BILL ANALYSIS
SB 44
Page 1
Date of Hearing: June 8, 1999
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
SB 44 (Polanco) - As Introduced: December 7, 1998
SUBJECT : PROPOSITION 209: GOVERNMENT OUTREACH AND RECRUITMENT
KEY ISSUE : SHOULD IT BE CLARIFIED THAT PROP. 209 DOES NOT
PROHIBIT GOVERNMENTAL AGENCIES FROM CONTINUING TO ENGAGE IN
OUTREACH ACTIVITIES FOR UNDER-REPRESENTED GROUPS IN PUBLIC
EDUCATION AND EMPLOYMENT?
SUMMARY : Clarifies the right of government entities to continue
outreach and recruitment activities that will yield diverse
results in public education and employment pursuant to
Proposition 209, as enacted in Section 31 of Article 1 of the
California Constitution. Specifically, this bill :
1)Provides that Proposition 209's prohibition on engaging in
discrimination or granting preferential treatment does not
prevent governmental agencies from continuing to engage in
outreach programs, including focused outreach and recruitment
efforts towards underrepresented groups.
2)Declares that whether a group is underrepresented shall be
determined by comparing the number of women or minorities at
the governmental agency with that group's representation in
the current civilian labor force in the jurisdiction of the
governmental agency. For purposes of public education, the
number of women or minorities at an educational institution
shall be compared with that group's representation in the
region from which the postsecondary institution primarily
draws its students.
3)Specifies the intent of the Legislature that this bill allow
public sector employers and educational institutions to
conduct outreach efforts with a goal of increased diversity,
to allow underrepresented individuals to compete for
opportunities in education and employment.
4)Finds that diversity shall continue to be of value in building
a multitalented diverse pool of individuals and a more
inclusive and productive workplace.
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5)Clarifies that the bill in no way prohibits governmental
agencies from engaging in general recruitment and outreach
programs to all individuals, including persons who are
economically disadvantaged.
EXISTING LAW :
1)Prohibits the state 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. (Cal. Constitution Art. 1, sec. 31(a).
Proposition 209 of 1996. All further references are to the
California Constitution unless otherwise noted.)
2)Requires "every state agency, department, board and commission
[to] cease any enforcement of the minority and women business
enterprise participation goals and the good faith requirements
related thereto. . ." (Executive Order W-172-98.)
3)Provides that Proposition 209 in no way prohibits the
government from engaging in outreach and recruitment programs.
( Lungren v. Superior Court of Sacramento (1996) 48
Cal.App.4th 435, 442.)
FISCAL EFFECT : Unknown
COMMENTS : The author notes that this bill is urgently needed
to correct unfortunate misinterpretations of the effect of
Proposition 209. The author notes that as a result of
Proposition 209, "many public agencies are hesitant to target
outreach to underrepresented groups. SB 44 is designed to clear
up a 'gray area' in Proposition 209 concerning what constitutes
allowable outreach by public agencies in employment and
education. This bill allows targeted outreach to groups whose
representation in the workforce does not reflect their presence
in the civilian general labor force."
The author commented that "outreach is about sharing information
about opportunities. It's about ensuring that all communities
are fully informed. Without aggressive outreach, many
Californians may remain unaware of the opportunities in
employment and education that exist." This bill simply
clarifies that Proposition 209 does not prohibit governmental
agencies from engaging in outreach and recruitment activities.
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In writing in support of last year's virtually identical bill by
Senator Polanco (SB 1735), then-Attorney General agreed with the
author's assessment of the necessity of this measure, noting "we
have been advised that a not insignificant number of local
government agencies have adopted a position (perhaps on the
advice of counsel) that they may not conduct outreach
activities. This is of great concern to us. . . .We believe
there is a great need to make clear to one and all that
aggressive, comprehensive outreach to potential applicants is
essential."
Proposition 209 Does Not Prohibit Outreach and Recruitment
Programs . Proposition 209, passed by the voters by a margin of
54%-46% on November 5, 1996, provides in relevant part: "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."
