Laws and Legislation

Abstract:

The bill mandated an addition to Section 8315 of the Government Code that adoped the UN International Convention for the Elimination of all Forms of Racial Discrimination's definition of "racial discrimination". The bill specifies that the state is able to able to focus on racial discriminatory outcomes rather than intent.

Author: Dymally, Mervyn
Publication Date: Aug/09/2003
Source: Sacramento, CA: State Assembly
Contact Info:

Full Text:

BILL ANALYSIS 

SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session

AB 703 A
Assembly Member Dymally B
As Amended May 19, 2003
Hearing Date: June 17, 2002 7
Government Code 0
GMO:cjt 3

SUBJECT

Racial Discrimination

DESCRIPTION

This bill would provide a statutory definition of "racial
discrimination" that is based on the language used in the
International Convention on the Elimination of All Forms of
Racial Discrimination, adopted by the United Nations
General Assembly, signed by the United States and ratified
by the United States Senate.

The bill also would provide that Section 31, Article 1 of
the California Constitution shall not be interpreted to
grant an individual a private cause of action to challenge
any special measures adopted for the purpose of securing
adequate advancement of racial groups requiring protection
pursuant to the International Convention provision, and
that special measures shall not be interpreted as
preferential treatment under Section 31.

Lastly, the bill would provide that Section 31, Article 1
of the California Constitution shall not be construed to
require government to prove racial discrimination before
undertaking special measures for the purpose of securing
adequate advancement of racial minority groups needing
protection pursuant to the relevant International
Convention provision.

BACKGROUND

(more)

AB 703 (Dymally)
Page 2

The United Nations General Assembly adopted the
International Convention on the Elimination of All Forms of
Racial Discrimination on December 21, 1965. The United
States signed the international treaty on September 28,
1966. The treaty was ratified by the U.S. Senate on June
24, 1994.

The International Convention on the Elimination of All
Forms of Racial Discrimination (IC) provides a definition
of "racial discrimination" and a declaration that special
measures undertaken for the sole purpose of securing
adequate advancement of certain racial or ethnic groups or
individuals requiring protection are not to be deemed
racial discrimination. Both the definition and the
declaration are contained in their entirety in AB 703.

The author states that even though California law prohibits
"racial discrimination," there is no legal definition of
the term in California's system of jurisprudence, thus
resulting in confusion and conflict over implementation of
the California Constitution's prohibition on discrimination
by the State, as provided by Section 31, Article 1.

Section 31, Article 1 was added to the California
Constitution by Proposition 209 in 1996. The California
Supreme Court, in Hi-Voltage Wire Works, Inc. v. City of
San Jose (2000) 24 Cal.4th 527, held that the voters, in
approving Proposition 209, intended to adopt the original
construction of the Civil Rights Act and to prohibit the
kind of preferential treatment accorded by the City of San
Jose's program to increase participation by minority- and
women-owned businesses in contracting with the city. Other
suits have followed, asking the courts to determine whether
various statutory schemes that fall within the rubric of
"affirmative action" [see Connerly v. State Personnel Board
(2001) 92 Cal.App.4th 16], or whether school transfer
policies that require race and ethnic balancing [see
Crawford v. Huntington Beach Union High School District
(2002) 98 Cal.App.4th 1275] violate federal and state
principles of equal protection and Section 31 of Article 1
of the California Constitution.

This bill is intended to resolve the perceived confusion
and conflict resulting from the lack of definition of
racial discrimination under Section 31, Article 1 of the

AB 703 (Dymally)
Page 3

Constitution, to expressly prohibit any individual
challenge to special measures designed to adequately
advance protected classes, and to specify that government
need not prove racial discrimination before undertaking
these special measures.

CHANGES TO EXISTING LAW

Existing law , Section 31 of Article 1 of the California
Constitution, prohibits the State and all its political
subdivisions and government instrumentalities from
discriminating against, or granting 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.

This bill would provide that "discrimination on the basis
of race" and "racial discrimination" shall have the same
meaning as "racial discrimination" as defined by Paragraph
1 of Article 1 of Part I of the International Convention on
the Elimination of All forms of Racial Discrimination.

This bill would thus define "racial discrimination" to mean
"any distinction, exclusion, restriction or preference
based on race, colour, descent, or national or ethnic
origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an
equal footing, of human rights and fundamental freedoms in
the political, economic, social, and cultural or any other
field of public life."

This bill would declare that special measures undertaken
for the sole purpose of securing adequate advancement of
certain ethnic groups or individuals requiring such
protection as may be necessary in order to ensure that such
groups or individuals equal enjoyment or exercise of human
rights and fundamental freedoms shall not be deemed racial
discrimination, provided these measures do not result in
separate rights for different racial groups and are
discontinued after the objectives for which they were taken
have been achieved.

