Proposition Propaganda
Dealing with arguments against California's Racial Privacy Initiative.


Peter Kirsanow

The U.S. Commission on Civil Rights considered the following resolution at its September 12 meeting:

Given the significant role that scientific and empirical data play in academic study and enforcement of civil rights, the Commission opposes efforts to ban the ability of government entities or public institutions to collect racial or ethnographic statistics.
The measure seems relatively innocuous and reasonable. It passed by a 6-2 margin.

I voted against it. I had several reasons for doing so, not the least of which was my concern that the resolution would be used in the propaganda battle involving California’s Proposition 54–the Racial Privacy Initiative. It’s the other issue on California’s October 7 ballot.

Prop. 54 would prohibit California’s state and local governments from using race, ethnicity, color, or national origin to classify students, contractors, or employees in the operation of public education, public contracting, or public employment. The measure also prohibits the state from using race to classify individuals subject to any other state operations, unless the governor and two-thirds of the state legislature approve of such classification as serving a compelling state interest.

The roster of those who oppose Prop. 54 is extensive and consists of most of the same organizations that opposed Prop. 209–the ban against racial and ethnic preferences in state college admissions. Near-hysterical predictions about the calamitous effects of Prop. 54 abound: It will precipitate a public-health crisis; the education of black and Hispanic students will be devastated; there will be rampant racial and ethnic discrimination in employment and racial profiling will skyrocket. It’s also been called un-American, a threat to democracy, and a major setback for civil rights. Many of the same things were said about Prop. 209, the passage of which was predicted to be an educational catastrophe.

Prop. 209 is several years old, but California has yet to fall into the ocean. The state would likely survive Prop. 54 also.

But hyperbole from politicians, interest groups, and racialists doesn’t mean that Prop. 54 is flawless. Many principled liberals and conservatives have concerns about various aspects of the initiative. The five most substantive allegations follows.

Prop. 54 will prevent the collection of demographic data necessary to properly address public-health concerns.
Numerous healthcare associations contend that a prohibition against collecting racial data will adversely affect the ability of public-health professionals to properly calibrate the delivery of healthcare services. These groups maintain that a comprehensive compilation of racial and ethnic statistics is necessary to track health problems that may disproportionately affect certain races and/or ethnicities. Without such data, public healthcare providers can’t accurately target at-risk populations, nor can they effectively conduct medical research based on racial or ethnic tendencies.

Proponents of Prop. 54 respond that the following exemption in the initiative fully addresses the healthcare issue:

(f) Otherwise lawful classifications of medical research subjects and patients shall be exempt from this section.
Without much elaboration, opponents dismiss this exemption as too narrow to encompass broad-based epidemiological research. Presumably, they mean that data regarding individuals other than “patients” or “medical research subjects” are necessary to establish, e.g., baselines or vectors.

At first blush, this appears to be a valid point. It’s unclear whether “patients” and “medical research subjects” may be read to capture a large enough population to diminish this concern.

It’s likely however, that courts will interpret a healthcare exemption liberally. And even if courts don’t attach an interpretation expansive enough to satisfy Prop. 54’s opponents, there are at least two reasons why the healthcare issue may be overblown.

Nothing prevents private entities or the federal government from collecting data that state healthcare agencies may not compile. Moreover, Prop. 54 doesn’t prevent state agencies from collecting data mandated by federal law or data necessary to maintain eligibility for federal programs or funding.

Granted, private entities may not be able to collect racial data as efficiently as the state (although never underestimate the ability of the market to fill a vacuum) and the federal data-collection requirements may not fill all of the informational gaps. But any serious deficiencies would likely be completely remedied by paragraph (b) of the initiative–the mother of all exemptions. That provision permits the collection of racial data whenever the legislature determines that to do so serves a compelling state interest and the governor and two-thirds of the legislature approve of such collection. If a deficit of racial data causes a significant health risk, the legislature will quickly determine that collection of the necessary information is a compelling state interest. Indeed, while the prudent inclusion of the “compelling state interest” exception in Prop. 54 makes good sense, it may eventually become the exception that swallows the rule: If Prop. 54 passes on October 7, on October 8 the hundreds of special interests that oppose the measure will be in Sacramento lobbying for their pet compelling-state-interest exceptions–and since Gray Davis, the leading candidates to replace him (excepting Tom McClintock) and virtually all Democrats in the state assembly oppose the initiative, it’s a safe bet exceptions will proliferate.

