THE CALIFORNIA CIVIL RIGHTS INITIATIVE:
AN INTERPRETIVE GUIDE


      Eugene Volokh*
volokh@law.ucla.edu
Originally published at 44 UCLA L. Rev. 1335 (1997).  


INTRODUCTION
I.       WHICH ACTIONS DOES THE CCRI PRESUMPTIVELY BAN?
      A.       Government Action Only
      B.       Any Distinction in Treatment
      C.       Nondiscriminatory Programs Permitted
            1.       Nondiscriminatory Affirmative Action
            2.       Race-, Sex-, or Ethnicity-Themed Programs
            3.       Remedy for Identified Past Discrimination
      D.       Outreach/Recruitment Programs
      E.       Bans on Religious Discrimination Unaffected
      F.       Race, Ethnicity, and National Origin: Special Issues
            1.       Ethnicity
            2.       U.S. Citizenship
            3.       Ethnic Discrimination Based on Being Jewish
            4.       Discrimination Based on Being an American Indian
II.       EXCEPTIONS
      A.       Bona Fide Qualifications Based on Sex
            1.       The Provision and the Need for It
            2.       Clause (c) Does Not Modify Any Other Constitutional Provision
            3.       The Scope of the Bona Fide Qualifications Exception--Generally
                  a.       The Text
                  b.       Existing Bona Fide Qualifications Law
            4.       Specific Bona Fide Qualifications Claims
                  a.       Diversity (in Employment and Education)
                  b.       Remedying Discrimination or Underrepresentation
                  c.       Role Models, Single-Sex Schools, and Single-Sex Workplaces
                  d.       Sex-Segregated Sports Teams
                           (1)       Women's Teams       
                          (2)      Men's Teams

                  e.       Privacy
                  f.       Women's Centers and Similar Programs
      B.       Pre-CCRI Decisions, Court Orders, and Consent Decrees
      C.       Action Necessary for Eligibility for the Federal Program
      D.       Federal Government Actions
III.       REMEDIES
CONCLUSION
APPENDIX A: THE INITIATIVE TEXT
APPENDIX B: BALLOT PAMPHLET CONTENTS
INDEX
            

INTRODUCTION

      The California Civil Rights Initiative is now law. California government agencies may not discriminate or grant preferential treatment based on race, sex, color, ethnicity, and national origin in public employment, education, and contracting.1 In this Article I try to explore exactly what this means.2

      My general conclusion is that the CCRI has a dramatic impact within its scope of operation, but this scope covers only a limited, well-defined area of government action. On many of the interpretive questions debated during the CCRI campaign, I suggest that the initiative should be read fairly narrowly. For instance, contrary to the pre-election suggestions of some CCRI opponents, the initiative does not ban ethnic studies majors, or repeal existing bans on sex discrimination, or prohibit all "affirmative action" programs.3 Many people who are unhappy with the CCRI's passage should thus derive some comfort from what I say here.

      My analysis focuses on the initiative's text and on the meaning of the legal terms of art that it contains.4 To support what I believe to be this meaning, I will sometimes refer to the materials presented to the voters in the Ballot Pamphlet for the 1996 General Election, which I reproduce in Appendix B. California courts look to such materials in interpreting initiatives.5

      The CCRI bans discrimination and preferences based on five attributes: race, sex, color, ethnicity, and national origin. Instead of repeating this list, I'll often talk generally about "preferences," "discrimination," and "neutrality"--in all such cases, I'll be referring to preferences, discrimination, and neutrality with respect to those five attributes. I'll also sometimes give examples that mention one or a few of these attributes; these examples should apply equally to all the attributes, except to the extent that clause (c) of the initiative creates an exception for sex.6

      Occasionally, I'll say that the CCRI "bans" a certain form of discrimination. It's important to remember that this ban is limited to a particular area--government action in public employment, education, and contracting--and is subject to the exceptions in clauses (c)-(e).

      Finally, as I explain below in Part I.B, "preferential treatment" is just the flip side of "discrimination." When I speak of the CCRI banning a certain kind of discrimination, I do not mean to suggest that the rule is any different for preferential treatment.

I. WHICH ACTIONS DOES THE CCRI PRESUMPTIVELY BAN?

      The CCRI is worded as a general ban--"The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting"7--followed by a set of exceptions. What does this ban cover?

   A. Government Action Only

      The CCRI applies only to actions by "[t]he state," including all the state's subdivisions, agencies, and instrumentalities.8 Private enterprises are excluded.

      Whether the discrimination is being done by the state is usually clear. A few cases will be ambiguous, but of course that's true for all constitutional provisions that bind only the government. In the course of interpreting those provisions, the courts have developed a body of state action doctrine, which can easily be applied to the CCRI.9

      Thus, a race-conscious hiring decision by a government contractor or government licensee isn't state action--it's not the state that's giving "preferential treatment."10 If the state, though, requires a contractor to make a race-based decision, or pressures the contractor by threat of lost contracts, then the CCRI does apply.11

      Under the CCRI, the government would certainly be prohibited from distributing scholarships in a discriminatory way,12 but private institutions would not be. A private group would still be allowed to award scholarships to, for instance, blacks or men or Germans or Jews who go to a particular state school; the university wouldn't be able to administer the scholarship--choosing who gets it would require the university to discriminate among applicants13-- but it might be able to publicize the scholarship together with all other scholarships.14 If a state university is currently administering such a scholarship created by a trust, it may be able to get a court to switch the scholarship to a private trustee.15 Likewise, if a donor gave money to the university with the condition that it be used for such a scholarship, the funds may constitutionally revert to the donor.16

    B. Any Distinction in Treatment

      The CCRI prohibits "discriminat[ing] against" or "grant[ing] preferential treatment to" any individual or group. As the Supreme Court has held, the "simple test" for what "constitutes discrimination" is generally whether a program "treats a person in a manner which but for that person's sex[, race, color, ethnicity, or national origin] would be different."17 And "preferential treatment" is just the other side of the discrimination coin: Giving preferential treatment to one person equals discriminating against another. This is the sense in which "preferential treatment" is used in other antidiscrimination laws18 and in discrimination cases.19

      Despite its announcement of the "simple test" for discrimination, the Court shortly afterwards carved out an exception for certain preferential treatment programs.20 In United Steelworkers v. Weber, the Court admitted that a "literal interpretation" of the Civil Rights Act's ban on discrimination might "prohibit all race-conscious" decisions.21 Nonetheless, it concluded that the ban should be read not to cover certain race- based affirmative action plans, which it characterized as "employment preference[] based upon race," "racial preference," and "preferential selection."22 Citing section 703(j) of Title VII, which states that employers are not "require[d] . . . to grant preferential treatment,"23 the Court reasoned that

      Congress . . . could have . . . provide[d] that Title VII would not require or permit racially preferential integration efforts. But Congress did not choose such a course. Rather, Congress added §703(j) which addresses only the first objection. . . . The section does not state that "nothing in Title VII shall be interpreted to permit" voluntary affirmative efforts to correct racial imbalances. The natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action.24

      The CCRI explicitly says what the Weber Court thought Title VII didn't say: Preferential treatment is not permitted. Clause (a) thus does indeed "prohibit all race-conscious" (and sex-conscious) decisions, forbidding any "differen[ce]" in "treat[ment]" based on race, sex, color, ethnicity, and national origin in public employment, education, or contracting.25

      Thus, programs that provide academic assistance to all black or Hispanic students, but only to those Asian or white students who are economically disadvantaged, are barred. Though there are people of all races among their beneficiaries, they still treat applicants differently based on race.26 Likewise, an ethnically based assignment of a student to a particular public school is prohibited--though the student would in any event go to some school, he is treated differently based on race in school selection.27 Discrimination in pursuit of a "goal" or a "timetable" is similarly prohibited, regardless of whether the goal is rigid or flexible; so long as one applicant is treated differently from another based on race or sex, that's discrimination.28

      It doesn't matter whether a prohibited criterion is the only factor, or one of many factors.29 It doesn't matter whether the program refers to "quotas" or "plus factors," "discrimination" or "preferential treatment."30 It doesn't matter whether it's an admissions program, training program, or mentoring program. Any government program that treats people differently based on one of the prohibited criteria is forbidden.

      Like various other antidiscrimination rules, including section 703(j) of Title VII itself, the initiative bars discrimination against or preferential treatment in favor of "any individual or group."31 Discrimination against a group is simply discrimination against individual members of the group based on their group membership;32 I've seen no case interpreting any of these antidiscrimination provisions that has treated discrimination against a group differently from discrimination against an individual, and I can't see how such a distinction would be coherent. Like these other provisions, the CCRI specifically mentions "individual or group" out of an abundance of caution, to prevent any argument (no matter how unsound it might in my view be) that a certain race- or sex-based preference is permissible because it's group-focused rather than individual-focused.

    C. Nondiscriminatory Programs Permitted

       1. Nondiscriminatory Affirmative Action

      "Affirmative action" originally meant neutrality rather than preference--"ensur[ing] that applicants are employed . . . without regard to their race, creed, color, or national origin"33--and it still includes neutral programs aimed at ensuring that decisions are made in a nondiscriminatory way.34 The CCRI leaves intact any program, whether or not called "affirmative action," that doesn't discriminate based on race, sex, color, ethnicity, or national origin.35

      Thus, programs that prefer poor applicants, or people who did fairly well on tests despite having gone to a bad school, or children who were raised in single-parent households, or groups defined using any other neutral classification, are untouched by the CCRI.36 Preferences for applicants who speak a foreign language that will be useful in the job,37 or who have ties to the geographical area that they're supposed to serve, would likewise remain allowed. This is even true if these neutral programs end up disproportionately benefiting people of a particular race or ethnicity or sex.38

       2. Race-, Sex-, or Ethnicity-Themed Programs

      The CCRI does not affect any programs--college majors, museum exhibitions, holiday celebrations, or what have you--whose topic is a particular race, sex, or ethnic group, so long as they are open to students or employees generally. German departments, African literature classes, Women's Studies majors, Japanese-American history exhibits, and programs studying violence against women remain perfectly legal, unless they are open only to Germans, blacks, women, or any other group defined by one of the forbidden factors.

      These programs simply do not "discriminate against, or grant preferential treatment to, any individual or group." Studying matters related to a particular ethnic group, race, or sex can be an educational experience for people of all groups. French people, either individually or as a group, are not "preferred" when the French language or French literature or French history is taught.

      After all, if these programs were discriminatory or preferential, most of them would be unconstitutional even without the CCRI. Discrimination against or in favor of particular ethnic and racial groups already has to face strict scrutiny,39 a test that most or all of these programs would fail. But no court has suggested that these programs would have to face such scrutiny, precisely because they are not discriminatory: So long as they're open to all, they discriminate against none and prefer none.40

       3. Remedy for Identified Past Discrimination

      The CCRI does not ban programs that compensate people for identified past discrimination against them--for instance, it remains perfectly constitutional for an employer to give a raise plus back pay to all employees who had been denied a raise because of their ethnicity, or for a court to order such a remedy. Actions like these classify people not based on race, but based on their having been discriminated against.41

    D. Outreach/Recruitment Programs

      For outreach as well as for the ultimate hiring or admissions or contracting decision, the test remains: Does the action discriminate or grant preferential treatment in the operation of public employment, education, or contracting?

      Antidiscrimination law generally treats recruiting that is intentionally targeted at particular groups as a form of discrimination.42 A conscious attempt by an employer to focus its recruiting on whites or on men, for instance, would be considered discrimination for Title VII or Equal Protection Clause or Fair Employment and Housing Act purposes.43

      One can make a contrary argument: Recruiting is simply communication to the public rather than a decision being made about a particular applicant or group of applicants, so one can say that, in a sense, targeted recruiting does not treat individuals or groups "in a manner which but for [their sex, race, color, ethnicity, or national origin] would be different."44 Rather, one might argue, it simply makes it less likely that people of a particular group will get information (or sometimes just words of encouragement) about a particular opportunity.45 One can also argue that, unlike the actual selection decision, recruiting isn't part of the "operation of public employment, public education, public contracting."

      Nonetheless, antidiscrimination law's equation of targeted recruiting and discriminatory selection is probably the better view. Learning about the existence of an opening is an important part of applying for that opening; if a person is discriminatorily denied this information, his chances of getting the spot are discriminatorily diminished. And the fact that the law generally treats recruitment the same way as hiring itself--even under statutes that do not specifically mention recruitment--suggests that new antidiscrimination provisions, such as the CCRI, should be similarly interpreted.46

      Thus, recruitment campaigns intentionally targeted at a particular group are probably prohibited. On the other hand, neutral programs, intended to reach as many people as possible without regard to race, sex, or ethnicity are certainly allowed.47 Some outreach programs are clearly neutral:

  • A public institution advertises in all local newspapers--including ones that serve particular ethnic communities--and not just the largest paper. This is outreach to all potential applicants, not just to those of certain groups.48

  • A public institution makes clear in its ads that it doesn't discriminate, and that it welcomes people of all groups.

  • A university sends special recruiters to all schools (regardless of ethnic makeup) from which it has historically gotten few applicants.49

Others are equally clearly discriminatory:

  • A university sends additional recruiters to particular schools precisely because those schools have more students of a particular group.

  • A public employer puts ads in magazines with overwhelmingly male readership because the employer wants to get male applicants.

For more complicated cases, the test--as in equal protection jurisprudence generally--turns on the employer's intent.50

    E. Bans on Religious Discrimination Unaffected

      Contrary to some opponents' pre-election arguments,51 the CCRI does not affect existing bans on religious discrimination. The CCRI says nothing that authorizes religious discrimination; it declines to add a new prohibition against such discrimination, but it certainly doesn't repeal any existing prohibitions.52

      Why the omission of religion? First, a new ban on religious discrimination would have been unnecessary. Unlike with race and sex, courts have never departed from the clear language of California and federal anti-religious discrimination statutes; they've never approved of government preferences or discrimination based on religious affiliation, whether in the name of diversity or remedying past discrimination or anything else.53 Likewise, under both the federal and state constitutions, any sectarian discrimination must face strict scrutiny,54 and courts have taken this seriously--I know of no sectarian discrimination that has been upheld (outside the extremely unusual area of American Indian religions55). Religious discrimination and preferences are already banned.

      Consequently, overt sectarian discrimination by the state of California just wasn't a problem when the CCRI was being drafted. Race and sex preferences were common, but explicit sectarian preferences were unheard of. There was doubtless some religious discrimination in state government, but it was never formally institutionalized, and existing laws already prohibited it.

      Finally, including a ban on discrimination or preferential treatment based on religion would have created some tricky problems. Though sectarian preference by the government is forbidden, one form of arguable preference based on religious belief--exemptions for religious objectors from some generally applicable requirements--is considered laudable. Thus, a state employer may legitimately give Saturdays off only to those who have religious objections to working Saturdays.56 It can't do this only for Seventh-Day Adventists and not for Orthodox Jews,57 or even only for members of organized faiths58--that would be sectarian discrimination. But it can give the day off only to people who have a particular religious belief (for example, a belief that one ought not work on Saturdays).59 If the CCRI had banned preferential treatment based on religion, it might have been interpreted as barring these accommodations, as well as the already illegal sectarian preferences.

      Given the absence of formal sectarian preferences, and the complexity of ensuring that an absolute ban on religious discrimination wouldn't prohibit religious exemptions, the logical solution is exactly what's embodied in the CCRI: no mention of religion, which leaves all existing religious discrimination law entirely intact.

    F. Race, Ethnicity, and National Origin: Special Issues

       1. Ethnicity

      The CCRI, unlike Title VII, bans discrimination based on ethnicity as well as discrimination based on race and national origin. This clearly prohibits ethnic discrimination against groups such as Jews60 and Gypsies, who are not separate races,61 and who are generally defined by ethnic relationship rather than by derivation from a specific geographical area.62 In practice, Title VII has generally been read as banning ethnic discrimination,63 but why count on such an extension when it's easy enough to add "ethnicity" to the text?

      One pre-election article criticized the addition of ethnicity on the grounds that the term is somehow novel and vague,64 but that's just not so. "Ethnicity" is already used in many antidiscrimination provisions--including two such provisions in the California Constitution, besides the CCRI itself--and is at least as clear as "race" or "national origin."65

       2. U.S. Citizenship

      The ban on national origin discrimination does not preclude classifications based on U.S. citizenship.66 The Supreme Court has made clear that "national origin" in Title VII doesn't cover U.S. citizenship status,67 and a California court has suggested the same is true under state law.68 The CCRI should be interpreted the same way.69

      3. Ethnic Discrimination Based on Being Jewish

      "Jewish" is both an ethnicity and a religion.70 One can, for instance, be ethnically Jewish and religiously an atheist, or religiously Jewish but ethnically a non-Jew (if, for instance, one is a convert). Discrimination based on a person's Jewish ethnicity is prohibited by the CCRI. Discrimination based on a person's Jewish religion--if it can be distinguished in the particular case from discrimination based on ethnicity--is not covered by the CCRI, but is of course already prohibited by existing constitutional and statutory provisions.

       4. Discrimination Based on Being an American Indian

      Under federal constitutional law, classifications turning on a person's membership in an Indian tribe are generally not seen as being based on race or national origin. Because an Indian tribe is not just an ethnic group but a political one, the Court has viewed "preference[s]" for "members of federally recognized tribes" as "political rather than racial in nature."71 This makes sense. The government sorts us by political allegiance in various ways: it sometimes distinguishes U.S. citizens from aliens, and Californians from out-of-state citizens.72 An Indian tribe is likewise a different sovereign. Tribal Indians, unlike other Californians, belong to a political group that's specifically recognized by federal law and the U.S. Constitution, not merely to an ethnic group that has no independent legal standing.

      The CCRI is aimed at hastening the day when people's race or ethnicity will be irrelevant to their civic lives. But a person's membership in an Indian tribe will necessarily (and properly) remain relevant in at least some ways, just as a person's being a Californian or an American will remain relevant. The state may therefore legitimately want to consider a prospective employee's, student's, or contractor's Indian-tribe affiliation in seeking to better serve the needs of this separate political community.

      It thus seems proper to follow the federal constitutional example, and view classifications based on Indian-tribe membership as not being based on race (or ethnicity or national origin) for CCRI purposes.73 Classifications based only on being an Indian, however, are racial; discrimination against or preference for nontribal Indians--or even for tribal Indians if the justification is their race and not their tribal status--would thus violate the CCRI.74

II. EXCEPTIONS

    A. Bona Fide Qualifications Based on Sex

       1. The Provision and the Need for It

      Clause (c) of the CCRI provides: "Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting." Some provision like this was necessary, just as it was necessary in the Title VII and California antidiscrimination statutes.75 Without it, clause (a) would have barred all sex classifications: public employers wouldn't have been able to maintain sex-segregated bathrooms;76 high schools wouldn't have been able to have girls' basketball teams;77 colleges wouldn't have been able to assign dormitory roommates based on sex;78 jails wouldn't have been able to ban male guards from searching female inmates.79

       2. Clause (c) Does Not Modify Any Other Constitutional Provision

      As the text makes clear--and as the ballot argument confirms80--clause (c) does not modify any other provision of the California Constitution, such as the preexisting equal protection sections (that bar sex classifications unless they pass strict scrutiny).81 The bona fide qualifications proviso is an exception only to this section of the Constitution--to the CCRI itself, section 31 of article I of the California Constitution.82 It modifies the ban in clause (a), and nothing else.83

      Nor can clause (c) implicitly repeal any of the preexisting equal protection provisions. There is no conflict between these provisions and the CCRI; the CCRI adds an extra bar on sex classifications, but declines to prohibit those that are bona fide qualifications. There's nothing unusual about that. Many laws decline to prohibit certain conduct without conflicting with preexisting laws that do prohibit this conduct.

      Under California law, new provisions cannot implicitly repeal old provisions unless they "are irreconcilable and in direct conflict with each other."84 As courts have said, "'[A]ll presumptions are against a repeal by implication.' . . . The presumption against implied repeal is so strong that, 'To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.'"85 "The principle that a specific statute prevails over a general one applies only when the two sections cannot be reconciled."86 There's simply no conflict at all, much less an "irreconcilable and . . . direct conflict," between the CCRI and the preexisting equal protection provisions, so no implied repeal is possible.

      The CCRI also does not work a "repeal by revision"--it does not repeal existing constitutional provisions by somehow superseding them.87 First, as with implied repeal, new laws are not interpreted as superseding old ones unless they conflict.88 Second, even when there's a conflict between new and old provisions (which isn't the case here), "[s]o strong is the presumption against implied repeals that . . . '[i]n order for the second law to repeal or supersede the first, the former must constitute a revision of the entire subject, so that the court may say that it was intended to be a substitute for the first.'"89 The CCRI is not a "revision of the entire subject"; it focuses not on equal protection generally (the subject of the existing provisions), but only on discrimination based on race, sex, color, ethnicity, and national origin in public employment, education, and contracting. It simply cannot be read as being "intended to be a substitute for" the existing equal protection provisions. The text shows no such intent; the ballot statement explicitly denies any such intent; the only plausible reading of the text is that it creates a new prohibition, without any intent to overwrite any of the old.

      Third, the California Supreme Court has specifically held that, although legislative enactments might conceivably work an implied repeal by revision, initiatives may not do so. An initiative must be "deemed . . . to be a constitutional amendment rather than a revision. Thus [a court is] bound to harmonize the two constitutional provisions [rather than finding a repeal by revision]."90 And harmonizing the CCRI and the existing provisions requires nothing more than reading the CCRI the only way its text can reasonably be read: as creating a new prohibition on sex discrimination, one that will not modify the old ones, but rather will exist alongside them as a separate cause of action.

       3. The Scope of the Bona Fide Qualifications Exception--Generally

          a. The Text

      The bona fide qualification exception is clearly modeled on Title VII's bona fide occupational qualification proviso. Compare clause (c)'s exemption of

    bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting

to Title VII's exemption of sex classifications "on the basis of . . . sex"

    where [sex] is a bona fide occupational qualification reasonably necessary to the normal operation of [the] particular business or enterprise.91

Because the CCRI applies not just to employment but also to public education and contracting, the bona fide qualification proviso had to be adapted to all three areas. But the clear tracking of the Title VII language shows that clause (c) should still be interpreted the way that Title VII's exception has been--as "an extremely narrow exception to the general prohibition of discrimination on the basis of sex."92 In the words of the California Supreme Court, "[w]here the language of a statute [or initiative] uses terms that have been judicially construed, the presumption is almost irresistible that the terms have been used in the precise and technical sense which had been placed upon them by the courts."93

      Bona fide qualification exceptions have, of course, been applied outside the employment context before. Consider the "bona fide . . . programmatic factor" exception for beneficiaries of federally funded family violence prevention programs;94 the "bona fide public accommodation qualification" exception for sex-segregated accommodations such as public bathrooms, showers, and locker rooms;95 and similar exceptions relating to sex-based medical-care needs.96 Every broad ban on sex classifications has to have a narrow exception for those classifications that are genuinely necessary. The bona fide qualification principle is a time-tested way of doing this.

      In employment, then, the exception exactly mirrors state and federal bona fide occupational qualification law. CCRI opponents made much of the fact that the word "occupational" was dropped from "bona fide occupational qualification,"97 citing the Supreme Court's holding in UAW v. Johnson Controls, Inc., that stressed the importance of the requirement that the qualification be related to employment.98 But this requirement wasn't eliminated in clause (c), it was only moved to the end of the sentence: "Bona fide occupational qualification . . . [necessary to] that particular business or enterprise" has become "bona fide qualification . . . [necessary to] public employment."99

      This move was needed because the bona fide qualification proviso applies to education as well as employment; if clause (c) were limited to bona fide occupational qualifications, it wouldn't cover bona fide educational qualifications. In fact, the term "bona fide qualification" has indeed often been used as a synonym for "bona fide occupational qualification" when it was clear from context that the qualification had to be employment-related.100 The ballot pamphlet confirms this interpretation, stressing that clause (c) "uses the legally-tested language of the original 1964 Civil Rights Act."101

      Bona fide qualifications in contracting should track bona fide qualifications in employment. If, for instance, a public agency contracts with a private company to provide washroom attendants, the agency might require that the company assign male attendants to men's rooms and female ones to women's rooms.102 Likewise, if a city government contracts with a private battered-women's center to provide services for the public, the city might demand that the center provide only female counselors for the female clients.103 Though these cases should be rare, a bona fide qualification provision for contracting was necessary--had it been absent, the government would have lost the flexibility to implement programs through contracts with private agencies instead of running the programs itself using its own employees.

      In many sex classifications cases, clause (c) poses no new questions. If a government agency wants to classify its employees by sex, it generally has to justify its actions under the bona fide qualifications provisions of Title VII and the California Fair Employment and Housing Act (FEHA). A classification that passes muster under those statutes will also pass muster under the CCRI; a classification that fails under those statutes will be illegal under the CCRI. Likewise, if a government agency wants to demand that a contractor set up a sex classification for its employees, then the contractor generally has to justify the classification as a bona fide qualification under Title VII and FEHA, as well as under the CCRI.

      In two areas, though, the CCRI will add new requirements. The first area is education. In the past, sex-based classifications of students did not have to be examined under the "bona fide qualification" test; instead, they had to be valid under strict scrutiny (commanded by the California Constitution),104 and had to fit within the enumerated exceptions in Title IX of the Civil Rights Act and state educational antidiscrimination law.105 Under the CCRI, the courts will also have to inquire whether a particular educational sex classification is a bona fide qualification.

      The second area is the traditional employment "affirmative action" context. Under Title VII and FEHA, as they are interpreted by the courts, there are ultimately two exceptions to the ban on sex classifications: the bona fide qualifications proviso, and the general latitude given to affirmative action programs.106 Under the CCRI, the bona fide qualification exception is the only game in town, and courts will have to decide whether sex-based programs justified by diversity, remedial, or "role model" concerns constitute bona fide qualifications.

          b. Existing Bona Fide Qualifications Law

      Bona fide qualifications law makes clear that:

      1. Bona fide qualifications cannot be based on generalizations, even statistically accurate generalizations, about the attributes possessed by most men or most women.107 An employer may look for people with particular ways of thinking or particular levels of physical skill, but cannot use sex as a proxy for these criteria.108

      2. The bona fide qualification must relate to a person's ability to perform a particular task, not to general desires to use the hiring decision to accomplish a broader social goal, such as fetal health or giving work to those most likely to need it.109

      3. The bona fide qualification principle is "an extremely narrow exception to the general prohibition of discrimination on the basis of sex."110 "[T]he use of the word 'necessary' . . . requires that [courts] apply a business necessity test, not a business convenience test."111 "[D]iscrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively."112

      4. Customer, client, student, or coworker preference for employees of a particular sex does not make sex into a bona fide qualification, even when disregarding this preference causes some loss to the employer.113

      What could this possibly leave (setting aside the rare cases in which sex is a physical requirement for a particular job, such as wet-nurse or sperm donor)? Well, despite courts' frequent protestations to the contrary, a few restrictions based on client or coworker preferences are indeed permissible. Privacy and artistic verisimilitude are classic examples: The overwhelming majority of people prefer not to be seen undressed by people of the opposite sex, and the law respects this preference; likewise, when people see a play, they (generally) prefer male roles to be played by men and female roles by women, and the law allows such sex-based casting.

      These preferences are not biologically dictated (though they might be in some measure biologically influenced)--they are social attitudes. Privacy taboos vary from society to society and from era to era. Standards of theatrical verisimilitude likewise vary among societies and genres. The attitudes are socially constructed, but they are attitudes the law considers legitimate.

      This judgment of legitimacy is, of course, a value judgment. Courts do not insist that we change our reluctance to be seen unclothed by the opposite sex (though such a change is theoretically possible).114 Some cases have even extended this beyond physical privacy to discussions about intimate mental matters--for instance, upholding sex-based hiring of guidance counselors for children.115 On the other hand, courts have not accepted sex classifications justified by women's desires not to be seen by men while exercising at a health club,116 or men's desire to spend time at a private club free of the "inhibiting effect" caused by the presence of women,117 or men's desire to roam the club naked without the chance of being seen by women.118 Courts must decide which privacy claims deserve accommodation and which do not.

      Likewise, the law considers legitimate the desire to see men cast in male theatrical roles and women in female roles;119 again, it does not insist that we get used to men playing women and vice versa (though such an attitude would not be unprecedented). Presumably the same applies to advertisers using scantily clad female models rather than scantily clad male models to sell beer; likewise for mixed service/entertainment fields, such as Playboy bunnies serving drinks in Playboy clubs.120 On the other hand, courts have rejected airlines' desires to hire only female flight attendants (for sex appeal) and restaurants' desires to hire only male waiters (for ambiance).121

      The courts' conclusion that sex is the "essence of the business" in theater and Playboy clubs, but not among flight attendants or waiters, turns on a value judgment about what is important to a particular business and what is peripheral. Some might argue that being surrounded by sexually appealing service personnel is just as valuable on an airplane flight as in a bar--in fact, this seems to have been a common view in its day.122 Others might say that having a faithful representation of Old World dining, traditionally attended to by male waiters in tuxedos, is just as important as having a faithful representation of Pirates of Penzance, with Frederick played by a man and Mabel by a woman. But courts have to decide, somewhat arbitrarily, which claims are legitimate and which are not.123

      Other social attitudes are considered acceptable justifications for sex-based classifications not so much because they are legitimate, but because they seem unavoidable. The rejection of "customer preference" or "coworker preference" rationales rests on the notion that customers and coworkers should change their views to accommodate antidiscrimination law, and not vice versa. If customers feel uncomfortable doing business with female executives or being served by male flight attendants, that's the customers' problem.124 Sex-neutral staffing won't undercut the "essence of the business" because the customers can generally be expected to adapt to it. But when one is dealing with clients who are mentally handicapped, emotionally disturbed, or perhaps even just criminal, it may be unrealistic and counterproductive to expect them to change their views.125 Assigning a male child-care specialist to work with sexually abused, or just emotionally disturbed girls undercuts the essence of the business126 precisely because the girls' preference is so hard to change.

       4. Specific Bona Fide Qualifications Claims

      With the above principles in mind, I turn to some specific cases in which bona fide qualifications claims might be raised.

          a. Diversity (in Employment and Education)

      The interest in intellectual diversity does not make sex a bona fide qualification.127 Diversity programs are based on generalizations about the "experiences, outlooks, and ideas"128 that men and women can bring to a task--the very sort of stereotypic thinking that bona fide qualifications law rejects.129 Even if most women tend to have a somewhat different view on a subject than do most men, this can't be a justification for preferring a particular woman over a particular man (or vice versa). In the EEOC's words, "The principle of nondiscrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group."130

      The Court made this point in a slightly different context in Roberts v. United States Jaycees.131 In Roberts, the Jaycees claimed that letting women into their club would change the club's voice, because women tend to have different attitudes about certain subjects than men. The Court rejected this argument: "Although . . . generalizations [about the sexes' attitudes] may or may not have a statistical basis in fact with respect to particular positions . . . we have repeatedly condemned legal decisionmaking that relies uncritically on such assumptions."132 Courts must "decline to indulge in the sexual stereotyping that underlies [the] contention" that an applicant's sex "will change the content or impact of the organization's speech."133

      The government must likewise be barred from relying on the argument that an applicant's sex "will change the content or impact" of workplace discussion or attitudes.134 If an educational institution wants to achieve intellectual diversity, it has to do this by focusing on people's actual experiences, attitudes, and outlooks, not by using sex as a proxy.135

      Of course, use of sex as a proxy for different thinking patterns may be efficient, and--especially if Justice Powell's opinion in Regents v. Bakke136 is good law137--may not violate the Equal Protection Clause. My only point here is that, efficient or not, such use of sex, like many efficient uses of sex as proxy, is outside the scope of the bona fide qualification principle.138

          b. Remedying Discrimination or Underrepresentation

      A government agency's desire to remedy discrimination against one sex or underrepresentation of one sex also does not make sex a bona fide qualification. Bona fide qualifications must "relate to ability to perform the duties of the job"--or, in the educational context, to the role of a student--and not just to "deep social concern[s]" such as the health of future generations, or the desire to give work to those who most need it,139 or the desire to right social wrongs or statistical mismatches.

      In fact, the core principle underlying the CCRI is that "overrepresentation" or "underrepresentation" are not justifications for race or sex discrimination, and that the remedy for past discrimination is a ban on discrimination, not discrimination in the other direction. The CCRI's theory, captured well in the proponents' ballot argument, is that "'Reverse Discrimination' based on race or gender is plain wrong[, a]nd two wrongs don't make a right."140 The bona fide qualification exception doesn't change this fundamental principle.

      Thus, for instance, special science programs aimed at girls or women could not be justified as a way of remedying discrimination or under-representation. Remedial concerns can't make being female into a "bona fide qualification . . . reasonably necessary to the normal operation of . . . public education." Supplementary math and science programs are valuable educational devices that should be equally available both to girls and to boys. Boys as well as girls can benefit from them, and certainly many boys as well as girls need the help. Most scientists are male, but most males are definitely not scientists; inadequate science education is a problem for both sexes.

          c. Role Models, Single-Sex Schools, and Single-Sex Workplaces

      Same-sex interactions can in some contexts be more efficient than cross-sex interactions. Male students or workers may be more inspired by male teachers or managers; likewise for women.141 Girls may learn better in a class with other girls, boys in a class with other boys.142 Women may get along better with female salespeople or female coworkers, and men with male ones. Same-sex interactions may more easily produce camaraderie and empathy,143 and may be less susceptible to conflict caused by different communication styles or by sexual tension.144

      But even when these client or coworker or student preferences are quite real, they generally can't make sex into a bona fide qualification; under sex discrimination law, these preferences have to be resisted, not accommodated.145 Employers (and, under the CCRI, educators) are supposed to demand that people change their sex-based attitudes, rather than using the existing attitudes as an excuse for discrimination. If some people won't change, the employer or educator must bear this cost.

      This prohibition, though sometimes inefficient in the short-term, is central to the principles of antidiscrimination law. If men and women are to work together, they have to learn to overcome their preferences for coworkers or classmates or mentors of the same sex. It might be natural for men to be more inspired by male role models and women by female role models, but if we want men to work effectively for female managers, or if we want women to enter fields in which almost all the great figures have always been men, this attitude has to be resisted, not accommodated.

      In fact, these sorts of public preferences are actually not that hard to change, at least when the public consists of normal adults. Despite longstanding preferences for female flight attendants,146 air passengers have learned to deal with male flight attendants; and despite the historic reluctance of men to take orders from women, male employees--guided by the demands of antidiscrimination law--have largely learned to deal with female managers.

      The rule might be different, though, when the government confronts the preferences of people who are not normal adults--for instance, the mentally handicapped, the seriously emotionally disturbed, and violent criminals. Here, the courts have given employers more latitude; the difficulty of changing these groups' preferences makes it more likely that the "essence of the business operation would be undermined by not hiring members of one sex exclusively."147 When normal adults recoil at being helped by people of the opposite sex, we might sternly admonish them to change their ways. When the same reaction comes from someone who is mentally ill, especially if the mental illness has a sexual dimension, we do not react the same way--expecting a change of attitude there may be expecting too much.

      Certain single-sex programs--for instance, single-sex education of emotionally disturbed children--should thus be permissible. Under Title VII, a public agency that operates such programs might be able to hire counselors based on sex;148 the same would be true under the CCRI. And if sex is a bona fide qualification for employees, it is probably also a bona fide qualification for students.

      The hard question is whether this would apply to programs, such as general single-sex public schools, aimed at normal children rather than at the mentally handicapped or seriously emotionally disturbed. The attitudes and behavioral traits of children are in some respects not easy to change: the adverse effect of sexual tension on the education of thirteen-year-olds might be harder to combat than the effect of sexual tension on adults working together; likewise, it's at least conceivable that some girls will be intimidated by the classroom styles of boys, regardless of what the school tells either the girls or the boys.

      Moreover, schools may have less power to change their students' behavior than employers have to change their employees' behavior. If an employee is so disoriented by the presence of the opposite sex that he becomes abusive or unproductive, the employer can fire him; this will make life better for the other workers and will provide an incentive for employees to learn to live with sex integration. This sort of threat, though, may be less effective for public school students: Grades or discipline may be weaker motivators for thirteen-year-olds than an income is for an adult. And if adult employees act in ways that cause them to lose their jobs, we might say good riddance; not so for wayward students, whom society wants to educate even despite their behavioral problems.

      On the other hand, normal children are generally considered more malleable in their beliefs and attitudes than are adults; moreover, changing their attitudes--educating them to behave properly around the opposite sex--is especially necessary. If students are distracted by sexual tension, it may be more important to teach them to deal with it than to try to insulate them from it. If boys act in ways that intimidate the girls in their class, it may be more important to teach the boys to behave and the girls to resist the intimidation than to shield girls by separating the sexes. After the students graduate, they'll all be expected to work around one another and act fairly towards each other. The basic principle of antidiscrimination law is that this sort of coexistence is furthered by nondiscrimination, not by accommodation of discriminatory impulses.

      This is a close question: I can imagine a court concluding that all children, and not just emotionally or mentally disturbed children, might learn better if their greater comfort around their own sex is accommodated, and that these sex-based attitudes are sufficiently hard to change that the government may accomodate them.149 Nonetheless--especially because of the strong presumption against the use of public attitudes as a justification for discrimination--it seems to me that the better argument is that sex segregation is generally impermissible.

          d. Sex-Segregated Sports Teams

             (1) Women's Teams

      If sports had to be sex-integrated, then in many sports men would take virtually all the places on any team. There's vast overlap between the ranges of men's and women's athletic abilities, but near the top, the great majority of the fastest and strongest athletes in many sports are men.150

      This doesn't by itself make sex a bona fide qualification. The general premise of antidiscrimination law is that the chips should fall where they may, even if this disproportionately favors the big or the strong. Even under Title VII's disparate impact component, jobs that require strength may legitimately be filled by the strong even if this means that most of the employees would be men; and employers generally can't try to adjust for this disparity by discriminating based on sex.151 A piano hauling company's (admittedly unlikely) requirement that 50% of its employees be male and 50% be female wouldn't be considered a bona fide qualification.

      The bona fide qualification principle provides an exception from this "let the best person win" model only when there is something different and socially valuable about a female performing a particular task as opposed to a male (or vice versa). This is the normative judgment at the heart of the cases that apply the "essence-of-the-business" test. Courts have concluded that there's nothing especially valuable about all-female flight attendant crews or all-men waiter staffs: Though some people might prefer businesses that are staffed this way, the courts have decided that this preference doesn't deserve accommodation. But courts generally conclude that there is something valuable about sex segregation in plays or even strip shows. The judgments of patrons who prefer to go to an all-female (or all-male) strip show, or who prefer to see a play in which all the male parts are played by men and the female parts by women, do deserve accommodation.152

      Women's sports teams should be permissible because there is indeed an important difference between an all-female team and a sex-integrated team that practically ends up all-male or nearly all-male. The very point of competition in these sports is the search for the best women athletes. Many top men's teams are almost certain to beat the top women's team, but we respect the top women's team because they do the best they can given the physical differences between men and women. Following the essence-of-the-business test, "the essence of the [competition] would be undermined by not [using] members of one sex exclusively."153

      There's some arbitrariness to this decision. Though there are certainly physical differences between men and women, there are other physical differences between people that handicap some through no fault of their own. A 5'6" basketball player may do the best he can given the physical differences between himself and people who are a foot taller, but few schools have separate basketball teams for short students.154 In some sense, our judgment that all-female teams are especially valuable, and our respect for the best female players (as opposed to the best short players) is a matter of social consensus and tradition. Nonetheless, this social consensus and tradition--national and international--ought not be lightly ignored.

      Even without the CCRI, of course, single-sex sports teams would have to be justified under strict scrutiny.155 Most cases applying intermediate scrutiny to women-only teams have upheld them,156 but there's a split as to whether such teams are permissible under strict scrutiny.157 There's no relevant California law on this point.

             (2) Men's Teams

      Sex appears not to be a bona fide qualification for participation on men's sports teams. Under the CCRI, all men's sports teams must become open to all, though practically most places on many teams will probably remain filled by men. Letting women into the competition wouldn't shut out men, and even if a women might be more likely to be injured when playing against men, under bona fide qualifications principles the decision should be left to the woman.158

      Letting women onto men's teams probably ought not be seen as changing the essence of the competition. My sense is that men's sports, unlike women's sports, have traditionally focused on finding the best athletes generally,159 not specifically the best athletes of a particular sex. Allowing women to compete equally for spots on men's teams will only serve this goal better.

      Of course, there is again a certain arbitrariness to the decision here: perhaps some fans do see teams made up of the best male competitors as significantly and valuably different from teams made up of the best competitors of either sex. But some such arbitrariness is present for any decision about what the "essence" of something is. Some people doubtless believe, for instance, that a restaurant in which they are served by male waiters provides a very different dining experience from one in which they are served by female waiters,160 just as watching a male strip show provides a different experience from watching a female strip show. Nonetheless, for bona fide qualification purposes the line must be drawn somewhere, and it seems fairly clear that the sex of the waiter is generally a much less significant aspect of the dining experience than is, for example, the quality of the service or the food. Likewise, it seems fair to say that the sex of the athletes on a men's basketball team is a far less important aspect of the competition than is the athletes' skill.

      Having a women-only team plus a sex-integrated team would be discriminatory against men--women would theoretically have twice as many spots for which they could compete than men would. But the ultimate question isn't simply whether such a scheme would be discriminatory.161 The CCRI doesn't bar sex discrimination when sex is a bona fide qualification, and for the reasons I provided above, sex is indeed a bona fide qualification for participation on the women's team.

      Note that even without the CCRI, it's not clear how a men-only requirement would pass strict scrutiny.162

          e. Privacy

      As mentioned above, privacy is generally accepted as a justification for bona fide qualifications, though generally only when the privacy concerns are not addressable by less discriminatory means.163 Thus, narrow classifications genuinely justified by privacy concerns--for instance, sex-segregated bathrooms and locker rooms for students,164 or sex-conscious assignments of dormitory roommates165--would be exempted by clause (c).166

          f. Women's Centers and Similar Programs

      If a program aimed at one sex is unrelated to public employment, education, or contracting, the CCRI simply doesn't cover it. For instance, a battered women's shelter that's open to all women--whether or not they are public employees or students at public educational institutions--is outside CCRI's purview, though it might run afoul of the state or federal equal protection clauses.167

      Even if the program is linked to public employment or education, the CCRI isn't triggered so long as the program is open to men and women alike. For example, I assume that any rape crisis hotline for students or employees wouldn't turn away male rape victims; if that's so, there's no sex discrimination even if 99.44% of the callers are women.168

      If the program is linked to public employment or education and does discriminate based on sex, then the question will be whether sex is a bona fide qualification. Self-defense classes open only to women students or employees probably wouldn't be permitted; though some women might prefer such sex segregation, client preference alone is not enough.169 On the other hand, special shelters for battered women students probably could be limited by sex, if there's evidence that the presence of men might exacerbate the psychological trauma caused by the abuse.170

      In these cases, the bona fide qualification issue would probably arise independently of the CCRI. If, for instance, a public university-run shelter for students who are victims of domestic abuse wants to accept only women clients, it would probably want to allow only women employees, too. Thus, any sex discrimination claims brought by students who want to use such a program might equally well be brought by prospective employees under Title VII or the California Fair Employment and Housing Act. The bona fide qualification defense would then have to be raised under these statutes, and the answer there should probably control the answer under the CCRI.

    B. Pre-CCRI Decisions, Court Orders, and Consent Decrees

      Clause (b) limits the CCRI "only to action taken after the section's effective date," November 6, 1996.171 Any hiring, admissions, or contracting decisions made before the effective date are unaffected, though of course subsequent decisions related to those employees, students, or contractors--promotion, academic assistance, contract modifications--have to be neutral.

      Clause (d)--"Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section"--likewise protects a specific, narrow category of settled expectations. Other settled expectations are not protected; for instance, the clause does not cover policies that are simply inspired by preexisting orders or decrees. Suppose a public employer entered into a preferential consent decree for department A, and then for some reason implemented a similar policy in department B--to stave off litigation, for internal consistency, or just out of inertia. The CCRI wouldn't invalidate the department A policy, but it would invalidate the one in department B.

    C. Action Necessary for Eligibility for the Federal Program

      "Nothing in [the CCRI] shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state."172 This is another narrow exception, limited to cases in which discriminatory conduct meets two criteria: (1) The action must be taken for eligibility for a federal program, and (2) ineligibility would lead to a loss of federal funds.

      The discriminatory conduct thus must be genuinely necessary for eligibility173--it's not enough that it be potentially helpful, or generally consistent with the spirit of the federal program. If it's possible to be eligible without the discrimination, then the discrimination is prohibited, because it's not true that the action "must be taken" for eligibility. Likewise, if the state can switch to a nondiscriminatory program that will still provide the federal funds, then the discriminatory conduct remains impermissible. In such a case, ineligibility for the discriminatory program would not result in a loss of federal money.

      I don't know how many federal programs really require race or sex discrimination; the clause wasn't added with any particular program in mind. It was simply meant to foreclose any possible campaign argument that "[t]he CCRI would cost California voters $X million in federal money," based on some program that opponents might have unearthed.

    D. Federal Government Actions

      Of course, the CCRI can't undo any discriminatory programs specifically dictated by federal law, a federal court order, or a consent decree approved by a federal court. Federal orders and consent decrees, however, may not create preferential policies in disregard of the CCRI unless the court first finds a federal constitutional or statutory violation that requires (and not merely makes plausible) a preferential remedy:

       While parties can settle their litigation with consent decrees, they cannot agree to disregard valid state laws . . . . [S]ome rules of law are designed to limit the authority of public officeholders, to make them return . . . to the voters for permission to engage in certain acts. They may chafe at these restraints and seek to evade them, but they may not do so by agreeing to do something state law forbids. . . . [D]istrict courts must ensure that the consent decrees they approve respect this principle . . . .

       Once a court has found a federal constitutional or statutory violation . . . a state law cannot prevent a necessary remedy. . . . Without such findings, however, parties can only agree to that which they have the power to do outside of litigation.174

      The second and third sentences of clause (h) also make clear that, even if the CCRI conflicts in some cases with federal law, the initiative remains in full effect as to other programs:

    If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

III. REMEDIES

      Remedies for CCRI violations track the remedies for violations of other antidiscrimination statutes: "The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law."175

      Without such a provision, it would have been unclear whether a damages remedy would be available; California court of appeal cases allow damage awards for violations of some state constitutional rights (such as the freedom of the press), but not of others (such as equal protection).176 Prevailing plaintiffs would also have been able to get attorney fees only if the case was of broad public importance.177

      This uncertain and possibly stingy remedial scheme made it prudent to add a special remedy clause--if a plaintiff could only get an injunction, many government agencies might be tempted to ignore the initiative's commands until someone actually sued and won. On the other hand, the clause couldn't be too specific. Many people are convinced that government discrimination is wrong, but there's no consensus about the particular remedies that should be available to discrimination victims. Even the drafters had no fixed view of what the right scheme might be. Perhaps the loser should pay the winner's attorney fees, perhaps not. Perhaps the law's deterrent effect should be strengthened by providing for generous punitive damages; perhaps punitive damages are a mistake and should be scrapped or limited.

      Thus, a remedy clause had to leave the courts and the legislature with discretion to adjust the remedies, but also prevent them from creating a special, inadequate remedial scheme that would undercut the CCRI's impact. Clause (g) solves this problem by linking the CCRI's remedies to those for other antidiscrimination claims: If the legislature concludes that punitive damages are generally appropriate for employment discrimination claims, then they will be available for CCRI violations in public employment; if it concludes that the loser should pay the winner's fees in educational discrimination claims generally, then that will apply to educational discrimination suits under the CCRI.

      Courts should borrow the remedies from the most similar area of the law--for instance, borrow from employment discrimination law in employment cases and from educational discrimination law in education cases. This is the approach that's most consistent with section (g)'s goal of providing the same protection for CCRI claimants as is provided to people with similar non-CCRI cases.178 It should also be the easiest approach to administer, because it will ensure that when people sue under both the CCRI and the corresponding statutory law--which will often happen--they'll get the same remedies under both.

      The "regardless of the injured party's race, sex, color, ethnicity, or national origin" clause bans discriminatory remedies as well as discriminatory treatment. One can imagine a legislature saying: "We'll prohibit all discrimination in education, but we just won't provide injunctive relief to, say, whites who are excluded from university admissions, or women who are kept off men's sports teams." This should, in any event, be considered discrimination "in the operation of . . . public education," and thus forbidden by clause (a), but a court might conceivably think otherwise. To make clear that such remedies would be impermissible, clause (g) specifically requires that remedies be nondiscriminatory.

      Finally, the reference to "then-existing California antidiscrimination law" makes clear that the remedial scheme isn't frozen at November 1996, but should be borrowed from whatever framework is generally in effect at the time the claim takes place. This still leaves the question of the time to which the "then" in "then-existing" refers: Does one, for instance, use the remedies that were in effect when the claim arose, when the lawsuit was brought, when the trial took place, or when the appeal was decided? These issues, however, already arise with all changes in remedies, and California courts have developed a body of law to deal with them.179 The conclusion might be different for different remedies--for instance, the availability of punitive damages might properly be determined by looking to the law at the time of violation, but the availability of a jury trial might better be decided based on the law at the time of filing or at the time of trial. Courts retain the discretion to make these decisions.

      Clause (h)'s statement that "[t]his section shall be self-executing" simply means that people may sue directly for violations of the CCRI, rather than waiting for the legislature to enact some sort of enforcement scheme.180

CONCLUSION

      The CCRI is short and simple. In most cases, its commands are quite clear. The world, though, is complex enough that even a clear rule will be somewhat uncertain in some of its applications. In this Article, I've tried to clarify some of these gray areas, and to provide a guide both for lawyers and for government officials who are trying to conform their actions to the CCRI's commands.

      It's important to remember, though, that the CCRI isn't the final word on the subject. Unlike the U.S. Constitution, the California Constitution isn't that hard to amend. All it takes is a two-thirds vote in each house of the legislature--or signatures from eight percent of the voters--to put the proposal on the ballot, and then a majority of the votes at the next election to make it law.181

      Obviously, it's quite unlikely that California voters will substantially undo the CCRI any time soon. But if one has a plausible case for a narrow exception, people may listen. If, for instance, you think that a police department should be able to make its police force mirror the racial composition of the community, or that a public university should be able to set up race-targeted outreach programs so long as it doesn't discriminate once the applications come in, you might be able to persuade the legislature to place an appropriate proposal on the ballot, and persuade the voters to vote for it.182 I'll disagree with you on this, but perhaps I'll find myself in the minority. And if the amendment passes, it would have a clear popular mandate, which will probably make the race-conscious program easier to actually implement.

      But until this happens, courts should stick with what the CCRI says. Whether or not the "living Constitution" model makes sense for the hard-to-change U.S. Constitution, it's inappropriate for the California Constitution. In enacting the CCRI, the people have spoken on a critical moral and pragmatic issue. When they speak again, perhaps their view will be somewhat different. But until they revise their statement, the courts--and all other government officials--are obligated to faithfully follow the people's commands.

APPENDIX A: THE INITIATIVE TEXT 1

      (a)      The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

      (b)      This section shall apply only to action taken after the section's effective date.

      (c)      Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

      (d)      Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

      (e)      Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.

      (f)      For the purposes of this section, "state" shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.

      (g)      The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

      (h)      This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

APPENDIX B: BALLOT PAMPHLET CONTENTS 1

Official Title and Summary Prepared by the Attorney General

    PROHIBITION AGAINST DISCRIMINATION OR PREFERENTIAL TREATMENT BY STATE AND OTHER PUBLIC ENTITIES.

    INITIATIVE CONSTITUTIONAL AMENDMENT.

  • Prohibits the state, local governments, districts, public universities, colleges, and schools, and other government instrumentalities from discriminating against or giving preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin.

  • Does not prohibit reasonably necessary, bona fide qualifications based on sex and actions necessary for receipt of federal funds.

  • Mandates enforcement to extent permitted by federal law.

  • Requires uniform remedies for violations. Provides for severability of provisions if invalid.

    Summary of Legislative Analyst's Estimate of Net State and Local Government Fiscal Impact:

  • The measure could affect state and local programs that currently cost well in excess of $125 million annually.

  • Actual savings to the state and local governments would depend on various factors (such as future court decisions and implementation actions by government entities).



Analysis by the Legislative Analyst

BACKGROUND


      The federal, state, and local governments run many programs intended to increase opportunities for various groups--including women and racial and ethnic minority groups. These programs are commonly called "affirmative action" programs. For example, state law identifies specific goals for the participation of women-owned and minority-owned companies on work involved with state contracts. State departments are expected, but not required, to meet these goals, which include that at least 15 percent of the value of contract work should be done by minority-owned companies and at least 5 percent should be done by women-owned companies. The law requires departments, however, to reject bids from companies that have not made sufficient "good faith efforts" to meet these goals.

  • Other examples of affirmative action programs include:

  • Public college and university programs such as scholarship, tutoring, and outreach that are targeted toward minority or women students.

  • Goals and timetables to encourage the hiring of members of "underrepresented" groups for state government jobs.

  • State and local programs required by the federal government as a condition of receiving federal funds (such as requirements for minority-owned business participation in state highway construction projects funded in part with federal money).

PROPOSAL

      This measure would eliminate state and local government affirmative action programs in the areas of public employment, public education, and public contracting to the extent these programs involve "preferential treatment" based on race, sex, color, ethnicity, or national origin. The specific programs affected by the measure, however, would depend on such factors as (1) court rulings on what types of activities are considered "preferential treatment" and (2) whether federal law requires the continuation of certain programs.

      The measure provides exceptions to the ban on preferential treatment when necessary for any of the following reasons:

  • To keep the state or local governments eligible to receive money from the federal government.

  • To comply with a court order in force as of the effective date of this measure (the day after the election).

  • To comply with federal law or the United States Constitution.

  • To meet privacy and other considerations based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.

FISCAL EFFECT

      If this measure is approved by the voters, it could affect a variety of state and local programs. These are discussed in more detail below.

Public Employment and Contracting

      The measure would eliminate affirmative action programs used to increase hiring and promotion opportunities for state or local government jobs, where sex, race, or ethnicity are preferential factors in hiring, promotion, training, or recruitment decisions. In addition, the measure would eliminate programs that give preference to women-owned or minority-owned companies on public contracts. Contracts affected by the measure would include contracts for construction projects, purchases of computer equipment, and the hiring of consultants. These prohibitions would not apply to those government agencies that receive money under federal programs that require such affirmative action.

      The elimination of these programs would result in savings to the state and local governments. These savings would occur for two reasons. First, government agencies no longer would incur costs to administer the programs. Second, the prices paid on some government contracts would decrease. This would happen because bidders on contracts no longer would need to show "good faith efforts" to use minority-owned or women-owned subcontractors. Thus, state and local governments would save money to the extent they otherwise would have rejected a low bidder--because the bidder did not make a "good faith effort"--and awarded the contract to a higher bidder.

      Based on available information, we estimate that the measure would result in savings in employment and contracting programs that could total tens of millions of dollars each year.

Public Schools and Community Colleges

      The measure also could affect funding for public schools (kindergarten through grade 12) and community college programs. For instance, the measure could eliminate, or cause fundamental changes to, voluntary desegregation programs run by school districts. (It would not, however, affect court-ordered desegregation programs.) Examples of desegregation spending that could be affected by the measure include the special funding given to (1) "magnet" schools (in those cases where race or ethnicity are preferential factors in the admission of students to the schools) and (2) designated "racially isolated minority schools" that are located in areas with high proportions of racial or ethnic minorities. We estimate that up to $60 million of state and local funds spent each year on voluntary desegregation programs may be affected by the measure.

      In addition, the measure would affect a variety of public school and community college programs such as counseling, tutoring, outreach, student financial aid, and financial aid to selected school districts in those cases where the programs provide preferences to individuals or schools based on race, sex, ethnicity, or national origin. Funds spent on these programs total at least $15 million each year.

      Thus, the measure could affect up to $75 million in state spending in public schools and community colleges.

      The State Constitution requires the state to spend a certain amount each year on public schools and community colleges. As a result, under most situations, the Constitution would require that funds that cannot be spent on programs because of this measure instead would have to be spent for other public school and community college programs.

University of California and California State University

      The measure would affect admissions and other programs at the state's public universities. For example, the California State University (CSU) uses race and ethnicity as factors in some of its admissions decisions. If this initiative is passed by the voters, it could no longer do so. In 1995, the Regents of the University of California (UC) changed the UC's admissions policies, effective for the 1997-98 academic year, to eliminate all consideration of race or ethnicity. Passage of this initiative by the voters might require the UC to implement its new admissions policies somewhat sooner.

      Both university systems also run a variety of assistance programs for students, faculty, and staff that are targeted to individuals based on sex, race, or ethnicity. These include programs such as outreach, counseling, tutoring, and financial aid. The two systems spend over $50 million each year on programs that probably would be affected by passage of this measure.

Summary

      As described above, this measure could affect state and local programs that currently cost well in excess of $125 million annually. The actual amount of this spending that might be saved as a result of this measure could be considerably less, for various reasons:

  • The amount of spending affected by this measure could be less depending on (1) court rulings on what types of activities are considered "preferential treatment" and (2) whether federal law requires continuation of certain programs.

  • In most cases, any funds that could not be spent for existing programs in public schools and community colleges would have to be spent on other programs in the schools and colleges.

  • In addition, the amount affected as a result of this measure would be less if any existing affirmative action programs were declared unconstitutional under the United States Constitution. For example, five state affirmative action programs are currently the subject of a lawsuit. If any of these programs are found to be unlawful, then the state could no longer spend money on them--regardless of whether this measure is in effect.

  • Finally, some programs we have identified as being affected might be changed to use factors other than those prohibited by the measure. For example, a high school outreach program operated by the UC or the CSU that currently uses a factor such as ethnicity to target spending could be changed to target instead high schools with low percentages of UC or CSU applications.



Argument in Favor of Proposition 209

THE RIGHT THING TO DO!      A generation ago, we did it right. We passed civil rights laws to prohibit discrimination. But special interests hijacked the civil rights movement. Instead of equality, governments imposed quotas, preferences, and set-asides.

      Proposition 209 is called the California Civil Rights Initiative because it restates the historic Civil Rights Act and proclaims simply and clearly: "The state shall not discriminate against, or grant preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting."

"REVERSE DISCRIMINATION" BASED ON RACE OR GENDER IS PLAIN WRONG!

      And two wrongs don't make a right! Today, students are being rejected from public universities because of their RACE. Job applicants are turned away because their RACE does not meet some "goal" or "timetable." Contracts are awarded to high bidders because they are of the preferred RACE.

      That's just plain wrong and unjust. Government should not discriminate. It must not give a job, a university admission, or a contract based on race or sex. Government must judge all people equally, without discrimination!

      And, remember, Proposition 209 keeps in place all federal and state protections against discrimination!

BRING US TOGETHER!

      Government cannot work against discrimination if government itself discriminates. Proposition 209 will stop the terrible programs which are dividing our people and tearing us apart. People naturally feel resentment when the less qualified are preferred. We are all Americans. It's time to bring us together under a single standard of equal treatment under the law.

STOP THE GIVEAWAYS!

      Discrimination is costly in other ways. Government agencies throughout California spend millions of your tax dollars for costly bureaucracies to administer racial and gender discrimination that masquerade as "affirmative action." They waste much more of your money awarding high-bid contracts and sweetheart deals based not on the low bid, but on unfair set-asides and preferences. This money could be used for police and fire protection, better education and other programs--for everyone.

THE BETTER CHOICE: HELP ONLY THOSE WHO NEED HELP!

      We are individuals! Not every white person is advantaged. And not every "minority" is disadvantaged. Real "affirmative action" originally meant no discrimination and sought to provide opportunity. That's why Proposition 209 prohibits discrimination and preferences and allows any program that does not discriminate, or prefer, because of race or sex, to continue.

      The only honest and effective way to address inequality of opportunity is by making sure that all California children are provided with the tools to compete in our society. And then let them succeed on a fair, color-blind, race-blind, gender-blind basis.

      Let's not perpetuate the myth that "minorities" and women cannot compete without special preferences. Let's instead move forward by returning to the fundamentals of our democracy: individual achievement, equal opportunity and zero tolerance for discrimination against--or for--any individual.

      Vote for FAIRNESS . . . not favoritism!

      Reject preferences by voting YES on Proposition 209.

      PETE WILSON
      Governor, State of California

      WARD CONNERLY
      Chairman, California Civil Rights Initiative

      PAMELA A. LEWIS
      Co-Chair, California Civil Rights Initiative



Rebuttal to Argument in Favor of Proposition 209

THE WRONG THING TO DO!      A generation ago, Rosa Parks launched the Civil Rights movement, which opened the door to equal opportunity for women and minorities in this country. Parks is against this deceptive initiative. Proposition 209 highjacks civil rights language and uses legal lingo to gut protections against discrimination.      Proposition 209 says it eliminates quotas, but in fact, the U.S. Supreme Court already decided--twice--that they are illegal. Proposition 209's real purpose is to eliminate affirmative action equal opportunity programs for qualified women and minorities including tutoring, outreach, and mentoring.

PROPOSITION 209 PERMITS DISCRIMINATION AGAINST WOMEN.

      209 changes the California Constitution to permit state and local governments to discriminate against women, excluding them from job categories.

STOP THE POLITICS OF DIVISION

      Newt Gingrich, Pete Wilson, and Pat Buchanan support 209. Why? They are playing the politics of division for their own political gain. We should not allow their ambitions to sacrifice equal opportunity for political opportunism.

209 MEANS OPPORTUNITY BASED SOLELY ON FAVORITISM.

      Ward Connerly has already used his influence to get children of his rich and powerful friends into the University of California. 209 reinforces the "who you know" system that favors cronies of the powerful.

      "There are those who say, we can stop now, America is a color-blind society. But it isn't yet, there are those who say we have a level playing field, but we don't yet." Retired General Colin Powell [5/25/96].

      VOTE NO ON 209!!!

      PREMA MATHAI-DAVIS
      National Executive Director, YWCA of the U.S.A.

      KAREN MANELIS
      President, California American Association of University Women

      WADE HENDERSON
      Executive Director, Leadership Conference on Civil Rights



Argument Against Proposition 209

VOTE NO ON PROPOSITION 209

HARMS EQUAL OPPORTUNITY FOR WOMEN AND MINORITIES

      California law currently allows tutoring, mentoring, outreach, recruitment, and counseling to help ensure equal opportunity for women and minorities. Proposition 209 will eliminate affirmative action programs like these that help achieve equal opportunity for women and minorities in public employment, education and contracting. Instead of reforming affirmative action to make it fair for everyone, Proposition 209 makes the current problems worse.

      PROPOSITION 209 GOES TOO FAR

      The initiative's language is so broad and misleading that it eliminates equal opportunity programs including:

  • tutoring and mentoring for minority and women students;

  • affirmative action that encourages the hiring and promotion of qualified women and minorities;

  • outreach and recruitment programs to encourage applicants for government jobs and contracts; and

  • programs designed to encourage girls to study and pursue careers in math and science.

      The independent, non-partisan California Legislative Analyst gave the following report on the effects of Proposition 209:

      "[T]he measure would eliminate a variety of public school (kindergarten through grade 12) and community college programs such as counseling, tutoring, student financial aid, and financial aid to selected school districts, where these programs are targeted based on race, sex, ethnicity or national origin." [Opinion Letter to the Attorney General, 10/15/95].

PROPOSITION 209 CREATES A LOOPHOLE THAT ALLOWS DISCRIMINATION AGAINST WOMEN

      Currently, California women have one of the strongest state constitutional protections against sex discrimination in the country. Now it is difficult for state and local government to discriminate against women in public employment, education, and the awarding of state contracts because of their gender. Proposition 209's loophole will undo this vital state constitutional protection.

PROPOSITION 209 LOOPHOLE PERMITS STATE GOVERNMENT TO DENY WOMEN OPPORTUNITIES IN PUBLIC EMPLOYMENT, EDUCATION, AND CONTRACTING, SOLELY BASED ON THEIR GENDER.

PROPOSITION 209 CREATES MORE DIVISION IN

OUR COMMUNITIES

      It is time to put an end to politicians trying to divide our communities for their own political gain. "The initiative is a misguided effort that takes California down the road of division. Whether intentional or not, it pits communities against communities and individuals against each other."

            --Reverend Kathy Cooper-Ledesma
            President, California Council of Churches.

GENERAL COLIN POWELL'S POSITION ON PROPOSITION 209:

      "Efforts such as the California Civil Rights Initiative which poses as an equal opportunities initiative, but which puts at risk every outreach program, sets back the gains made by women and puts the brakes on expanding opportunities for people in need."

            --Retired General Colin Powell, 5/25/96.
            GENERAL COLIN POWELL IS RIGHT.

VOTE "NO" ON PROPOSITION 209--
EQUAL OPPORTUNITY MATTERS

      FRAN PACKARD
      President, League of Women Voters of California

      ROSA PARKS
      Civil Rights Leader

      MAXINE BLACKWELL
      Vice President, Congress of California Seniors,
      Affiliate of the National Council of Senior Citizens



Rebuttal to Argument Against Proposition 209

      Don't let them change the subject. Proposition 209 bans discrimination and preferential treatment--period. Affirmative action programs that don't discriminate or grant preferential treatment will be UNCHANGED. Programs designed to ensure that all persons--regardless of race or gender--are informed of opportunities and treated with equal dignity and respect will continue as before.

      Note that Proposition 209 doesn't prohibit consideration of economic disadvantage. Under the existing racial-preference system, a wealthy doctor's son may receive a preference for college admission over a dishwasher's daughter simply because he's from an "underrepresented" race. THAT'S UNJUST. The state must remain free to help the economically disadvantaged, but not on the basis of race or sex.

      Opponents mislead when they claim that Proposition 209 will legalize sex discrimination. Distinguished legal scholars, liberals and conservatives, have rejected that argument as ERRONEOUS. Proposition 209 adds NEW PROTECTION against sex discrimination on top of existing ones, which remain in full force and effect. It does NOTHING to any existing constitutional provisions.

      Clause c is in the text for good reason. It uses the legally-tested language of the original 1964 Civil Rights Act in allowing sex to be considered only if it's a "bona fide" qualification. Without that narrow exception, Proposition 209 would require unisex bathrooms and the hiring of prison guards who strip-search inmates without regard to sex. Anyone opposed to Proposition 209 is opposed to the 1964 Civil Rights Act.

      Join the millions of voters who support Proposition 209. Vote YES.

      DANIEL E. LUNGREN
      Attorney General, State of California

      QUENTIN L. KOPP
      State Senator

      GAIL L. HERIOT
      Professor of Law



            


Footnotes

       * Acting Professor, UCLA Law School (volokh@law.ucla.edu). I'd like to thank Manny Klausner, Dan Lowenstein, Alexander Volokh, and Tom Wood for their help. I'd also like to thank the UCLA Law Review editors for their editing help, and for accomodating my occasional requests for departures from certain Bluebook conventions.

1.      See CAL. CONST. art. I, § 31, reprinted in Appendix A. The initiative is also known as Proposition 209.

2.      Though I was a legal advisor to the pro-CCRI campaign and participated in the late stages of the initiative's drafting, this Article is not a campaign document. It is being published after the election and has played no role in the campaign debates. In pre-election arguments, there's often an incentive to scare voters by overstating the proposal's effects, or to soft-pedal some matters in order to avoid rousing the voters' fears. Not so here; in this Article I aim to describe what the initiative actually requires, uninfluenced by any desire to enact the initiative or to defeat it.

3.      See, e.g., WESTERN STATE UNIV. LAW REVIEW ASS'N, PRELIMINARY FINDINGS: LEGISLATIVE IMPACT OF PROPOSITION 209 (1996) [hereinafter WESTERN STATE] (making all three assertions); Erwin Chemerinsky & Laurie Levenson, Sex Discrimination Made Legal, L.A. TIMES, Jan. 10, 1996, at B9 (claiming that the CCRI "would eliminate all affirmative action" and would also partly repeal existing bans on sex discrimination); Jerome Karabel, Why the Civil Rights Initiative Will Fail, SAN DIEGO UNION-TRIB., June 23, 1996, at G3 ("[The CCRI's] princip[al] effect will be to eliminate all affirmative action programs."); Jeffrey L. Rabin, County Supervisors Vote to Oppose Proposition 209, L.A. TIMES, July 31, 1996, at B1 (statement of L.A. County Supervisor Yvonne Brathwaite Burke) ("What [CCRI supporters] are saying is . . . [l]et's eliminate all the affirmative action."); see also Sandy Banks & Bettina Boxall, Campus Abuzz as D-Day Arrives, L.A. TIMES, Sept. 25, 1996, at B1 (reporting Professor Neil Gotanda as saying that "passage of the proposition could jeopardize . . . university courses in ethnic and women's studies . . . and even school celebrations of ethnic holidays such as Cinco de Mayo"; Professor Gotanda was presenting the Western State University Law Review Association "Preliminary Findings" cited above).

4.      As to legal terms of art, "Where the language of a statute uses terms that have been judicially construed, the presumption is almost irresistible that the terms have been used in the precise and technical sense which had been placed upon them by the courts. This principle applies to legislation adopted through the initiative process." People v. Weidert, 39 Cal. 3d 836, 845-46, 705 P.2d 380, 385, 218 Cal. Rptr. 57, 62 (1985) (internal quotation marks and citations omitted); see also Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979); In re Jeanice D., 28 Cal. 3d 210, 216, 617 P.2d 1087, 1090, 168 Cal. Rptr. 455, 458 (1980); In re Markaus V., 211 Cal. App. 3d 1331, 1336, 260 Cal. Rptr. 126, 129 (1989). One might quarrel with this on the grounds that some voters might be unaware of the words' "precise and technical sense," but this is nonetheless the law; and in practice, given this rule, the debates surrounding the campaign should generally tend to inform the voters about the terms' legal significance.

5.      E.g., Western Telcon, Inc. v. California State Lottery, 13 Cal. 4th 475, 494, 917 P.2d 651, 662, 53 Cal. Rptr. 2d 812, 823 (1996); People v. Superior Court (Romero), 13 Cal. 4th 497, 528, 917 P.2d 628, 646, 53 Cal. Rptr. 2d 789, 807-08 (1996). Of course, when the text is unambiguous, courts must follow the text without resorting to the ballot materials. See in re Daniel M., 47 Cal. App. 4th 1151, 1154, 55 Cal. Rptr. 2d 17, 18-19 (1996); People v. Wheeler, 4 Cal. 4th 284, 294, 841 P.2d 938, 943, 14 Cal. Rptr. 2d 418, 423 (1992).

      Some court decisions have hinted that a court might also look to "various pre-election materials (newspaper articles and editorials, committee reports, interest-group articles, etc.)." AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 436 n.4, 260 Cal. Rptr. 479, 484 n.4 (1989); see also Carlos v. Superior Court, 35 Cal. 3d 131, 144 n.12, 672 P.2d 862, 870 n.12, 197 Cal. Rptr. 79, 88 n.12 (1983), overruled on other grounds by People v. Anderson, 43 Cal. 3d 1104, 742 P.2d 1306, 240 Cal. Rptr. 585 (1987); Goodman v. County of Riverside, 140 Cal. App. 3d 900, 906 & nn.3-5, 190 Cal. Rptr. 7, 11-12 & nn.3-5 (1983). It seems to me, though, that these sources can only be the most tenuous evidence of what the public actually intended. As People v. Castro held, "opinions [which were not] distributed to the electorate by way of the voter's pamphlet" ought not be relied upon, because courts "can only speculate [about] the extent to which the voters were cognizant of them." 38 Cal. 3d 301, 312, 696 P.2d 111, 117, 211 Cal. Rptr. 719, 725 (1985). Accord People ex rel. Lungren v. Superior Court, 48 Cal. App. 4th 1452, 1461 n.6, 41 Cal. Rptr. 2d 903, 909 n.6 (1995), rev'd on other grounds, 14 Cal. 4th 294, 926 P.2d 1042, 59 Cal. Rptr. 2d 855 (1996). I will sometimes quote such sources, for whatever they're worth, but I don't think they should be worth much.

      Courts have also suggested that "after-the-fact declaration[s] of intent by a drafter of [a p]roposition . . . may deserve some consideration[, though they] by no means . . . govern [the] determination [of] how the voters understood the ambiguous provisions." Carman v. Alvord, 31 Cal. 3d 318, 331 n.10, 644 P.2d 192, 199 n.10, 182 Cal. Rptr. 506, 513 n.10 (1982); see also Stanton v. Panish, 28 Cal. 3d 107, 114, 167 Cal. Rptr. 584, 615 P.2d 1372, 1376 (1980). I have seen no case, however, that has explicitly relied upon such statements, and I think they have to be given extremely little weight. As the Carman quote makes clear, the ultimate inquiry must be into what the voters--the sovereign power that actually made the initiative into law--thought. The view of the drafters, which was not "distributed to the electorate," Castro, 38 Cal. 3d at 312, 696 P.2d at 117, 211 Cal. Rptr. at 725, says next to nothing about the views of the voters. What matters is the meaning of the text, not the drafters' unexpressed intent. e.g., People v. Fenton, 20 Cal. App. 4th 965, 970-71, 25 Cal. Rptr. 2d 52, 55-56 (1993).

6.      See infra Part II.A. for a discussion of clause (c) of the CCRI.

7.      CAL. CONST. art. I, § 31, cl. a, reprinted in Appendix A.

8.      Clause (f) of the CCRI states:

      For the purposes of this section, "state" shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.

Id. § 31, cl. f, reprinted in Appendix A.      The University of California would have been covered as a "public university system" and a "governmental instrumentality" even if it hadn't been specially mentioned; still, because the UC has a special status under article IX, section 9 of the California Constitution, it seemed wise to mention it explicitly. This special mention obviously does not imply that the California State University system is excluded; it is, of course, a "public university system" and a "governmental instrumentality," and is therefore covered. See SECRETARY OF STATE, CALIFORNIA BALLOT PAMPHLET: GENERAL ELECTION 30, 31 (1996) [hereinafter CALIFORNIA BALLOT PAMPHLET] (Analysis by the Legislative Analyst) (discussing effect of the initiative on the "University of California and California State University"), reprinted in Appendix B.

9.      E.g., TRW, Inc. v. Superior Court, 25 Cal. App. 4th 1834, 1844-48, 31 Cal. Rptr. 2d 460, 466-69 (1994) (applying the state action doctrine developed in free speech and due process contexts to the privilege against self-incrimination).

10.      See Blum v. Yaretsky, 457 U.S. 991, 1005-12 (1982) (heavily regulated business); Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982) (contractor) ("Acts of such private contractors do not become acts of the government by reason of [the contractors'] significant or even total engagement in performing public contracts."); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 358 (1974) (regulated monopoly); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-77 (1972) (licensee).

11.      See, e.g., Robinson v. Florida, 378 U.S. 153, 156-57 (1964) (state action present when state regulation gives private actor an incentive to discriminate); Peterson v. City of Greenville, 373 U.S. 244, 248 (1963) (state action present when state requires private actor to discriminate); Lombard v. Louisiana, 373 U.S. 267, 273 (1963) (state action present when state officially encourages private actor to discriminate).

12.      Race-based scholarships are already prohibited in most cases by the Equal Protection Clause. See Podberesky v. Kirwan, 38 F.3d 147, 151 (4th Cir. 1994). The same may also be true as to sex-based scholarships. See In re Estate of Wilson, 452 N.E.2d 1228, 1235 (N.Y. 1983).

13.      See, e.g., Pennsylvania v. Board of Dirs. of City Trusts, 353 U.S. 230, 231 (1957).

14.      See Shapiro v. Columbia Union National Bank & Trust Co., 576 S.W.2d 310, 320 (Mo. 1978), which held that a state university's conduct with respect to a private men-only scholarship did not constitute sex-based state action even though the university mentioned the scholarship in its catalog, accepted and processed applications for it, and forwarded the names of qualified male students to the private trustee. This decision strikes me as going too far: When public university officials sort male students from female ones, it seems to me that the government is indeed discriminating in the operation of public education. Simply informing students of the scholarship's existence, however, seems permissible.

      See also William E. Thro, The Constitutional Problem of Race-Based Scholarships and a Practical Solution, 111 EDUC. L. REP. 625 (1996), which suggests that "an institutional practice of posting announcements about race-based scholarships which are administered and totally funded by private organizations probably is not state action," but "if an institutional employee has responsibility for locating privately funded and administered race-based scholarships and then encouraging persons to apply for these scholarships . . . there is a stronger argument for state action." Id. at 627 n.9. Technically, this isn't quite so: Posting the list is certainly state action, because the state is doing it. Still, I agree that the race-conscious decision by the private entity administering the scholarship is not state action.

15.      Compare Wilson, 452 N.E.2d at 1237 (speaking favorably of such a switch), with Pennsylvania v. Brown, 392 F.2d 120, 124 (3d Cir. 1968) (rejecting such a switch).

16.      See Evans v. Abney, 396 U.S. 435, 444 (1970).

17.      City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978); International Union v. Johnson Controls, Inc., 499 U.S. 187, 200 (1991); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 683 (1983); see also EEOC v. Borden's, Inc., 724 F.2d 1390, 1393 (9th Cir. 1984); Allison-LeBlanc v. Department of Pub. Safety & Corrections, 671 So. 2d 448, 452 (La. Ct. App. 1995); DiBiase v. Smithkline Beacham Corp., 847 F. Supp. 341, 348 (E.D. Pa. 1994).

18.      See, e.g., CAL. CONST. art. I, § 4 (guaranteeing "[f]ree exercise and enjoyment of religion without discrimination or preference"); Age Discrimination in Employment Act, 29 U.S.C. § 623(e) (1994) (prohibiting "print[ing] or publish[ing] any notice or advertisement . . . indicating any preference, limitation, specification, or discrimination, based on age"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(i) (1994) (exempting "preferential treatment . . . given to any individual because he is an Indian living on or near a reservation"); id. § 2000e-2(j) (explaining that the act does not require "preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of [any] imbalance"); id. § 2000e-3(b) (prohibiting "print[ing] or publish[ing] . . . any notice or advertisement . . . indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin"); Fair Housing Act, 42 U.S.C. § 3604(c) (1994) (barring housing advertising "that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin"); CAL. GOV'T CODE § 1233 (West 1995) (making it "unlawful . . . to discriminate against a prospective or incumbent employee or to give preference to a person identified as a member of an ethnic, racial, or religious group upon the basis of such membership or identification"); id. § 12955(c) (West Supp. 1997) (barring housing advertising that "indicates any preference, limitation, or discrimination based on race, color, religion, sex" and other factors).      Though some of the above statutes mention "preference" rather than "preferential treatment," the two terms are synonymous. See, e.g., CALIFORNIA BALLOT PAMPHLET, supra note 8, at 31 (Analysis by the Legislative Analyst) ("[T]he measure would eliminate programs that give preference to women-owned or minority-owned companies on public contracts."), reprinted in Appendix B; id. ("[T]he measure would affect [programs that] provide preferences to individuals or schools based on race, sex, ethnicity, or national origin."), reprinted in Appendix B; id. at 32 (Argument in Favor of Proposition 209) ("Instead of equality, governments imposed quotas, preferences, and set-asides."), reprinted in Appendix B; id. at 33 (Rebuttal to Argument Against Proposition 209) ("[u]nder the existing racial-preference system"), reprinted in Appendix B; see also, e.g., United States v. Paradise, 480 U.S. 149, 197 (1987) (O'Connor, J., dissenting) (using "preferential treatment" and "preferences" interchangeably); California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 293-94 (1987) (Stevens, J., concurring in part and concurring in the judgment) (same); Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 452-53 (1986) (same); United Steelworkers v. Weber, 443 U.S. 193, 244 (1979) (Rehnquist, J., dissenting) (same); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 297 (1978) (Powell, J.) (same).

