1.      See CAL. CONST. art. I, § 31, reprinted in Appendix A. The initiative is also known as Proposition 209.

2.      Though I was a legal advisor to the pro-CCRI campaign and participated in the late stages of the initiative's drafting, this Article is not a campaign document. It is being published after the election and has played no role in the campaign debates. In pre-election arguments, there's often an incentive to scare voters by overstating the proposal's effects, or to soft-pedal some matters in order to avoid rousing the voters' fears. Not so here; in this Article I aim to describe what the initiative actually requires, uninfluenced by any desire to enact the initiative or to defeat it.

3.      See, e.g., WESTERN STATE UNIV. LAW REVIEW ASS'N, PRELIMINARY FINDINGS: LEGISLATIVE IMPACT OF PROPOSITION 209 (1996) [hereinafter WESTERN STATE] (making all three assertions); Erwin Chemerinsky & Laurie Levenson, Sex Discrimination Made Legal, L.A. TIMES, Jan. 10, 1996, at B9 (claiming that the CCRI "would eliminate all affirmative action" and would also partly repeal existing bans on sex discrimination); Jerome Karabel, Why the Civil Rights Initiative Will Fail, SAN DIEGO UNION-TRIB., June 23, 1996, at G3 ("[The CCRI's] princip[al] effect will be to eliminate all affirmative action programs."); Jeffrey L. Rabin, County Supervisors Vote to Oppose Proposition 209, L.A. TIMES, July 31, 1996, at B1 (statement of L.A. County Supervisor Yvonne Brathwaite Burke) ("What [CCRI supporters] are saying is . . . [l]et's eliminate all the affirmative action."); see also Sandy Banks & Bettina Boxall, Campus Abuzz as D-Day Arrives, L.A. TIMES, Sept. 25, 1996, at B1 (reporting Professor Neil Gotanda as saying that "passage of the proposition could jeopardize . . . university courses in ethnic and women's studies . . . and even school celebrations of ethnic holidays such as Cinco de Mayo"; Professor Gotanda was presenting the Western State University Law Review Association "Preliminary Findings" cited above).

4.      As to legal terms of art, "Where the language of a statute uses terms that have been judicially construed, the presumption is almost irresistible that the terms have been used in the precise and technical sense which had been placed upon them by the courts. This principle applies to legislation adopted through the initiative process." People v. Weidert, 39 Cal. 3d 836, 845-46, 705 P.2d 380, 385, 218 Cal. Rptr. 57, 62 (1985) (internal quotation marks and citations omitted); see also Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979); In re Jeanice D., 28 Cal. 3d 210, 216, 617 P.2d 1087, 1090, 168 Cal. Rptr. 455, 458 (1980); In re Markaus V., 211 Cal. App. 3d 1331, 1336, 260 Cal. Rptr. 126, 129 (1989). One might quarrel with this on the grounds that some voters might be unaware of the words' "precise and technical sense," but this is nonetheless the law; and in practice, given this rule, the debates surrounding the campaign should generally tend to inform the voters about the terms' legal significance.

5.      E.g., Western Telcon, Inc. v. California State Lottery, 13 Cal. 4th 475, 494, 917 P.2d 651, 662, 53 Cal. Rptr. 2d 812, 823 (1996); People v. Superior Court (Romero), 13 Cal. 4th 497, 528, 917 P.2d 628, 646, 53 Cal. Rptr. 2d 789, 807-08 (1996). Of course, when the text is unambiguous, courts must follow the text without resorting to the ballot materials. See in re Daniel M., 47 Cal. App. 4th 1151, 1154, 55 Cal. Rptr. 2d 17, 18-19 (1996); People v. Wheeler, 4 Cal. 4th 284, 294, 841 P.2d 938, 943, 14 Cal. Rptr. 2d 418, 423 (1992).

      Some court decisions have hinted that a court might also look to "various pre-election materials (newspaper articles and editorials, committee reports, interest-group articles, etc.)." AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 436 n.4, 260 Cal. Rptr. 479, 484 n.4 (1989); see also Carlos v. Superior Court, 35 Cal. 3d 131, 144 n.12, 672 P.2d 862, 870 n.12, 197 Cal. Rptr. 79, 88 n.12 (1983), overruled on other grounds by People v. Anderson, 43 Cal. 3d 1104, 742 P.2d 1306, 240 Cal. Rptr. 585 (1987); Goodman v. County of Riverside, 140 Cal. App. 3d 900, 906 & nn.3-5, 190 Cal. Rptr. 7, 11-12 & nn.3-5 (1983). It seems to me, though, that these sources can only be the most tenuous evidence of what the public actually intended. As People v. Castro held, "opinions [which were not] distributed to the electorate by way of the voter's pamphlet" ought not be relied upon, because courts "can only speculate [about] the extent to which the voters were cognizant of them." 38 Cal. 3d 301, 312, 696 P.2d 111, 117, 211 Cal. Rptr. 719, 725 (1985). Accord People ex rel. Lungren v. Superior Court, 48 Cal. App. 4th 1452, 1461 n.6, 41 Cal. Rptr. 2d 903, 909 n.6 (1995), rev'd on other grounds, 14 Cal. 4th 294, 926 P.2d 1042, 59 Cal. Rptr. 2d 855 (1996). I will sometimes quote such sources, for whatever they're worth, but I don't think they should be worth much.

      Courts have also suggested that "after-the-fact declaration[s] of intent by a drafter of [a p]roposition . . . may deserve some consideration[, though they] by no means . . . govern [the] determination [of] how the voters understood the ambiguous provisions." Carman v. Alvord, 31 Cal. 3d 318, 331 n.10, 644 P.2d 192, 199 n.10, 182 Cal. Rptr. 506, 513 n.10 (1982); see also Stanton v. Panish, 28 Cal. 3d 107, 114, 167 Cal. Rptr. 584, 615 P.2d 1372, 1376 (1980). I have seen no case, however, that has explicitly relied upon such statements, and I think they have to be given extremely little weight. As the Carman quote makes clear, the ultimate inquiry must be into what the voters--the sovereign power that actually made the initiative into law--thought. The view of the drafters, which was not "distributed to the electorate," Castro, 38 Cal. 3d at 312, 696 P.2d at 117, 211 Cal. Rptr. at 725, says next to nothing about the views of the voters. What matters is the meaning of the text, not the drafters' unexpressed intent. e.g., People v. Fenton, 20 Cal. App. 4th 965, 970-71, 25 Cal. Rptr. 2d 52, 55-56 (1993).

6.      See infra Part II.A. for a discussion of clause (c) of the CCRI.

7.      CAL. CONST. art. I, § 31, cl. a, reprinted in Appendix A.

8.      Clause (f) of the CCRI states:

      For the purposes of this section, "state" shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.

Id. § 31, cl. f, reprinted in Appendix A.      The University of California would have been covered as a "public university system" and a "governmental instrumentality" even if it hadn't been specially mentioned; still, because the UC has a special status under article IX, section 9 of the California Constitution, it seemed wise to mention it explicitly. This special mention obviously does not imply that the California State University system is excluded; it is, of course, a "public university system" and a "governmental instrumentality," and is therefore covered. See SECRETARY OF STATE, CALIFORNIA BALLOT PAMPHLET: GENERAL ELECTION 30, 31 (1996) [hereinafter CALIFORNIA BALLOT PAMPHLET] (Analysis by the Legislative Analyst) (discussing effect of the initiative on the "University of California and California State University"), reprinted in Appendix B.

9.      E.g., TRW, Inc. v. Superior Court, 25 Cal. App. 4th 1834, 1844-48, 31 Cal. Rptr. 2d 460, 466-69 (1994) (applying the state action doctrine developed in free speech and due process contexts to the privilege against self-incrimination).

10.      See Blum v. Yaretsky, 457 U.S. 991, 1005-12 (1982) (heavily regulated business); Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982) (contractor) ("Acts of such private contractors do not become acts of the government by reason of [the contractors'] significant or even total engagement in performing public contracts."); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 358 (1974) (regulated monopoly); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-77 (1972) (licensee).

11.      See, e.g., Robinson v. Florida, 378 U.S. 153, 156-57 (1964) (state action present when state regulation gives private actor an incentive to discriminate); Peterson v. City of Greenville, 373 U.S. 244, 248 (1963) (state action present when state requires private actor to discriminate); Lombard v. Louisiana, 373 U.S. 267, 273 (1963) (state action present when state officially encourages private actor to discriminate).

12.      Race-based scholarships are already prohibited in most cases by the Equal Protection Clause. See Podberesky v. Kirwan, 38 F.3d 147, 151 (4th Cir. 1994). The same may also be true as to sex-based scholarships. See In re Estate of Wilson, 452 N.E.2d 1228, 1235 (N.Y. 1983).