Prop. 54 will prevent collection of vital education information.
Most of the California educational establishment, including its unions, oppose Prop. 54. They contend that the measure would prevent schools from determining whether (a) certain districts have sufficient educational resources, (b) student discipline is meted out in a discriminatory fashion, (c) minorities have equal access to college admissions and financial aid, (d) minority students have adequate support services, and (e) minority students are performing poorly.

Some of these concerns are plainly specious; there are numerous alternative means to assess these issues. Others are addressed by the “federal requirement” exemption. For example, the No Child Left Behind Act requires the collection of copious racial data for the express purpose of closing the racial gap in academic achievement. Any remaining deficits in race data may be erased by resort to the “compelling state interest” exception. (Admittedly, in this context the exception has limited applications.) If the full weight of the educational establishment and its unions cannot persuade the California state assembly that the collection of certain racial data constitutes a compelling state interest, then such data must be utterly bereft of significance and can be done without.

Prop. 54 will prevent enforcement of anti-discrimination laws.
A constraint on the state’s ability to collect limitless racial and ethnic data could indeed affect the state’s ability to enforce nondiscrimination laws. But yet another exemption to the initiative should significantly reduce the practical effect of this problem.

Paragraph (e) of the initiative exempts (at least until the year 2015) California’s Department of Fair Employment and Housing (“DFEH”) from Prop. 54’s classification prohibition. DFEH is charged with enforcing the state’s non-discrimination laws.

Furthermore, Prop. 54 has no effect on the EEOC or federal enforcement of Title VII of the 1964 Civil Rights Act (prohibiting discrimination on the basis of race, sex, color, national origin, and religion), Executive Order 11246 (requiring contractors and subcontractors with the federal government to take “affirmative action” to ensure employment without regard to race, etc.) or any other federal civil-rights laws. Moreover, nothing in the initiative affects private causes of action under any other federal civil-rights statutes. California’s attorney general may have to work harder to adduce evidence in certain pattern and practice cases–but, again, if this truly presents a significant problem, there’s always the “compelling state interest” exception.

Prop. 54 will prevent collection of social-science data by academics employed by the state.
Prop. 54 opponents assert that it will prevent academics employed by state universities from gathering racial and ethnic data essential to scholarly research. Such research might involve health, educational, and political issues. (Many people are skeptical of the uses to which such research is put: bad social science is often a splendid resource for racial demagoguery. But conservative skeptics should keep in mind that much of the most valuable and useful research on race and ethnicity comes from scholars not on the Left. Both James Q. Wilson and John McWhorter have reportedly expressed reservations concerning the proposition. As one prominent scholar put it: “I need good numbers to counteract their (the demagogues’) funny numbers.”)

Much, but not all, of the data can be collected by the federal government, private universities, foundations and think tanks. But that still leaves the question of whether professors at state schools can employ the data in research or gather the remaining data on their own. In other words, are individual faculty members at state universities public actors or agents of the state subject to Prop. 54 prohibitions?

There’s some ambiguity whether state school professors may be considered “the state.” Paragraph (k) of the initiative declares that the “state” includes, but is not necessarily limited to, the state itself, the public-university system or any other governmental instrumentality within the state. That’s broad enough to lend credence to opponents’ concerns regarding this issue. However, a strong case can be made that since individual professors don’t have power to compel racial identification or affect individuals on the basis of such data they are not state actors. Research conducted by a university department may be a different matter.

If Prop. 54 does prohibit academics employed by state schools from collecting racial data and conducting research thereon, such prohibition may arguably violate the First Amendment. If that’s the case, paragraph (m) of the proposition would be invoked. That paragraph provides that if any section of the initiative is found to conflict with the U.S. Constitution, that section will be implemented only to the extent permitted by the Constitution.

Prop. 54 would erode Prop. 209.
College administrators are almost monolithic in their opposition to Prop. 209 and in their support for preferences. Prop. 54 could provide a veil behind which admissions officers could return to counting applicants by race. While admissions officers won’t have direct information regarding an applicant’s race, they could employ a variety of proxies for race to increase the probability of admitting more preferred minorities. (For example, admissions officers might give special consideration to applicants from high schools known to have predominantly minority populations.) Since state universities would be prevented from collecting racial and ethnic data regarding its students or applicants for admission, the state may not be able to determine whether the schools are granting preferences outlawed by Prop. 209.

However, the problem cuts both ways. Monitoring compliance with Prop. 209 may be more difficult, but without applicant racial data, cheating by admissions officers won’t be easy either.

Clearly, the initiative is not without some problems. But most of these can be remedied and in the end California should avoid a “catastrophe.” California voters will have to weigh the legitimate issues raised by Prop. 54’s opponents against the effect, however symbolic, Prop. 54 will have on the race industry.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights.