Racial Privacy Initiative: Racial privacy- ideology and effect

The Racial Privacy Initiative, a proposed amendment to the California Constitution, has qualified for the March 2004 ballot. Its author and chief proponent is University of California Regent Ward Connerly, who chaired the Yes on Proposition 209 campaign for the last 11 months of that drive.

The initiative would bar state and local governments from using racial categories or classifications in most of their operations. One kind of racial classification the measure would eliminate is the racial and ethnic check-off boxes on most California government forms.

Connerly and some of its other advocates have described the initiative as the “logical sequel” to Proposition 209. This is incorrect. In fact, it is easy to show that in its effect the initiative would be an anti-209 measure. Beyond that, it would be quite destructive of any law protecting individuals against racial and ethnic discrimination.

The reason is simple: The initiative would prohibit the racial data collection that is essential to developing “pattern and practice” anti- discrimination lawsuits. Unless there is the possibility of developing such lawsuits, no meaningful enforcement of Proposition 209 or any other anti- discrimination law is possible.

The initiative would gut 209, but its destructive energies would sweep away much else as well. When drafting 209, Glynn Custred and I decided to limit its scope to the operation of public employment, public education and public contracting. (We wished to be prudent, partly with a view to legal considerations.) But there is no such restriction in the initiative. The measure says that the state shall not classify any individual by race and ethnicity in any other operation as well, unless the Legislature overrides the constitutional prohibition with a two-thirds supermajority, with the concurrence of the governor. If the state failed to meet this extraordinarily high hurdle, it would be barred from collecting the racial data that are essential to protecting individuals against racial and ethnic discrimination in private housing, the private-sector workplace, private schools and many other areas of our lives.

Formally, the initiative leaves Proposition 209 and all statutes that prohibit racial and ethnic discrimination in the public and private sectors in California intact. However, it would gut those laws because it would strike down the principal means of enforcing them.

Furthermore, Connerly is personally opposed to laws, enforceable or not, that prohibit racial and ethnic discrimination in the private sector. I have known this since 1997, when Connerly declared in a program on civil rights held at Claremont McKenna College that he would not favor a “private 209.” If he does not believe that there should be a “private 209,” then he does not believe that there should be a private U.S. Civil Rights Act either, or any other federal or state law designed to eliminate racial discrimination in the private sector.

This is the orthodox libertarian position on the matter, but it has consequences, for people’s lives are damaged by racial and ethnic discrimination. The strict libertarian must be prepared to countenance even extreme racial segregation in private housing, the workplace and other areas of private life. Because America has decisively rejected this position since the passage of the landmark U.S. Civil Rights Act in 1964, if not before, Connerly’s embrace of this position will prove to be highly controversial.

The question is not whether Connerly himself favors segregationist views — he does not. The question is whether he believes that government should be involved in the business of fighting racial discrimination in the private sector through enforceable laws. Most Americans believe that it should be, but it is a matter of public record that Connerly himself does not.

There is long-standing consensus in the United States that racial discrimination is a serious problem, and that government should do something about it. That consensus is now under direct challenge by the initiative. This is a controversy that California and the nation did not need. But since the initiative has qualified for the ballot, it is a battle that must be joined.

Thomas E. Wood, president of Americans Against Discrimination and Preferences, is the co-author and official proponent, with Glynn Custred, of Proposition 209, the California Civil Rights Initiative.

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