13.      See, e.g., Pennsylvania v. Board of Dirs. of City Trusts, 353 U.S. 230, 231 (1957).

14.      See Shapiro v. Columbia Union National Bank & Trust Co., 576 S.W.2d 310, 320 (Mo. 1978), which held that a state university's conduct with respect to a private men-only scholarship did not constitute sex-based state action even though the university mentioned the scholarship in its catalog, accepted and processed applications for it, and forwarded the names of qualified male students to the private trustee. This decision strikes me as going too far: When public university officials sort male students from female ones, it seems to me that the government is indeed discriminating in the operation of public education. Simply informing students of the scholarship's existence, however, seems permissible.

      See also William E. Thro, The Constitutional Problem of Race-Based Scholarships and a Practical Solution, 111 EDUC. L. REP. 625 (1996), which suggests that "an institutional practice of posting announcements about race-based scholarships which are administered and totally funded by private organizations probably is not state action," but "if an institutional employee has responsibility for locating privately funded and administered race-based scholarships and then encouraging persons to apply for these scholarships . . . there is a stronger argument for state action." Id. at 627 n.9. Technically, this isn't quite so: Posting the list is certainly state action, because the state is doing it. Still, I agree that the race-conscious decision by the private entity administering the scholarship is not state action.

15.      Compare Wilson, 452 N.E.2d at 1237 (speaking favorably of such a switch), with Pennsylvania v. Brown, 392 F.2d 120, 124 (3d Cir. 1968) (rejecting such a switch).

16.      See Evans v. Abney, 396 U.S. 435, 444 (1970).

17.      City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978); International Union v. Johnson Controls, Inc., 499 U.S. 187, 200 (1991); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 683 (1983); see also EEOC v. Borden's, Inc., 724 F.2d 1390, 1393 (9th Cir. 1984); Allison-LeBlanc v. Department of Pub. Safety & Corrections, 671 So. 2d 448, 452 (La. Ct. App. 1995); DiBiase v. Smithkline Beacham Corp., 847 F. Supp. 341, 348 (E.D. Pa. 1994).

18.      See, e.g., CAL. CONST. art. I, § 4 (guaranteeing "[f]ree exercise and enjoyment of religion without discrimination or preference"); Age Discrimination in Employment Act, 29 U.S.C. § 623(e) (1994) (prohibiting "print[ing] or publish[ing] any notice or advertisement . . . indicating any preference, limitation, specification, or discrimination, based on age"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(i) (1994) (exempting "preferential treatment . . . given to any individual because he is an Indian living on or near a reservation"); id. § 2000e-2(j) (explaining that the act does not require "preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of [any] imbalance"); id. § 2000e-3(b) (prohibiting "print[ing] or publish[ing] . . . any notice or advertisement . . . indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin"); Fair Housing Act, 42 U.S.C. § 3604(c) (1994) (barring housing advertising "that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin"); CAL. GOV'T CODE § 1233 (West 1995) (making it "unlawful . . . to discriminate against a prospective or incumbent employee or to give preference to a person identified as a member of an ethnic, racial, or religious group upon the basis of such membership or identification"); id. § 12955(c) (West Supp. 1997) (barring housing advertising that "indicates any preference, limitation, or discrimination based on race, color, religion, sex" and other factors).      Though some of the above statutes mention "preference" rather than "preferential treatment," the two terms are synonymous. See, e.g., CALIFORNIA BALLOT PAMPHLET, supra note 8, at 31 (Analysis by the Legislative Analyst) ("[T]he measure would eliminate programs that give preference to women-owned or minority-owned companies on public contracts."), reprinted in Appendix B; id. ("[T]he measure would affect [programs that] provide preferences to individuals or schools based on race, sex, ethnicity, or national origin."), reprinted in Appendix B; id. at 32 (Argument in Favor of Proposition 209) ("Instead of equality, governments imposed quotas, preferences, and set-asides."), reprinted in Appendix B; id. at 33 (Rebuttal to Argument Against Proposition 209) ("[u]nder the existing racial-preference system"), reprinted in Appendix B; see also, e.g., United States v. Paradise, 480 U.S. 149, 197 (1987) (O'Connor, J., dissenting) (using "preferential treatment" and "preferences" interchangeably); California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 293-94 (1987) (Stevens, J., concurring in part and concurring in the judgment) (same); Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 452-53 (1986) (same); United Steelworkers v. Weber, 443 U.S. 193, 244 (1979) (Rehnquist, J., dissenting) (same); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 297 (1978) (Powell, J.) (same).

19.      E.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2109 (1995); id. at 2120 (Stevens & Ginsburg, JJ., dissenting); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989); Bakke, 438 U.S. at 301; id. at 328 (Brennan, White, Marshall, & Blackmun, JJ., concurring in the judgment in part and dissenting in part); DeFunis v. Odegaard, 416 U.S. 312, 332 (1974) (Douglas, J., dissenting).

20.      See Weber, 443 U.S. at 193; Bakke, 438 U.S. at 265; see also WESTERN STATE, supra note 3, § 6 ("Thus, Brennan's decision held that the program at issue in Weber was not discrimination but was preferential treatment.").

21.      Weber, 443 U.S. at 201 ("Respondent argues that Congress intended in Title VII to prohibit all race-conscious affirmative action plans. Respondent's argument rests upon a literal intepretation of [the ban on discrimination in] the Act. . . . [But] in this context reliance upon a literal construction of [this ban] . . . is misplaced.").

22.      Id. at 200, 208; see also id. at 205 ("racially preferential integration effort[]"), 208; id. at 210, 211, 216 (Blackmun, J., concurring) ("voluntary preference[]," "[p]referential hiring," and "preference for blacks").

23.      Id. at 205 n.5 (citing 42 U.S.C. § 2000e-2(j)).

24.      Id. at 205-06. Similarly, the Bakke Court concluded that Title VII, despite its facial prohibition on discrimination, "[did] not bar the preferential treatment of racial minorities" in certain circumstances. Bakke, 438 U.S. at 265, 328 (Brennan, White, Marshall & Blackmun, JJ. concurring in the judgment in part and dissenting in part); id. at 295-306 (Powell, J.) (characterizing such programs as "preferential classifications," "preferential treatment," "preferences," "preferential programs," and "preferential hiring"); id. at 319 (Powell, J.) (specifically describing the race-conscious diversity programs that he endorsed as "preference program[s]").

25.      City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978).

26.      See, e.g., Academic Senate, University of California, NOTICE, Apr. 1995, at 1, 5 (describing "the Biology Undergraduate Scholars Program at UC Davis, which serves UC freshm[e]n and sophomores. It is open to students who come from economically or educationally disadvantaged backgrounds or to students who are not disadvantaged but who are members of underrepresented groups" (emphasis added)); UCLA Academic Advancement Program Brochure, at 11 (on file with author) ("You are eligible to join AAP and participate in its programs, receive its services, and use its resources if you come from a historically underrepresented population--African American, Chicano/Latino/a, Native American, Pilipino, and Pacific Islander--or are from a low income family.").

27.      The California Attorney General has argued that "'[b]using' and 'student assignment' on the basis of race" isn't covered by the CCRI because it does not "involv[e] preferences," Appellants' Reply Brief at 9-10, 14 n.6, Coalition for Econ. Equity v. Wilson, Nos. 97-15030, -15031 (9th Cir. Feb. 28, 1997), but I believe this is incorrect. An assignment of a particular student to a particular school because he's black or white or Hispanic "treat[s] a person in a manner which but for that person's [race] would be different." This is true even when the difference between schools consists only of factors such as travel distance; but it should be even more evident when one school provides particular programs that another does not. Cf. CALIFORNIA BALLOT PAMPHLET, supra note 8, at 31 (Analysis by the Legislative Analyst), reprinted in Appendix B (noting the possible effect on funding for "'magnet' schools (in those cases where race or ethnicity are preferential factors in the admission of students to the schools)").

28.      An alternate approach--which is logically equivalent to the test described in the text--is to imagine another program that is identical to the challenged one, except that it favors a different race, sex, or ethnicity. If this hypothetical program is discriminatory or preferential, then the original program would be discriminatory or preferential, too. A tutoring program that accepted all white applicants but no poor black applicants would clearly be discriminatory against blacks and preferential to whites. A decision to hire a male applicant instead of a female applicant that's partly motivated by a desire to fill an informal "goal" for male employees would clearly involve discrimination against the woman and a preference for the man. See Ed Mendel, Affirmative Action Goal: More White Men?, SAN DIEGO UNION-TRIB., Oct. 16, 1996, at A1 (describing planned hiring goals for whites and males). The reverse programs are likewise discriminatory and preferential.

