The Effects of Proposition 209 on California: Higher Education, Public Employment, and Contracting

Charles Geshekter

Charles L. Geshekter is emeritus professor of history at California State University, Chico, California 95929-0735; [email protected]. This address was originally presented at “Race and Gender Preferences at the Crossroads,” a conference organized by the California Association of Scholars and co-sponsored by the American Civil Rights Institute (ACRI) and the Center for Equal Opportunity, held January 19, 2008, at the University of Southern California, Los Angeles, California. A longer version is available from the ACRI, P.O. Box 188350, Sacramento, CA 95818. The author is grateful to Roger Clegg, Sharon Browne, Jay Bergman, John Ellis, and Ward Connerly for their cogent suggestions and valuable criticisms of earlier drafts.


In 1996, Californians overwhelmingly approved Proposition 209 that prohibited all state agencies from using anyone’s race, ethnicity, or gender to discriminate against them or give them preference in university admissions, public employment, or competition for a state contract.

Those who opposed Proposition 209 predicted that ending racial or gender favoritism would result in sharp declines in black and Hispanic college enrollments, setbacks for women in public employment, reduced funds for cancer detection centers and domestic violence shelters, or other alarmingly negative effects.

This article compares such dire predictions with documentary evidence provided by the State Personnel Board, the Department of Finance, the University of California (UC), and California State University (CSU). It relies on data concerning admissions, retention, and graduation of undergraduates from the CSU system and the UC and reviews faculty hiring patterns within both systems. Other tables compare the numbers of white, black, Hispanic, males and females employed in a variety of California state agencies in 1997, after Proposition 209 was approved, and then in 2006, nine years later. 

These statistics document the progress made towards social justice under Proposition 209 and may encourage voters in other states who want to assure that preferential treatment (regardless of whatever else it may euphemistically be called) becomes a thing of the past in the operation of their respective state governments.

These data offer many uncomfortable truths to defenders of racial preferences and gender double standards whose unscrupulous attacks on voter initiatives are likely to persist, regardless of the facts from California. Defenders of double standards and group preferences insinuate that American voters in 2008 cannot understand the simple, straightforward language of the civil rights legislation of the 1960s. So immersed in the doubletalk of persity and obsessed with achieving proportional representation in all walks of life, persity crusaders ignore or dismiss any good news, repeating their tiresome mantra that without racial preferences or gender double standards a chilly climate for persity will envelop the workplace and campuses.

This article demonstrates the dishonesty of such claims. The UC and CSU systems continue to accelerate higher education success for all students by promoting educational practices that support everyone’s academic achievement. The CSU and UC data show that blacks, Hispanics, and other underrepresented groups have suffered no harm, but have steadily increased in the statistically significant areas of high school graduates and university baccalaureate holders across the state.

Despite the constant refrain about needing an “even playing field,” the fact is that getting admitted to a university or starting an academic career or landing a construction contract is not some game. When playing “the persity game,” the defenders of racial preferences or gender double standards prefer to play by no rules. They ignore the fact that disparities in any social category are not proof of discrimination, and that social scientists and geneticists have long recognized that variations within any group are far greater than any variations between such groups.

Proposition 209 in no way hindered the progress of minorities and women in public employment. Predictions about a future deterioration of labor market positions for women and minorities proved utterly unfounded.

In the construction industry, the end of racial preferences and gender set-asides resulted in a decline in the number of certified female- and minority-led businesses that had previously relied on favoritism (Women’s Business Enterprises [WBE] and Minority Business Enterprises [MBE]). This was not a surprising development. Meticulous investigations by the Discrimination Research Center, led by researchers who opposed Proposition 209, confirmed that many of the firms that went out of business after 1997 were not competitive to begin with, a fact that the successful women and ethnic minority business owners seemed easily to grasp when interviewed. By banning quotas and double standards in awarding state construction contracts, the implementation of Proposition 209 saved California millions of dollars (as demonstrated in studies by economist Justin Marion cited below).

The available evidence offers no support for ominous predictions made by opponents of Proposition 209 that the measure would “turn back the clock” on women’s progress or undermine equal opportunities for ethnic minorities.[1] A study from Michigan nonetheless claimed in 2005 that Proposition 209 had “eroded access to services, education, job training and other opportunities for women.”[2] Defenders of gender preferences and set-asides, such as One United Michigan, warned that ending such policies would, in Michigan as in California, “hurt women and girls.” But nothing of the sort ever happened in California.[3]

The hiring and promotion of women as faculty at the CSU and UC systems continued to increase. Women enrolled and graduated in greater numbers than men at the UC and CSU, and majored in a broad cross-section of fields including natural sciences, computer science, mathematics, and technology studies.

While none of this data may ever convince those who still staunchly oppose Proposition 209, it does rebut their predictions that initiatives like Proposition 209 jeopardize women and ethnic minorities. Shanta Driver, the national spokesperson for By Any Means Necessary (BAMN) recently alleged that “the initiatives had a ‘devastating impact’ on ‘under-represented’ groups.”[4]

One searches in vain for such evidence. Allegations like Driver’s rely on abusive terms like “resegregation” or outright fabrications to allege that damage is caused by eliminating racial and gender preferences. Such unsubstantiated claims often receive the uncritical attention of the media that treat them as “moral statistics” requiring no verification. This report corrects these erroneous impressions by reviewing actual statistical information available on California.

University of California Baccalaureates

Disparities in student academic performances in secondary schools are due, of course, to a variety of bitterly debated factors regarding learning conditions. These include stable home environments, nature of parental supervision, socio-economic status, and the quality of neighborhood schools in terms of qualified teachers and counselors, properly equipped facilities, textbooks, and advanced course availability. In addition, ethnic and racial communities vary in their income levels, the importance that each attaches to educational achievement, the presence of books in the home, the amount of television a child is allowed to watch, and a household’s familiarity with higher education.[5]

Contrary to relentlessly negative predictions, the numbers of black and Hispanic undergraduates that were newly enrolled system-wide at the University of California rose steadily from 1998 to 2006. The elimination of ethnic preferences and the prohibition against racial double standards in admissions led to a redistribution of students among the ten-campus system, with fewer only at the most competitive flagship campuses of Berkeley and UCLA.

While there was a significant drop in the numbers of black and Hispanic students at Berkeley and UCLA, table 1 indicates the greater success that ethnic minorities had in actually completing a baccalaureate degree when they attended a UC campus that offered an apparently better match for their academic backgrounds and preparation. 

