Why California’s racial privacy initiative is unconstitutional
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While the initiative includes a laundry list of exceptions, it nevertheless is an extraordinarily broad prohibition on collection of an important type of information. The proposed initiative is based on the assumption that ignorance is better than knowledge. The so-called Racial Privacy Initiative is a disaster from a policy standpoint — interfering with the government’s ability to track race and ethnicity-based hate crimes, and to gather data about the numerous medical conditions that disproportionately effect particular racial or ethnic groups. (The Initiative has an exemption for “medical research subjects and patients,” but not for epidemiological studies.) If the Initiative were to pass, data on race discrimination by private entities could not longer be collected. Nor could the educational achievement of students of a given race or ethnicity be studied to see if it was improving or regressing. These, and other, policy problems with the Initiative have been well explained elsewhere. In this column, I will consider a few of the less often remarked aspects of the so-called Racial Privacy Initiative: The way that it intersects with the democratic process, and with the law. I will argue that the Initiative is designed in part to prevent studies showing the damaging effects of eliminating affirmative action — and thus to keep voters from reinstituting affirmative action in California. That is undemocratic: Voters have the right to cast informed votes. In addition, I will also contend that the Initiative risks significantly increasing California government entities’ liability for discrimination. In a state already on the fiscal brink, it hardly seems wise to increase the risk of multimillion judgments that will only further unbalance the budget. Finally, I will argue that the Initiative violates the First Amendment as applied to professors and researchers at state schools. Their free speech rights, as well as their academic freedom, require that they be able to conduct the very kind of studies the Initiative would put off-limits. The Initiative was proposed by Ward Connerly, who was also the architect of California’s Proposition 209. As many readers may be aware, Proposition 209 abolished affirmative action in government contracting, education, and employment in California. As Andrew Hacker explained in an August 14 article in The New York Review of Books, statistics demonstrate that Proposition 209 has had a devastating effect on diversity at public universities. During the period from 1998 to 2002, African-Americans comprised only 2.9 percent of the students at UCLA Law School, and 3.4 percent of the students at the University of California, Berkeley, Boalt Hall School of Law — both public institutions affected by Proposition 209. By comparison, African-Americans during this time period were 11.5 percent of the student body at the University of Southern California Law School and 8.0 percent of the students at Stanford Law School — two private institutions. Statistics like these might persuade many voters to at least think twice about whether to reverse Proposition 209, and once again allow public institutions to adopt affirmative action programs. The Initiative’s solution is simple: Stop keeping statistics about race and education. Source : edition.cnn.com |