      Of course, some might see the two programs as morally different--preferential treatment for minorities or women, they might argue, is not morally equivalent to preferential treatment for whites or men. But whatever one's views might be on the propriety of such programs, both kinds of programs are in fact forms of preferential treatment. And the core principle behind the CCRI is that both forms of preferential treatment are equally invalid. See generally CALIFORNIA BALLOT PAMPHLET, supra note 8, at 32 (Argument in Favor of Proposition 209; Rebuttal to Argument Against Proposition 209), reprinted in Appendix B.

29.      Constitutional antidiscrimination protections are implicated whenever the state uses race as a "motivating factor," whether or not other factors are present. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977); cf. 29 C.F.R. § 1604.4(a) (1996) ("[S]o long as sex is a factor in the application of the rule, such application involves a discrimination based on sex."); CALIFORNIA BALLOT PAMPHLET, supra note 8, at 31 (Analysis by the Legislative Analyst) ("The measure would eliminate affirmative action programs . . . where sex, race, or ethnicity are preferential factors . . . ."), reprinted in Appendix B.

30.      Likewise, the CCRI prohibits the government from setting goals and timetables that pressure contractors into discrimination. See Bras v. California Pub. Utils. Comm'n, 59 F.3d 869, 874 (9th Cir. 1995) (refusing to distinguish programs that "purport to establish 'goals'" from those that require "quotas," and "look[ing] to the economic realities of the program rather than the label attached to it"); cf. Robinson v. Florida, 378 U.S. 153, 156-57 (1964) (discriminatory state action present when state regulation gives private actor an incentive to discriminate); Lombard v. Louisiana, 373 U.S. 267, 273 (1963) (discriminatory state action present when state officially encourages private actor to discriminate).

31.      See 42 U.S.C. § 2000e-2(j) (1994) ("Nothing contained in this subchapter shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group . . . ."); 110 CONG. REC. 12,723 (1964) (statement of Sen. Humphrey) ("The proponents of this bill have carefully stated on numerous occasions that [T]itle VII does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group."); 110 CONG. REC. 1518 (1964) (statement of Rep. Celler, a floor manager of the Civil Rights Act of 1964) ("[Under Title VII, a] court could not order that any preference be given to any particular race, religion or other group, but would be limited to ordering an end to discrimination."); 5 C.F.R. § 950.110 (1996) (prohibiting "discrimination for or against any individual or group on account of race, color, religion, sex, national origin, age, handicap, or political affiliation"); 32 C.F.R. § 51.3 (1996) ("Definitions . . . . Discrimination. Illegal treatment of a person or group based on handicap, race, color, national origin, age, religion, or gender."); id. § § 191.3, 192.3; see also CAL. GOV'T CODE § 12955 (West 1992 & Supp. 1996) ("It shall be unlawful: . . . (e) For any [entity that funds housing transactions] to discriminate against any person or group of persons because of the race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability . . . ."); CAL. HEALTH & SAFETY CODE § 33436(a) (West Supp. 1997) ("In deeds the following language shall appear--'The grantee herein covenants . . . that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry . . . .'").

32.      See, e.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2108 (1995) (talking about "classifications burdening groups that have suffered discrimination in our society" and about "race-based governmental action designed to benefit such groups" (emphasis omitted)); Johnson v. De Grandy, 512 U.S. 997, 1007 n.7 (1994) ("[R]acial gerrymanders have played a central role in discrimination against minority groups." (citation omitted)); Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 673 (1993) (O'Connor, J., dissenting, joined by Blackmun, J.) (describing plaintiff's complaint as being that "preferences were awarded to groups against whom no discrimination ever had occurred in the city"); Georgia v. McCollum, 505 U.S. 42, 57 (1992) ("It is an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens based upon their race."); Metro Broad., Inc. v. FCC, 497 U.S. 547, 575 (1990) (describing the program as giving "a lottery preference to minorities and other historically underrepresented groups"), overruled by Adarand, 115 S. Ct. at 2097; Johnson v. Transportation Agency, 480 U.S. 616, 642-43 (1987) (Stevens, J., concurring) ("Prior to 1978 the Court construed the Civil Rights Act of 1964 as an absolute blanket prohibition against discrimination which neither required nor permitted discriminatory preferences for any group, minority or majority."); Bakke, 438 U.S. at 292 (Powell, J.) (asserting that the Equal Protection Clause covers "all ethnic groups seeking protection from official discrimination"); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279 (1976) (Marshall, J.) ("[Title VII] 'prohibit[s] [d]iscriminatory preference for any [racial] group, minority or majority.'" (third and fourth alterations in original) (emphasis and internal quotation marks omitted)); Washington v. Davis, 426 U.S. 229, 239 (1976) (stating that the Constitution "prohibit[s] the United States from invidiously discriminating between individuals or groups"); DeFunis v. Odegaard, 416 U.S. 312, 338 (Douglas, J., dissenting) ("[W]hat standard is the Court to apply when a rejected applicant of Japanese ancestry brings suit to require the University of Washington to extend the same privileges to his group?"); Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) ("Discriminatory preference for any group, minority or majority, is precisely and only what [Title VII] has proscribed."); Korematsu v. United States, 323 U.S. 214, 240 (1944) (Murphy, J., dissenting) (acts of "individual disloyalty [do not] justify discriminatory action against the entire group").

33.      Exec. Order No. 10,925, 3 C.F.R. 448, 449-50 (1959-1963), reprinted in 1961 U.S.C.C.A.N. 1274, 1276 (1961) (emphasis added) ("The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."); see Middleton v. City of Flint, 92 F.3d 396, 404 n.6 (6th Cir. 1996) (noting how the meaning of "affirmative action" has been transformed from nondiscrimination to preferential treatment).

34.      See, e.g., 29 C.F.R. § 1608.1 n.4 (1996) (providing the main guideline related to affirmative action under Title VII) ("Affirmative action often improves opportunities for all members of the workforce, as where affirmative action includes the posting of notices of job vacancies. Similarly, the integration of previously segregated jobs means that all workers will be provided opportunities to enter jobs previously restricted."); 29 C.F.R. § 1608.3(c)(3) (1996) (defining affirmative action as including "[e]limination of the adverse impact caused by unvalidated selection criteria"); cf. LOS ANGELES CITY COUNCIL, LAPD GENDER BALANCE AND REFORM MOTION, reprinted in Neil Gotanda et al., Legal Implications of Proposition 209--The California Civil Rights Initiative, 24 W. ST. U. L. REV. 1, 110 app. B (1996) (attempting to remove obstacles to women applicants by eliminating physical tests that are irrelevant to job performance).

35.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 32 (Argument in Favor of Proposition 209) ("Proposition 209 . . . allows any program that does not discriminate, or prefer, because of race or sex."), reprinted in Appendix B; id. at 33 (Rebuttal to Argument Against Proposition 209) ("Affirmative action programs that don't discriminate or grant preferential treatment will be UNCHANGED."), reprinted in Appendix B. "[A]ny statement to the effect that Proposition 209 repeals affirmative action programs would be overinclusive and hence 'false and misleading.'" Lungren v. Superior Court, 48 Cal. App. 4th 435, 442, 55 Cal. Rptr. 2d 690, 694 (1996).

36.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 33 (Rebuttal to Argument Against Proposition 209) ("Note that Proposition 209 doesn't prohibit consideration of economic disadvantage. . . . The state must remain free to help the economically disadvantaged, but not on the basis of race or sex to continue."), reprinted in Appendix B; id. at 31 (Analysis by the Legislative Analyst) ("[A] high school outreach program . . . that currently uses a factor such as ethnicity to target spending could be changed to target instead high schools with low percentages of UC or CSU applications."), reprinted in Appendix B.

37.      See, e.g., Hernandez v. New York, 500 U.S. 352, 375 (1991) (holding that it is not national origin discrimination to classify based on whether one knows a particular language).

38.      See, e.g., Personnel Adm'r v. Feeney, 442 U.S. 256, 274 (1979); Washington v. Davis, 426 U.S. 229, 242 (1976).

39.      See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2113 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).