In analyzing the scope of Proposition 209 in terms of the
appropriateness of the ballot label's use of the phrase
"affirmative action," the court noted that "most definitions of
the term [affirmative action] would include not only the conduct
which Proposition 209 would ban . . . but also other efforts
such as outreach programs." The court went on to cite various
dictionary definitions of the term affirmative action to further
indicate that the term includes many types of programs not
covered by Proposition 209, including 'the encouragement of
increased representation of women and minority-group members,'
'action taken to provide equal opportunity, as in hiring or
admission, for members of previously disadvantaged groups,'
'programs designed to eliminate existing and continuing
discrimination, to remedy lingering effects of past
discrimination, and to create system and procedures to prevent
future discrimination.' ( Lungren v. Superior Court of Sacramento
(1996) 48 Cal.App.4th 435, 442. Citations omitted.)
This bill codifies the pronouncements of the court that
Proposition 209's prohibitions on discrimination and granting
preferential treatment do not prohibit governmental agencies
from engaging in outreach or recruitment in public education,
employment, or contracting.
Outreach v. Preferential Treatment . In vetoing last year's SB
1735, then-Governor Wilson contended that "the Legislature's
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finding that Proposition 209 does not prohibit governmental
agencies from engaging in 'focused outreach and recruitment of
minority groups and women' conflicts with Proposition 209's
prohibition against granting 'preferential treatment to . . .
any . . . group on the basis of race, sex . . . or national
origin. . . .' By authorizing race-limited and gender-limited
recruitment and outreach, this bill grants a preference to a
group." However, this argument ignores the pronouncements of
the court in Lungren , in its evaluation of the scope of
Proposition 209, that Proposition 209 does not ban outreach
efforts.
This view is also at odds with an opinion rendered last year by
our Legislative Counsel that "outreach efforts by themselves do
not involves 'preferences,' since after obtaining the broader
pool, the employer may make its selection in a race- and
sex-blind fashion. What is meant by the words 'preference' and
'preferential treatment' [prohibited by Proposition 209] is
race- or sex-conscious selection decisions that deviate from the
employer's ordinary merit-based, or at least race- and
sex-neutral, selection criteria. . . The prohibition in Section
31 [of Article 1 of the California Constitution] against
preferential treatment refers to program that confer a benefit
to persons within a specific class based on race, sex, color,
ethnicity, or national origin to the exclusion of persons who
are not within that class, but would not include an outreach
program designed to provide information or otherwise increase
the diversity of the pool of applicants for such a benefit .
(Citations omitted. Emphasis added.)
California's current Attorney General, who is responsible for
enforcing the laws of this state, agrees with both the Lungren
court and the Legislative Counsel opinion noted above that
"Section 31 of Article 1 of the California Constitution does not
prohibit outreach programs by state and local public agencies,
including educational institutions. Indeed, we believe that not
only is outreach permitted, it is an affirmative obligation of
government and other public institutions. This belief is
reflected in the Attorney General's Equal Opportunity Policy
which, like this bill, authorizes the use of recruitment tools,
including focused recruitment, to ensure equal employment
opportunities."
Determination of "Underrepresentation" . This bill finds that
Proposition 209 does not prevent governmental agencies from
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engaging in public sector outreach programs, including focused
outreach and recruitment of minority groups and women if any
such group is underrepresented in entry level positions of a
public sector employer of in an educational institution.
"Underrepresentation shall be determined by comparing the
minority group or number of women at the governmental agency
with that group's representation in the current civilian labor
force in the jurisdiction of the governmental agency. In his
veto message of SB 1735, then-Governor Wilson, noted that such
comparisons "are irrelevant for purposes of defining
underrepresentation." The bill's definition of
underrepresentation, however, is consistent with that espoused
by the U.S. Supreme Court in Johnson v. Transportation Agency,
Santa Clara County (1987) 480 U.S. 616. The Johnson Court found
that "in determining whether an imbalance exists that would
justify taking sex or race into account, a comparison of the
percentage of minorities or women in the employer's work force
with the percentage in the area labor market is appropriate"
with entry level positions. ( Id. at 631-632. Emphasis added.)
