The Volokh Conspiracy

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Just Contributed to Preserve California Ban on Race, Sex, and National Origin Preferences

in government education, employment, and contracting.


I helped draft Prop. 209, the 1996 ballot measure generally providing 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 California legislature (and other parts of the California establishment) have put a measure on the ballot, Prop. 16, to repeal Prop. 209; you can see the Arguments and Rebuttals here. (Our own Gail Heriot co-signed one of the arguments, and is Co-Chair of No on Prop. 16.)

I regret that I put off contributing to the ballot measure, but I just remedied that this morning, and I encourage you do the same, if you share my opposition to race-based public university admissions, government hiring, and the like—whether or not you're in California.

To my pleasant surprise, it appears that the No on Prop. 16 side might well prevail (even though the Yes side has raised $22.7 million to the No side's $1.25 million): A UC Berkeley Institute of Governmental Studies poll, the most recent one in the race, reports that registered voters split 49% No to 38% Yes, up from 41%-33% a month ago.

Indeed, there's broad support among many members of various racial and ethnic groups: Asians are on the No side 50%-39%, non-Hispanic whites 53%-35%, Latinos are essentially tied (42%-40% on the No side, but within the margin of error), and 33% of blacks take the No side, too (33%-58%).

And while of course this is a subject on which conservatives and liberals tend to differ, even many liberals take the No position (28% of the "somewhat liberal," though only 12% of the "very liberal"). And moderates take the No view by a 54%-31% margin. Still, the race is close and uncertain enough that I thought it important to contribute to help the No side.

I don't say much here about my reasons for supporting this position (which, at the most general level, are largely similar to those in the ballot statement that Gail co-signed), because I imagine most of you have heard the arguments on both sides of such questions and have made up your minds about it.

But I think that if race preferences can be defeated in 2020 in now-deep-Blue California, I think that will send the right message more broadly: that further classifying people by race, and setting up different standards (admissions and otherwise) for different racial groups is not the solution to America's or California's problems. That's why supporting the No side here struck me as especially important.