40.      See, e.g., Grimes v. Sobol, 832 F. Supp. 704, 708, 710, 713 (S.D.N.Y. 1993) (rejecting claim that "emphasis on European history" and implementation of a "Holocaust Curriculum and an Italian Heritage Curriculum" without "a special curriculum to focus on issues of particular importance to African Americans" constituted discrimination against blacks), aff'd, 37 F.3d 857 (2d Cir. 1994); Grimes v. Cavazos, 786 F. Supp. 1184, 1185, 1192 (S.D.N.Y. 1992) (rejecting claim that "curriculum of New York City schools favoring European culture and disfavoring non-European cultures" constituted discrimination against blacks); see also Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983) (rejecting claim that providing documents only in English discriminated against Hispanics; "the Secretary's failure to provide forms and services in the Spanish language, does not on its face make any classification with respect to Hispanics as an ethnic group"). The cases acknowledge that the plaintiffs could have won had the programs been intentionally aimed at disadvantaging racial minorities, but of course any program--whether race-themed or not--that intentionally disadvantages a racial group is unconstitutional, even without the CCRI. Davis, 426 U.S. at 239.

41.      Croson, 488 U.S. at 526 (Scalia, J., concurring in the judgment).

42.      See, e.g., Exec. Order No. 11,246, 3 C.F.R. 167, 168 (Supp. 1965), reprinted in 42 U.S.C. § 2000e (1994) (banning discrimination in "employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training"); id. at 170 (requiring compliance as to "recruitment, employment, and the terms and conditions of employment"); 28 C.F.R. § 42.104(c)(1) (1996) (interpreting Title VII ban on discrimination as applying to "recruitment or recruitment advertising"); 29 C.F.R. § 1630.4(a) (1996) (interpreting the ban on discrimination in the Americans with Disabilities Act as applying to "[r]ecruitment, advertising, and job application procedures"); CAL. CODE REGS. tit. 2, § 7287.3(a) (1995) (interpreting employment discrimination ban as applying to "recruitment" and "[c]ommunicat[ion] or us[e of] advertising methods to communicate the availability of employment benefits in a manner intended to discriminate"); id.§ § 7295.2(b), 7295.4(a)(1) (interpreting employment discrimination ban as applying to "recruitment" and "advertising"); CAL. CODE REGS. tit. 22, § 100760(a) (1993) (interpreting discrimination ban as applying to "recruitment or recruitment advertising").

43.      See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 (1977); EEOC v. Consolidated Serv. Sys., 989 F.2d 233, 236 (7th Cir. 1993) (holding that intentional discrimination in recruitment is employment discrimination); United States v. Massachusetts Maritime Academy, 762 F.2d 142, 153-54 (1st Cir. 1985); Castaneda v. Pickard, 648 F.2d 989, 1003 (5th Cir. Unit A June 1981); Markey v. Tenneco Oil Co., 635 F.2d 497, 500 (5th Cir. Jan. 1981); Reed v. Arlington Hotel Co., 476 F.2d 721, 724 (8th Cir. 1973); see also Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621, 625 n.7 (D.C. Cir. 1978) (en banc) (referring to "evidence of recruiting aimed selectively at one minority"); cf. Almonte v. Pierce, 666 F. Supp. 517, 527 (S.D.N.Y. 1987) (noting that "[l]ack of intent defeats the constitutional claims of discrimination in marketing," in reference to an outreach program for potential housing applicants).

44.      City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (setting this forth as a test for what constitutes "discrimination").

45.      See, e.g., Peter Scheer, Prop 209: Not as Radical as Advertised, RECORDER (S.F.), Nov. 8, 1996, at 4, available in LEXIS, News Library, Papers File (distinguishing targeted outreach from "policies that rig the award of government benefits--jobs, contracts, college admissions--on the basis of race").

46.      When the "language and objectives of [California law] closely parallel the language and objectives of [related federal law], [California courts] refer to federal decisions where appropriate." Stephens v. Coldwell Banker Commercial Group, Inc., 199 Cal. App. 3d 1394, 1399, 245 Cal. Rptr. 606, 609 (1988); see also Belridge Farms v. Agricultural Labor Relations Bd., 21 Cal. 3d 551, 557, 580 P.2d 665, 669, 147 Cal. Rptr. 165, 169 (1978); Anaheim Elementary Educ. Ass'n v. Board of Educ., 179 Cal. App. 3d 1153, 1157, 225 Cal. Rptr. 468, 471 (1986); Public Employees Assoc., Inc. v. Board of Supervisors, 167 Cal. App. 3d 797, 806-07, 213 Cal. Rptr. 491, 497 (1985). Of course, to the extent that the language or context of the state provision differs from the federal one, the federal cases stop being a useful guide. See, e.g., Williams v. Superior Court, 5 Cal. 4th 337, 351, 852 P.2d 377, 385-86, 19 Cal. Rptr. 2d 882, 890-91 (1993); Union Asphalt, Inc. v. Planet Ins. Co., 21 Cal. App. 4th 1762, 1768-69, 27 Cal. Rptr. 2d 371, 375 (1994). Cf. CALIFORNIA BALLOT PAMPHLET, supra note 8, at 31 (Analysis by the Legislative Analyst) ("[T]he measure would affect a variety of public school and community college programs such as . . . outreach . . . in those cases where the programs provide preferences to individuals or schools based on race, sex, ethnicity, or national origin."), reprinted in Appendix B; id. ("[Outreach] targeted to individuals based on sex, race, or ethnicity . . . probably would be affected by passage of this measure."), reprinted in Appendix B.

47.      Neil Gotanda suggests that I once argued the contrary, quoting me as saying that "[t]he CCRI would effectively prohibit [discrimination and preferences], while leaving intact outreach and other nonpreferential forms of affirmative action." Neil Gotanda, Failure of the Color-Blind Vision: Race, Ethnicity, and the California Civil Rights Initiative, 23 HASTINGS CONST. L.Q. 1135, 1146 (1996) (quoting Sally Pipes & Eugene Volokh, Women Need Not Fear the Civil Rights Initiative, L.A. TIMES, Jan. 24, 1996, at B9). I confess that the statement in the Pipes & Volokh article was ambiguous. We meant "nonpreferential outreach and other nonpreferential forms of affirmative action"--that's why we said "other nonpreferential" forms--and should have said so more clearly. This, though, was only an accidental ambiguity; I have always expressed the view that the CCRI would allow only nonpreferential outreach. See, e.g., Phil Garcia, Prop. 209 Foes Focus on Threat to Outreach Programs, SACRAMENTO BEE, July 28, 1996, at A3 ("'If an outreach program treats somebody differently on the basis of their race or sex, then that is impermissible and the program has to be changed,' said Eugene Volokh.").

      The campaign as a whole said the same. See, e.g., K.L. Billingsley, Of Spouses, School and Skin Color, WASH. TIMES, Feb. 28, 1996, at A21 ("While opposing racial preferences, [campaign chairman Ward] Connerly favors outreach programs based on economic status."); Ira Eisenberg, Dissenting Opinions, RECORDER (S.F.), June 10, 1996, at 1, available in LEXIS, News Library, Papers File ("[Tom] Wood, the co-author of CCRI, says he supports [outreach and recruitment programs]. He says the measure would not abolish them: 'It only requires that they provide equal access' to everyone."); Garcia, supra (quoting one of the co-authors of the initiative, Glynn Custred, as advocating nondiscriminatory outreach: "Supporters of the initiative say it would change, but not necessarily eliminate, outreach efforts"); Ed Mendel, College Heads Hit Anti- Affirmative Action Measure, SAN DIEGO UNION-TRIB., Oct. 18, 1996, at A3 ("A spokeswoman for Proposition 209 said that the so-called California Civil Rights Initiative would allow Student Ambassadors and similar outreach programs if they do not discriminate or give preferences based on race or gender."); Ruben Navarrette Jr., Affirmative Action: Will Outreach Programs Be the Next Target?, L.A. TIMES, July 28, 1996, at M6 ("Connerly says he is a long-time advocate of outreach, . . . [b]ut he has reservations concerning race-based programs[;] . . . students of all colors who need outreach should get it."); James Richardson, Campus Is Key Battlefield in Fight over Racial Preferences, SACRAMENTO BEE, Sept. 15, 1996, at A1 ("[Campaign chairman Ward] Connerly said that if the ballot measure passes he will push his fellow regents to force the UC administration to radically shift outreach programs away from race. 'I will be insistent that we go back to these programs and make sure they are strictly not race-based,' Connerly said.").

48.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 33 (Rebuttal to Argument Against Proposition 209) ("Programs designed to ensure that all persons--regardless of race or gender--are informed of opportunities . . . will continue as before."), reprinted in Appendix B.

49.      See id. at 31 (Analysis by the Legislative Analyst) ("[A] high school outreach program . . . that currently uses a factor such as ethnicity to target spending could be changed to target instead high schools with low percentages of UC or CSU applications."), reprinted in Appendix B.