19.      E.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2109 (1995); id. at 2120 (Stevens & Ginsburg, JJ., dissenting); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989); Bakke, 438 U.S. at 301; id. at 328 (Brennan, White, Marshall, & Blackmun, JJ., concurring in the judgment in part and dissenting in part); DeFunis v. Odegaard, 416 U.S. 312, 332 (1974) (Douglas, J., dissenting).

20.      See Weber, 443 U.S. at 193; Bakke, 438 U.S. at 265; see also WESTERN STATE, supra note 3, § 6 ("Thus, Brennan's decision held that the program at issue in Weber was not discrimination but was preferential treatment.").

21.      Weber, 443 U.S. at 201 ("Respondent argues that Congress intended in Title VII to prohibit all race-conscious affirmative action plans. Respondent's argument rests upon a literal intepretation of [the ban on discrimination in] the Act. . . . [But] in this context reliance upon a literal construction of [this ban] . . . is misplaced.").

22.      Id. at 200, 208; see also id. at 205 ("racially preferential integration effort[]"), 208; id. at 210, 211, 216 (Blackmun, J., concurring) ("voluntary preference[]," "[p]referential hiring," and "preference for blacks").

23.      Id. at 205 n.5 (citing 42 U.S.C. § 2000e-2(j)).

24.      Id. at 205-06. Similarly, the Bakke Court concluded that Title VII, despite its facial prohibition on discrimination, "[did] not bar the preferential treatment of racial minorities" in certain circumstances. Bakke, 438 U.S. at 265, 328 (Brennan, White, Marshall & Blackmun, JJ. concurring in the judgment in part and dissenting in part); id. at 295-306 (Powell, J.) (characterizing such programs as "preferential classifications," "preferential treatment," "preferences," "preferential programs," and "preferential hiring"); id. at 319 (Powell, J.) (specifically describing the race-conscious diversity programs that he endorsed as "preference program[s]").

25.      City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978).

26.      See, e.g., Academic Senate, University of California, NOTICE, Apr. 1995, at 1, 5 (describing "the Biology Undergraduate Scholars Program at UC Davis, which serves UC freshm[e]n and sophomores. It is open to students who come from economically or educationally disadvantaged backgrounds or to students who are not disadvantaged but who are members of underrepresented groups" (emphasis added)); UCLA Academic Advancement Program Brochure, at 11 (on file with author) ("You are eligible to join AAP and participate in its programs, receive its services, and use its resources if you come from a historically underrepresented population--African American, Chicano/Latino/a, Native American, Pilipino, and Pacific Islander--or are from a low income family.").

27.      The California Attorney General has argued that "'[b]using' and 'student assignment' on the basis of race" isn't covered by the CCRI because it does not "involv[e] preferences," Appellants' Reply Brief at 9-10, 14 n.6, Coalition for Econ. Equity v. Wilson, Nos. 97-15030, -15031 (9th Cir. Feb. 28, 1997), but I believe this is incorrect. An assignment of a particular student to a particular school because he's black or white or Hispanic "treat[s] a person in a manner which but for that person's [race] would be different." This is true even when the difference between schools consists only of factors such as travel distance; but it should be even more evident when one school provides particular programs that another does not. Cf. CALIFORNIA BALLOT PAMPHLET, supra note 8, at 31 (Analysis by the Legislative Analyst), reprinted in Appendix B (noting the possible effect on funding for "'magnet' schools (in those cases where race or ethnicity are preferential factors in the admission of students to the schools)").

28.      An alternate approach--which is logically equivalent to the test described in the text--is to imagine another program that is identical to the challenged one, except that it favors a different race, sex, or ethnicity. If this hypothetical program is discriminatory or preferential, then the original program would be discriminatory or preferential, too. A tutoring program that accepted all white applicants but no poor black applicants would clearly be discriminatory against blacks and preferential to whites. A decision to hire a male applicant instead of a female applicant that's partly motivated by a desire to fill an informal "goal" for male employees would clearly involve discrimination against the woman and a preference for the man. See Ed Mendel, Affirmative Action Goal: More White Men?, SAN DIEGO UNION-TRIB., Oct. 16, 1996, at A1 (describing planned hiring goals for whites and males). The reverse programs are likewise discriminatory and preferential.

      Of course, some might see the two programs as morally different--preferential treatment for minorities or women, they might argue, is not morally equivalent to preferential treatment for whites or men. But whatever one's views might be on the propriety of such programs, both kinds of programs are in fact forms of preferential treatment. And the core principle behind the CCRI is that both forms of preferential treatment are equally invalid. See generally CALIFORNIA BALLOT PAMPHLET, supra note 8, at 32 (Argument in Favor of Proposition 209; Rebuttal to Argument Against Proposition 209), reprinted in Appendix B.

29.      Constitutional antidiscrimination protections are implicated whenever the state uses race as a "motivating factor," whether or not other factors are present. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977); cf. 29 C.F.R. § 1604.4(a) (1996) ("[S]o long as sex is a factor in the application of the rule, such application involves a discrimination based on sex."); CALIFORNIA BALLOT PAMPHLET, supra note 8, at 31 (Analysis by the Legislative Analyst) ("The measure would eliminate affirmative action programs . . . where sex, race, or ethnicity are preferential factors . . . ."), reprinted in Appendix B.

30.      Likewise, the CCRI prohibits the government from setting goals and timetables that pressure contractors into discrimination. See Bras v. California Pub. Utils. Comm'n, 59 F.3d 869, 874 (9th Cir. 1995) (refusing to distinguish programs that "purport to establish 'goals'" from those that require "quotas," and "look[ing] to the economic realities of the program rather than the label attached to it"); cf. Robinson v. Florida, 378 U.S. 153, 156-57 (1964) (discriminatory state action present when state regulation gives private actor an incentive to discriminate); Lombard v. Louisiana, 373 U.S. 267, 273 (1963) (discriminatory state action present when state officially encourages private actor to discriminate).

31.      See 42 U.S.C. § 2000e-2(j) (1994) ("Nothing contained in this subchapter shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group . . . ."); 110 CONG. REC. 12,723 (1964) (statement of Sen. Humphrey) ("The proponents of this bill have carefully stated on numerous occasions that [T]itle VII does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group."); 110 CONG. REC. 1518 (1964) (statement of Rep. Celler, a floor manager of the Civil Rights Act of 1964) ("[Under Title VII, a] court could not order that any preference be given to any particular race, religion or other group, but would be limited to ordering an end to discrimination."); 5 C.F.R. § 950.110 (1996) (prohibiting "discrimination for or against any individual or group on account of race, color, religion, sex, national origin, age, handicap, or political affiliation"); 32 C.F.R. § 51.3 (1996) ("Definitions . . . . Discrimination. Illegal treatment of a person or group based on handicap, race, color, national origin, age, religion, or gender."); id. § § 191.3, 192.3; see also CAL. GOV'T CODE § 12955 (West 1992 & Supp. 1996) ("It shall be unlawful: . . . (e) For any [entity that funds housing transactions] to discriminate against any person or group of persons because of the race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability . . . ."); CAL. HEALTH & SAFETY CODE § 33436(a) (West Supp. 1997) ("In deeds the following language shall appear--'The grantee herein covenants . . . that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry . . . .'").

32.      See, e.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2108 (1995) (talking about "classifications burdening groups that have suffered discrimination in our society" and about "race-based governmental action designed to benefit such groups" (emphasis omitted)); Johnson v. De Grandy, 512 U.S. 997, 1007 n.7 (1994) ("[R]acial gerrymanders have played a central role in discrimination against minority groups." (citation omitted)); Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 673 (1993) (O'Connor, J., dissenting, joined by Blackmun, J.) (describing plaintiff's complaint as being that "preferences were awarded to groups against whom no discrimination ever had occurred in the city"); Georgia v. McCollum, 505 U.S. 42, 57 (1992) ("It is an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens based upon their race."); Metro Broad., Inc. v. FCC, 497 U.S. 547, 575 (1990) (describing the program as giving "a lottery preference to minorities and other historically underrepresented groups"), overruled by Adarand, 115 S. Ct. at 2097; Johnson v. Transportation Agency, 480 U.S. 616, 642-43 (1987) (Stevens, J., concurring) ("Prior to 1978 the Court construed the Civil Rights Act of 1964 as an absolute blanket prohibition against discrimination which neither required nor permitted discriminatory preferences for any group, minority or majority."); Bakke, 438 U.S. at 292 (Powell, J.) (asserting that the Equal Protection Clause covers "all ethnic groups seeking protection from official discrimination"); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279 (1976) (Marshall, J.) ("[Title VII] 'prohibit[s] [d]iscriminatory preference for any [racial] group, minority or majority.'" (third and fourth alterations in original) (emphasis and internal quotation marks omitted)); Washington v. Davis, 426 U.S. 229, 239 (1976) (stating that the Constitution "prohibit[s] the United States from invidiously discriminating between individuals or groups"); DeFunis v. Odegaard, 416 U.S. 312, 338 (Douglas, J., dissenting) ("[W]hat standard is the Court to apply when a rejected applicant of Japanese ancestry brings suit to require the University of Washington to extend the same privileges to his group?"); Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) ("Discriminatory preference for any group, minority or majority, is precisely and only what [Title VII] has proscribed."); Korematsu v. United States, 323 U.S. 214, 240 (1944) (Murphy, J., dissenting) (acts of "individual disloyalty [do not] justify discriminatory action against the entire group").

33.      Exec. Order No. 10,925, 3 C.F.R. 448, 449-50 (1959-1963), reprinted in 1961 U.S.C.C.A.N. 1274, 1276 (1961) (emphasis added) ("The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."); see Middleton v. City of Flint, 92 F.3d 396, 404 n.6 (6th Cir. 1996) (noting how the meaning of "affirmative action" has been transformed from nondiscrimination to preferential treatment).

34.      See, e.g., 29 C.F.R. § 1608.1 n.4 (1996) (providing the main guideline related to affirmative action under Title VII) ("Affirmative action often improves opportunities for all members of the workforce, as where affirmative action includes the posting of notices of job vacancies. Similarly, the integration of previously segregated jobs means that all workers will be provided opportunities to enter jobs previously restricted."); 29 C.F.R. § 1608.3(c)(3) (1996) (defining affirmative action as including "[e]limination of the adverse impact caused by unvalidated selection criteria"); cf. LOS ANGELES CITY COUNCIL, LAPD GENDER BALANCE AND REFORM MOTION, reprinted in Neil Gotanda et al., Legal Implications of Proposition 209--The California Civil Rights Initiative, 24 W. ST. U. L. REV. 1, 110 app. B (1996) (attempting to remove obstacles to women applicants by eliminating physical tests that are irrelevant to job performance).

35.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 32 (Argument in Favor of Proposition 209) ("Proposition 209 . . . allows any program that does not discriminate, or prefer, because of race or sex."), reprinted in Appendix B; id. at 33 (Rebuttal to Argument Against Proposition 209) ("Affirmative action programs that don't discriminate or grant preferential treatment will be UNCHANGED."), reprinted in Appendix B. "[A]ny statement to the effect that Proposition 209 repeals affirmative action programs would be overinclusive and hence 'false and misleading.'" Lungren v. Superior Court, 48 Cal. App. 4th 435, 442, 55 Cal. Rptr. 2d 690, 694 (1996).

36.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 33 (Rebuttal to Argument Against Proposition 209) ("Note that Proposition 209 doesn't prohibit consideration of economic disadvantage. . . . The state must remain free to help the economically disadvantaged, but not on the basis of race or sex to continue."), reprinted in Appendix B; id. at 31 (Analysis by the Legislative Analyst) ("[A] high school outreach program . . . that currently uses a factor such as ethnicity to target spending could be changed to target instead high schools with low percentages of UC or CSU applications."), reprinted in Appendix B.

37.      See, e.g., Hernandez v. New York, 500 U.S. 352, 375 (1991) (holding that it is not national origin discrimination to classify based on whether one knows a particular language).

38.      See, e.g., Personnel Adm'r v. Feeney, 442 U.S. 256, 274 (1979); Washington v. Davis, 426 U.S. 229, 242 (1976).

39.      See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2113 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).

40.      See, e.g., Grimes v. Sobol, 832 F. Supp. 704, 708, 710, 713 (S.D.N.Y. 1993) (rejecting claim that "emphasis on European history" and implementation of a "Holocaust Curriculum and an Italian Heritage Curriculum" without "a special curriculum to focus on issues of particular importance to African Americans" constituted discrimination against blacks), aff'd, 37 F.3d 857 (2d Cir. 1994); Grimes v. Cavazos, 786 F. Supp. 1184, 1185, 1192 (S.D.N.Y. 1992) (rejecting claim that "curriculum of New York City schools favoring European culture and disfavoring non-European cultures" constituted discrimination against blacks); see also Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983) (rejecting claim that providing documents only in English discriminated against Hispanics; "the Secretary's failure to provide forms and services in the Spanish language, does not on its face make any classification with respect to Hispanics as an ethnic group"). The cases acknowledge that the plaintiffs could have won had the programs been intentionally aimed at disadvantaging racial minorities, but of course any program--whether race-themed or not--that intentionally disadvantages a racial group is unconstitutional, even without the CCRI. Davis, 426 U.S. at 239.

41.      Croson, 488 U.S. at 526 (Scalia, J., concurring in the judgment).

42.      See, e.g., Exec. Order No. 11,246, 3 C.F.R. 167, 168 (Supp. 1965), reprinted in 42 U.S.C. § 2000e (1994) (banning discrimination in "employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training"); id. at 170 (requiring compliance as to "recruitment, employment, and the terms and conditions of employment"); 28 C.F.R. § 42.104(c)(1) (1996) (interpreting Title VII ban on discrimination as applying to "recruitment or recruitment advertising"); 29 C.F.R. § 1630.4(a) (1996) (interpreting the ban on discrimination in the Americans with Disabilities Act as applying to "[r]ecruitment, advertising, and job application procedures"); CAL. CODE REGS. tit. 2, § 7287.3(a) (1995) (interpreting employment discrimination ban as applying to "recruitment" and "[c]ommunicat[ion] or us[e of] advertising methods to communicate the availability of employment benefits in a manner intended to discriminate"); id.§ § 7295.2(b), 7295.4(a)(1) (interpreting employment discrimination ban as applying to "recruitment" and "advertising"); CAL. CODE REGS. tit. 22, § 100760(a) (1993) (interpreting discrimination ban as applying to "recruitment or recruitment advertising").

43.      See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 (1977); EEOC v. Consolidated Serv. Sys., 989 F.2d 233, 236 (7th Cir. 1993) (holding that intentional discrimination in recruitment is employment discrimination); United States v. Massachusetts Maritime Academy, 762 F.2d 142, 153-54 (1st Cir. 1985); Castaneda v. Pickard, 648 F.2d 989, 1003 (5th Cir. Unit A June 1981); Markey v. Tenneco Oil Co., 635 F.2d 497, 500 (5th Cir. Jan. 1981); Reed v. Arlington Hotel Co., 476 F.2d 721, 724 (8th Cir. 1973); see also Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621, 625 n.7 (D.C. Cir. 1978) (en banc) (referring to "evidence of recruiting aimed selectively at one minority"); cf. Almonte v. Pierce, 666 F. Supp. 517, 527 (S.D.N.Y. 1987) (noting that "[l]ack of intent defeats the constitutional claims of discrimination in marketing," in reference to an outreach program for potential housing applicants).

44.      City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (setting this forth as a test for what constitutes "discrimination").

45.      See, e.g., Peter Scheer, Prop 209: Not as Radical as Advertised, RECORDER (S.F.), Nov. 8, 1996, at 4, available in LEXIS, News Library, Papers File (distinguishing targeted outreach from "policies that rig the award of government benefits--jobs, contracts, college admissions--on the basis of race").

46.      When the "language and objectives of [California law] closely parallel the language and objectives of [related federal law], [California courts] refer to federal decisions where appropriate." Stephens v. Coldwell Banker Commercial Group, Inc., 199 Cal. App. 3d 1394, 1399, 245 Cal. Rptr. 606, 609 (1988); see also Belridge Farms v. Agricultural Labor Relations Bd., 21 Cal. 3d 551, 557, 580 P.2d 665, 669, 147 Cal. Rptr. 165, 169 (1978); Anaheim Elementary Educ. Ass'n v. Board of Educ., 179 Cal. App. 3d 1153, 1157, 225 Cal. Rptr. 468, 471 (1986); Public Employees Assoc., Inc. v. Board of Supervisors, 167 Cal. App. 3d 797, 806-07, 213 Cal. Rptr. 491, 497 (1985). Of course, to the extent that the language or context of the state provision differs from the federal one, the federal cases stop being a useful guide. See, e.g., Williams v. Superior Court, 5 Cal. 4th 337, 351, 852 P.2d 377, 385-86, 19 Cal. Rptr. 2d 882, 890-91 (1993); Union Asphalt, Inc. v. Planet Ins. Co., 21 Cal. App. 4th 1762, 1768-69, 27 Cal. Rptr. 2d 371, 375 (1994). Cf. CALIFORNIA BALLOT PAMPHLET, supra note 8, at 31 (Analysis by the Legislative Analyst) ("[T]he measure would affect a variety of public school and community college programs such as . . . outreach . . . in those cases where the programs provide preferences to individuals or schools based on race, sex, ethnicity, or national origin."), reprinted in Appendix B; id. ("[Outreach] targeted to individuals based on sex, race, or ethnicity . . . probably would be affected by passage of this measure."), reprinted in Appendix B.

47.      Neil Gotanda suggests that I once argued the contrary, quoting me as saying that "[t]he CCRI would effectively prohibit [discrimination and preferences], while leaving intact outreach and other nonpreferential forms of affirmative action." Neil Gotanda, Failure of the Color-Blind Vision: Race, Ethnicity, and the California Civil Rights Initiative, 23 HASTINGS CONST. L.Q. 1135, 1146 (1996) (quoting Sally Pipes & Eugene Volokh, Women Need Not Fear the Civil Rights Initiative, L.A. TIMES, Jan. 24, 1996, at B9). I confess that the statement in the Pipes & Volokh article was ambiguous. We meant "nonpreferential outreach and other nonpreferential forms of affirmative action"--that's why we said "other nonpreferential" forms--and should have said so more clearly. This, though, was only an accidental ambiguity; I have always expressed the view that the CCRI would allow only nonpreferential outreach. See, e.g., Phil Garcia, Prop. 209 Foes Focus on Threat to Outreach Programs, SACRAMENTO BEE, July 28, 1996, at A3 ("'If an outreach program treats somebody differently on the basis of their race or sex, then that is impermissible and the program has to be changed,' said Eugene Volokh.").

      The campaign as a whole said the same. See, e.g., K.L. Billingsley, Of Spouses, School and Skin Color, WASH. TIMES, Feb. 28, 1996, at A21 ("While opposing racial preferences, [campaign chairman Ward] Connerly favors outreach programs based on economic status."); Ira Eisenberg, Dissenting Opinions, RECORDER (S.F.), June 10, 1996, at 1, available in LEXIS, News Library, Papers File ("[Tom] Wood, the co-author of CCRI, says he supports [outreach and recruitment programs]. He says the measure would not abolish them: 'It only requires that they provide equal access' to everyone."); Garcia, supra (quoting one of the co-authors of the initiative, Glynn Custred, as advocating nondiscriminatory outreach: "Supporters of the initiative say it would change, but not necessarily eliminate, outreach efforts"); Ed Mendel, College Heads Hit Anti- Affirmative Action Measure, SAN DIEGO UNION-TRIB., Oct. 18, 1996, at A3 ("A spokeswoman for Proposition 209 said that the so-called California Civil Rights Initiative would allow Student Ambassadors and similar outreach programs if they do not discriminate or give preferences based on race or gender."); Ruben Navarrette Jr., Affirmative Action: Will Outreach Programs Be the Next Target?, L.A. TIMES, July 28, 1996, at M6 ("Connerly says he is a long-time advocate of outreach, . . . [b]ut he has reservations concerning race-based programs[;] . . . students of all colors who need outreach should get it."); James Richardson, Campus Is Key Battlefield in Fight over Racial Preferences, SACRAMENTO BEE, Sept. 15, 1996, at A1 ("[Campaign chairman Ward] Connerly said that if the ballot measure passes he will push his fellow regents to force the UC administration to radically shift outreach programs away from race. 'I will be insistent that we go back to these programs and make sure they are strictly not race-based,' Connerly said.").

