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Why California's racial privacy initiative is unconstitutional

By Erwin Chemerinsky
FindLaw Columnist
Special to CNN.com


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(FindLaw) -- On October 7, California citizens are scheduled to vote on an initiative that would prevent government entities in the state from gathering, compiling, or publishing data concerning race and ethnicity.

While the initiative includes a laundry list of exceptions, it nevertheless is an extraordinarily broad prohibition on collection of an important type of information. The proposed initiative is based on the assumption that ignorance is better than knowledge.

The so-called Racial Privacy Initiative is a disaster from a policy standpoint -- interfering with the government's ability to track race and ethnicity-based hate crimes, and to gather data about the numerous medical conditions that disproportionately effect particular racial or ethnic groups. (The Initiative has an exemption for "medical research subjects and patients," but not for epidemiological studies.)

If the Initiative were to pass, data on race discrimination by private entities could not longer be collected. Nor could the educational achievement of students of a given race or ethnicity be studied to see if it was improving or regressing.

These, and other, policy problems with the Initiative have been well explained elsewhere. In this column, I will consider a few of the less often remarked aspects of the so-called Racial Privacy Initiative: The way that it intersects with the democratic process, and with the law.

I will argue that the Initiative is designed in part to prevent studies showing the damaging effects of eliminating affirmative action -- and thus to keep voters from reinstituting affirmative action in California. That is undemocratic: Voters have the right to cast informed votes.

In addition, I will also contend that the Initiative risks significantly increasing California government entities' liability for discrimination. In a state already on the fiscal brink, it hardly seems wise to increase the risk of multimillion judgments that will only further unbalance the budget.

Finally, I will argue that the Initiative violates the First Amendment as applied to professors and researchers at state schools. Their free speech rights, as well as their academic freedom, require that they be able to conduct the very kind of studies the Initiative would put off-limits.

Protecting the anti-affirmative action Proposition 209 from public scrutiny

The Initiative was proposed by Ward Connerly, who was also the architect of California's Proposition 209. As many readers may be aware, Proposition 209 abolished affirmative action in government contracting, education, and employment in California.

As Andrew Hacker explained in an August 14 article in The New York Review of Books, statistics demonstrate that Proposition 209 has had a devastating effect on diversity at public universities. During the period from 1998 to 2002, African-Americans comprised only 2.9 percent of the students at UCLA Law School, and 3.4 percent of the students at the University of California, Berkeley, Boalt Hall School of Law -- both public institutions affected by Proposition 209. By comparison, African-Americans during this time period were 11.5 percent of the student body at the University of Southern California Law School and 8.0 percent of the students at Stanford Law School -- two private institutions.

Statistics like these might persuade many voters to at least think twice about whether to reverse Proposition 209, and once again allow public institutions to adopt affirmative action programs. The Initiative's solution is simple: Stop keeping statistics about race and education.

After all, without such statistics, the woeful underrepresentation of African-Americans and Latinos at many California public institutions can more easily be ignored. And without such statistics, it will become harder to make the argument that Proposition 209 cannot be retained.

How the initiative will increase legal liability for governments in California

Many federal laws create liability if there is proof of a racially disparate impact. Put another way, under these laws, discriminatory impact is sufficient to create liability, even without proof of discriminatory intent.

As early as 1971, in Griggs v. Duke Power Co., the Court made clear this was true with respect to Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on -- among other criteria -- race. The Court has also clearly held -- for instance, in Thornburgh v. Gingles -- that Section 2 of the Voting Rights Act prohibits a voting practice or system that has a disparate impact on racial minorities. In addition, the Court has acknowledged -- for instance, in Alexander v. Sandoval -- that the regulations under Title VI of the 1964 Civil Rights Act prohibit recipients of federal funds from engaging in practices that have a racially disparate impact.

With so much liability contingent on disparate impact, California state and local governments would be foolish if they failed to gather data as to the racial composition of their work forces; to examine the racial make-up of voting districts; and to assess the racial impact of their policies and practices. Unfortunately, however, that is exactly what the Initiative, if passed, would stop the government from doing.

Plaintiffs and plaintiffs' attorneys, of course, could still gather such data -- and file disparate impact suits. But under the Initiative, the government could not gather the very data that could help ensure that it is in compliance with the law.

When disparate impact violations can create multimillion-dollar liability, it is simply suicidal for a States' voters to prevent their government from even knowing if it has broken the law. In the midst of a fiscal crisis, this kind of exposure is the last thing California needs.

Why the initiative violates the First Amendment of the U.S. Constitution

The initiative would, if passed, apply to every government employee. That includes educators -- who are, strikingly, not exempted from the Initiative's reach.

Thus, academics at state universities could no longer gather information and do research about race. A medical school professor, for example, could not research whether African-American and Latino children are more likely than white children to suffer lead poisoning, or whether AIDS continues to disproportionately ravage minority communities, or whether teenage smoking is a greater problem among certain ethnic groups. A law professor at a state school could not gather data about housing discrimination based on race. A political science professor could not research voting patterns of particular racial groups.

Prohibiting government employees from researching, and thus from writing, what they choose surely violates the First Amendment. This year, in Grutter v. Bollinger, the Supreme Court recently explained that "academic freedom ... long has been viewed as a special concern of the First Amendment." (Citation omitted) The Racial Privacy Initiative would be a content-based restriction on research and writing by professors in California. There is no way that it could withstand a constitutional challenge.

The initiative should fail for both policy and legal reasons

Long ago, James Madison wrote: "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."

Ignorance is just what the proposed Racial Privacy Initiative seeks to ensure. And this type of ignorance will be costly for California and its citizens -- both literally and figuratively.

Let us hope that California voters will realize that ignorance is not bliss when it comes to issues of race, and reject the Racial Privacy Initiative.

Columnist

Erwin Chemerinsky, a FindLaw columnist, is the Sydney M. Irmas professor of Public Interest Law, Legal Ethics, and Political Science, at the University of Southern California School of Law.


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