50.      See EEOC v. Consolidated Serv. Sys., 989 F.2d 233, 236 (7th Cir. 1993) (commenting that where "[n]o inference of intentional discrimination can be drawn from the [recruiting] pattern," the recruiting is not discriminatory); Almonte v. Pierce, 666 F. Supp. 517, 527 (S.D.N.Y. 1987) (noting that the "[l]ack of intent defeats the constitutional claims of discrimination" in outreach in housing).

      The black-letter constitutional rule is that even ostensibly race-neutral rules are treated as discriminatory if they are intended to discriminate. See, e.g., Miller v. Johnson, 115 S. Ct. 2475, 2483 (1995) (citing Arlington Heights and applying the same rule to action intended to favor racial minorities); Shaw v. Reno, 509 U.S. 630, 642-43 (1993) (citing Arlington Heights); Hunter v. Underwood, 421 U.S. 222 (1985); City of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976). The Court has on a few occasions made statements that might suggest the contrary: City of Richmond v. J.A. Croson Co. characterized certain "means to increase minority business participation in city contracting" as "race-neutral," though such means seem to be motivated by a desire to favor particular racial groups, 488 U.S. 469, 507 (1989), and Adarand Constructors, Inc. v. Pena quoted this same language, 115 S. Ct. 2097, 2118 (1995). Neither case remarked on the tension between such an assertion and Hunter, Arlington Heights, and Washington v. Davis; but Adarand, which was decided on the same day as Shaw v. Reno, did appear to cite Washington v. Davis and Arlington Heights as the proper general test for "laws that, although facially race neutral, result in racially disproportionate impact and are motivated by a racially discriminatory purpose." See also Croson, 488 U.S. at 509 (discussing the need for the government to consider "race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races," which seems to contemplate a nonracial goal as well as facially race-neutral means).

      In my view, the clear holding of Shaw, Miller, Hunter, Arlington Heights, and Washington v. Davis should prevail over any possible contrary hints in Croson and Adarand; facially race-neutral programs that are intended to discriminate (even for "benign" reasons) should, as Shaw and Miller recognized, be treated as racial discrimination. This is especially apt when these federal constitutional law principles are adapted to the CCRI, whose core purpose--whether one approves of it or not--is to do away with different standards for programs that benefit whites and programs that benefit minorities. See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 32 (Argument in Favor of Proposition 209 and Rebuttal to Argument Against Proposition 209), reprinted in Appendix B; see also cases cited supra note 46 (discussing uses and limitations of reference to federal law in interpreting California law).

51.      See Statement by Molly Munger, Debate at Temple Sinai; Statement by Professor Laurie Levenson, before the Board of Rabbis of Southern California (Oct. 1, 1996); Sandy Sohcot, Between the Lines of the Civil Rights Initiative, S.F. BUS. TIMES, May 24, 1996 ("This omission [of 'religion'] would allow the state to grant 'preferences' based on religious affiliation."); see also Gary Phillips, Leading the Nation Back in Time, RECORD (N.J.), May 3, 1996, at N7, available in LEXIS, News Library, Papers File (incorrectly identifying noted Christian constitutional scholar Professor Michael McConnell as "one of the initial drafters of California's prohibition measure," and saying that "[i]nterestingly, the one category the California Civil Rights Initiative does infer [sic] discrimination is in the area of religion").

52.      California constitutional provisions do not implicitly repeal existing ones unless the new ones are in "irreconcilable conflict" with the old. See infra Part II.A.2.

53.      A few antidiscrimination statutes in other states actually seem to tolerate religion-based affirmative action programs. See GA. CODE ANN. § § 45-19-27(8), 45-19-29(3), 45-19-35(c), 45-19-38(c)(7) (1990 & Supp. 1996); KAN. STAT. ANN. § 44-1009(b) (1993); LA. REV. STAT. ANN. § 51:2246(B) (West Supp. 1997); OHIO REV. CODE ANN. § 4112.04(A)(10) (Banks-Baldwin 1994); OKLA. STAT. ANN. tit. 25, § 1310 (West 1987); TENN. CODE ANN. § 4-21-406(b) (1991). All these statutes, however, mention religion only in passing, alongside race, sex, and other categories; I've seen no cases that have upheld any religion-based programs under these statutes, much less programs conducted by the government.

54.      See Larson v. Valente, 456 U.S. 228 (1982); Walker v. Superior Court, 47 Cal. 3d 112, 145 & n.1, 763 P.2d 852, 874 & n.1, 253 Cal. Rptr. 1, 23 & n.1 (1988) (Mosk, J., concurring).

55.      See Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1216-17 (5th Cir. 1991). The court rested its reasoning on "[t]he unique guardian-ward relationship between the federal government and Native American tribes[, which] precludes the degree of separation of church and state ordinarily required by the First Amendment." Id. at 1217. This is a tough case, which stands at the intersection of the religious equality guarantee and the special treatment owed by the federal government to the quasi-sovereign Indian nations. The case certainly does not show any willingness by courts to generally tolerate sectarian discrimination.

56.      See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987) (holding that accommodations of religious practice may be limited only to those who engage in the practice for religious reasons).

57.      See Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 715-16 (1994) (O'Connor, J., concurring in part and in the judgment).

58.      See Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 715-16 (1981); Wilson v. NLRB, 920 F.2d 1282, 1288 (6th Cir. 1990).

59.      Under federal and state antidiscrimination statutes, under the federal Religious Freedom Restoration Act, and possibly under the state Free Exercise Clause, the government must provide certain exemptions from neutral rules for religious observers. See CAL. CONST. art. I, § 4; 42 U.S.C. § § 2000e(j), 2000e-2(a) (1994) (Title VII); id. § 2000bb (Religious Freedom Restoration Act); CAL. GOV'T CODE § 12940(j) (West 1992 & Supp. 1997). A broad ban on all religious discrimination (including discrimination based on religious belief, and not just sectarian affiliation) could theoretically coexist with these laws. It would simply require government employers to provide these exemptions for all people who wanted them--for instance, to people who wanted Saturdays off to be with their families--and not just those who wanted them for religious reasons. This, however, might impose too much of a burden on the public employer.

60.      See infra Part I.F.3.

61.      Ethnic groups may be considered "races" for purposes of the Civil Rights Act of 1866, because that was the usage when the Act was written. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (treating Arabs as a "race"); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987) (treating Jews as a "race"). In modern usage, however, most ethnic groups would not be considered separate races.

62.      See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973) (defining "national origin" as "the country where a person was born, or, more broadly, the country from which his or her ancestors came"); 29 C.F.R. § 1606.1 (1996) (defining "national origin" as "an individual's, or his or her ancestor's, place of origin," or as possession of "physical, cultural or linguistic characteristics of a national origin group"). Of course, Jews might be seen as having a "national origin" in Palestine 2000 years ago, but cases dealing with ethnic (as opposed to religious) discrimination against Jews generally speak in terms of ethnicity rather than national origin. See, e.g., Hampel v. City of Denver, 886 F. Supp. 756 (D. Colo. 1994).

63.      See, e.g., East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405 (1977); Malhotra v. Cotter & Co., 885 F.2d 1305, 1308 (7th Cir. 1989).

64.      See WESTERN STATE, supra note 3, at 15-16.

65.      E.g., CAL. CONST. art. I, § 8 ("ethnic origin"); id. art. IX, § 9(f) ("ethnic heritage"); 12 U.S.C. § 1823(d)(4)(D)(iv) (1994) ("ethnic group"); 22 U.S.C. § 262p-4n (1994) ("ethnicity"); CAL. EDUC. CODE § 260 (West 1994) ("ethnic group identification"); CAL. GOV'T CODE § 1233 (West 1995) ("ethnic group").

66.      Of course, many such classifications may already be forbidden by other constitutional provisions. See, e.g., Sugarman v. Dougall, 413 U.S. 634 (1973) (reading the Equal Protection Clause as imposing some restrictions on classifications that turn on U.S. citizenship).

67.      See Espinoza, 414 U.S. at 90-91.

68.      See Mahdavi v. Fair Employment Practice Comm'n, 67 Cal. App. 3d 326, 336-37, 136 Cal. Rptr. 421, 425-26 (1977).

69.      See supra note 4.

70.      See Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987) (holding that Jews are a "race" for purposes of the Civil Rights Act of 1866, 42 U.S.C. § 1982; while this turned on the usage of "race" in 1866, a usage that is now largely obsolete, the modern analog would in fact be "ethnicity"); Salehi v. INS, 796 F.2d 1286, 1288 (10th Cir. 1986) (accepting a claim of fear of persecution based on "Jewish ethnic and religious background"); Hampel v. City of Denver, 886 F. Supp. 756, 758 (D. Colo. 1994) (accepting a Title VII claim of discrimination based on "Jewish ethnicity").