Table 1
University of California Bachelors Degrees: Ethnicity and Campus, 1999-2006*
UC System 1999 2000 2001 2002 2003 2004 2005 2006 Change, '99-'06
Asian 10,485 10,578 10,962 12,035 12,686 13,744 14,076 14,383 37%
Black 1,139 1,034 1,023 1,,025 1,056 1,086 1,158 1,170 3%
Hispanic 3,984 3,899 4,099 4,223 4,582 5,981 5,258 5,287 33%
White 12,922 13,116 13,631 14,389 14,649 15,120 15,073 15,127 17%
All 31,949 40,962 28%
UC Berkely 1999 2000 2001 2002 2003 2004 2005 2006 Change, '99-'06
Asian 2,303 2,213 2,269 2,533 2,596 2,667 2,613 2,533 10%
Black 286 275 258 196 245 226 219 219 -23%
Hispanic 670 616 585 535 580 623 701 636 -5%
White 1,985 1,761 1,906 1,988 2,043 2,026 1,995 2,075 4%
All 6,102 6,446 6%
UC Davis 1999 2000 2001 2002 2003 2004 2005 2006 Change, '99-'06
Asian 1,575 1,498 1,500 1,665 1,763 1,934 1,127 1,270 44%
Black 130 135 114 143 145 133 138 142 8%
Hispanic 443 394 429 422 536 562 531 577 23%
White 2,027 2,035 2,121 2,293 2,468 2,459 2,488 2,396 18%
All 4,642 5,894 27%
UC Irvine 1999 2000 2001 2002 2003 2004 2005 2006 Change, '99-'06
Asian 1,675 1,799 1,799 1,980 2,253 2,494 2,461 2,418 44%
Black 65 63 62 84 76 86 126 115 43%
Hispanic 367 337 367 432 389 543 593 531 31%
White 770 727 812 983 1,050 1,286 1,267 1,286 67%
All 3,181 5,021 57%
UCLA 1999 2000 2001 2002 2003 2004 2005 2006 Change, '99-'06
Asian 2,202 2,211 2,427 2,392 2,492 2,560 2,496 2,529 14%
Black 355 299 267 243 240 236 226 197 -44%
Hispanic 1,002 915 274 914 935 1,051 1,057 1,072 7%
White 2,197 2,326 2,490 2,492 2,465 2,530 2,408 2,401 9%
All 6,195 6,958 12%
UC Riverside 1999 2000 2001 2002 2003 2004 2005 2006 Change, '99-'06
Asian 611 747 792 942 1,084 1,178 1,276 1,338 118%
Black 87 83 109 117 152 177 198 218 60%
Hispanic 367 389 464 531 621 668 751 737 50%
White 552 578 566 644 720 714 694 706 27%
All 1,762 3,317 88%
UC San Diego 1999 2000 2001 2002 2003 2004 2005 2006 Change, '99-'06
Asian 1,265 1,278 1,288 1,500 1,443 1,867 2,070 1,952 54%
Black 65 58 57 64 50 59 58 69 6%
Hispanic 319 392 274 407 387 452 464 513 61%
White 1,474 1,567 1,661 1,688 1,657 1,867 1,883 1,831 24%
All 3,530 5,061 43%
UC Santa Barbara 1999 2000 2001 2002 2003 2004 2005 2006 Change, '99-'06
Asian 591 546 537 596 626 613 696 738 24%
Black 89 77 104 111 94 100 124 124 40%
Hispanic 495 534 573 617 638 695 738 747 51%
White 2,467 2,642 2,651 2,716 2,579 2,587 2,598 2,604 5%
All 4,058 4,823 19%
UC Santa Cruz 1999 2000 2001 2002 2003 2004 2005 2006 Change, '99-'06
Asian 229 281 345 420 421 428 536 587 156%
Black 60 43 52 66 54 69 69 84 40%
Hispanic 314 318 325 333 296 286 422 460 46%
White 1,410 1,475 1,417 1,577 1,658 1,644 1,740 1,812 28%
All 2,385 3,388 42%

*Sources: The UC Statistical Summary of Students and Staff at (accessed December 1, 2007); UC StatFinder at (accessed December 5, 2007), (accessed December 4, 2007); Correspondence with Samuel J. Agronow, Coordinator of Admissions Research and Evaluation, University of California, Office of the President and James Litrownik, Coordinator of Data Management, Academic Advancement, University of California, Office of the President.

In 1999, black students earned a total of 1,139 bachelor’s degrees from the UC. In 2006, that number had increased 3% to 1,170. In 1999, Hispanic students earned a total of 3,984 bachelor’s degrees from the UC. In 2006, that number had increased by 33%, for a total of 5,287 degrees. In 1999, a total of 10,485 Asians earned bachelor’s degrees; in 2006 that number was 14,383.

Since 1998, the number of underrepresented students applying, being accepted, enrolling, and eventually graduating from the UC have all steadily increased. To some extent, these increases are consistent with demographic changes among California high school graduates; since 1996, students from underrepresented groups have grown from 38.7% to 44.8% of the state’s graduating public high school seniors.[6]

The data in table 2 indicate that in Fall 1998, blacks and Hispanics together constituted 19.5% of all UC freshmen and transfers; in Fall 2006, they represented 23% of all new enrollees. Asians were 34% of new enrollees in Fall 1998; in Fall 2006 they were 36%. In other words, ten years after the passage of Proposition 209, non-white ethnic minorities constituted over 60% of all freshmen and transfers at the University of California. When a September 2007 report issued by the UC Undergraduate Work Team of the Study Group on University Diversity constantly advocated the need for a “solution to UC’s diversity ‘problem,’” one wondered what that “problem” actually was.[7] 

Table 2
The University of California System Freshmen Admitted and Enrolled, 1998 and 2006

Black Latino Chicano Asian White
1998 2006 1998 2006 1998 2006 1998 2006 1998 2006
Freshman Admits 1,368 2,326 1,348 2,743 4,155 8,453 10,427 17,035 15,201 22,471
Transfer Admits 312 624 442 776 1,120 2,109 2,378 3,708 4,932 7,268
Freshmen Enrolled 739 1,072 737 1,348 2,211 4,133 6,979 11,334 8,257 10,687
Transfer Enrolled 219 415 309 531 823 1,418 1,794 2,776 3,674 5,218
Total New Enrollees** 958 1,487 1,046 1,879 3,034 5,5551 8,773 14,110 11,931 15,906
Increase '98-'06 55% 80% 83% 60% 33%

**This figure does not include continuing undergraduates

Table 3
Community College Transfer Admissions and New Enrollments, UC, by Ethnic Group, 1998 and 2006

1998 2006 Increase, '98-'06
Black & Hispanic 5,038 8,917 77%
Asian 8,773 14,110 60%
White 11,931 15,906 33%
Total 25,742 38,933 51%

As for gender, in Fall 2005, there were 85,939 women (54%) and 72,880 men (46%) enrolled as undergraduates at all UC campuses combined. In Fall 2006, women numbered 87,724 (a 2% increase) while men numbered 75,305 (a 3% increase), but remained respectively 54% and 46% of all undergraduates.

