The day before Thanksgiving, Federal Judge Thelton Henderson made national news by blocking California's controversial anti-affirmative action measure, approved by a margin of 54-46 on Nov. 5.
Gov. Pete Wilson denounced Judge Henderson's decision as "absurd," saying "the will of the voters ultimately will prevail." Judge Henderson said "it is not for this, or any other, court to lightly upset the expectations of voters," but insisted "the issue is whether [Proposition 209] complies with the laws of our Constitution."
Governor Wilson and Judge Henderson, apparently on opposite sides of the issue of Proposition 209's constitutionality, nevertheless share a fundamental - and dubious - assumption: that a referendum on affirmative action took place in California and voters there decided the time had come to end it.
A Los Angeles Times exit poll of more than 2,000 voters strongly suggests that many Californians mistakenly thought a vote for 209 was a vote for affirmative action. According to data provided by the Times, 27 percent of those who voted for 209 - well over 1.3 million voters - also voiced support for "affirmative-action programs designed to help women and minorities."
If even half of these pro-affirmative action Californians voted for 209 - dubbed the "California Civil Rights Initiative" by its proponents - out of confusion, their numbers alone would have reversed the outcome, bringing the vote against 209 to more than 53 percent. Had 209 been forthright about its anti-affirmative action intent, Californians would have rejected it.
The myth that Proposition 209, whose text never mentions affirmative action, was a referendum on the issue has been embraced by both Democrats and Republicans. President Clinton referred to being "on the losing side of that referendum out in California on affirmative action." Offering the same interpretation from a different political perspective, conservative Republican Linda Chavez opened a post-election essay on 209 with the claim that "for the first time in the 30-year history of affirmative action programs, voters finally got their chance to voice their opinion on the controversial policy."
Proposition 209's sponsors fought ferociously to keep the very words "affirmative action" off the ballot. In July, an alliance of civil-rights organizations, including the NAACP Legal Defense Fund, filed suit, claiming the title and summary of the measure written by California's Republican Attorney General Daniel Lungren failed to disclose the measure's "actual purpose and point." "Objective, nonpartisan polling," the suit claimed, showed that many voters "did not realize that the measure eliminated affirmative action."
Superior Court Judge James T. Ford agreed, ruling that Proposition 209's "aim and chief purpose is to repeal affirmative-action programs in California as they have developed over the past 25 or so years." He ordered the attorney general to insert the term "affirmative action" in the measure's title and summary, and he chastised 209's proponents for the absence of "any embarrassment whatsoever" over their "failure to disclose to the voters ... the chief purpose of the initiative."
Recognizing that Proposition 209's electoral fate was hanging in the balance, the measure's sponsors filed an appeal, lest the words "affirmative action" appear on the ballot. They did so aware that "affirmative action," unlike "preferential treatment," is supported by the majority of voters and a statement of 209's anti-affirmative action character would likely prove fatal.
The case was heard in Appellate Court by a panel headed by Judge Robert Puglia, a conservative. The panel decided for Attorney General Lungren, declaring valid his summary and description of 209 as a "Prohibition Against Discrimination or Preferential Treatment." With the words "affirmative action" conspicuously absent from the ballot, Proposition 209's victory was virtually assured.
But were the voters confused by the language of 209? The results of the Times poll suggest the answer is yes. The initiative's silence on affirmative action, combined with its opposition to "discrimination" and "preferences," misled many voters. Separate analysis of the 15 percent of the electorate who expressed support for affirmative action yet voted for 209 reveals that poorly educated and low-income voters were heavily overrepresented. In a bitter irony, minority voters also seem to have been overrepresented in voting for the "California Civil Rights Initiative."
The vote on Proposition 209, then, was not a referendum on ending affirmative action, yet the enemies of affirmative action have not hesitated to use its passage to advance their cause. Ward Connerly, chair of the 209 campaign, declared that "It is time affirmative action ended" - in direct contradiction to his insistence before the election that 209 prohibited "preferences," but not "affirmative action." Already, Rep. Charles Canaday (R) of Florida has promised to revive a federal version of Proposition 209.
A momentous national debate on the future of affirmative action is before us. For it to be an honest one, those who wish to end affirmative action should call such programs by their name and try to convince their fellow citizens that they no longer serve a useful purpose. If a genuine referendum on the issue is ever held, we shouldn't be surprised to find that most voters believe affirmative action, though imperfect, remains necessary in our difficult national quest to ensure equal opportunity for all Americans.
Jerome Karabel is professor of sociology and Lawrence Wallack is professor of public health at the University of California, Berkeley.