71.      Morton v. Mancari, 417 U.S. 535, 553 n.24 (1974); see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 304 n.42 (1978) (Powell, J.) (distinguishing the preference for blacks, Hispanics, and Asians in UC Davis admissions from the preference for tribal Indians in Mancari on the grounds that the Mancari "preference was not racial at all"); Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1215-16 (5th Cir. 1991) (likewise concluding that preference for tribal Indians was "a political classification" rather than "a racial classification"); Long v. Chemehuevi Indian Reservation, 115 Cal. App. 3d 853, 860, 171 Cal. Rptr. 733, 737 (1981) ("[T]he sovereign immunity of the Indian tribes is based on political, rather than racial, considerations and does not violate equal protection under either state or federal Constitutions."); Krueth v. Independent Sch. Dist. No. 38, 496 N.W.2d 829, 836 (Minn. Ct. App. 1993) ("[P]references for American Indians are not racial but political when the preferences apply to members of federally recognized tribes."); cf. In re Bridget R., 41 Cal. App. 4th 1483, 1509-10, 49 Cal. Rptr. 2d 507, 528 (1996) (holding that discrimination based on tribal status is permissible only so long as the particular Indian has "social, cultural or political tribal affiliations"--apparently beyond mere membership--with his tribe; this, though, is the only case I've seen that has required such a fact-specific inquiry).

      Of course, Indian-tribe membership is generally restricted to people who belong to a particular racial group, which is why the theory that Indian-tribe membership is a "political rather than racial" classification is somewhat controversial. For differing views on this, see Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 YALE L.J. 537 (1996); Carole Goldberg-Ambrose, Not "Strictly" Racial: A Response to "Indians as Peoples," 39 UCLA L. REV. 169 (1991); David C. Williams, The Borders of the Equal Protection Clause: Indians as Peoples, 38 UCLA L. REV. 759 (1991).

72.      Cf. Krueth, 496 N.W.2d at 836 n.3 (drawing an analogy between discrimination based on Indian-tribe membership and discrimination based on state citizenship). Of course, discrimination based on state or federal citizenship may sometimes be unconstitutional, but not because it is seen as an ethnic classification. See Supreme Court v. Piper, 470 U.S. 274 (1985); Sugarman v. Dougall, 413 U.S. 634 (1973).

73.      But see Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 495 So. 2d 790, 793-94 (Fla. Dist. Ct. App. 1986) (concluding that a Florida state law banning race discrimination might be broader than the federal ban and might prohibit all preferences for Indians; the case cites Morton v. Mancari as an example of the "Indian preference" policy, but did not specifically discuss the distinction between preferences for tribal Indians and preferences for Indians generally).

      There was, to the best of my knowledge, no discussion during the campaign of the CCRI's impact on preferences for American Indians.

74.      See Johnson v. Shalala, 35 F.3d 402, 405 (9th Cir. 1994) (treating claim of discrimination based on being an American Indian as a race discrimination claim); Tuttle v. Henry J. Kaiser Co., 863 F.2d 601 (8th Cir. 1988) (same).

75.      See 42 U.S.C. § 2000e-2(e) (1994); CAL. GOV'T CODE § 12940 (West 1992 & Supp. 1997).

76.      Cf. CAL. CODE REGS. tit. 8, § 1526 (1997) (mandating sex-segregated bathroom facilities at construction sites).

77.      Cf. CAL. EDUC. CODE § 41(c) (West 1994) ("Nothing in this section shall be construed to require a school district to require competition between male and female students in school-sponsored athletic programs.").

78.      Cf. CAL. GOV'T CODE § 12995(a)(2) (West 1992 & Supp. 1997) (exempting educational institutions that provide housing reserved for male or female students from state-imposed barriers to sex discrimination in housing).

79.      Cf. CAL. CODE REGS. tit. 15, § 4714 (1997) (requiring body cavity searches in California Youth Authority facilities to be same-sex); Susan Sward, Two Men Participate in Girl's Strip Search at Juvenile Hall, S.F. CHRON., Feb. 17, 1996, at A13.      Some cross-sex prison searches, and perhaps sex-integrated bathrooms or dorm rooms, might also be prevented by a federal constitutional right of privacy, whether grounded in the Fourth Amendment, the Eighth Amendment, or in substantive due process. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1530-31 (9th Cir. 1993) (en banc) (holding cross-gender clothed body searches conducted on female inmates to be a violation of the Eighth Amendment). But the scope of this constitutional protection is extremely vague, and likely quite narrow. See, e.g., id. at 1522 (covering only "random, non-emergency, suspicionless clothed body searches"). It would have been a mistake to rely solely on this constitutional protection.

80.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 33 (Rebuttal to Argument Against Proposition 209) ("Proposition 209 adds NEW PROTECTION against sex discrimination on top of existing ones, which remain in full force and effect. It does NOTHING to any existing constitutional provisions."), reprinted in Appendix B; id. at 32 (Argument in Favor of Proposition 209) ("And, remember, Proposition 209 keeps in place all federal and state protections against discrimination!"), reprinted in Appendix B.

81.      See CAL. CONST. art. I, §& #167 7(a), 8; Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 17, 485 P.2d 529, 539, 95 Cal. Rptr. 329, 339 (1971). Section 7(a) deals with discrimination generally; section 8 deals only with discrimination in employment and in occupational licensing. I speak generally of the "preexisting equal protection provisions" because there are two such provisions in the California Constitution, rather than just the one Equal Protection Clause in the federal Constitution.

82.      See International Paper Co. v. Ouellette, 479 U.S. 481, 493 (1987) (interpreting a "nothing in this section" provision precisely this way); see also CAL. CONST. art. I, § 28 (using "nothing in this section" this way); id. art. XIV, § 5; id. art. XVI, § 1.5; Unruh Civil Rights Act, CAL. CIV. CODE § 51 (West 1982); id. § § 51.8, 54.1, 56.20 (West 1982 & Supp. 1997); CAL. EDUC. CODE § § 230, 72015 (West 1997); CAL. GOV'T CODE § § 12940, 12947.5 (West 1992 & Supp. 1997).

83.      In my view, this point is so clear that I would normally not have even considered writing this subsection. Nonetheless, because much of the anti-CCRI campaign focused on the claim that the CCRI does indeed partly repeal existing prohibitions on sex discrimination, I feel it necessary to respond to this claim here. For just a small sampling of this anti-CCRI argument, see, for example, WESTERN STATE, supra note 3; Chemerinsky & Levenson, supra note 3, at B9 (claiming that the CCRI "would eliminate all affirmative action" and would also partly repeal existing bans on sex discrimination); Ira Eisenberg, Top Legal Scholars Dispute Claims That a Ban on State Affirmative Action Would Hit Women Hardest, RECORDER (S.F.), June 10, 1996, at 1; Dianne Feinstein, Debating Affirmative Action: 'Mend It but Don't End It,' SAN DIEGO UNION-TRIB., May 26, 1996, at G1; Ed Mendel, Foes Say Flaw in Prop. 209 Will Hurt Women, SAN DIEGO UNION-TRIB., Oct. 8, 1996, at A1.

84.      "It is a settled precept of statutory construction that a special statute will not be construed to effect a repeal of a more general statute unless the two are irreconcilable and in direct conflict with each other." Woolley v. Embassy Suites, Inc., 227 Cal. App. 3d 1520, 1527, 278 Cal. Rptr. 719, 722 (1991).

85.      Western Oil & Gas Ass'n v. Monterey Bay Unified Air Pollution Control Dist., 49 Cal. 3d 408, 419, 777 P.2d 157, 163-64, 261 Cal. Rptr. 384, 390-91 (1989) (alteration in original) (citations omitted). "[T]he law shuns repeals by implication, particularly where, as here, the prior act has been generally understood and acted upon." Board of Supervisors v. Lonergan, 27 Cal. 3d 855, 868, 616 P.2d 802, 810, 167 Cal. Rptr. 820, 828 (1980) (internal quotation marks omitted). "Repeal by implication only arises when there is an irreconcilable conflict between a new enactment and existing legislation." Metropolitan Water Dist. v. Dorff, 138 Cal. App. 3d 388, 396, 188 Cal. Rptr. 169, 174 (1982); see also Roberts v. City of Palmdale, 5 Cal. 4th 363, 379, 853 P.2d 496, 505, 20 Cal. Rptr. 2d 330, 339 (1993); Droeger v. Friedman, Sloan & Ross, 54 Cal. 3d 26, 43, 812 P.2d 931, 942, 283 Cal. Rptr. 584, 595 (1991); Kennedy Wholesale, Inc. v. State Bd. of Equalization, 53 Cal. 3d 245, 249, 806 P.2d 1360, 1362-63, 279 Cal. Rptr. 325, 328 (1991); Dew v. Appleberry, 23 Cal. 3d 630, 591 P.2d 509, 513, 153 Cal. Rptr. 219, 222-23 (1979); Aalgaard v. Merchants Nat'l Bank, Inc., 224 Cal. App. 3d 674, 694, 274 Cal. Rptr. 81, 94 (1990) ("[A] repeal by implication cannot be asserted as to [various entities involved in the case] because there is no conflict as to them between [the statutory provisions]."); California Bldg. Indus. Ass'n v. Governing Bd., 206 Cal. App. 3d 212, 229-30, 253 Cal. Rptr. 497, 506 (1988) ("[I]mplied partial repeal . . . [is] to be avoided whenever possible. . . . [T]here is no need to find an implied partial repeal of [one provision] because [the other provision] is not irreconcilable with [the first]."); In re Anthony R., 154 Cal. App. 3d 772, 777, 201 Cal. Rptr. 299, 301 (1984) ("[I]mplied repeals are not favored and will not be found unless no rational basis appears for harmonizing the two laws. Here . . . there is no conflict to harmonize."); State Bd. of Equalization v. Board of Supervisors, 105 Cal. App. 3d 813, 822, 164 Cal. Rptr. 739, 744 (1980).