A persistent goal of the UC is to have underrepresented ethnic minorities (blacks, Hispanics, and Native Americans) eventually enroll in numbers that “reflect” or “encompass” or are “approximately proportionate” to their share of the state’s graduating high school seniors.[8] Whether those students arrive prepared for intellectual challenges and how soon, if ever, they actually graduate seems less important than increasing their admission numbers. But while lowering admissions standards does no one any favors, UC remains committed to an array of efforts to “repair the K–12 pipeline,” also known as the “hemorrhaging K–12 pipeline.”[9]

Faculty at the University of California, 1996–2006

This section summarizes faculty hiring trends at the UC over the past ten years. The official criteria for appointment are stipulated in the Academic Personnel Manual (APM). Every department is bound to judge promise or accomplishment in both teaching and research according to these published criteria. The APM explicitly reminds committees to take exceptional care never to relax its high standards, warning that “superior intellectual attainment, as evidenced both in teaching and in research or other creative achievements, is an indispensable qualification for appointment” (emphasis in original).[10]

As indicated in tables 4 and 6, in 1997–98, the UC appointed 364 new faculty members, of whom 249 (68%) were men and 115 (32%) were women. Between 1999 and 2002 that number for women dipped slightly to around 30%. From 2002 to 2006, however, the annual percentage of all appointments that were women remained consistently at 35%. During those same years, the annual percentage of non-tenured appointments that were women remained at 40%. The UC steadily increased the numbers of females among its tenured and tenure-track faculty positions by over 30% from 1996 to 2002 without apparently resorting to any programs that violated Proposition 209.  

Table 4
UC New Faculty Appointments, 1996-2006, by Sex 

                          96-97   97-98  98-99   99-00   00-01   01-02   02-03   03-04   04-05   05-06   All Years
Men                     276      249      264      277       320       338       330       376       351      285      3066
Women              100      115        98        92        140       154       189       215       191      157      1451
Men                    73%     68%     73%     75%     70%      69%     64%      64%     65%     64%      68%Women             27%     32%     27%     25%     30%      31%     36%      36%     35%     36%      32%Source: UC Office of the President, Data Management and Analysis, (accessed December 1, 2007).
                1996      97      98      99       00       01      02       03       04      05    2006    Increase, 96-06
Men          5397 5507  5659  5743  5698  5946  6032  6125  6163  6150   6140                        13%    
Women   1619 1699  1753  1769  1812  1920  2009  2136  2281  2308   2379                        47%     Men           77% 76%    76%   76%   75%   75%  75%    74%   73%   72%    72%                 
Women    23% 24%    24%   24%   25%   25%  25%     26%  27%   28%    28%
Source: UC Office of the President, Data Management and Analysis. (accessed December 1, 2007).

Table 6
UC Full Time Faculty, 1996-2006, by Sex

The same applies to ethnic minorities as shown in table 5. The percentage of full-time faculty who were ethnic minorities grew from 17.5% to 22% of the total faculty, refuting the misleading claim that “the diversity of the UC faculty has remained flat.”[11] In 1996, over 82% of the entire UC faculty was listed as “white.” Ten years later, that percentage had declined to 78%. Chicano/Latino faculty grew from 313 in 1996 to 438 in 2006, a 40% increase. 
Table 5
UC Full Time Faculty, 1996-2006, by Ethnicity

(Am. Indian = American Indian, African Am. = African American)
                        1996      97      98      99       00       01      02       03       04      05    2006    Increase, 96-06
Am. Indian         21      25      24       21      25       31      29        31      35      38         35        +66%
African Am.     186    184     183   176     184    193     183    195    207    211      205        +10%Chicano/Lat.  313    318     332    331    347     366    371    382    416    424      438        +40
Asian               709    756     775   819    825     909     967  1038  1107 1136   1188        +67
White            5,787 5,923 6,098 6,165 6,129 6,367 6,491 6,615 6,679 6,649 6,653        +15%
In 1996, 82.5% of the entire UC faculty was listed as “White.”
In 2006, 78.1% of the entire UC faculty was listed as “White.”
Source: UC Office of the President, Data Management and Analysis, (accessed December 1, 2007), Biennial Higher Education Staff Information (EEO-6) Reports.

The UC continues to fill faculty openings with a broad range of talented women and ethnic minority candidates who, the available evidence confirms, obtain university employment apparently without resort to policies that violate Proposition 209.

California State University System Baccalaureates

Opponents of Proposition 209 frequently dwelled on the comparably small overall admissions numbers of blacks and Hispanics at UCLA and Berkeley—the two most competitive campuses of the entire UC system—but ignored the fact that the CSU is also a crucial part of California’s accessible public university system.[12] The undergraduate enrollment figures for the CSU system between 1995 and 2006 provide instructive data on admissions, retention, and graduation numbers by race, gender, and ethnicity.

As shown in table 7, over the past twelve years, bachelor’s degrees annually awarded to black undergraduates in the CSU system increased 42%, from 2,419 in 1995–96 to 3,440 in 2006–07. The degrees awarded to Hispanic students dramatically jumped 95%, from 7,425 in 1995–96 to 14,483 in 2006–07. For the CSU system as a whole, the number of all baccalaureate degrees grew 34% between 1995–96 and 2006–07, from 52,730 to 70,887. In fact, ethnic minorities accounted for 34% of all degree earners in 1995–96, and by 2006–07 they earned 42% of all CSU baccalaureate degrees, a 23% jump in twelve years.  

Table 7
Undergraduate Degrees Awarded by the California State University System, 1995-96 to 2006-07

  Total CSU Degrees    Black         Hispanic*    Asian       White        Filipino         Unknown    
1995-06                    52,730         2,419         7,425            6,665      26,875      1771               5,202 
                                         4.5%          14.0%          12.6%     50.9%       3.3%               9.9%    
2000-01                    56,983        2,717        10,346           7,417     24,217      2,356              6,917 
                                                        4.8%           18.1%          13.0%     42.5%       4.1%              12.1%   
2005-06                    69,350        3,317         13,877           8,701     27,387      2,837              9,482  
                                                        4.8%          20.1%           12.5%     39.5%       4.1%              13.7% 
2006-07                    70,887        3,440         14,483           8,910     28,039      2,745              9,404
                                                        4.9%          20.4%           12.6%     39.6%       3.9%              13.9%

Increase 95–07     34.4%           42%           95%            33.6%      4.3%          55%                80%

This table tabulates the number of baccalaureate degrees awarded in each of four signpost academic years: 1995-96 (pre-Proposition 209), 2000-01, 2005-06 and 2006-07 for each ethnic group. The table lists the top five identifiable ethnic groups and the growing category where a student's ethnicity is unknown. It indicates what percentage each ethnic group accounted for of the total number of degrees awarded for each of those four academic years. The bottom line of the table indicates the percentage increase from 1995-96 through 2006-07 of undergraduate degrees awarded for each ethnic group. Where the data were available for 2000-01, 2005-06, and 2006-07, the table also includes the total enrollment of students by their ethnicity for the entire CSU system.
*CSU tabulations list separate figures for “Mexican-American” and “Other Hispanic.” This table combines those two categories into one, “Hispanic.”
Source: Consortium for Student Retention Data Exchange (CSRDE) Data for California State University, (accessed December 1, 2007).

