After Affirmative Action: Life under an Executive Order Suggests the Future of Affirmative Action in a Post-CCRI California
Lynch, Michael, Reason
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 canoe 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. …