86.      People v. Wheeler, 4 Cal. 4th 284, 293, 841 P.2d 938, 943, 14 Cal. Rptr. 2d 418, 423 (1992). "A special act will not be considered an exception to the general statute unless the two acts are so inconsistent that there is no possibility of concurrent operation, or where the later act gives undebatable evidence of an intent to supersede the earlier." Woolley, 227 Cal. App. 3d at 1527, 278 Cal. Rptr. at 723; see Department of Personnel Admin. v. Superior Court, 5 Cal. App. 4th 155, 191, 6 Cal. Rptr. 2d 714, 735 (1992); see also Salazar v. Eastin, 9 Cal. 4th 836, 857, 890 P.2d 43, 56, 39 Cal. Rptr. 2d 21, 34 (1995) ("To the extent a specific statute is inconsistent with a general statute potentially covering the same subject matter, the specific statute must be read as an exception to the more general statute." (emphasis added)); People v. General Motors Corp., 44 Cal. App. 4th 282, 51 Cal. Rptr. 2d 651 (1996); People v. Garcia, 115 Cal. App. 3d 85, 109, 171 Cal. Rptr. 169, 184 (1981).

87.      Cf. Opponents' Petition for Writ of Mandate at 4, Packard v. Jones, No. 96CS02065 (Cal. Super. Ct. filed July 26, 1996) (arguing that the CCRI is supposedly "a re-write of Article I § § 7 and 8" and "establishes itself as the new governing law in those areas").

88.      See Lonergan, 27 Cal. 3d at 868, 616 P.2d at 810, 167 Cal. Rptr. at 828.

       So strong is the presumption against implied repeals that when a new enactment conflicts with an existing provision, [i]n order for the second law to repeal or supersede the first, the former must constitute a revision of the entire subject, so that the court may say that it was intended to be a substitute for the first.

Id. at 808, 616 P.2d at 810, 167 Cal. Rptr. at 828 (emphasis added) (internal quotation marks omitted); see also Roberts, 5 Cal. 4th at 379, 853 P.2d at 505, 20 Cal. Rptr. 2d at 339 (same); Droeger, 54 Cal. 3d at 43, 812 P.2d at 942, 283 Cal. Rptr. at 595 (same); Singh v. Board of Retirement, 41 Cal. App. 4th 1180, 1190, 49 Cal. Rptr. 2d 220, 227 (1996) (same).

89.      Lonergan, 27 Cal. 3d at 868, 616 P.2d at 810, 167 Cal. Rptr. at 828 (emphasis added) (citation omitted). "[W]here a newly enacted statute revises the entire subject matter of an existing statute, the later statute may be said to repeal the earlier statute by implication." Department of Personnel Admin. v. Superior Court, 5 Cal. App. 4th at 191, 6 Cal. Rptr. 2d at 714, 735 (emphasis added); see also ITT World Communications, Inc. v. City of San Francisco, 37 Cal. 3d 859, 866, 693 P.2d 811, 817, 210 Cal. Rptr. 226, 231-32 (1985); California Bldg. Indus. Ass'n, 206 Cal. App. 3d at 229-30, 253 Cal. Rptr. at 506.

90.      Lonergan, 27 Cal. 3d at 869, 616 P.2d at 810, 167 Cal. Rptr. at 828 (citations omitted).

91.      42 U.S.C. § 2000e-2(e)(1) (1994).

92.      Dothard v. Rawlinson, 433 U.S. 321, 334 (1977); see also Bohemian Club v. Fair Employment & Hous. Comm'n, 187 Cal. App. 3d 1, 19, 231 Cal. Rptr. 769, 780 (1986) (following Title VII in interpreting bona fide qualification language); Department of Fair Employment & Hous. v. Callidac, Inc., No. 93-03, 1993 WL 726825, at *7-*9 (Cal. FEHC Mar. 4, 1993). See supra note 69, which cites cases indicating that language borrowed from another statute should be interpreted the same way it was interpreted in the original statute.

93.      People v. Weidert, 39 Cal. 3d 836, 845-46, 705 P.2d 380, 385, 218 Cal. Rptr. 57, 62 (1985) (internal quotation marks and citations omitted); see also Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979); In re Jeanice D., 28 Cal. 3d 210, 216, 617 P.2d 1087, 168 Cal. Rptr. 455 (1980); In re Markaus V., 211 Cal. App. 3d 1331, 1336, 260 Cal. Rptr. 126, 129 (1989).

94.      Family Violence Prevention and Services Act, 42 U.S.C. § 10406(a)(2) (1994) ("Nothing in this chapter shall [prohibit consideration of an] individual's sex in those certain instances where sex is a bona fide occupational qualification or programmatic factor reasonably necessary to the normal operation of that particular program or activity.").

95.      See, e.g., Livingwell (North) Inc. v. Pennsylvania Human Relations Comm'n, 606 A.2d 1287, 1291 (Pa. Commw. Ct. 1992); cf. COLO. REV. STAT. ANN. § 24-34-601 (West 1988 & Supp. 1996) (barring sex discrimination in public accommodations but excepting cases in which "such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation"); HAW. REV. STAT. ANN. § 489-4 (Michie 1995) (similar exception for "bona fide requirements to protect personal rights of privacy"); 775 ILL. COMP. STAT. ANN. 5/5-103(B), 25/1 (West 1993) (allowing exemptions "based on bona fide considerations of public policy"); N.Y. EXEC. LAW § 296(2)(b) (McKinney 1993) (same); TENN. CODE ANN. § 4-21-503 (1991) (same).      See also 96 Op. Kan. Att'y Gen. 1 (1996) (citing University of Kansas antidiscrimination policy that bars sex discrimination in "rights or benefits" of students, faculty, and employees "unless sex is a bona fide qualification"); cf. IOWA CODE ANN. § 216.9 (West 1994) ("Nothing in this section shall be construed as prohibiting any bona fide religious institution from imposing [educational] qualifications based on religion when such qualifications are related to a bona fide religious purpose . . . .").

96.      See CAL. HEALTH & SAFETY CODE §§ 1317(b), 1317.3(b) (West 1990 & Supp. 1997) (prohibiting sex discrimination in treatment by hospitals unless "a circumstance such as . . . sex . . . is medically significant to the provision of appropriate medical care to the patient").

97.      See, e.g., Eisenberg, supra note 83, at 1; Feinstein, supra note 83, at G1; Mendel, supra note 83, at A1.

98.      See UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991) (stressing that "occupational qualification" refers "to qualifications that affect an employee's ability to do the job").

99.      CAL. CONST. art. I, § 31, cl. c, reprinted in Appendix A (emphasis added). The clause (c) language is actually closer than many California bona fide qualification provisions to the Title VII language; California statutes often use "bona fide occupational qualification" as shorthand for the longer Title VII phrase, omitting the "reasonably necessary to the normal operation of that particular business or enterprise." See, e.g., CAL. EDUC. CODE § § 230(d), 44066 (West 1994); CAL. GOV'T CODE § § 12940, 12943, 12945, 19701 (West 1992 & Supp. 1997); CAL. UNEMP. INS. CODE § § 1256.2(a), 2073 (West 1986). Nonetheless, California courts uniformly recognize that the shorthand phrase incorporates the Title VII test. See supra cases cited in note 92.