When considered in conjunction with the data on the UC over the same period, these statistics refute exaggerations that Proposition 209 would reduce the number of black or Hispanic students enrolled in or graduating from California’s four-year public university system. A slight redistribution of students certainly resulted from the prohibition of racial or ethnic double standards in university admissions, but the overall result was a steady increase in minority graduation rates in both the UC and the CSU systems.

California State University Faculty

The employment of women and ethnic minorities as faculty steadily increased in the CSU system. The annual percentage of new CSU faculty hires that are female has grown from 31% in 1985 to 42% in 2003 to almost 50% in 2006 (see note to table 8). The annual increases for African American faculty members also continued, growing from 3% in 2000 to 4.5% in 2003 to almost 5% in 2006. There has been no deterioration in the faculty positions of African Americans or women as predicted by opponents of Proposition 209.

From 1998 to 2005, the percentage of full-time tenured faculty at CSU who were ethnic minorities rose from 21% to 26.5%. Correspondingly, the number of new tenure-track hires from underrepresented minority groups steadily increased almost every year from 1998 to 2005, as indicated in tables 8 and 9.

Table 8
California State University System Faculty Recruitment Surveys New Tenure Track Hires, 1998-2006
                            1998 & 1999        2000         2001         2002          2003         2004       2005          2006
Appointments                1159         704           845           950             817           393         720             882
White                              72.9%      71.8%       69.8%      63.5%       62.2%        59.5%     58.9%      58.1% 
African American          4.2%         3.0%         4.4%        3.8%          4.5%          3.8%        4%            4.8%
Hispanic                        8.6%         9.8%        10.5%       8.5%          8.1%        10.2%      7.6%          6.9%
Asian                             13.8%      14.7%        15%        15.4%       14.3%        18.3%     15.6%      18.3%
White males                 35%           37%        36.9%       36%         33.8%        28.5%     30.8%      30.0%
Minority males             14%           15%         14.8%      16%         14.3%         17%        13.6%      13.7%
White females             38%           35%         30.1%      27%         28.4%         31%        28.1%      28.1%
Minority females         13%            13%        15.4%      12%         14.2%          16%        14.3%      16.6%
Unknown                       0%              0%          2.8%        8.2%           9%            7.4%       13.2%      11.6%
Note: For 2006, the actual ethnicity was unknown for 11.6% (or 102) of all new appointments. However, the gender breakdown of those 102 was known: 43% (actual number, 44) were females and 57% (actual number, 58) were males. Thus, the actual percentage of females among all new 2006 faculty appointments was 49.7% (28.1% white females, 16.6 minority females, 5% unknown ethnicity females).
Table 9
California State University System Full-Time Tenured Faculty, by Ethnicity, 1998-2005
                                    1998 & 1999      2000         2001       2002         2003         2004       2005
White                         79.0%                  78.1%      77.2%     76.7%       75.7%      74.6%     73.5%
African American     3.7%                     3.8%        4.0%        4.0%         4.0%        3.9%       4.0%
Hispanic                   5.8%                     6.1%        6.4%        6.7%         7.0%         7.4%       7.6%
Asian                        11.0%                   11.4%     11.8%     12.0%       12.6%      12.7%     13.2%
Note: These percentages were provided by the Office of Data Research and Analysis,

California State University, Office of the Chancellor, Long Beach, CA 90802.

While the CSU system generally seems to remain in compliance with Proposition 209, one still encounters suspicious language, such as the following from 2007 and 2008 faculty search announcements at CSU, Chico: “As a University that educates students of various ethnic and cultural backgrounds, we value a diverse faculty and staff. The campus welcomes applicants who are knowledgeable about and interested in working within a cross-cultural learning environment.”[13] 

Like the UC, the CSU system continues to fill faculty openings with a broad range of talented women and ethnic minority candidates who apparently obtain university employment without resort to policies that violate Proposition 209. The dreadful predictions propagated by many academics and university administrators in Michigan who opposed Proposal 2 in 2006 have never materialized in either of California’s four-year public higher education systems. However, efforts to avoid or neutralize the measure may continue; no official from either system has ever publicly avowed to uphold the letter and spirit of Proposition 209 and punish any employee or committee members who violated it.[14]

The Effects of Proposition 209 on Construction Contracting

Prior to the passage of Proposition 209, a California statute mandated that general contractors demonstrate a good faith effort to subcontract at least 5% of their work on public contracts to WBEs, 15% to MBEs, and 3% to disabled veteran-owned businesses.[15]

Moreover, bids submitted by MBEs and WBEs were granted a 10% reduction when measured against bids from companies owned by white men. Prime contractors who bid on certain types of contracts were required to demonstrate that they had hired a certain percentage of MBE and WBE subcontractors to work on the project or show that they made good faith efforts to meet that quota.

Since the passage of Proposition 209, the California Supreme Court has struck down attempts by municipalities to consider race or gender in their procurement programs.[16] With race or gender preferences no longer in effect, the number of MBEs and WBEs certified to bid on public contracts has declined.[17] Opponents of Proposition 209 insist that this amounts to “unfair access” and is due to continued discrimination within the construction industry—casually termed a “good old boys network”—and that only the use of gender-conscious or race-attentive measures will provide a remedy.

However, no one has demonstrated that racial, ethnic, or gender discrimination has actually occurred against MBEs or WBEs. A simple disparity does not prove discrimination, and no “group” is ever likely to own any particular kind of business in the same proportion as its share of the state’s population. Moreover, “it may be that companies owned by a particular racial group in a particular market do not have the specific expertise or capability of doing the actual work sought. And even if there are, there may not be a problem if these companies are, for non-discriminatory reasons, not submitting bids in the first place.”[18]

There is abundant evidence to support this sensible conclusion. Two of the best compilations of anecdotal material, statistical data, and personal interviews on the effects of Proposition 209 on public contracting derive from compelling studies made by the Discrimination Research Center at UC Berkeley and its successor, the Thelton E. Henderson Center for Social Justice, ironically strong opponents of Proposition 209.[19]

Throughout the two studies, interviewees from contracting firms still in existence cited their bids, not the race or gender of the company’s owners, as the main reason for their selection. In summarizing these two reports, one must bear in mind that the “underrepresentation of firms owned by this or that ethnic group traceable only to society generally…cannot as a legal matter justify the use of racial preferences, as the Supreme Court has consistently ruled….[W]hat must be shown is that minority- and female-owned firms are either not submitting bids because of discrimination, or that their bids are not being accepted because of discrimination.”[20]

Neither study in California found evidence that companies had been excluded from bidding because of the bidder’s race or gender or due to any unrealistic or irrational requirements. In its reliance on statistical data, focus group responses, and interviews the two reports strongly suggest that it was not discrimination that posed the main obstacles to minority-owned businesses, but more technical barriers such as bonding requirements, insurance, and financing, along with business acumen.

