BILL NUMBER:  SB 1735
  VETOED	DATE: 09/24/98




To the Members of the California Senate:

I am returning Senate Bill No. 1735 without my signature.

This bill makes legislative findings that Article I, section 31 of
the California Constitution (commonly known as Proposition 209)
should be construed to permit "focused outreach and recruitment of
minority groups and women if any group is underrepresented in entry
level positions of a public sector employer or in an educational
institution."

While I commend any efforts to promote equal opportunity for every
group in our society, this bill is unconstitutional, as it seeks to
interpret Proposition 209 to authorize race-limited and
gender-limited outreach.  Not only is it not the proper role of the
Legislature to make findings as to the meaning of a constitutional
provision passed two years earlier, but this interpretation conflicts
with Proposition 209 and the Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitut ion.

First, it is not the province of the Legislature, but of the courts,
to construe a constitutional provision.  A subsequent act of the
Legislature cannot provide any guidance of the voters' intent in
passing a constitutional initiative two years earlier and thus is
irrelevant to interpreting such an initiative.  See Delaney v.
Superior Court of Los Angeles County, 50 Cal.3d 785, 801 (1990)
(Legislative history did not provide guidance as to voters' intent in
enacting a state constitutional amend ment because none of the
indicia of the Legislature's possible intent was before the voters).


Second, the Legislature's 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 - the distinct
benefit of information about j ob or educational opportunities -
solely on the basis of the race or sex of its members.  As U.S.
Supreme Court Justice Anthony Kennedy eloquently put it in the
context of the Equal Protection Clause in Miller v. Johnson, 515 U.S.
900, 911 (1995), "At the heart of the Constitution's guarantee of
equal protection lies the simple command that the Government must
treat citizens as individuals, not as simply components of a racial,
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religious, sexual or national class."  [Quotations omitted.]
Instead, this bill treats individuals as components of a racial or
sexual class by authorizing outreach and recruitment based on the
race or gender of the individual.  In short, it grants a preference
based solely on race or sex in violation of Proposition 209.

Indeed, so flagrant is the bill's authorization of race- and
gender-limited outreach that the bill is obliged to admonish that it
should not be construed to "prohibit" governmental agencies from
engaging in "general recruitment and outreach programs to all
individuals."  This language suggests that without such an
admonishment, the bill might otherwise be construed not to authorize
broad and even-handed recruitment.

Third, the bill's authorization of recruitment of, and outreach to,
minority groups and women "if any group is underrepresented in entry
level positions of a public sector employer or in an educational
institution" violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.  Under the Equal
Protection Clause, "all racial classifications, imposed by whatever
federal, state, or local governmental actor, must be analyzed by a
reviewing court under strict sc rutiny" and are constitutional "only
if they are narrowly tailored measures that further compelling
governmental interests."  Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 227 (1995).  The Supreme Court has held that racial
classifications in employment are only justified where the state can
identify prior discrimination with some specificity and the racial
classifications are narrowly tailored to remedy the discrimination.
See City of Richmond v. Croson, 488 U.S. 469 (1989).

Here, however, the Legislature has made no findings of discrimination
that could justify its authorization of race- or gender-limited
outreach.  Nor can underrepresentation, as defined by this bill,
constitute evidence of any discrimination.   The bill defines
underrepresentation as a comparison between "the minority group or
number of women at the governmental agency with that group's
representation in the current civilian labor force ... or comparing
the minority group or number of women at t he educational institution
with that group's representation in the region ...."  However, "
[w]hen special qualifications are required to fill particular jobs,
comparisons to the general population (rather than to the smaller
group of individuals who possess the necessary qualifications) may
have little probative value." Hazelwood School District v. United
States, 433 U.S. 299, 308 n.13 (1977).  It should be eminently clear
that both governmental agencies and educational institutions require
spe cial qualifications such that a comparison between a group's
representation at a state agency or a higher educational institution
and its representation in the general labor force or population is
irrelevant for purpose of defining "underrepresentation."

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This year I sponsored a legislative package which would not only
bring California law into conformity with Proposition 209, but would
promote contracting and employment opportunities for all segments of
society.  Among other things: I proposed an Office of Outreach within
the State and Consumer Services Agency to facilitate broad and
aggressive outreach to individuals and businesses in all segments of
California's society; I suggested that the State Personnel Board
review and examine the valid ity of qualification standards and
selection devices for employment by state agencies to eliminate any
barriers to employment; I proposed placing specific responsibilities
on state departments and agencies to ensure equal employment
opportunities; and I proposed new provisions and remedies prohibiting
discrimination in the hiring of contractors or subcontractors for
state contracts.  The Legislature refused to act on these proposals.


Next year, the Legislature should take appropriate steps to enhance
outreach and recruitment for all segments of California's society,
repeal those antiquated race- and gender-based preference laws which
violate the Equal Protection Clause and Proposition 209, and stop
trying to narrow California's constitutional prohibitions against
discrimination through legislation.

There is no place in California for laws that classify our rich
mosaic of people by their race, ethnicity, or gender, rather than
their talents, or that define their recruitment or employment
opportunities based on their skin color or chromosomes.  The fact
that building an equal opportunity society is hard doesn't make the
short-cut of granting preferences right.  Lest we forget it, no
single group will soon constitute a majority of Californians.  Under
those circumstances, if we divide Califo rnians between those who are
entitled to preferences and those who are not, we will truly have a
house divided.  And "a house divided against itself cannot stand."

Cordially,





PETE WILSON







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