The Racial Privacy Initiative:
A reader's guide
Why does California need The Racial Privacy
Initiative?
RPI’s operative clauses
RPI and California’s civil rights laws
RPI and public health
RPI and law enforcement
Consent decrees and court orders
RPI and the federal government
Why does California
need The Racial Privacy Initiative?
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.
RPI’s
operative clauses
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.
RPI and
California’s civil rights laws
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.
RPI and public
health
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.
RPI and law
enforcement
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.
Consent decrees and court orders
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.
RPI and the
federal government
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.
RPI’s
effective date
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.
American Civil Rights Coalition
Copyright © 2000-2001 American Civil Rights Coalition. All rights reserved.
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