48.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 33 (Rebuttal to Argument Against Proposition 209) ("Programs designed to ensure that all persons--regardless of race or gender--are informed of opportunities . . . will continue as before."), reprinted in Appendix B.

49.      See id. at 31 (Analysis by the Legislative Analyst) ("[A] high school outreach program . . . that currently uses a factor such as ethnicity to target spending could be changed to target instead high schools with low percentages of UC or CSU applications."), reprinted in Appendix B.

50.      See EEOC v. Consolidated Serv. Sys., 989 F.2d 233, 236 (7th Cir. 1993) (commenting that where "[n]o inference of intentional discrimination can be drawn from the [recruiting] pattern," the recruiting is not discriminatory); Almonte v. Pierce, 666 F. Supp. 517, 527 (S.D.N.Y. 1987) (noting that the "[l]ack of intent defeats the constitutional claims of discrimination" in outreach in housing).

      The black-letter constitutional rule is that even ostensibly race-neutral rules are treated as discriminatory if they are intended to discriminate. See, e.g., Miller v. Johnson, 115 S. Ct. 2475, 2483 (1995) (citing Arlington Heights and applying the same rule to action intended to favor racial minorities); Shaw v. Reno, 509 U.S. 630, 642-43 (1993) (citing Arlington Heights); Hunter v. Underwood, 421 U.S. 222 (1985); City of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976). The Court has on a few occasions made statements that might suggest the contrary: City of Richmond v. J.A. Croson Co. characterized certain "means to increase minority business participation in city contracting" as "race-neutral," though such means seem to be motivated by a desire to favor particular racial groups, 488 U.S. 469, 507 (1989), and Adarand Constructors, Inc. v. Pena quoted this same language, 115 S. Ct. 2097, 2118 (1995). Neither case remarked on the tension between such an assertion and Hunter, Arlington Heights, and Washington v. Davis; but Adarand, which was decided on the same day as Shaw v. Reno, did appear to cite Washington v. Davis and Arlington Heights as the proper general test for "laws that, although facially race neutral, result in racially disproportionate impact and are motivated by a racially discriminatory purpose." See also Croson, 488 U.S. at 509 (discussing the need for the government to consider "race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races," which seems to contemplate a nonracial goal as well as facially race-neutral means).

      In my view, the clear holding of Shaw, Miller, Hunter, Arlington Heights, and Washington v. Davis should prevail over any possible contrary hints in Croson and Adarand; facially race-neutral programs that are intended to discriminate (even for "benign" reasons) should, as Shaw and Miller recognized, be treated as racial discrimination. This is especially apt when these federal constitutional law principles are adapted to the CCRI, whose core purpose--whether one approves of it or not--is to do away with different standards for programs that benefit whites and programs that benefit minorities. See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 32 (Argument in Favor of Proposition 209 and Rebuttal to Argument Against Proposition 209), reprinted in Appendix B; see also cases cited supra note 46 (discussing uses and limitations of reference to federal law in interpreting California law).

51.      See Statement by Molly Munger, Debate at Temple Sinai; Statement by Professor Laurie Levenson, before the Board of Rabbis of Southern California (Oct. 1, 1996); Sandy Sohcot, Between the Lines of the Civil Rights Initiative, S.F. BUS. TIMES, May 24, 1996 ("This omission [of 'religion'] would allow the state to grant 'preferences' based on religious affiliation."); see also Gary Phillips, Leading the Nation Back in Time, RECORD (N.J.), May 3, 1996, at N7, available in LEXIS, News Library, Papers File (incorrectly identifying noted Christian constitutional scholar Professor Michael McConnell as "one of the initial drafters of California's prohibition measure," and saying that "[i]nterestingly, the one category the California Civil Rights Initiative does infer [sic] discrimination is in the area of religion").

52.      California constitutional provisions do not implicitly repeal existing ones unless the new ones are in "irreconcilable conflict" with the old. See infra Part II.A.2.

53.      A few antidiscrimination statutes in other states actually seem to tolerate religion-based affirmative action programs. See GA. CODE ANN. § § 45-19-27(8), 45-19-29(3), 45-19-35(c), 45-19-38(c)(7) (1990 & Supp. 1996); KAN. STAT. ANN. § 44-1009(b) (1993); LA. REV. STAT. ANN. § 51:2246(B) (West Supp. 1997); OHIO REV. CODE ANN. § 4112.04(A)(10) (Banks-Baldwin 1994); OKLA. STAT. ANN. tit. 25, § 1310 (West 1987); TENN. CODE ANN. § 4-21-406(b) (1991). All these statutes, however, mention religion only in passing, alongside race, sex, and other categories; I've seen no cases that have upheld any religion-based programs under these statutes, much less programs conducted by the government.

54.      See Larson v. Valente, 456 U.S. 228 (1982); Walker v. Superior Court, 47 Cal. 3d 112, 145 & n.1, 763 P.2d 852, 874 & n.1, 253 Cal. Rptr. 1, 23 & n.1 (1988) (Mosk, J., concurring).

55.      See Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1216-17 (5th Cir. 1991). The court rested its reasoning on "[t]he unique guardian-ward relationship between the federal government and Native American tribes[, which] precludes the degree of separation of church and state ordinarily required by the First Amendment." Id. at 1217. This is a tough case, which stands at the intersection of the religious equality guarantee and the special treatment owed by the federal government to the quasi-sovereign Indian nations. The case certainly does not show any willingness by courts to generally tolerate sectarian discrimination.

56.      See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987) (holding that accommodations of religious practice may be limited only to those who engage in the practice for religious reasons).

57.      See Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 715-16 (1994) (O'Connor, J., concurring in part and in the judgment).

58.      See Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 715-16 (1981); Wilson v. NLRB, 920 F.2d 1282, 1288 (6th Cir. 1990).

59.      Under federal and state antidiscrimination statutes, under the federal Religious Freedom Restoration Act, and possibly under the state Free Exercise Clause, the government must provide certain exemptions from neutral rules for religious observers. See CAL. CONST. art. I, § 4; 42 U.S.C. § § 2000e(j), 2000e-2(a) (1994) (Title VII); id. § 2000bb (Religious Freedom Restoration Act); CAL. GOV'T CODE § 12940(j) (West 1992 & Supp. 1997). A broad ban on all religious discrimination (including discrimination based on religious belief, and not just sectarian affiliation) could theoretically coexist with these laws. It would simply require government employers to provide these exemptions for all people who wanted them--for instance, to people who wanted Saturdays off to be with their families--and not just those who wanted them for religious reasons. This, however, might impose too much of a burden on the public employer.

60.      See infra Part I.F.3.

61.      Ethnic groups may be considered "races" for purposes of the Civil Rights Act of 1866, because that was the usage when the Act was written. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (treating Arabs as a "race"); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987) (treating Jews as a "race"). In modern usage, however, most ethnic groups would not be considered separate races.

62.      See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973) (defining "national origin" as "the country where a person was born, or, more broadly, the country from which his or her ancestors came"); 29 C.F.R. § 1606.1 (1996) (defining "national origin" as "an individual's, or his or her ancestor's, place of origin," or as possession of "physical, cultural or linguistic characteristics of a national origin group"). Of course, Jews might be seen as having a "national origin" in Palestine 2000 years ago, but cases dealing with ethnic (as opposed to religious) discrimination against Jews generally speak in terms of ethnicity rather than national origin. See, e.g., Hampel v. City of Denver, 886 F. Supp. 756 (D. Colo. 1994).

63.      See, e.g., East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405 (1977); Malhotra v. Cotter & Co., 885 F.2d 1305, 1308 (7th Cir. 1989).

64.      See WESTERN STATE, supra note 3, at 15-16.

65.      E.g., CAL. CONST. art. I, § 8 ("ethnic origin"); id. art. IX, § 9(f) ("ethnic heritage"); 12 U.S.C. § 1823(d)(4)(D)(iv) (1994) ("ethnic group"); 22 U.S.C. § 262p-4n (1994) ("ethnicity"); CAL. EDUC. CODE § 260 (West 1994) ("ethnic group identification"); CAL. GOV'T CODE § 1233 (West 1995) ("ethnic group").

66.      Of course, many such classifications may already be forbidden by other constitutional provisions. See, e.g., Sugarman v. Dougall, 413 U.S. 634 (1973) (reading the Equal Protection Clause as imposing some restrictions on classifications that turn on U.S. citizenship).

67.      See Espinoza, 414 U.S. at 90-91.

68.      See Mahdavi v. Fair Employment Practice Comm'n, 67 Cal. App. 3d 326, 336-37, 136 Cal. Rptr. 421, 425-26 (1977).

69.      See supra note 4.

70.      See Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987) (holding that Jews are a "race" for purposes of the Civil Rights Act of 1866, 42 U.S.C. § 1982; while this turned on the usage of "race" in 1866, a usage that is now largely obsolete, the modern analog would in fact be "ethnicity"); Salehi v. INS, 796 F.2d 1286, 1288 (10th Cir. 1986) (accepting a claim of fear of persecution based on "Jewish ethnic and religious background"); Hampel v. City of Denver, 886 F. Supp. 756, 758 (D. Colo. 1994) (accepting a Title VII claim of discrimination based on "Jewish ethnicity").

71.      Morton v. Mancari, 417 U.S. 535, 553 n.24 (1974); see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 304 n.42 (1978) (Powell, J.) (distinguishing the preference for blacks, Hispanics, and Asians in UC Davis admissions from the preference for tribal Indians in Mancari on the grounds that the Mancari "preference was not racial at all"); Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1215-16 (5th Cir. 1991) (likewise concluding that preference for tribal Indians was "a political classification" rather than "a racial classification"); Long v. Chemehuevi Indian Reservation, 115 Cal. App. 3d 853, 860, 171 Cal. Rptr. 733, 737 (1981) ("[T]he sovereign immunity of the Indian tribes is based on political, rather than racial, considerations and does not violate equal protection under either state or federal Constitutions."); Krueth v. Independent Sch. Dist. No. 38, 496 N.W.2d 829, 836 (Minn. Ct. App. 1993) ("[P]references for American Indians are not racial but political when the preferences apply to members of federally recognized tribes."); cf. In re Bridget R., 41 Cal. App. 4th 1483, 1509-10, 49 Cal. Rptr. 2d 507, 528 (1996) (holding that discrimination based on tribal status is permissible only so long as the particular Indian has "social, cultural or political tribal affiliations"--apparently beyond mere membership--with his tribe; this, though, is the only case I've seen that has required such a fact-specific inquiry).

      Of course, Indian-tribe membership is generally restricted to people who belong to a particular racial group, which is why the theory that Indian-tribe membership is a "political rather than racial" classification is somewhat controversial. For differing views on this, see Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 YALE L.J. 537 (1996); Carole Goldberg-Ambrose, Not "Strictly" Racial: A Response to "Indians as Peoples," 39 UCLA L. REV. 169 (1991); David C. Williams, The Borders of the Equal Protection Clause: Indians as Peoples, 38 UCLA L. REV. 759 (1991).

72.      Cf. Krueth, 496 N.W.2d at 836 n.3 (drawing an analogy between discrimination based on Indian-tribe membership and discrimination based on state citizenship). Of course, discrimination based on state or federal citizenship may sometimes be unconstitutional, but not because it is seen as an ethnic classification. See Supreme Court v. Piper, 470 U.S. 274 (1985); Sugarman v. Dougall, 413 U.S. 634 (1973).

73.      But see Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 495 So. 2d 790, 793-94 (Fla. Dist. Ct. App. 1986) (concluding that a Florida state law banning race discrimination might be broader than the federal ban and might prohibit all preferences for Indians; the case cites Morton v. Mancari as an example of the "Indian preference" policy, but did not specifically discuss the distinction between preferences for tribal Indians and preferences for Indians generally).

      There was, to the best of my knowledge, no discussion during the campaign of the CCRI's impact on preferences for American Indians.

74.      See Johnson v. Shalala, 35 F.3d 402, 405 (9th Cir. 1994) (treating claim of discrimination based on being an American Indian as a race discrimination claim); Tuttle v. Henry J. Kaiser Co., 863 F.2d 601 (8th Cir. 1988) (same).

75.      See 42 U.S.C. § 2000e-2(e) (1994); CAL. GOV'T CODE § 12940 (West 1992 & Supp. 1997).

76.      Cf. CAL. CODE REGS. tit. 8, § 1526 (1997) (mandating sex-segregated bathroom facilities at construction sites).

77.      Cf. CAL. EDUC. CODE § 41(c) (West 1994) ("Nothing in this section shall be construed to require a school district to require competition between male and female students in school-sponsored athletic programs.").

78.      Cf. CAL. GOV'T CODE § 12995(a)(2) (West 1992 & Supp. 1997) (exempting educational institutions that provide housing reserved for male or female students from state-imposed barriers to sex discrimination in housing).

79.      Cf. CAL. CODE REGS. tit. 15, § 4714 (1997) (requiring body cavity searches in California Youth Authority facilities to be same-sex); Susan Sward, Two Men Participate in Girl's Strip Search at Juvenile Hall, S.F. CHRON., Feb. 17, 1996, at A13.      Some cross-sex prison searches, and perhaps sex-integrated bathrooms or dorm rooms, might also be prevented by a federal constitutional right of privacy, whether grounded in the Fourth Amendment, the Eighth Amendment, or in substantive due process. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1530-31 (9th Cir. 1993) (en banc) (holding cross-gender clothed body searches conducted on female inmates to be a violation of the Eighth Amendment). But the scope of this constitutional protection is extremely vague, and likely quite narrow. See, e.g., id. at 1522 (covering only "random, non-emergency, suspicionless clothed body searches"). It would have been a mistake to rely solely on this constitutional protection.

80.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 33 (Rebuttal to Argument Against Proposition 209) ("Proposition 209 adds NEW PROTECTION against sex discrimination on top of existing ones, which remain in full force and effect. It does NOTHING to any existing constitutional provisions."), reprinted in Appendix B; id. at 32 (Argument in Favor of Proposition 209) ("And, remember, Proposition 209 keeps in place all federal and state protections against discrimination!"), reprinted in Appendix B.

81.      See CAL. CONST. art. I, §& #167 7(a), 8; Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 17, 485 P.2d 529, 539, 95 Cal. Rptr. 329, 339 (1971). Section 7(a) deals with discrimination generally; section 8 deals only with discrimination in employment and in occupational licensing. I speak generally of the "preexisting equal protection provisions" because there are two such provisions in the California Constitution, rather than just the one Equal Protection Clause in the federal Constitution.

82.      See International Paper Co. v. Ouellette, 479 U.S. 481, 493 (1987) (interpreting a "nothing in this section" provision precisely this way); see also CAL. CONST. art. I, § 28 (using "nothing in this section" this way); id. art. XIV, § 5; id. art. XVI, § 1.5; Unruh Civil Rights Act, CAL. CIV. CODE § 51 (West 1982); id. § § 51.8, 54.1, 56.20 (West 1982 & Supp. 1997); CAL. EDUC. CODE § § 230, 72015 (West 1997); CAL. GOV'T CODE § § 12940, 12947.5 (West 1992 & Supp. 1997).

83.      In my view, this point is so clear that I would normally not have even considered writing this subsection. Nonetheless, because much of the anti-CCRI campaign focused on the claim that the CCRI does indeed partly repeal existing prohibitions on sex discrimination, I feel it necessary to respond to this claim here. For just a small sampling of this anti-CCRI argument, see, for example, WESTERN STATE, supra note 3; Chemerinsky & Levenson, supra note 3, at B9 (claiming that the CCRI "would eliminate all affirmative action" and would also partly repeal existing bans on sex discrimination); Ira Eisenberg, Top Legal Scholars Dispute Claims That a Ban on State Affirmative Action Would Hit Women Hardest, RECORDER (S.F.), June 10, 1996, at 1; Dianne Feinstein, Debating Affirmative Action: 'Mend It but Don't End It,' SAN DIEGO UNION-TRIB., May 26, 1996, at G1; Ed Mendel, Foes Say Flaw in Prop. 209 Will Hurt Women, SAN DIEGO UNION-TRIB., Oct. 8, 1996, at A1.

84.      "It is a settled precept of statutory construction that a special statute will not be construed to effect a repeal of a more general statute unless the two are irreconcilable and in direct conflict with each other." Woolley v. Embassy Suites, Inc., 227 Cal. App. 3d 1520, 1527, 278 Cal. Rptr. 719, 722 (1991).

85.      Western Oil & Gas Ass'n v. Monterey Bay Unified Air Pollution Control Dist., 49 Cal. 3d 408, 419, 777 P.2d 157, 163-64, 261 Cal. Rptr. 384, 390-91 (1989) (alteration in original) (citations omitted). "[T]he law shuns repeals by implication, particularly where, as here, the prior act has been generally understood and acted upon." Board of Supervisors v. Lonergan, 27 Cal. 3d 855, 868, 616 P.2d 802, 810, 167 Cal. Rptr. 820, 828 (1980) (internal quotation marks omitted). "Repeal by implication only arises when there is an irreconcilable conflict between a new enactment and existing legislation." Metropolitan Water Dist. v. Dorff, 138 Cal. App. 3d 388, 396, 188 Cal. Rptr. 169, 174 (1982); see also Roberts v. City of Palmdale, 5 Cal. 4th 363, 379, 853 P.2d 496, 505, 20 Cal. Rptr. 2d 330, 339 (1993); Droeger v. Friedman, Sloan & Ross, 54 Cal. 3d 26, 43, 812 P.2d 931, 942, 283 Cal. Rptr. 584, 595 (1991); Kennedy Wholesale, Inc. v. State Bd. of Equalization, 53 Cal. 3d 245, 249, 806 P.2d 1360, 1362-63, 279 Cal. Rptr. 325, 328 (1991); Dew v. Appleberry, 23 Cal. 3d 630, 591 P.2d 509, 513, 153 Cal. Rptr. 219, 222-23 (1979); Aalgaard v. Merchants Nat'l Bank, Inc., 224 Cal. App. 3d 674, 694, 274 Cal. Rptr. 81, 94 (1990) ("[A] repeal by implication cannot be asserted as to [various entities involved in the case] because there is no conflict as to them between [the statutory provisions]."); California Bldg. Indus. Ass'n v. Governing Bd., 206 Cal. App. 3d 212, 229-30, 253 Cal. Rptr. 497, 506 (1988) ("[I]mplied partial repeal . . . [is] to be avoided whenever possible. . . . [T]here is no need to find an implied partial repeal of [one provision] because [the other provision] is not irreconcilable with [the first]."); In re Anthony R., 154 Cal. App. 3d 772, 777, 201 Cal. Rptr. 299, 301 (1984) ("[I]mplied repeals are not favored and will not be found unless no rational basis appears for harmonizing the two laws. Here . . . there is no conflict to harmonize."); State Bd. of Equalization v. Board of Supervisors, 105 Cal. App. 3d 813, 822, 164 Cal. Rptr. 739, 744 (1980).