Of the 3269 MBEs certified in 1996, 1005 remained in operation ten years later. In its survey of these surviving companies, the Discrimination Research Center report, entitled Free to Compete? Measuring the Impact of Proposition 209 on Minority Business Enterprises, documents that few “respondents participated in any lending programs, mentorship opportunities, or technical assistance, regardless of whether or not the opportunities were affiliated with the CalTrans DBE Program.”[21] Some participants acknowledged that “private industry was more inclined to work with firms that have the ability to work regionally or nationally, which is beyond the capacity of many MBEs” (35).

This makes efficient business sense, and is not evidence of racial discrimination.

Free to Compete? contains candid admissions from participants who “noted that DBE programs incorporated a significant amount of ‘hand holding,’ which did not encourage MBE owners to learn the business aspects of their industry…[and] participants agreed that they should be evaluated not by whether they are people of color, but rather, on the merit of their skill, work, and reputation” (35–36, emphasis added).

According to owners of surviving firms, “a lack of business savvy on the part of many MBEs contributed to their failure” (36), a likely result if race-consciousness counted more for success than business acumen. When asked which survival strategies were most effective, the respondents advised that “firms owned by people of color need to utilize basic business development practices to invest in their own companies,” that their “owners must be persistent” and “seek every opportunity to demonstrate their ability to perform well and commit themselves to developing relationships with individual companies and public agencies” (37)—sensible values and indisputable entrepreneurial habits, regardless of one’s gender or race.

The final pages of Free to Compete? contain profiles of two successful businessmen:  Miguel Galarza (a Hispanic man) and Robert Wilson (a black man). Galarza admitted that he was “uncomfortable with the business model of relying on the DBE program to provide contracts that would sustain his business.” He also “understood that the federal DBE program was designed to open the door for MBEs and that they should serve as training wheels, not permanent fixtures to sustain the life of a business enterprise” (38). Galarza emphasized that sound business principles such as “leave the profit in the company instead of using it as a personal profit,” “learn accounting and always pay your taxes on time,” and “bid as a primary contractor” all became part of his organizational mantra (39).

By 2006, Galarza’s company employed thirty people and earned over $7 million in revenue. The report concludes that for Galarza, “the impact of Proposition 209 was more visible among those who would have been his competitors—those who, in their reliance on the race-conscious DBE program, may not have been able to survive in an industry run on personal relationships” (39, emphasis added).

On the other hand, Robert Wilson admits his company initially declined for a few years, but by 2004 he reversed its slide by “moving from industrial electric projects to residential projects” (41). According to the report, Wilson “attributes the survival of his business to his belief in God, his knowledge of the trade, his ability to be flexible, and his ability to live with minimal resources” (41). Wilson makes no mention of his race.

Free to Compete? concludes that Wilson learned “as result of Proposition 209, that ‘business has no color.’ From his experience of success, loss and rebuilding, [he] has identified stumbling blocks and shown a way to break down the financial barriers that keep MBEs from succeeding as public contractors, and established himself as a survivor, in more ways than one” (41).

Free to Compete? indicates that double standards had been used in the construction industry, and shows that the firms that continued to thrive and grow over the past ten years shared several things in common. Its central finding was that many of the firms that went out of business were simply under-financed and poorly run. The purported presence of racial or gender discrimination was never shown to be the basis for weaker performance.

In the case of WBEs in the construction industry, A Vision Fulfilled? The Impact of Proposition 209 on Equal Opportunity for Women Business Enterprises, a report produced by the Thelton E. Henderson Center for Social Justice at the UC Berkeley School of Law, showed that for most women in business, limited experience in borrowing, difficulties in demonstrating overall creditworthiness, lower rates of homeownership, and poor capital resources were the key factors that limited their access to financial resources.

Owners of successful WBEs attributed their longevity to maintaining connections with civic, professional, and social organizations or networks that involved potential clients or contracts, and shifting their focus from public agencies to private sector or nonprofit organizations. The surviving companies were led by women who possessed the same tenacity, consistency and shrewd business sense shown by men and who spent time and money to respond only to “Request for Proposals” “that perfectly match their expertise and that are received in a timely fashion.”[22] There was no evidence that any contractor’s low bid was rejected because a woman or an ethnic minority member submitted it.

According to Sharon Browne, the lead attorney in the Hi-Voltage Wire Works case (see note 16), “Proposition 209 presents zero tolerance for programs that discriminate against or grant preference on the basis of race in its public contracting program.”[23] Nevertheless, to this day, opponents of Proposition 209 disdain its terminology and refer euphemistically to preferential practices as “race- and gender-conscious equal opportunity programs.”

A study by political scientist George La Noue shows how the California Supreme Court’s Hi-Voltage decision interpreted Proposition 209 “to bar flatly racial preferences, no matter what compelling interest a jurisdiction asserted. Disparity studies are no longer much of a factor in California as related to state funded contracts.”[24]

Nonetheless, in August 2007, the California Department of Transportation (Caltrans) submitted a new request to the federal government that it be allowed to institute a 13.5% participation goal for minority- and women-owned businesses in contracting as a response to what Caltrans termed a “discriminatory pattern in past contracting.”[25]

Research by economist Justin Marion of UC Santa Cruz suggests that such affirmative action programs were not cost-effective. In the wake of Proposition 209, Marion found that “the winning bid on state-funded contracts fell by between 3.1 and 5.6 percent relative to similar federal-aid contracts.”[26]

In 1996, Caltrans awarded $1.4 billion in contracts, of which $50 million (3.5%) went to women-owned businesses. Six years later, in 2002, Caltrans awarded $3.4 billion in contracts; women-owned businesses received $117 million (3.4%). Data are not available from 2002 through 2006.

As Roger Clegg has stated succinctly, twelve years after the passage of Proposition 209 “Caltrans should strive both to avoid using the preferences banned by the state constitution and to comply with federal law…[and] should be going out of its way to avoid the use of preferences based on race, ethnicity and sex—not out of its way to find excuses for them.”[27]

The Effects of Proposition 209 on Statewide California Public Employment

The public employees labor force in California is the largest and most diverse in the United States. There are two broad categories of state employees: those who work for one of the over 150 agencies and departments; and those who work in the two public higher education institutions, the UC and the CSU systems.

Statistics obtained from the State Personnel Board (SPB) indicate the total number of employees in each of the 86 departments with over 50 employees, broken down by gender and race over the past ten years. This report further highlights the ten largest departments with over 4500 employees.

