The Racial Privacy Initiative:
A reader’s guide
The “Racial Privacy Initiative” (RPI) bans the state from classifying people according to race, ethnicity, color or national origin. By helping California government stop obsessing about race, RPI will unite us to create a colorblind state for our children and grandchildren, one that is more respectful of the inherently private and complex nature of racial identity.
Throughout California and American history, federal and state governments have routinely and tragically divided Americans into various racial and ethnic groups. Our civil rights laws were enacted to end prejudice and discrimination, but ending these terrible attitudes could not happen overnight—it is a generational process. While these laws broke down many of the formal barriers between the races, many states continued to maintain the most fundamental barrier. Through anti-miscegenation laws, they forbade black and white people, or any other two people of different races, from marrying.
In its 1967 decision Loving v. Virginia, the United States Supreme Court struck down these laws. After Loving, the number of people ignoring the government’s race classifications ballooned, especially in California. Today, more California children are born to parents of different races than are born to two black parents. According to Sonya Tafoya at the Public Policy Institute of California, the number of multiracial births in California increased forty percent between 1982 and 1997. Marriages between people of different races make up the third largest group of marriages in California.
Given the remarkable blurring of racial lines in California, the number of people who decline to state their race has increased dramatically. The number of applicants to the University of California (UC) declining to state their race has nearly doubled since Proposition 209, the constitutional amendment banning race preferences, took effect. Between 1989 and 1997, the last year UC used preferences in its undergraduate admissions, an average of 2,849 freshmen and transfer applicants refused to identify their race. In 1998, that number shot up to 9,886. While this number went down somewhat in subsequent years, the average for 1999 and 2000 is still 5,590. These remarkable numbers demonstrate how many people really believe that the state should not be asking people about their race. Given these continental shifts, we believe the state needs to catch up and recognize that Californians increasingly no longer see themselves in racial boxes.
PARAGRAPH (a): “The state shall not classify any individual by race, ethnicity, color or national origin in the operation of public education, public contracting or public employment.”
Paragraph (a) bans the state from classifying individuals by race, ethnicity, color or national origin in public education, contracting and employment. This mirrors the state’s constitutional prohibition (Article I, Section 31) against racial preferences in those areas. Logically speaking, if “race” cannot lawfully be used in those areas, why go through the offensive and invasive exercise of classifying people along those lines?
PARAGRAPH (b): “The state shall not classify any individual by race, ethnicity, color or national origin in the operation of any other state operations unless the legislature specifically identifies that said classification fulfills a compelling state interest, and approves said classification by a 2/3 majority in both houses of the legislature, and is subsequently approved by the governor.”
PARAGRAPH (k): “For 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, California State University, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.”
Paragraph (b) applies to all other programs run by the state and allows for narrowly-defined exemptions to the general rule. Because various levels of government classify people, paragraph (k) defines “state” broadly, to include all agencies of the state, as well as local governments. Like paragraph (a), this section prohibits the state from classifying an individual by race, color, ethnicity or national origin. Unlike paragraph (a)’s narrow focus on public education, contracting and employment, paragraph (b) applies broadly, to all state operations not covered by paragraph (a). Similarly, paragraph (d) clarifies that the term “individual,” as used in paragraph (b), refers to “persons subject to all state operations not covered by paragraph (a).”
RPI does not prohibit classifications that are commonsensical and compelling in nature. While we assume that the state should protect an individual’s racial privacy in all other government programs, we leave open the possibility that the state may have a compelling reason for classifying individuals by race in one of these programs. To ensure that RPI does not prevent the state from using race classifications in certain compelling situations, paragraph (b) allows the legislature and governor to exempt specific race classifications from its ban.
Because California aspires to be a colorblind state, RPI requires an unusually high degree of agreement before the legislature can approve a race classification otherwise prohibited by paragraph (b). To override this prohibition, 2/3 of both the Senate and the Assembly must approve the bill before it can be sent to the governor for his or her approval. The bill approving a new race classification must identify the compelling governmental interest this race classification serves.
PARAGRAPH (e): “The Department of Fair Employment and Housing (DFEH) shall be exempt from this section with respect to DFEH-conducted classifications in place as of March 5, 2002.”
California’s Department of Fair Employment and Housing (DFEH) is the largest and oldest state-level civil rights enforcement agency in the country. With offices across the state, it investigates and prosecutes violations of California’s civil rights laws. While California’s ever-increasing multiraciality highlights how close we are to the goal line of equality, RPI recognizes that we aren’t there yet. Discrimination continues to occur in some circumstances, and perpetrators need to be held accountable. To make sure that California does not have to wait for legislative approval of the classifications DFEH may need, RPI exempts DFEH.
This exemption for DFEH does not, however, allow DFEH to “impute a race, color, ethnicity or national origin to any individual.” [PARAGRAPH (e)(2)] That is, DFEH may not assign a person declining to classify himself or herself by race.
PARAGRAPH (e)(1): “Unless specifically extended by the legislature, this exemption shall expire ten years after the effective date of this measure.”
Because RPI heralds the day when race will be an ancient relic, RPI sunsets DFEH’s exemption ten years from January 1, 2005, the day RPI takes effect [PARAGRAPH (l)]. Postponing the effective date of the measure gives the state ample time to review what classifications the federal government mandates and make appropriate changes to state forms in an orderly phase-out period so that taxpayers do not have to finance the overnight replacement of millions of questionnaires. Should California continue to require racial classifications as it enforces the state’s civil rights laws after the sunset date, RPI allows the legislature to extend the DFEH exemption.
PARAGRAPH (f): “Otherwise lawful classification of medical research subjects and patients shall be exempt from this section.”