86.      People v. Wheeler, 4 Cal. 4th 284, 293, 841 P.2d 938, 943, 14 Cal. Rptr. 2d 418, 423 (1992). "A special act will not be considered an exception to the general statute unless the two acts are so inconsistent that there is no possibility of concurrent operation, or where the later act gives undebatable evidence of an intent to supersede the earlier." Woolley, 227 Cal. App. 3d at 1527, 278 Cal. Rptr. at 723; see Department of Personnel Admin. v. Superior Court, 5 Cal. App. 4th 155, 191, 6 Cal. Rptr. 2d 714, 735 (1992); see also Salazar v. Eastin, 9 Cal. 4th 836, 857, 890 P.2d 43, 56, 39 Cal. Rptr. 2d 21, 34 (1995) ("To the extent a specific statute is inconsistent with a general statute potentially covering the same subject matter, the specific statute must be read as an exception to the more general statute." (emphasis added)); People v. General Motors Corp., 44 Cal. App. 4th 282, 51 Cal. Rptr. 2d 651 (1996); People v. Garcia, 115 Cal. App. 3d 85, 109, 171 Cal. Rptr. 169, 184 (1981).

87.      Cf. Opponents' Petition for Writ of Mandate at 4, Packard v. Jones, No. 96CS02065 (Cal. Super. Ct. filed July 26, 1996) (arguing that the CCRI is supposedly "a re-write of Article I § § 7 and 8" and "establishes itself as the new governing law in those areas").

88.      See Lonergan, 27 Cal. 3d at 868, 616 P.2d at 810, 167 Cal. Rptr. at 828.

Id. at 808, 616 P.2d at 810, 167 Cal. Rptr. at 828 (emphasis added) (internal quotation marks omitted); see also Roberts, 5 Cal. 4th at 379, 853 P.2d at 505, 20 Cal. Rptr. 2d at 339 (same); Droeger, 54 Cal. 3d at 43, 812 P.2d at 942, 283 Cal. Rptr. at 595 (same); Singh v. Board of Retirement, 41 Cal. App. 4th 1180, 1190, 49 Cal. Rptr. 2d 220, 227 (1996) (same).

89.      Lonergan, 27 Cal. 3d at 868, 616 P.2d at 810, 167 Cal. Rptr. at 828 (emphasis added) (citation omitted). "[W]here a newly enacted statute revises the entire subject matter of an existing statute, the later statute may be said to repeal the earlier statute by implication." Department of Personnel Admin. v. Superior Court, 5 Cal. App. 4th at 191, 6 Cal. Rptr. 2d at 714, 735 (emphasis added); see also ITT World Communications, Inc. v. City of San Francisco, 37 Cal. 3d 859, 866, 693 P.2d 811, 817, 210 Cal. Rptr. 226, 231-32 (1985); California Bldg. Indus. Ass'n, 206 Cal. App. 3d at 229-30, 253 Cal. Rptr. at 506.

90.      Lonergan, 27 Cal. 3d at 869, 616 P.2d at 810, 167 Cal. Rptr. at 828 (citations omitted).

91.      42 U.S.C. § 2000e-2(e)(1) (1994).

92.      Dothard v. Rawlinson, 433 U.S. 321, 334 (1977); see also Bohemian Club v. Fair Employment & Hous. Comm'n, 187 Cal. App. 3d 1, 19, 231 Cal. Rptr. 769, 780 (1986) (following Title VII in interpreting bona fide qualification language); Department of Fair Employment & Hous. v. Callidac, Inc., No. 93-03, 1993 WL 726825, at *7-*9 (Cal. FEHC Mar. 4, 1993). See supra note 69, which cites cases indicating that language borrowed from another statute should be interpreted the same way it was interpreted in the original statute.

93.      People v. Weidert, 39 Cal. 3d 836, 845-46, 705 P.2d 380, 385, 218 Cal. Rptr. 57, 62 (1985) (internal quotation marks and citations omitted); see also Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979); In re Jeanice D., 28 Cal. 3d 210, 216, 617 P.2d 1087, 168 Cal. Rptr. 455 (1980); In re Markaus V., 211 Cal. App. 3d 1331, 1336, 260 Cal. Rptr. 126, 129 (1989).

94.      Family Violence Prevention and Services Act, 42 U.S.C. § 10406(a)(2) (1994) ("Nothing in this chapter shall [prohibit consideration of an] individual's sex in those certain instances where sex is a bona fide occupational qualification or programmatic factor reasonably necessary to the normal operation of that particular program or activity.").

95.      See, e.g., Livingwell (North) Inc. v. Pennsylvania Human Relations Comm'n, 606 A.2d 1287, 1291 (Pa. Commw. Ct. 1992); cf. COLO. REV. STAT. ANN. § 24-34-601 (West 1988 & Supp. 1996) (barring sex discrimination in public accommodations but excepting cases in which "such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation"); HAW. REV. STAT. ANN. § 489-4 (Michie 1995) (similar exception for "bona fide requirements to protect personal rights of privacy"); 775 ILL. COMP. STAT. ANN. 5/5-103(B), 25/1 (West 1993) (allowing exemptions "based on bona fide considerations of public policy"); N.Y. EXEC. LAW § 296(2)(b) (McKinney 1993) (same); TENN. CODE ANN. § 4-21-503 (1991) (same).      See also 96 Op. Kan. Att'y Gen. 1 (1996) (citing University of Kansas antidiscrimination policy that bars sex discrimination in "rights or benefits" of students, faculty, and employees "unless sex is a bona fide qualification"); cf. IOWA CODE ANN. § 216.9 (West 1994) ("Nothing in this section shall be construed as prohibiting any bona fide religious institution from imposing [educational] qualifications based on religion when such qualifications are related to a bona fide religious purpose . . . .").

96.      See CAL. HEALTH & SAFETY CODE §§ 1317(b), 1317.3(b) (West 1990 & Supp. 1997) (prohibiting sex discrimination in treatment by hospitals unless "a circumstance such as . . . sex . . . is medically significant to the provision of appropriate medical care to the patient").

97.      See, e.g., Eisenberg, supra note 83, at 1; Feinstein, supra note 83, at G1; Mendel, supra note 83, at A1.

98.      See UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991) (stressing that "occupational qualification" refers "to qualifications that affect an employee's ability to do the job").

99.      CAL. CONST. art. I, § 31, cl. c, reprinted in Appendix A (emphasis added). The clause (c) language is actually closer than many California bona fide qualification provisions to the Title VII language; California statutes often use "bona fide occupational qualification" as shorthand for the longer Title VII phrase, omitting the "reasonably necessary to the normal operation of that particular business or enterprise." See, e.g., CAL. EDUC. CODE § § 230(d), 44066 (West 1994); CAL. GOV'T CODE § § 12940, 12943, 12945, 19701 (West 1992 & Supp. 1997); CAL. UNEMP. INS. CODE § § 1256.2(a), 2073 (West 1986). Nonetheless, California courts uniformly recognize that the shorthand phrase incorporates the Title VII test. See supra cases cited in note 92.

100.      See, e.g., THE CIVIL RIGHTS ACT OF 1964: TEXT, ANALYSIS, LEGISLATIVE HISTORY 333 (1964) (written response by Senator Clark, one of the floor managers of Title VII, to a question regarding the ban on sex discrimination: "Wherever sex is a bona fide qualification . . ."); Civil Rights Act of 1963, H.R. REP. NO. 88-914 (1964) (prototype for Civil Rights Act of 1964) (explaining Title VII, section 705(b) uses of "bona fide qualification for employment" in describing section whose actual text contained the words "bona fide occupational qualification"); 775 ILL. COMP. STAT. ANN. 5/2-104 (West 1993 & Supp. 1996); Myers v. Chestnut Hill College, No. 95-6244, 1996 WL 67612, at *1 (E.D. Pa. Feb. 13, 1996); EEOC v. Madison Community Unit Sch. Dist. No. 12, 818 F.2d 577, 589 (7th Cir. 1987); EEOC Dec. No. 75-12, 1974 WL 3864, at *1 (Aug. 22, 1974); Baker v. Miller, 610 N.E.2d 734, 738 (Ill. App. Ct. 1993).

101.      CALIFORNIA BALLOT PAMPHLET, supra note 8, at 33 (Rebuttal to Argument Against Proposition 209), reprinted in Appendix B. Compare, for whatever it's worth, Eisenberg, supra note 83, at 1 ("[Initiative co-author Tom] Wood also dismisses concerns about the phrase 'bona fide qualifications' and 'reasonably necessary.' The language was lifted nearly verbatim from Title VII of the federal Civil Rights Act."); Marilyn Kalfus, Focus on Politics; Proposition 209, ORANGE COUNTY REG., Oct. 19, 1996, at A18, available in 1996 WL 13260336, at *10 ("YES ON PROP. 209 SAYS: Clause C tracks the language of Title VII of the U.S. Civil Rights Act."); Pamela A. Lewis, No on Prop. 209: Opponents Play the Race Card, S.F. EXAMINER, Sept. 30, 1996, at A17, available in 1996 WL 3718481, at *2 ("Clause (c) was borrowed from the federal Civil Rights Act and California's own Fair Employment and Housing Act."); Gail Heriot, CCRI Opponents Employ a Lame Scare Tactic, ORANGE COUNTY REG., Sept. 4, 1996, at B6, available in 1996 WL 7046243 ("[Clause (c)] tracks the language of Title VII of the United States Civil Rights Act of 1964").

102.      See infra note 114 and accompanying text.

103.      See Family Violence Prevention and Services Act, 42 U.S.C. § 10406(a)(2) (1994); cases cited infra note 167.

104.      Any programs that pass strict scrutiny under the California Constitution would presumably also pass intermediate scrutiny under the U.S. Constitution.

105.      See Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (1994) (excepting traditionally single-sex institutions, institutions aimed at training for the military, scholarships for beauty pageant winners, father/son and mother/daughter activities at universities generally, and other single-sex programs); CAL. EDUC. CODE § 41(c) (West 1994) ("Nothing in this section shall be construed to require a school district to require competition between male and female students in school-sponsored athletic programs."); CAL. EDUC. CODE § 230 (West 1994) (generally barring sex discrimination but allowing administration of sex-specific scholarships established under a will, trust, or similar legal instruments, and requiring equivalent but not sex-integrated athletic programs); CAL. GOV'T CODE § 12995 (West 1992) (generally barring sex discrimination in housing but allowing educational institutions to provide sex-segregated housing for students).

106.      See, e.g., Johnson v. Transportation Agency, 480 U.S. 616 (1987).

107.      See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) ("[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . ."); City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707-08 (1978) ("It is now well recognized that employment decisions cannot be predicated on mere 'stereotyped' impressions about the characteristics of males or females. . . . Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply."); Dothard v. Rawlinson, 433 U.S. 321, 333 (1977) ("[T]he federal courts have agreed that it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes . . . ."); Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 234-36 (5th Cir. 1969); 29 C.F.R. § 1604.2(a)(1)(i)-(ii) (1996).

108.      See UAW v. Johnson Controls, Inc., 499 U.S. 187, 202 (1991); 41 C.F.R. § 60-20.3(i) (1996).

109.      See Johnson Controls, 499 U.S. at 204; 29 C.F.R. § 1604.4(b) (1996) (stating that bona fide qualifications "must be justified in terms of the peculiar requirements of the particular job and not on the basis of a general principle such as the desirability of spreading work").

110.      Dothard, 433 U.S. at 334; see also Bohemian Club v. Fair Employment & Hous. Comm'n, 187 Cal. App. 3d 1, 19, 231 Cal. Rptr. 769, 780 (1986); Department of Fair Employment & Hous. v. Callidac, Inc., No. 93-03, 1993 WL 726825, at *7 (Cal. FEHC Mar. 4, 1993).

111.      Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir. 1971) (emphasis omitted).

112.      Id.; see also, e.g., Reidt v. County of Trempealeau, 975 F.2d 1336, 1339 n.3 (7th Cir. 1992); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981); Bohemian Club, 187 Cal. App. 3d at 21, 231 Cal. Rptr. at 780-82; 29 C.F.R. § 1604.2(a)(2); CAL. CODE REGS. tit. 2, §§ 7286.7(a), 7290.8(a)(3) (1997).

113.      See, e.g., Fernandez, 653 F.2d at 1276-77 (preference of clients in South America for dealing with males cannot make sex into a bona fide qualification); Diaz, 442 F.2d at 389 (preference of airplane passengers for female flight attendants cannot make sex into a bona fide qualification); Ray v. University of Ark., 868 F. Supp. 1104, 1126-27 (E.D. Ark. 1994) (even if race could ever be a bona fide qualification, students' preference for police officers of their own race is insufficient); EEOC v. Sedita, 755 F. Supp. 808, 810-11 (N.D. Ill. 1991) (objections by female health club members to having male instructors do not make sex a bona fide qualification, unless "clients will leave the club if males are employed there"--clients' general preference for a female instructor is not enough); Levendos v. Stern Entertainment, Inc., 723 F. Supp. 1104, 1107 (W.D. Pa. 1989) (perception by employer that male waiters "present a better image" for the restaurant cannot make sex into a bona fide qualification), rev'd on other grounds, 909 F.2d 747 (3d Cir. 1990); Bollenbach v. Board of Educ. of Monroe-Woodbury Cent. Sch. Dist., 659 F. Supp. 1450, 1472 (S.D.N.Y. 1987) (preference of religious parents for male school bus drivers can't make sex into a bona fide qualification); Bohemian Club, 187 Cal. App. 3d at 21, 231 Cal. Rptr. at 781-82 (client preference for male service personnel, based upon the supposed "inhibiting effect women employees might have on men" in a private club, cannot make sex into a bona fide qualification); 7 C.F.R. § 15a.61 (1996); 29 C.F.R. § 1604.2(a)(1)(iii) (1996) (customer/coworker preference can't make sex into a bona fide qualification); 34 C.F.R. § 106.61 (1996); 45 C.F.R. § 86.61 (1996); CAL. CODE REGS. tit. 2, § 7290.8(a)(3) (1997).

114.      See Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 133-34 (3d Cir. 1996); Jones v. Hinds Gen. Hosp., 666 F. Supp. 933, 935-37 (S.D. Miss. 1987); Local 567, AFSCME v. Michigan Council 25, 635 F. Supp. 1010, 1012-14 (E.D. Mich. 1986); Norwood v. Dale Maintenance Sys., Inc., 590 F. Supp. 1410, 1417 (N.D. Ill. 1984); Backus v. Baptist Med. Ctr., 510 F. Supp. 1191, 1193-94 (E.D. Ark. 1981), vacated as moot, 671 F.2d 1100 (8th Cir. 1982); Fesel v. Masonic Home, Inc., 447 F. Supp. 1346, 1354 (D. Del. 1978), aff'd without op., 591 F.2d 1334 (3d Cir. 1979); Spragg v. Shore Care, A.2d 685, 695 (N.J. Super. Ct. App. Div. 1996); Gibson v. West Va. Dep't of Health & Human Resources, 452 S.E.2d 463, 466 (W. Va. 1994); see also 7 C.F.R. § 15a.61 (1996) (treating sex as bona fide qualification for employment in single-sex locker room or toilet facility); 10 C.F.R. § 1040.57 (1996) (same); 34 C.F.R. § 106.61 (1996) (same); 45 C.F.R. § 86.61 (1996) (same); CAL. CODE REGS. tit. 2, § 7290.8(b)-(c):

Cf. Hardin v. Stynchcomb, 691 F.2d 1364, 1373 (11th Cir. 1982) (agreeing that privacy may justify sex-based job assignments, but demanding that the employer try to come up with staffing procedures that "will avoid the clash between privacy rights and equal employment opportunities"); Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, 1086 (8th Cir. 1980) (same); Bohemian Club, 187 Cal. App. 3d at 19-20, 22, 231 Cal. Rptr. at 780, 781-82 (quoting this regulation approvingly, and rejecting a privacy-based bona fide qualification claim).

115.      See Healey, 78 F.3d at 133 (attendants who had to discuss "hygiene, menstrual, and sexuality concerns" with patients at a hospital for emotionally disturbed and sexually abused children); Stone v. Belgrade Sch. Dist. No. 44, 703 P.2d 136, 141 (Mont. 1984) (high school counselors); City of Philadelphia v. Pennsylvania Human Relations Comm'n, 300 A.2d 97, 103-04 (Pa. Commw. Ct. 1973) (counselors at special school for children detained for committing crimes).

116.      Sedita, 755 F. Supp. at 810-11.

117.      Bohemian Club, 187 Cal. App. 3d at 21, 231 Cal. Rptr. at 781-82.

118.      Id. at 22-23, 231 Cal. Rptr. at 782; see also Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir. 1980).

119.      See 29 C.F.R. § 1604.2(a)(2) (1996); CAL. CODE REGS. tit. 22, § 1256.2-1(c) (1996).

120.      St. Cross v. Playboy Club, No. CFS 22618-70 (N.Y. Hum. Rts. App. Bd. 1971); Weber v. Playboy Club, No. CFS 22619-70 (N.Y. Hum. Rts. App. Bd. 1971); see also Wilson v. Southwest Airlines Co., 517 F. Supp. 292, 301 (N.D. Tex. 1981).

121.      See Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971); Levendos v. Stern Entertainment, Inc., 723 F. Supp. 1104, 1107 (W.D. Pa. 1989), rev'd on other grounds, 909 F.2d 747 (3d Cir. 1990); Wilson, 517 F. Supp. at 302-03.

122.      Cf. Diaz, 442 F.2d at 389.

123.      Some of the decisions suggest the question is more empirical, focusing on whether customers would leave the business. See, e.g., EEOC v. Sedita, 755 F. Supp. 808, 810, 811 (N.D. Ill. 1991) (stating that "in order to prove a factual basis for their sex-based hiring, the defendants are required to show that their clients would not consent to service from the opposite sex" and "would stop patronizing [defendant's business] if members of the opposite sex were hired," not just that "customers [would be] offended by the presence" of people of the opposite sex). Other decisions, however, reject this view. See, e.g., Hernandez v. University of St. Thomas, 793 F. Supp. 214, 217 (D. Minn. 1992) (specifically refusing to follow Sedita in determining whether sex was a bona fide qualification for a custodian in a women's dormitory). In my view, the inquiry into likely loss of clients is unsound. Certain dignitary concerns are strong enough that they should be accommodated even if most clients are unable to go elsewhere. Cf. Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 134 (3d Cir. 1996) (approving of sex classification as a means of accommodating privacy concerns of patients at a hospital for emotionally disturbed and sexually abused children and adolescents). Other customer preferences are sufficiently unjustifiable that they ought not be considered even if customers can shift to other businesses. Cf. Diaz, 442 F.2d at 387 (rejecting customer preference justification even though clients "overwhelmingly preferred to be served by female stewardesses").

124.      See Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981); Diaz, 442 F.2d at 389.

125.      See Healey, 78 F.3d at 128 (child care specialist working with emotionally disturbed and sexually abused children and adolescents); Torres v. Wisconsin Dep't of Health & Soc. Servs., 859 F.2d 1523, 1532-33 (7th Cir. 1988) (en banc) (correctional officers specifically engaged in rehabilitation of female prisoners, a large fraction of whom had been abused by men; court stressed narrowness of decision); Long v. California State Personnel Bd., 41 Cal. App. 3d 1000, 116 Cal. Rptr. 562 (1974) (chaplains at facilities for delinquent boys); City of Philadelphia v. Pennsylvania Human Relations Comm'n, 300 A.2d 97, 103 (Pa. Commw. Ct. 1973) (supervisors of children detained for various crimes at a Youth Center; children tended to "have a history of troubled and varied backgrounds"; "[e]motional and social problems [were] the rule and not the exception"); St. John's Home for Children v. West Va. Human Rights Comm'n, 375 S.E.2d 769, 769 (W. Va. 1988) (child care workers supervising "aggressive, emotionally disturbed, violent, male adolescents housed in the boys' cottage of a school for delinquent children"); EEOC Dec. No. 76-130, 1976 WL 5024 (Aug. 10, 1976) (providers of sex education and counseling for mentally handicapped); see also Dothard v. Rawlinson, 433 U.S. 321, 335-37 (1977) (accepting sex as a bona fide occupational qualification for prison guards in an unusually dangerous prison environment, where sex offenders were mixed with the general population); cf. Jatczak v. Ochburg, 540 F. Supp. 698, 704 n.4 (E.D. Mich. 1982) (dictum) (suggesting that sex may be bona fide qualification for certain teachers of mentally ill young adults). But see State ex rel. Coleman v. Guggenheim, No. C-840847, 1985 WL 11525, at *2 (Ohio Ct. App. Oct. 30, 1985) (refusing to accept this argument for mental patients generally, as opposed to mental patients with "psychiatric disorders involving sex and sexual identification").