In 2006, California had the third lowest number of full-time equivalent state employees relative to population: 105 state employees for every 10,000 residents, whereas the national average was 142 state employees per 10,000 residents. Tables 10, 11, and 12 list the number of employees in ten of the largest state agencies, comparing a breakdown by race and gender for 1997, 2002, and 2006, as well as by gender for several of the largest categories of public employment.

Table 10
California Public Employment Figures, Selected Departments with Over 4,500 Employees: 1997, 2002, & 2006, by Sex and Race

TOTAL STATEWIDE               Male        Female        White            Black        Hispanic
1997      190,676                     52%         48%              57%               11%           18%           
2002      218,208                    52%         48%              53%               11%           19%
2006      209,818                     53%         47%              50%               11%           21%
Highway Patrol      Total       Male        Female        White            Black        Hispanic
1997                      9,756        75%        25%              72%               6%             16%                       
2002                      10,195      75%        25%              68%               6%             18%
2006                      9,734        76%        24%              66%               6%             20%
Consumer Affairs Total       Male        Female        White            Black        Hispanic
1997                      4,708        45%         55%              68%               7%             12%
2002                      4,738        36%         64%              63%               10%           15%
2006                      3,720        38%         62%              60%               12%           16%
Corrections          Total       Male        Female        White            Black        Hispanic
1997                      40,916      67%         33%              55%               15%           22%
2002                      45,951      67%         33%              53%               13%           26%
2006                      49,919      66%         34%              49%               13%           28%
Services                Total       Male        Female        White            Black        Hispanic
1997                      7,689        36%         64%              54%               10%           15%
2002                      9,767        35%         65%              44%               11%           18%
2006                      8,285        37%         63%              40%               11%           19%
Forestry                 Total       Male        Female        White            Black        Hispanic
1997                      5,511        80%         20%              75%               3%             14%                       
2002                      5,921        82%         18%              75%               3%             14%
2006                      6,003        83%         17%              75%               2%             15%
Tax Board            Total         Male      Female        White            Black        Hispanic
1997                      5,696         31%        69%              52%               13%           19%
2002                      7,005         33%        67%              47%               14%           19%
2006                      6,602        34%        66%              44%               15%           19%
Fund                       Total         Male      Female        White            Black        Hispanic
1997                      5,991         30%       70%              46%               11%           18%
2002                      8,174         30%        70%              42%               10%           20%
2006                      9,449         32%        68%              40%               10%           20%
Health                    Total         Male      Female        White            Black        Hispanic
1997                      7,270         43%        57%              57%               14%           13%
2002                      8,397         41%        59%              48%               15%           15%
2006                      9,422         42%        58%              43%               15%           17%
DMV                        Total         Male      Female        White            Black        Hispanic
1997                      8,435         25%        75%              40%               19%           26%
2002                      9,238         25%        75%             35%               19%           29%
2006                      8,582         27%        73%              31%               20%          31%
Transportation     Total         Male      Female        White            Black        Hispanic
1997                      16,902       75%        25%              60%               8%             15%
2002                      23,405       74%        26%              53%               8%             15%

2006                      21,419       74%        26%              50%               8%             16%

Table 11*
State-Wide Public Employees Labor Force, Selected Major Occupational Categories, 1997 and 2006
Fisc/Mgt/Staff = Fiscal, Management & Staff Services
Mech & Const =Mechanical & Construction Trades
Med & Allied = Medical and Allied Services
Office & Allied = Office and Allied Services
TOTAL = TOTAL Statewide Civil Servants
                                              Total               Women                 Black                    White              Hispanic 
                                     1997     2006     1997     2006     1997     2006     1997      2006     1997      2006

Education & Library 3009     2627     36%       44%     10.2%   8.9%      71.7%   69.9%    11.3%   3.5%
Fisc/Mgt/Staff         34,163  42,982     57%      64%      8.7%     9.9%      60.8%   51.7%    13.2%   6.6%
Mech & Const        13,873 14,273    12.7%     11%      7.2%    8.0%      65.8%   61.3%    19.6% 22.3%
Med & Allied           13,888 16,358     61%       64%     11.6%  12.7%     55.2%   40.7%    11.9% 14.3%
Office & Allied        39,304 33,683     85%       82%      15.5% 16.5%     48.2%   39.8%    21.6% 25.0%
TOTAL                 1 91,425 210,591 47.2%  47.2%      11.5% 11.1%     57.5%   50.5%    17.7% 20.9%
*Sources: Table C-5, Department of Finance, Economic Research Unit, (accessed November 20, 2007). Additional data provided by State Personnel Board (July 27, 2007). 

Table 12*
State-Wide Public Employees Labor Force by Ethnicity, 1997 and 2006
                                                                                                    1997                                  2006

All State Civil Servants                                           191,425                  210,591
White                                                                         57.5%                     50.5%
Black                                                                         11.5%                     11.1%
Hispanic                                                                  17.7%                      20.9%
Total Employees (UC)                                           56,272                    75,401
Total Employees (CSU)                                        36,030                    43,360
TOTAL Public Employees                                    283,727                 329,352

* Sources: Table C-5, Department of Finance, Economic Research Unit, (accessed November 20, 2007). Additional data provided by State Personnel Board (July 27, 2007).

Between 1997 and 2006, the size of the public employees workforce fluctuated in a manner that reflected the overall economic status of the state: from 1997 to 2002, the public workforce grew by 14%; from 2002 to 2006, it contracted by 4%. Yet over this nine-year period, blacks maintained an 11% share of the public labor force, while Hispanics increased from 18% to 21%. Over this nine-year period, the percentage of public employees who were men inched up 1%, from 52% to 53%.

In nine of the ten largest state agencies, the percentage of white employees declined between 1997 and 2006, sometimes severely. In the Department of Consumer Affairs, for instance, the number of white employees declined from 68% in 1997 to 60% in 2006. A similar decrease occurred in the Franchise Tax Board, where employment of white workers dropped from 52% in 1997 to 44% by 2006. At the Departments of Mental Health, Motor Vehicles, and Transportation, the number of white employees dropped by 14%, 9%, and 10%, respectively.

For California’s public workforce as a whole, the number of white employees dropped from 57% to 50% between 1997 and 2006.

The gender increases among the state’s public employees slightly favored men, 53.8% to 46.2%. An aggregate of 10,296 men and 8,846 women, respectively, were added to the public workforce between 1997 and 2006. In terms of ethnic and racial groups, 9,953 Hispanics and 1,416 blacks joined the workforce, while the overall number of white public employees decreased by 3,701. The California public employee sector grew by 19,142 between 1997 and 2006. Within that increase, 52% was Hispanic and 7% was black; Asians and Filipinos were the other main beneficiaries.

Among the state’s ten largest agencies, the greatest disparities between men and women remained unchanged between 1997 and 2006. For example, men outnumbered women in the California Highway Patrol, 76% to 24%, the Department of Forestry, 83% to 17%, and the Department of Transportation, 74% to 26%. Conversely, women continued to outnumber men at the Franchise Tax Board, 66% to 34%, the Compensation Insurance Fund, 68% to 32%, and the Department of Motor Vehicles, 73% to 27%.