ARGUMENTS IN SUPPORT : The Los Angeles County Chicano Employees
Association, the sponsor of this measure, writes the following
in strong support of this bill's findings that outreach efforts
are not prohibited under state law: "Outreach programs cannot
be defined as preference programs because these programs are
designed to be informational and consumer oriented. They have
functioned in the past and will function in the future as a
means to provide public employment information to minority
communities that have traditionally had low numbers of their
residents employed in the public sector."
CAFE de California, Inc. writes that "historically where
outreach has occurred, there has often been a remarkable change
in ethnic or gender composition of the public sector employment
workforce. . . .Senate Bill 44 would ensure that women and
minorities have access to information about job categories where
they have been traditionally underrepresented.
The California Primary Care Association (CPCA) asserts that
alarming statistics on the number of minority groups applying to
California medical schools argues strongly for this bill. CPCA
points to a recent study by the University of California, San
Francisco's Center for California Workforce Studies which found
that that "the number of blacks, Latinos and American Indians
applying to California medical schools has dropped 25% since
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1995, and the number enrolled is down almost one-third. . . .
.This dramatic drop was due in large part to the passage of
Proposition 209." CPCA notes that since "minority medical
graduates are nearly four times more likely to practice in
underserved minority areas than their Caucasian counterparts,"
this drop in medical school enrollment, will have a significant
effect on minority communities. SB 44 would help reverse this
down-turn.
California NOW adds that "if diversity in public education and
employment is to be achieved, governmental agencies must be
permitted to implement programs involving outreach and
recruitment of minority groups and women when such groups are
underrepresented. Women and people of color will not have true
access to equal opportunities without such programs."
ARGUMENTS IN OPPOSITION : Ward Connerly, writing on behalf of
the American Civil Rights Coalition in its opposition to bill,
argues that "race-based outreach constitutes a type of
race-based affirmative action and is therefore in violation of
the letter and spirit of Article 1, Section 31 and the will of
the people. . . .[SB 44] seems to legitimize the very thing that
Prop. 209 was designed to overturn. Whether we agree on the
merits of race-based outreach, however, ignores the simple fact
that the Legislature cannot invalidate a vote of the people
under the guise of 'clarifying' or 'interpreting' that on which
the people have ruled."
Prior Related Legislation .
AB 1700 (Richter, 1998), which sought to eliminate or curtail
approximately 30 programs that fell into the categories of
outreach or recruitment, or attempted to provide opportunities
for historically disadvantaged or excluded minority groups
without imposing quotas or excluding any individual based on
race, ethnicity or gender. Failed passage in the Assembly
Judiciary Committee.
ACA 3 (Murray, 1997-98), creating the "Civil Rights Initiative
of 1998, which authorized the state to take all actions,
including the creation and implementation of any programs it
deemed necessary to promote and enhance equal access and
opportunities for public education, public employment, and
public contracting. Died in the Assembly Judiciary Committee.
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SB 1735 (Polanco, 1998), which was virtually identical to the
pending measure. Vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles Chicano Employees Association (Sponsor)
American Association of University Women
Attorney General's Office
CAF? de California, Inc.
California Coalition of Hispanic Organizations
California Federation of Business and Professional Women
California La Raza Lawyers Association
California National Organization for Women
California Nurses Association
California Organization of Police and Sheriffs
California Primary Care Association
California School Employees Association
California State Association of Counties
California Teachers Association
Community College League of California
East Bay Municipal Utility District
El Centro del Pueblo
Los Angeles Unified School District
Mexican American Legal Defense and Education Fund
National Association of Latino Elected and Appointed Officials
Educational Fund
Professional Hispanics in Energy
Society of Hispanic Professional Engineers, Greater Los Angeles
Chapter
Various Individuals
Opposition
American Civil Rights Coalition
Analysis Prepared by : Donna S. Hershkowitz / JUD. / (916)
319-2334