The bill would further provide, "in order to assist the
United States in fulfilling its international obligation to
pursue a policy to eliminate all forms of racial

AB 703 (Dymally)
Page 4

discrimination," that:

a) except for its prohibition against preferential
treatment, Section 31 of Article 1 of the California
Constitution shall not be interpreted to grant an
individual a private cause of action to challenge
special measures for the purpose of securing
adequate advancement of those racial groups
requiring protections pursuant to the International
Convention;
b) special measures shall not be interpreted as
preferential treatment; and
c) Section 31 of Article 1 of the California
Constitution shall not be construed as requiring the
government to prove racial discrimination before
undertaking special measures for the purpose of
securing advancement of those racial minority groups
needing protection pursuant to the International
Convention.

The bill quotes Paragraph 1 of Article 2 of Part 1 of the
International Convention on the Elimination of All Forms of
Racial Discrimination, which details the "special measures"
or actions to be taken by State parties to the convention,
in its entirety. (For details, see Comment 4.)

COMMENT

1. Need for the bill

The author states:

Section 31 of Article 1 of the California
Constitution has caused confusion over the
definition of "racial and ethnic discrimination."
Some institutions have interpreted this Section as
requiring them to abandon equal opportunities for
minorities. As a result, the employment for these
individuals as faculty has decreased significantly,
particularly in the California State University and
the Community Colleges systems. The problem that
this [section] poses is that it prohibits racial
discrimination, but there is no definition of
racial discrimination contained in the [section].
In fact, there is no legal definition of this term

AB 703 (Dymally)
Page 5

in federal statutes. Consequently, by prohibiting
racial discrimination without a definition of this
term has caused a lot of confusion among state
agencies that are trying to adhere to the
guidelines of the federal government in receiving
government funds?As a result of Section 31, many of
these institutions have discontinued these programs
in fear that they may violate this section. They
are confused as to how to achieve a policy of
diversity, which is designed to promote the public
good, and at the same time adhere to both Section
31 and the federal guidelines."

2. Section 31 of Article 1 of the California Constitution
and the courts

The Ninth Circuit Court of Appeals found that Proposition
209 (which amended Section 31 into Article 1 of the
California Constitution) did not violate federal equal
protection. [ Coalition for Economic Equality v. Wilson
(9th Cir. 1997) 122 F. 3d 692.] "Rather than classifying
individuals by race or gender, Proposition 209 prohibits
the State from classifying individuals by race or
gender." [ Id. , at 702]

As anticipated by the proponents of Proposition 209, the
courts have had to rule on whether or not various
affirmative action programs, plans and policies in public
employment, public education, and public contracting
provide preferential treatment prohibited by Section 31
of Article 1 since the proposition was passed by the
voters. The Supreme Court, in Hi-Voltage Wire Works,
Inc. v. City of San Jose (2000) 24 Cal.4th 537,
unanimously found that in Section 31, Article 1, the word
"discriminate" means "to make distinctions in treatment;
show partiality (in favor of) or prejudice (against)";
that the word "preferential" means "giving preference,
which is a giving of priority or advantage to one
person?over others"; that the voters did not intend the
word "preferential" to have any other meaning, and that
not all affirmative action programs and policies would be
prohibited by this provision. "Although this court has
concluded that the two components of the city's public
contracting program that are challenged in this case
violate article 1, section 31, this determination should

AB 703 (Dymally)
Page 6

not obscure the important point that this constitutional
provision does not prohibit all affirmative action
programs or preclude governmental entities in this state
from initiating a great variety of proactive steps in an
effort to address the continuing effects of past
discrimination or exclusion, and to extend opportunities
in public employment, public education, and public
contracting to all members of the community." [C.J.
George, in his concurring/dissenting opinion in
Hi-Voltage , supra, at 597.] (The majority opinion in
Hi-Voltage was criticized in the dissent only because it
delved into an "unnecesary discussion" and historical
review of discrimination in the country and affirmative
action programs that predated the proposition.) Thus,
outreach or recruitment efforts which are designed to
broaden the pool of potential applicants without reliance
on impermissible race or gender classifications are not
constitutionally forbidden. [ Connerly v. State Personnel
Board (2001) 92 Cal.App.4th 16, citing Hi-Voltage ,
supra.]

3. Racial discrimination defined

Section 31, Article 1 provides that "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."
The "State" includes all public agencies and
instrumentalities of the state.

AB 703 contains legislative findings and declarations
that Section 31, Article 1 prohibits racial
discrimination, that "racial discrimination" is not
defined, and that the lack of a legal definition of the
term has led to confusion and conflict over
implementation of Section 31, Article 1.

