Contracting Program Declared Unconstitutional” (unpublished paper, 2005).

  24. 24.

    George R. La Noue, “Identity Politics and Public Contracting: The Role of Prop 209” (unpublished paper, June 2006), 17. A professor at the University of Maryland, Baltimore County, La Noue provides a lucid summary of the court rulings that challenged the permissibility of MBEs at the state and federal levels before 1996 and charts the eventual “demise of disparity studies as a factor” after the enactment of Proposition 209.

  25. 25.

    Sharon Browne, Linda Chavez, and Ward Connerly, “Caltrans’ Misguided U-Turn on Contracts,” Los Angeles Times, October 31, 2007,,0,1720187.story?coll=la-opinion-rightrail. The Caltrans study itself showed insignificant disparities and little evidence to establish any discrimination based on race or gender. See BBC Research and Consulting, Availability and Disparity Study: California Department of Transportation, Final Report, Denver, CO, June 29, 2007, executive summary, 3; available at

  26. 26.

    Justin Marion, “How Costly Is Affirmative Action? Government Contracting and California’s Proposition 209” (unpublished paper, November 2006), 4.

  27. 27.

    Clegg, letter.

  28. 28.

    Steven Pinker, The Blank Slate: The Modern Denial of Human Nature (New York: Penguin Books, 2002), 340.

  29. 29.

    Council of Graduate Schools, Office of Research and Policy Analysis, Graduate Enrollment and Degrees: 1996–2006, Report, Washington, D.C, 2007, available at

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Correspondence to Charles L. Geshekter.

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Geshekter, C.L. The Effects of Proposition 209 on California: Higher Education, Public Employment, and Contracting. Acad. Quest. 21, 296–318 (2008).

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  • Ethnic Minority
  • Affirmative Action
  • Double Standard
  • Hispanic Student
  • Racial Preference