Another compelling, commonsensical exemption covers medical research and treatment. Current efforts to identify and treat diseases that afflict one group more than others (e.g., Tay-Sachs and sickle cell anemia) should be allowed to continue. Public health experiments that call for volunteer subjects of a certain racial background should not be prohibited from classifying those individuals for analysis. Similarly, private medical records that identify a patient’s history and risk factors can include race classifications under this RPI exemption.
Paragraph (g): “Nothing in this section shall prevent law enforcement officers, which carrying out their law enforcement duties, from describing particular persons in otherwise lawful ways….”
The law enforcement exemption allows officers in the course of their duties to “describe particular persons in otherwise lawful ways.” This clause recognizes the delicate balance the law enforcement community must strike between community and officer safety, and immoral and counterproductive racial profiling. In cases dealing with racial profiling, judges are at the very least finding the practice highly suspect and often unlawful. As paragraph (c) makes clear, RPI would explicitly prohibit racial profiling for the first time in the state constitution. At the same time, preventing officers from using all lawful descriptive terms (as opposed to illegal profiling) would increase the risk to officers and the public.
“Otherwise lawful ways” refers to the Supreme Court guidelines identifying when law enforcement officers may consider race or ethnicity. The Supreme Court has ruled that the 4th Amendment prevents law enforcement personnel from relying solely on racial or ethnic appearance in deciding whether to stop a motorist or frisk a suspect. Rather, it requires them to be able to explain the particular factors that, in light of the total circumstances and their experience, led them to suspect that the person in question has committed, or is about to commit a crime.
PARAGRAPH (g), continued: “…Neither the governor, the legislature nor any statewide agency shall require law enforcement officers to maintain records that track individuals on the basis of said classifications, nor shall the governor, the legislature or any statewide agency withhold funding to law enforcement agencies on the basis of the failure to maintain such records.”
Recognizing that, like discrimination, racial profiling still exists in some circumstances, RPI supports current efforts to identify and root out this illegal practice. We are not convinced, however, that racial data collection is a panacea. Agencies such as the California Highway Patrol and police departments in Sacramento, San Francisco and San Jose have voluntarily adopted data collection programs, but the results (based on something as unscientific as “race” or “perceived race”) have triggered wide-ranging disagreement on whether a problem exists all, to what extent it exists and, if so, how to address it. With not less but more racial obsession, police departments and communities such as Cleveland and Seattle have been torn apart by the phenomenon of “de-policing” as a reflexive reaction by officers to avoid being accused of racism. In short, data collection may have, at best, a placebo effect on our desire for the problem to be solved; at worst, it is forcing officers to withdraw from some of our most crime-ridden neighborhoods most in need of protective and preventative services. In the process, entire departments and professions are being attacked, yet the few rotten apples in the barrel are not being held individually accountable for wrongdoing. Because the value of data collection is dubious and the cost potentially enormous, RPI prohibits state-mandated data collection in the context of law enforcement but does not foreclose the possibility should local agencies want to bear the costs and risks of this experimental reaction.
PARAGRAPH (h): “Otherwise lawful assignment of prisoners and undercover law enforcement officers shall be exempt from this section.”
Paragraph (h) is similar to paragraph (g), in that it allows law enforcement officers to consider race when assigning officers to undercover duty and in assigning prisoners. The prison riots of the last decade have often been fought along racial lines, with race-based gangs often requiring administrative segregation. To insure that law enforcement officers can prevent potential violence among prisoners, paragraph (h) allows them to consider race, provided they abide by existing legal constraints and court decisions in considering race. Similarly, paragraph (h) allows the law enforcement community to consider race when assigning officers to undercover duty, so long as they are following existing legal guidelines.
PARAGRAPH (j): “Nothing in this section shall be interpreted as invalidating any valid consent decree or court order which is in force as of the effective date of this section.”
Consent decrees and court orders requiring race classifications are often preceded by a finding of real discrimination and proven victims. Not wanting to usurp the judiciary’s discretion, paragraph (j) exempts race classifications mandated by a valid consent decree or court order, if they are in force when RPI takes effect on January 1, 2005.
PARAGRAPH (i): “Nothing in this section shall be interpreted as prohibiting action which must be taken to comply with federal law, or establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.”
Paragraph (i) serves two purposes. On the one hand, it helps make sure that Californians do not lose more of their tax dollars to Washington than they already do. On the other hand, it ensures California can continue to fulfill its obligations under our system of federalism by assisting the federal government in enforcing federal civil rights laws.
As California’s experience with the recession of the early 1990’s showed, the state must always protect its fiscal resources. Like most states, California relies to a significant degree on federal money – tax dollars that Californians send to Washington that they don’t get all back in the form of grants, services and benefits. While the federal government is moving towards giving states greater flexibility in how they spend federal money, oftentimes the state cannot receive federal money without complying with federal standards. Recognizing these facts, paragraph (i) allows the state to maintain race classifications, where those classifications are necessary to continue receiving federal funds.
PARAGRAPH (m): “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 federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.”
RPI and its supporters support enforcement of our nation’s civil rights laws at the federal and state levels. To make sure that California continues to assist the federal government in enforcing federal civil rights laws, paragraphs (i) and (m) allow the state to maintain race classifications, where federal law requires them.
It is also important to recognize that paragraph (m) makes RPI severable. If the courts rule that any part of RPI violates federal law or the Constitution, only the offending part(s) is eliminated; the rest of RPI continues to be operative.
PARAGRAPH (l): “This section shall become effective January 1, 2005.”
When passed by a majority of the voters, the Racial Privacy Initiative will be added as Article I, Section 32 to the California Constitution. Its provisions will take effect on January 1, 2005, after more than two years of transitional and implementation preparation.
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