There is no definition of the phrase "racial
discrimination" in statutory or case law, although there
is a body of law, predating Proposition 209, that has
determined, on a case-by-case basis, what constitutes
"discrimination" or discriminatory practice in the
context of employment, housing or in a variety of
entitlement situations.

AB 703 (Dymally)
Page 7

This bill introduces the phrase "racial discrimination"
in order to provide a guideline for the construction and
implementation of Section 31, Article 1, as it applies to
race.

AB 703 would import into state statute the wording of
"racial discrimination" adopted by the United States in
signing and ratifying the International Convention on the
Elimination of All Forms of Racial Discrimination. If
enacted, AB 703 would thus define "racial discrimination"
as:

"any distinction, exclusion, restriction or
preference based on race, colour, descent, or
national or ethnic origin which has the purpose or
effect of impairing the recognition, enjoyment or
exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic,
social, cultural or any other field of public life.

Special measures taken for the sole purpose of
securing adequate advancement of certain racial or
ethnic groups or individuals requiring such
protection as may be necessary in order to ensure
such groups or individuals equal enjoyment or
exercise of human rights and fundamental freedoms
shall not be deemed racial discrimination,
provided, however, that such measures do not, as a
consequence, lead to the maintenance of separate
rights for different racial groups and that they
shall not be continued after the objectives for
which they were taken have been achieved."

4. "Special measures" also defined

The "special measures" referred to in the definition of
"racial discrimination" that this bill would enact are
also lifted from language in the International
Convention. These "special measures" would require a
participant State Party (nation adopting the
International Convention) to "pursue by all appropriate
means and without delay a policy of eliminating
discrimination in all its forms and promoting
understanding among all races" by:

AB 703 (Dymally)
Page 8

a) engaging in no act or practice of racial
discrimination and ensuring that all public authorities
and public institutions act in conformity with this
obligation;
b) undertaking not to sponsor, defend, or support racial
discrimination by
any person or organization;
c) taking effective measures to review governmental,
national and local policies and to amend, rescind or
nullify those laws and regulations that create or
perpetuate racial discrimination;
d) prohibiting and bringing to an end by all appropriate
means, including by enacting required legislation,
racial discrimination by persons, groups, or
organizations;
e) encouraging integrationist multiracial organizations
and movements and other means of eliminating barriers
between races and discouraging anything which tends to
strengthen racial division.

In construing Section 31, Article 1, the Hi-Voltage court
did not recognize any "special measures" as defined by AB
703 (nor did any of the other cases applying Section 31).
But neither did the court dismiss the validity of
affirmative action programs (which could fall into a
special measures definition) in general.

In addition to defining what these "special measures"
are, AB 703 also would provide that Section 31, Article 1
shall not be construed to require the government to prove
racial discrimination before undertaking these special
measures.

Lastly, AB 703 would specify that, except for actions
brought relating to the prohibition against preferential
treatment, Section 31, Article 1 shall not be interpreted
as granting an individual a private cause of action to
challenge any special measures as defined above.
Hi-Voltage was brought by an individual plaintiff who
claimed that the affirmative action program used by the
City of San Jose violated Section 31 by effectively
giving preferential treatment to women and minority
businesses in public contracts issued by the city.
Because the company (Hi-Voltage Wire Works, Inc.) who was

AB 703 (Dymally)
Page 9

the low bidder who could not comply with the affirmative
action requirements of the city was joined by a private
taxpayer who was not affected by the city's policies
directly, the court arguably recognized a private cause
of action to challenge the city's program on other than
the preferential basis ground. This bill would expressly
prohibit such private causes of action, except for cases
based on the prohibition against granting preferential
treatment.

5. Suggested amendment

The following clarifying amendment is suggested:

On page 4, line 28, after "measures" insert:undertaken

Support: California Association of Urban League Executives;
California State Conference of the National
Association for the Advancement of Colored People;
East Bay Municipal Utility District; California
Black Faculty and Staff Association; Association of
Black Personnel in City Government; American Civil
Liberties Coalition; Mexican American Legal Defense
and Educational Fund (MALDEF)

Opposition: None Known

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation: None Known

Prior Vote: Asm. Jud. (Ayes 10, Noes 1); Asm. Flr. (Ayes
48, Noes 27)

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URL: http://www.maplight.org/map/ca/bill/6501/default/history/action-70304

Notes:

Related Names: Black Faculty Association|Mexican American Legal Defense and Educational Fund (MALDEF)|National Association for the Advancement of Colored People (NAACP)|Association of Black Personnel in City Government

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