After Affirmative Action

Life under an executive order suggests the future of afirmative action in a post-CCRI California.

Michael W. Lynch from the November 1996 issue

Last year, in a speech that defied political gravity, President Bill Clinton threw his support behind affirmative action while coining the phrase "mend it, don't end it." Clinton's mini- couplet quickly became the mantra of those seeking to maintain the affirmative action status quo. In California, where voters will decide the future of the state's racial and gender preferences in November, opponents of the California Civil Rights Initiative have picked up on Clinton's rhetorical waffle, charging that the initiative is too blunt an instrument with which to fix the delicate apparatus of affirmative action. These programs, we are told, must be left to nimble-handed professionals, whether they be bureaucrats or lawyers.

In fact, the only hope of mending affirmative action lies in just such broad instruments as the CCRI, which tie the hands of those who would use the government to grant privileges based on race and gender. Recent reforms in the affirmative action programs in the California State Civil Service illustrate why. They also provide a template of how city and county governments in a post-CCRI California can craft programs that, while expanding opportunity, neither grant preferential treatment nor discriminate based on race, ethnicity, or sex.

Taking Executive Action

On June 1, 1996, California Gov. Pete Wilson made the first effort by any elected politician to fix affirmative action, by issuing Executive Order W-124-95. Wilson's executive order mandated that agencies and departments "eliminate all preferential treatment requirements that exceed federal or statutory law" and set goals and timetables, which are required by statutory law, based on "the employment pool possessing the necessary qualifications for the particular job classification at issue, rather than on general work force parity."

Wilson's attempt to modify the program came a quarter century into the state's affirmative action effort. In 1971, Gov. Ronald Reagan issued an executive order stating that "justice demands that every citizen consciously adopt and accentuate a personal commitment to affirmative action which will make equal opportunity a reality." In 1977, the legislature mandated that each agency and department set up an affirmative action program and "establish goals and timetables designed to overcome any identified underutilization of minorities and women in their respective workforces." The State Personnel Board was charged with overseeing the affirmative action programs.

Wilson, with the stroke of a pen, achieved what the personnel board professionals had long been unable to accomplish in the face of interest-group politics: His executive order forced the state to create an affirmative action program that, at least on paper, is based on expanding opportunity, not granting preferences.

Wilson's order had two major effects. First, although Wilson lacked the power to abolish affirmative action goals and timetables by executive action, the order mandated that state agencies conform to federal law by using "relevant labor force" data to set such goals. This meant that if the state was hiring lawyers, the benchmark labor pool would be only the people who had actually passed the state bar. Likewise, only the composition of those in the private-sector work force with a college degree could be used to determine whether minorities and women were underrepresented in state jobs that required similar credentials. Second, the order prohibited agencies and departments from using the goals and timetables to grant preferential treatment to individuals in the hiring process.

The significance of Wilson's reforms shouldn't be obscured by the welter of bureaucratic jargon: It is perhaps best demonstrated by the ferocity with which the changes were resisted.

In the late 1980s, a series of U.S. Supreme Court decisions restricted the ability of state and local governments to justify their affirmative action programs based on statistical disparities. In 1989, the Court ruled that governments must use relevant labor force data-- statistics on the individuals who actually meet the qualifications for a job in the area in which the government would be reasonably expected to recruit. At the time, the state based its goals and timetables on "general labor force" data, which was simply the ethnic and gender composition of California's entire private sector work force.

The switch to using the relevant labor force is a disaster for the state's ethnic interest groups, such as Black Advocates in State Service, CAFE de California (which represents Hispanics), and the Mexican American Legal Defense Fund, who over time had secured a hiring structure that greatly benefited their constituency groups. Managers, for example, were often required to justify in writing the hiring of a white man over available minorities; managers' performance reviews were even tied to their success in meeting hiring goals. As a result of these incentives, every minority group except Hispanics was either hovering around parity or was overrepresented among state employees--even by the general labor force standard. African Americans, for example, were overrepresented on the government's payroll by nearly 90 percent. If the state were to use relevant data, the interest groups knew that their already tenuous claims to underrepresentation would become laughable, and that their power to deliver government spoils to their members would be drastically eroded.

In an effort to conform to the law, Ted Edwards, manager of the State Personnel Board's affirmative action division, called an informational hearing in 1989 to try to design a legal program. An impressive array of advocacy groups testified. Edwards says the meeting produced a "mixed reaction" and that "nothing immediately happened as a result." Edwards called another hearing in March 1993 to implement a goal-setting process using the relevant labor force data, to bring the state into compliance with the law. "By that time, I had finished my analysis of various Supreme Court decisions, and I was convinced that some of our current affirmative action practices were not consistent with Supreme Court case law," Edwards recalls. The reaction was heated. "Advocacy organizations came in and strongly objected to our staff recommendation to change the goal-setting process to use relevant labor force comparisons," Edwards says. "It was rather blistering testimony."

As a result, the status quo held firm. Jose Perez, then assistant director for affirmative action for Caltrans, the state's transportation agency, summed up the meeting in Caltrans's 1994 affirmative action plan: "The SPB considered using relevant labor market rather than general labor force data to set affirmative action goals for employment. After considerable debate and public reaction, the five-member Board tabled the issue indefinitely."

In other words, the state chose to willfully violate the law. It wasn't until a Caltrans employee threatened to sue the state that Edwards was allowed in 1994 to create a pilot program that used relevant labor force data at Caltrans, the Department of Corrections, the California Highway Patrol, and the Department of Education.

The refusal to use relevant labor force standards, even though required by U.S. Supreme Court case law, is an object lesson in why blanket prohibitions against choosing by race, such as the CCRI, are needed if affirmative action is ever to be mended. President Clinton talks about "mending" affirmative action just as his Department of Justice works to expand such programs as 10 percent bid preferences for minorities, and there is just as little enthusiasm for "mending" affirmative action among most of its practitioners in state government.

Disappearing Disparities