It appears that these disparities are due to personal choice, assorted risk elements, or physically demanding job requirements, since discrimination or preferences in the workplace based on gender (unless approved as a bona fide criteria for employment) are prohibited.

California Highway Patrol

The California Highway Patrol (CHP) provides several reasons for persistent patterns in the gender distribution in that agency. Aside from non-uniform clerical positions from which people can shift to other state agencies, there are seven categories within which uniformed personnel are classified: cadet, officer, sergeant, lieutenant, captain, assistant chief, and chief. Each category has its own clearly stipulated requirements for inclusion and promotion.

The entry-level CHP position is “cadet.” The age range for cadets is between twenty-one and thirty-five, and applicants must hold a high school diploma. After passing a series of written, physical, and driving tests, all cadets must complete a rigorous twenty-seven-week paramilitary-style training regimen. Even from that entry level, the annual dropout rate is consistently 33%. In discussions with CHP officers, they cited three obstacles that make it difficult to attract more female cadets: 1) the rigors of a live-in academy mean that some women would be separated from their children; 2) cadets are almost always obliged to relocate after graduation from the academy; and 3) the mental and physical demands of the paramilitary training still seem to discourage more women than men.

A review of CHP hiring and promotion figures under Proposition 209 indicates that the overall number of employees remained nearly constant: 9,756 in 1997 and 9,734 in 2006. The number of employees who were men increased by 1% to constitute 76% of the CHP workforce. The number of Hispanic CHP employees increased from 17% to 21%, while the numbers of blacks remained at 6%, and the number of whites declined from 72% to 66%.


The data in this article confirm that Proposition 209 did not diminish educational or employment opportunities in California, as ethnic minorities and women have continued to make steady progress in both areas. Despite the temporary declines in enrollments that were noticeable only at the state’s two most elite public universities, the overall population of underrepresented minority students rose steadily as more entered and more graduated from the institutions for which they were fully qualified.

This article highlights the actual numbers of undergraduate degrees awarded rather than simple statistics on admitted freshmen, although there were noticeably significant jumps in ethnic minority enrollments at UC Riverside and UC Santa Barbara. The combined number of blacks and Hispanics who annually earned a bachelors degree at the UC rose from 5,123 in 1999 to 6,457 in 2006, a 26% increase in seven years. Both the UC and CSU systems have expanded their race-neutral outreach efforts to help prepare for college low-income students from school districts with low university participation rates, partnering with those schools to enable them to develop a more academically sound curriculum.

Ending racial preferences and gender double standards in California has produced none of the social traumas that Proposition 209 opponents swore would occur. No campus ever became remotely “lily white” or “resegregated,” to use the divisive racist terms reflexively deployed by these adversaries. Instead, differences in university academic performances narrowed considerably, as there were fewer mismatches between students’ levels of preparation to succeed in college and the institutions in which they enrolled, and from which they eventually graduated.

As shown in table 13, from 1999 to 2006, the combined number of black students who earned baccalaureate degrees from the UC and from the CSU systems increased from 3,856 to 4,610, a 19% jump in seven years. Over that same seven-year period, the number of Hispanic students who earned a baccalaureate degree from both systems combined grew from 14,330 to 19,770, a 38% increase.
Table 13
Bachelors Degrees Earned by Blacks and Hispanics: California Public Institutions, 1999 and 2006

Black Baccalaureate Degrees                  1999                2006             Increase, 99–06
University of California System                1,139               1,170               3%
California State University System          2,717               3,440               27%
California public universities Total         3,856                4,610              19%
Hispanic Baccalaureate Degrees           1999                2006            Increase, 99–06
University of California System                3,984               5,287              33%
California State University System        10,346             14,483             40%
California public universities Total        14,330             19,770             38%


The evidence from public contracting, especially transportation construction, suggests that weaker, less competitive firms that were previously dependent on racial quotas or gender set-asides predictably failed when such designations were no longer legally available. Those contractor and subcontractor businesses headed by women or ethnic minorities that thrived and expanded did so because they were run by people who had the qualities necessary for success in the business world: patience, hard work, ingenuity, innovativeness, education, and the ability to delay gratification. That put them in a position to enjoy the financial rewards that came with those decidedly middle-class values.

They were judged as individuals by their own character and merits, not by the color of their skin, their gender, or stereotypes. As Harvard psychologist Steven Pinker put it, “Equality is not the empirical claim that all groups of humans are interchangeable; it is the moral principle that individuals should not be judged or constrained by the average properties of their group.”[28]

Over the past twelve years, public employees have been hired through improved recruitment and screening, given better training, and evaluated fairly and equitably on the job. As race and gender continue to recede as qualifications for employment in California, one hopes that the defenders of double standards will retreat from their antagonism to Proposition 209.

Gender differences that persist among college majors or in occupational concentrations anywhere in America primarily reflect individual differences in career choices, not discriminatory barriers to women’s advancement. In 2005–06, women earned 66% of all doctorates in both education and the health sciences, and 59% of those in the social sciences. Men earned 80% of the doctorates in engineering and 70% of all doctorates in the physical sciences. In 2006 nationwide, the proportion of students in graduate schools who were members of a racial or ethnic minority was 28%, up from 26% in 2005.[29]

In the years since Proposition 209 was enacted, the gaps in California public employment rates between men and women, and between whites, blacks, and Hispanics have continued to narrow. Racial favoritism and gender preferences are not the reasons for the redistribution of public employment jobs, as the magnitude and nature of those shifts remain small.

This is good news indeed. California under Proposition 209 has been a success story. It’s a shame that the “diversity industry” remains stubbornly unable to join the celebration.