      The same may be true for people whose emotional disturbances are only temporary. See Moteles v. University of Pa., 730 F.2d 913, 920 (3d Cir. 1984) (dictum) (suggesting sex may be a bona fide qualification for police officers investigating rape cases, and dealing with rape victims).

126.      See Healey, 78 F.3d at 132-34.

127.      But see Vikram D. Amar & Evan H. Caminker, Equal Protection, Unequal Political Burdens, and the CCRI, 23 HASTINGS CONST. L.Q. 1019, 1039 n.72 (1996) (suggesting that the interest in intellectual diversity might make sex a bona fide qualification); Jeffrey C. Martin, Recent Developments Concerning Accrediting Agencies in Postsecondary Education, LAW & CONTEMP. PROBS., Autumn 1994, at 121, 122, 126-33 (describing diversity admissions program demanded by an accrediting body).

128.      Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 314 (1978) (Powell, J.).

129.      See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) ("[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . ."); Dothard, 433 U.S. at 333 ("[T]he federal courts have agreed that it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes . . . ."); Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235-36 (5th Cir. 1969); 29 C.F.R. § 1604.2(a)(1)(i)-(ii) (1996).

130.      29 C.F.R. § 1604.2(a)(1)(ii); see also City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707-08 (1978) ("It is now well recognized that employment decisions cannot be predicated on mere 'stereotyped' impressions about the characteristics of males or females . . . . Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.").

131.      468 U.S. 609 (1984).

132.      Id. at 628.

133.      Id.

134.      Cf. Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 7-19 (making the same point about race). See generally Michael Stokes Paulsen, Reverse Discrimination and Law School Faculty Hiring: The Undiscovered Opinion, 71 TEX. L. REV. 993, 1000-03 (1993); Eugene Volokh, Diversity, Race as Proxy, and Religion as Proxy, 43 UCLA L. REV. 2059, 2062-70 (1996).

135.      Roberts, 468 U.S. at 627 (noting that an organization seeking to maintain a particular message can still select people based on "ideologies or philosophies"). Of course, such selection must itself accord with constitutional norms; for instance, it seems likely that a public university admission preference for students with a particular belief system would be unconstitutional. Cf.

O'Hare Truck Servs., Inc. v. City of Northlake, 116 S. Ct. 2353, 2361 (1996) (generally barring discrimination in government contracting based on political affiliation). On the other hand, considering students' experiences wouldn't pose any First Amendment problems, and a university may even be able to consider people's philosophical or political beliefs in contexts in which they are more directly relevant, for instance when trying to get a diversity of opinions among students in a limited-capacity seminar. Cf. id. at 2354 (noting that even discrimination based on political affiliation is permissible when such affiliation "is an appropriate requirement for the effective performance of the [task] involved").

136.      438 U.S. 265 (1978) (Powell, J.).

137.      See Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir.) (concluding that Bakke is no longer good law, and that diversity is not a sufficient justification for race discrimination), cert. denied, 116 S. Ct. 2581 (1996); articles cited supra note 134 (criticizing Justice Powell's rationale).

138.      Cf. Cass R. Sunstein, Three Civil Rights Fallacies, 79 CAL. L. REV. 751, 755-57 (1991).

139.      UAW v. Johnson Controls, Inc., 499 U.S. 187, 204 (1991); 29 C.F.R. § 1604.4(b) (1996) (stating that bona fide qualification "must be justified in terms of the peculiar requirements of the particular job and not on the basis of a general principle such as the desirability of spreading work").

140.      CALIFORNIA BALLOT PAMPHLET, supra note 8, at 32 (Argument in Favor of Proposition 209) (uppercase text changed to lowercase), reprinted in Appendix B.

141.      See Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 133 (3d Cir. 1996) (not specifically passing on role model justification in a bona fide qualification claim in which employer was looking for role models of both sexes); Fairbairn v. Board of Educ., 876 F. Supp. 432, 437-38 (E.D.N.Y. 1995) (rejecting bona fide qualification claim in which employer was looking for male role models); State ex rel. Coleman v. Guggenheim, No. C-840847, 1985 WL 11525, at *1-*2 (Ohio Ct. App. Oct. 30, 1985) (rejecting bona fide qualification claim in which employer was looking for male role models); EEOC Dec. No. 82-4, 1982 WL 21177 (Jan. 19, 1982) (same); EEOC No. LA 68-4-538E, 2 Fair. Emp. Prac. Cas. (BNA) 537 (June 16, 1969) (same); cf. Podberesky v. Kirwan, 38 F.3d 147, 158 (4th Cir. 1994) (discussing program which sought to make certain students into role models for others).

      The few cases that have accepted "role model" arguments in the bona fide qualification contexts have focused on whether a person's conduct--specifically, unwed pregnancy--may make the person an unfit role model; they did not involve cases in which the role model argument was based on the employee's sex itself. See Chambers v. Omaha Girls Club, Inc., 834 F.2d 697 (8th Cir. 1987); Vigars v. Valley Christian Ctr., 805 F. Supp. 802 (N.D. Cal. 1992); Dolter v. Wahlert High Sch., 483 F. Supp. 266 (N.D. Iowa 1980); cf. Chambers v. Omaha Girls Club, Inc., 840 F.2d 583, 584 (8th Cir. 1988) (Lay, C.J., dissenting from denial of rehearing en banc) (criticizing the role model argument).

142.      The existing California Education Code seems to strictly forbid single-sex public schools, see CAL. EDUC. CODE § 220 (West 1994), but of course that could be modified by the Legislature.      It's not clear whether single-sex public schools are constitutional even under existing law. Compare Vorchheimer v. School Dist., 532 F.2d 880, 887-88 (3d Cir. 1976) (all-girls' and all-boys' schools, which provide substantially equivalent educations, constitutional under intermediate scrutiny), aff'd by an equally divided court, 430 U.S. 703 (1977), with Garrett v. Board of Educ., 775 F. Supp. 1004, 1006-08 (E.D. Mich. 1991) (all-boys' school unconstitutional under intermediate scrutiny); id. at 1006 n.4 (not deciding whether the result would be different if the government offered comparable all-girls' schools as well). Cf. United States v. Virginia, 116 S. Ct. 2264, 2276 n.7 (1996) (not resolving the constitutionality of all-girls' or all-boys' K-12 schools). There is a wide-ranging debate on this question. Cf. Kristin S. Caplice, Note, The Case for Public Single-Sex Education, 18 HARV. J.L. & PUB. POL'Y 227, 230 (1994) (arguing that single-sex schools are constitutional); Sharon K. Mollman, Note, The Gender Gap: Separating the Sexes in Public Education, 68 IND. L.J. 149, 152 (1992) (arguing that single-sex schools for girls may be constitutional, but single-sex schools for boys aren't); Editorial, Beyond VMI--The Supreme Court Shouldn't Ban All Single-Sex Schools, PITT. POST-GAZETTE, Jan. 19, 1996, at A18; Susan Estrich, Laws Stand in Way of Single-Sex Schools, USA TODAY, July 25, 1996, at 15A (arguing that single-sex schools are constitutional and are a good idea); Rene Sanchez, In East Harlem, a School Without Boys, WASH. POST, Sept. 22, 1996, at A1 ("Regardless of how good their educational intentions are, public schools cannot segregate by gender . . . ." (quoting Norman Siegel, executive director of the New York Civil Liberties Union)).

143.      See, e.g., Bohemian Club v. Fair Employment & Hous. Comm'n, 187 Cal. App. 3d 1, 20, 231 Cal. Rptr. 769, 781 (1986).

Id. (quoting views of former Governor Edmund G. Brown); Don DeMaio, Rhode Island Private Schools Enjoying Enrollment Increases, PROVIDENCE BUS. NEWS, Oct. 17, 1994, § 1, at 30; Guys Have Given Me a Hard Time, 1st Female at Citadel Complains, ORLANDO SENTINEL, Apr. 6, 1994, at A7; Traci Johnson Mathena, Best Western, BALT. SUN, Oct. 30, 1994 (Magazine), at 8.

144.      See, e.g., Holmes v. California Army Nat'l Guard, 920 F. Supp. 1510, 1531 (N.D. Cal. 1996) (discussing the military services' views on this subject); Mixed Company at Sea, DAILY TELEGRAPH (London), May 25, 1991, at 12; Kathleen Parker, Class Struggle: Yahoos vs. Single-Sex Courses, ORLANDO SENTINEL, Feb. 28, 1996, at E1. Cf. EEOC Dec. No. 76-122, 1976 WL 5018 (July 19, 1976) (rejecting claim that sex was bona fide qualification for police officer job because "'the wives of [the officers would] scratch[] their eyes out' because their husbands have been working in a patrol car with women").

145.      See supra note 113 and accompanying text.

146.      See Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971).

147.      See supra Part II.A.3.b.

148.      See supra cases cited in note 125.

149.      Of course, persuasive evidence that single-sex education is more effective may influence a court here, though it might not be dispositive. Compare Diaz, 442 F.2d at 389 (concluding that loss of business due to failure to accommodate customer demand does not justify sex classification), with Torres v. Wisconsin Dep't of Health & Soc. Servs., 859 F.2d 1523, 1530 (7th Cir. 1988) (concluding that possible interference with prisoner rehabilitation due to failure to accommodate preference for same-sex correctional officers may justify sex classification).

150.      Cf. Petrie v. Illinois High Sch. Ass'n, 394 N.E.2d 855, 861 (Ill. App. Ct. 1979).

151.      See Dothard v. Rawlinson, 433 U.S. 321, 331-32 (1977).

152.      See supra Part II.A.3.b.

153.      Diaz, 442 F.2d at 388 (emphasis omitted); see also, e.g., Reidt v. County of Trempealeau, 975 F.2d 1336, 1339 n.3 (7th Cir. 1992); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981); Bohemian Club v. Fair Employment & Hous. Comm'n, 187 Cal. App. 3d 1, 21, 231 Cal. Rptr. 769, 781 (1986); 29 C.F.R. § 1604.2(a)(2) (1996); CAL. CODE REGS. tit. 2, § 7290.8(3) (1996).

154.      Of course, schools do often segregate their teams by age, in large part because of the relationship between age and height, weight, and strength.

155.      See generally Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 17-20, 485 P.2d 529, 539-41, 95 Cal. Rptr. 329, 339-41 (1971).

156.      See Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1131-32 (9th Cir. 1982); Striebel v. Minnesota State High Sch. League, 321 N.W.2d 400, 402 (Minn. 1982); B.C. v. Board of Educ., 531 A.2d 1059, 1066 (N.J. Super. Ct. App. Div. 1987); Kleczek v. Rhode Island Interscholastic League, Inc., 612 A.2d 734 (R.I. 1992).

157.      Compare Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, 393 N.E.2d 284, 296 (Mass. 1979) (impermissible under strict scrutiny), with Petrie v. Illinois High Sch. Ass'n, 394 N.E.2d 855, 862-63 (1979) (permissible under strict scrutiny, though acknowledging that "the question is a close one").

158.      See UAW v. Johnson Controls, Inc., 499 U.S. 187, 202-03 (1991); Dothard v. Rawlinson, 433 U.S. 321, 331-32 (1977). Where the woman is a minor, of course, the ultimate decision might be made by her guardians. Privacy concerns may sometimes also be present in some sports, such as wrestling, where normal contact might sometimes involve touching of the chest or the genital area. But see Adams v. Baker, 919 F. Supp. 1496 (D. Kan. 1996) (exclusion of girls from boys' wrestling team violates the Equal Protection Clause, and privacy is not a sufficient justification for the exclusion because "wrestling is an athletic activity and not a sexual activity"; note that the case involved total exclusion from the only available wrestling team, rather than the creation of separate boys' and girls' teams). In most sports, though, these concerns would be too attenuated and hypothetical to count.

159.      Of course, I mean here the best athletes within a particular sport and often a particular age range.

160.      See Levendos v. Stern Entertainment, Inc., 723 F. Supp. 1104, 1107 (W.D. Pa. 1989), rev'd on other grounds, 909 F.2d 747 (3d Cir. 1990).

161.      And, after all, having a women-only team plus a men-only team would be discriminatory, too. See City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (defining discrimination as "treat[ing] a person in a manner which but for that person's sex would be different" (internal quotation marks omitted)).

162.      Cf. Darrin v. Gould, 540 P.2d 882, 893 (Wash. 1975) (applying close to a per se ban on sex discrimination under the Washington Constitution, though at times talking the language of strict scrutiny); Commonwealth v. Pennsylvania Interscholastic Athletic Ass'n, 334 A.2d 839, 843 (Pa. Commw. Ct. 1975) (applying per se ban). But cf. O'Connor v. Board of Educ., 449 U.S. 1301 (1980) (Stevens, J., in chambers) (upholding, under intermediate scrutiny, exclusion of girls from boys' team when girls' team existed); O'Connor v. Board of Educ., 645 F.2d 578, 580-82 (7th Cir. 1981) (same); Yellow Springs Exempted Village Sch. Dist. Bd. of Educ. v. Ohio High Sch. Athletic Ass'n, 647 F.2d 651, 657-58 (6th Cir. 1981) (dictum) (suggesting that exclusion of girls from boys' team may pass intermediate scrutiny).

163.      See Norwood v. Dale Maintenance Sys., Inc., 590 F. Supp. 1410, 1417-23 (N.D. Ill. 1984); see also 7 C.F.R. § 15a.61 (1996); 10 C.F.R. § 1040.57 (1996); 34 C.F.R. § 106.61 (1996); 45 C.F.R. § 6.61 (1996).

164.      See supra note 114.

165.      See CAL. GOV'T CODE § 12995(b) (West 1992). This situation might not technically fall within the terms of the California Fair Employment and Housing Commission bona fide qualification regulation: The regulation applies only when people must "observe other individuals in a state of nudity," which doesn't quite apply here. see CAL. CODE REGS. tit. 2, § 7290.8(b) (1997). Still, having to live with someone--even if they won't see you naked--does implicate privacy concerns, albeit of a slightly different sort, and I think courts should recognize these concerns as being worthy of accommodation.

166.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 30-31 (Analysis by the Legislative Analyst) (describing clause (c) as exempting sex classifications justified by "privacy and other considerations based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting"), reprinted in Appendix B.

167.      The center's employment decisions are covered by the CCRI, but if it chooses to employ only women, that may pass muster under bona fide qualification principles. See, e.g., Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir. 1996) (holding that sex was a bona fide qualification in a program aimed at treating emotionally disturbed and sexually abused adolescents and children); Moteles v. University of Pa., 730 F.2d 913, 920 (3d Cir. 1984) (acknowledging that "the special needs of rape victims" might justify a preference for women as investigating officers). Cf. Family Violence Prevention and Services Act, 42 U.S.C. § 10406(a)(2) (1994) ("Nothing in this chapter shall . . . [prohibit consideration of an] individual's sex in those certain instances where sex is a bona fide occupational qualification or programmatic factor reasonably necessary to the normal operation of that particular program or activity."). If sex doesn't qualify as a bona fide qualification for employment, then sex-based staffing would in any event be illegal under Title VII and under state antidiscrimination statutes, even without the CCRI.

168.      Cf. Personnel Adm'r v. Feeney, 442 U.S. 256, 280-81 (1979) (holding that a program that disproportionately benefits one sex is nonetheless not discriminatory in the absence of intentional discrimination).

169.      See supra note 113 and accompanying text. Compare EEOC v. Sedita, 755 F. Supp. 808, 810-11 (N.D. Ill. 1991) (sex is not bona fide occupational qualification for instructor at a women's health club), with Livingwell (North) Inc. v. Pennsylvania Human Relations Comm'n, 606 A.2d 1287, 1294 (Pa. Commw. Ct. 1992) (sex is bona fide public accommodation qualification for patrons at a women's health club).

170.      See materials cited supra in note 167.

171.      See CAL. CONST. art. XVIII, § 4 (initiatives take effect "the day after the election").

172.      CAL. CONST. art. I, § 31, cl. e, reprinted in Appendix A.

173.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 30-31 (Analysis by the Legislative Analyst) ("[The CCRI's] prohibitions would not apply to those government agencies that receive money under federal programs that require such affirmative action." (emphasis added)), reprinted in Appendix B.

174.      Perkins v. City of Chicago Heights, 47 F.3d 212, 216 (7th Cir. 1995) (internal quotation marks and citations omitted); see also Stone v. City of San Francisco, 968 F.2d 850, 861, 864 (9th Cir. 1992) (noting that federal consent decree may override state law when "necessary to remedy [federal] constitutional violations," but the court must "make . . . findings that other alternatives [are] inadequate before it authorize[s] the Sheriff to override applicable state laws. Such findings are essential for any grant of authority to be 'least possible power to the end proposed'"); People Who Care v. Rockford Bd. of Educ., 961 F.2d 1335, 1337 (7th Cir. 1992); Overton v. City of Austin, 748 F.2d 941, 957 (5th Cir. 1984); Dillard v. City of Foley, 926 F. Supp. 1053, 1065-67 (M.D. Ala. 1995). But see Badgley v. Santacroce, 800 F.2d 33, 38-39 (2d Cir. 1986) ("When the defendants chose to consent to a judgment, rather than have the District Court adjudicate the merits of the plaintiffs' claims, the result was a fully enforceable federal judgment that overrides any conflicting state law or state court order"; the remainder of the decision, however, suggests that the court of appeals strongly believed that there was in fact a constitutional violation, and that the decree was necessary to resolve the violation.).

175.      CAL. CONST. art. I, § 31, cl. g, reprinted in Appendix A.

176.      Compare Bonner v. City of Santa Ana, 45 Cal. App. 4th 1465, 1472, 53 Cal. Rptr. 2d. 671, 675 (1996) (no damages in equal protection claims), with Laguna Publ'g Co. v. Golden Rain Found., 131 Cal. App. 3d 816, 853, 182 Cal. Rptr. 813, 835 (1982) (damages available in free press claims).

177.      CAL. CIV. PROC. CODE § 1021.5 (West 1980).

178.      Cf. CALIFORNIA BALLOT PAMPHLET, supra note 8, at 30 (Official Title and Summary Prepared by the Attorney General) ("Requires uniform remedies for violations."), reprinted in Appendix B.

179.      See, e.g., People v. Acosta, 48 Cal. App. 4th 411, 416-20, 55 Cal. Rptr. 2d 675, 677-80 (1996) (discussing which cases are affected by statutes modifying post-trial remedies); see also Tapia v. Superior Court, 53 Cal. 3d 282, 287-89, 807 P.2d 434, 436-37, 279 Cal. Rptr. 592, 594-95 (1991) (discussing which cases are affected by statutes modifying trial procedures); Strauch v. Superior Court, 107 Cal. App. 3d 45, 49, 165 Cal. Rptr. 552, 554 (1980) (same).

180.      See Clausing v. San Francisco Unified Sch. Dist., 221 Cal. App. 3d 1224, 1237, 271 Cal. Rptr. 72, 78 (1990); Taylor v. Madigan, 53 Cal. App. 3d 943, 951, 126 Cal. Rptr. 376, 381 (1975).

181.      CAL. CONST. art. XVIII, § 1 (legislative proposal); id. art. II, § 8(b) (initiative proposal; to be precise, the petitions must be "signed by electors equal in number to . . . 8 percent . . . of the votes for all candidates for Governor at the last gubernatorial election"); id. art. XVIII, § 4 (majority vote requirement).

182.      Of course, the U.S. Constitution itself significantly constrains any race- or sex-conscious program.

183.      CAL. CONST. art I, § 31; CALIFORNIA BALLOT PAMPHLET, supra note 8, at 94 (text of proposed law).

184.      CALIFORNIA BALLOT PAMPHLET, supra note 8, at 30-33.