Image: "CSULAsign" by Justefrain // CC BY-SA

[1]The end of racial or gender preferences prompted several major municipalities (including Los Angeles, San Jose, and Sacramento) and at least one state agency (Caltrans) to petition the federal government either to violate Proposition 209 or to reinstitute preferential treatment through participation goals that would designate a specific percentage of minority and women subcontractors or employees.
[2]Susan Kaufmann and Anne Davis, “The Gender Impact of the Proposed Michigan Civil Rights Initiative” (paper, University of Michigan, Center for the Education of Women, Ann Arbor, MI, March 2005), 7.
[3] The defense of double standards sank to absurd depths in Michigan when an interdenominational group of religious leaders claimed in 2006 that defending affirmative action preferences was a “moral imperative,” citing Christian principles, Jewish scripture, and Muslim texts to support their position. “Religious Leaders Pledge to Defeat Affirmative Action Proposal,” Detroit News, September 13, 2006.
[4]Quoted in Kevin Mooney, “Giuliani Urged to Back Anti-Quota Laws to Win Conservative Support,” Cybercast News Service (, August 23, 2007,
[5]Essential investigations that examine sub-cultural differences toward academic rigor and grapple with many inconvenient realities about race, culture, and educational achievement include Stephan Thernstrom and Abigail Thernstrom, No Excuses: Closing the Racial Gap in Learning (New York: Simon and Schuster, 2003); John Ogbu, Black Students in an Affluent Suburb: A Study in Academic Disengagement (Mahwah, NJ: Erlbaum Publishers, 2003); Elijah Anderson, Code of the Street: Decency, Violence, and the Moral Life of the Inner City (New York: Norton, 1999); Jeannie Oakes, Keeping Track: How Schools Structure Inequality, 2nd ed. (New Haven, CT: Yale University Press, 2005); and Bill Cosby and Alvin Poussaint, Come On People: On the Path from Victims to Victors (Nashville: Nelson Publishers, 2007), especially chapter 4.
[6]California Department of Education (, Public School Summary Statistics, 1996-97 to 2005-06, (accessed November 20, 2007).
 [7]University of California Undergraduate Work Team of the Study Group on University Diversity, Recommendations and Observations (September 2007), 39, November 27, 2007).
 [8]Ibid., 13. Elsewhere the report states that a goal of UC is the “inclusion of students…from every corner of our state and every segment of our population” (36).
[9] Ibid., 19, 23. This latest report seems to suggest that the university thinks its mission includes issues like community economic development and unequal K–12 education. The report cited efforts to remedy unequal opportunities with respect to the availability of Algebra I by offering a UC-approved two-year course. When it was unsuccessful, the Task Force agreed that “deeper interventions were needed,” but provided no specifics.
[10] University of California, Academic Personnel Manual, 210-5 (d), 3. (accessed December 1, 2007).
[11]University of California, The Report of the UC President’s Task Force on Faculty Diversity: The Representation of Minorities Among Ladder Rank Faculty, Berkeley, CA, May 2006, ii,
[12] A good example is a lengthy article that focused almost entirely on UCLA but said little about the rest of the UC and nothing about the CSU. David Leonhardt, “The New Affirmative Action,” New York Times Magazine, September 30, 2007,  Leonhardt showed that UCLA had apparently started to use applicants’ socio-economic status as an admitted proxy for race in admitting a handful of students despite their considerably lower SAT scores. Some alumni defenders and financial supporters even avowed a possible resort to “civil disobedience” to evade the requirements of Proposition 209.
[13]This came from an announcement for a tenure-track position to teach British history in the history department at CSU, Chico, starting Fall 2007; the other one was to teach the ancient world starting Fall 2008. Despite several requests to the departmental search committee for an explanation with clear examples and empirical evidence why this was included as a criterion, no one could do so, although some faculty insisted that the college dean and the university provost had required it. 
[14]In fairness, a December 2007 audit found little evidence that in the past decade the CSU system was guilty of racial or gender discrimination. The State Auditor, Elaine Howle, seemed less familiar with the strictures of Proposition 209 than CSU administrators as her office urged CSU to deploy race- and gender-conscious “diversity” standards in its hiring decisions. Despite its unwieldy title, the report found that in a system of 45,000 employees (faculty, administrators, and clerical staff) over a four-year period (2002–2006), a cumulative total of only 63 claims had been filed “for alleged race or gender discrimination,” about 16 per year or roughly 1 in 650 employees. California State Auditor, California State University: It Is Inconsistent in Considering Diversity When Hiring Professors, Management Personnel, Presidents, and System Executives, Report 2007-102.2, Sacramento, CA, Bureau of State Audits, December 2007, 55–56.
[15]Cal. Pub. Cont. Code § 10,115 (Deering 1994).
[16]Hi-Voltage Wires Works Inc. v. City of San Jose,24 Cal. 4th 537 (2000). In this important case, the California Supreme Court found that the City of San Jose’s targeted outreach program violated Proposition 209. Using the dictionary, the Court determined that “‘discriminate’ means to ‘make distinctions in treatment; show partiality (in favor of) or prejudice against’: ‘preferential’ means ‘giving preference,’ which is a ‘giving of priority or advantage to one person…over others.’”
[17]The number of MBEs declined from 3269 to 1005; the number of WBEs declined from 2096 to 763.
[18] Roger Clegg (president and general counsel of the Center for Equal Opportunity [CEO], on behalf of the CEO and the American Civil Rights Institute), letter to the Office of Civil Rights, California Department of Transportation, September 13, 2007.
[19]See Monique Morris et al., Free to Compete? Measuring the Impact of Proposition 209 on Minority Business Enterprises, report, Discrimination Research Center, program of The Impact Fund, Berkeley, CA, 2006; and Monique Morris et al., A Vision Fulfilled? The Impact of Proposition 209 on Equal Opportunity for Women Business Enterprises, report, Thelton E. Henderson Center for Social Justice, University of California, Berkeley School of Law, Berkeley, CA, September 2007. A Vision Fulfilled? makes an extremely important qualification: “With an 11-year survival rate of less than 40 percent for all races and ethnicities, the difficulties for women-owned businesses to compete in the transportation construction industry are apparent. However, without an appropriate comparison group, such as the survival of small businesses primarily owned by white men, it is difficult to ascertain the relative success of WBEs and the impact of Proposition 209 on them.” (22).
[20]Clegg, letter.
[21]Morris et al., Free to Compete? 27. Subsequent references will be cited parenthetically.
[22]Morris et al., A Vision Fulfilled? 35–36. 
[23]Sharon Browne, “San Francisco’s Public Contracting Program Declared Unconstitutional” (unpublished paper, 2005).
[24]George R. La Noue, “Identity Politics and Public Contracting: The Role of Prop 209” (unpublished paper, June 2006), 17. A professor at the University of Maryland, Baltimore County, La Noue provides a lucid summary of the court rulings that challenged the permissibility of MBEs at the state and federal levels before 1996 and charts the eventual “demise of disparity studies as a factor” after the enactment of Proposition 209. 
[25]Sharon Browne, Linda Chavez, and Ward Connerly, “Caltrans’ Misguided U-Turn on Contracts,” Los Angeles Times, October 31, 2007,,0,1720187.story?coll=la-opinion-rightrail. The Caltrans study itself showed insignificant disparities and little evidence to establish any discrimination based on race or gender. See BBC Research and Consulting, Availability and Disparity Study: California Department of Transportation, Final Report, Denver, CO, June 29, 2007, executive summary, 3; available at
[26]Justin Marion, “How Costly Is Affirmative Action? Government Contracting and California’s Proposition 209” (unpublished paper, November 2006), 4.
[27]Clegg, letter.
[28]Steven Pinker, The Blank Slate: The Modern Denial of Human Nature (New York: Penguin Books, 2002), 340. 
[29]Council of Graduate Schools, Office of Research and Policy Analysis, Graduate Enrollment and Degrees: 1996-2006, Report, Washington, D.C, 2007, available at

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