100.      See, e.g., THE CIVIL RIGHTS ACT OF 1964: TEXT, ANALYSIS, LEGISLATIVE HISTORY 333 (1964) (written response by Senator Clark, one of the floor managers of Title VII, to a question regarding the ban on sex discrimination: "Wherever sex is a bona fide qualification . . ."); Civil Rights Act of 1963, H.R. REP. NO. 88-914 (1964) (prototype for Civil Rights Act of 1964) (explaining Title VII, section 705(b) uses of "bona fide qualification for employment" in describing section whose actual text contained the words "bona fide occupational qualification"); 775 ILL. COMP. STAT. ANN. 5/2-104 (West 1993 & Supp. 1996); Myers v. Chestnut Hill College, No. 95-6244, 1996 WL 67612, at *1 (E.D. Pa. Feb. 13, 1996); EEOC v. Madison Community Unit Sch. Dist. No. 12, 818 F.2d 577, 589 (7th Cir. 1987); EEOC Dec. No. 75-12, 1974 WL 3864, at *1 (Aug. 22, 1974); Baker v. Miller, 610 N.E.2d 734, 738 (Ill. App. Ct. 1993).

101.      CALIFORNIA BALLOT PAMPHLET, supra note 8, at 33 (Rebuttal to Argument Against Proposition 209), reprinted in Appendix B. Compare, for whatever it's worth, Eisenberg, supra note 83, at 1 ("[Initiative co-author Tom] Wood also dismisses concerns about the phrase 'bona fide qualifications' and 'reasonably necessary.' The language was lifted nearly verbatim from Title VII of the federal Civil Rights Act."); Marilyn Kalfus, Focus on Politics; Proposition 209, ORANGE COUNTY REG., Oct. 19, 1996, at A18, available in 1996 WL 13260336, at *10 ("YES ON PROP. 209 SAYS: Clause C tracks the language of Title VII of the U.S. Civil Rights Act."); Pamela A. Lewis, No on Prop. 209: Opponents Play the Race Card, S.F. EXAMINER, Sept. 30, 1996, at A17, available in 1996 WL 3718481, at *2 ("Clause (c) was borrowed from the federal Civil Rights Act and California's own Fair Employment and Housing Act."); Gail Heriot, CCRI Opponents Employ a Lame Scare Tactic, ORANGE COUNTY REG., Sept. 4, 1996, at B6, available in 1996 WL 7046243 ("[Clause (c)] tracks the language of Title VII of the United States Civil Rights Act of 1964").

102.      See infra note 114 and accompanying text.

103.      See Family Violence Prevention and Services Act, 42 U.S.C. § 10406(a)(2) (1994); cases cited infra note 167.

104.      Any programs that pass strict scrutiny under the California Constitution would presumably also pass intermediate scrutiny under the U.S. Constitution.

105.      See Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (1994) (excepting traditionally single-sex institutions, institutions aimed at training for the military, scholarships for beauty pageant winners, father/son and mother/daughter activities at universities generally, and other single-sex programs); CAL. EDUC. CODE § 41(c) (West 1994) ("Nothing in this section shall be construed to require a school district to require competition between male and female students in school-sponsored athletic programs."); CAL. EDUC. CODE § 230 (West 1994) (generally barring sex discrimination but allowing administration of sex-specific scholarships established under a will, trust, or similar legal instruments, and requiring equivalent but not sex-integrated athletic programs); CAL. GOV'T CODE § 12995 (West 1992) (generally barring sex discrimination in housing but allowing educational institutions to provide sex-segregated housing for students).

106.      See, e.g., Johnson v. Transportation Agency, 480 U.S. 616 (1987).

107.      See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) ("[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . ."); City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707-08 (1978) ("It is now well recognized that employment decisions cannot be predicated on mere 'stereotyped' impressions about the characteristics of males or females. . . . Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply."); Dothard v. Rawlinson, 433 U.S. 321, 333 (1977) ("[T]he federal courts have agreed that it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes . . . ."); Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 234-36 (5th Cir. 1969); 29 C.F.R. § 1604.2(a)(1)(i)-(ii) (1996).

108.      See UAW v. Johnson Controls, Inc., 499 U.S. 187, 202 (1991); 41 C.F.R. § 60-20.3(i) (1996).

109.      See Johnson Controls, 499 U.S. at 204; 29 C.F.R. § 1604.4(b) (1996) (stating that bona fide qualifications "must be justified in terms of the peculiar requirements of the particular job and not on the basis of a general principle such as the desirability of spreading work").

110.      Dothard, 433 U.S. at 334; see also Bohemian Club v. Fair Employment & Hous. Comm'n, 187 Cal. App. 3d 1, 19, 231 Cal. Rptr. 769, 780 (1986); Department of Fair Employment & Hous. v. Callidac, Inc., No. 93-03, 1993 WL 726825, at *7 (Cal. FEHC Mar. 4, 1993).

111.      Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir. 1971) (emphasis omitted).

112.      Id.; see also, e.g., Reidt v. County of Trempealeau, 975 F.2d 1336, 1339 n.3 (7th Cir. 1992); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981); Bohemian Club, 187 Cal. App. 3d at 21, 231 Cal. Rptr. at 780-82; 29 C.F.R. § 1604.2(a)(2); CAL. CODE REGS. tit. 2, §§ 7286.7(a), 7290.8(a)(3) (1997).

113.      See, e.g., Fernandez, 653 F.2d at 1276-77 (preference of clients in South America for dealing with males cannot make sex into a bona fide qualification); Diaz, 442 F.2d at 389 (preference of airplane passengers for female flight attendants cannot make sex into a bona fide qualification); Ray v. University of Ark., 868 F. Supp. 1104, 1126-27 (E.D. Ark. 1994) (even if race could ever be a bona fide qualification, students' preference for police officers of their own race is insufficient); EEOC v. Sedita, 755 F. Supp. 808, 810-11 (N.D. Ill. 1991) (objections by female health club members to having male instructors do not make sex a bona fide qualification, unless "clients will leave the club if males are employed there"--clients' general preference for a female instructor is not enough); Levendos v. Stern Entertainment, Inc., 723 F. Supp. 1104, 1107 (W.D. Pa. 1989) (perception by employer that male waiters "present a better image" for the restaurant cannot make sex into a bona fide qualification), rev'd on other grounds, 909 F.2d 747 (3d Cir. 1990); Bollenbach v. Board of Educ. of Monroe-Woodbury Cent. Sch. Dist., 659 F. Supp. 1450, 1472 (S.D.N.Y. 1987) (preference of religious parents for male school bus drivers can't make sex into a bona fide qualification); Bohemian Club, 187 Cal. App. 3d at 21, 231 Cal. Rptr. at 781-82 (client preference for male service personnel, based upon the supposed "inhibiting effect women employees might have on men" in a private club, cannot make sex into a bona fide qualification); 7 C.F.R. § 15a.61 (1996); 29 C.F.R. § 1604.2(a)(1)(iii) (1996) (customer/coworker preference can't make sex into a bona fide qualification); 34 C.F.R. § 106.61 (1996); 45 C.F.R. § 86.61 (1996); CAL. CODE REGS. tit. 2, § 7290.8(a)(3) (1997).

114.      See Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 133-34 (3d Cir. 1996); Jones v. Hinds Gen. Hosp., 666 F. Supp. 933, 935-37 (S.D. Miss. 1987); Local 567, AFSCME v. Michigan Council 25, 635 F. Supp. 1010, 1012-14 (E.D. Mich. 1986); Norwood v. Dale Maintenance Sys., Inc., 590 F. Supp. 1410, 1417 (N.D. Ill. 1984); Backus v. Baptist Med. Ctr., 510 F. Supp. 1191, 1193-94 (E.D. Ark. 1981), vacated as moot, 671 F.2d 1100 (8th Cir. 1982); Fesel v. Masonic Home, Inc., 447 F. Supp. 1346, 1354 (D. Del. 1978), aff'd without op., 591 F.2d 1334 (3d Cir. 1979); Spragg v. Shore Care, A.2d 685, 695 (N.J. Super. Ct. App. Div. 1996); Gibson v. West Va. Dep't of Health & Human Resources, 452 S.E.2d 463, 466 (W. Va. 1994); see also 7 C.F.R. § 15a.61 (1996) (treating sex as bona fide qualification for employment in single-sex locker room or toilet facility); 10 C.F.R. § 1040.57 (1996) (same); 34 C.F.R. § 106.61 (1996) (same); 45 C.F.R. § 86.61 (1996) (same); CAL. CODE REGS. tit. 2, § 7290.8(b)-(c):

       (b) Personal privacy considerations may justify a BFOQ only where:

       (1) The job requires an employee to observe other individuals in a state of nudity or to conduct body searches, and
       (2) It would be offensive to prevailing social standards to have an individual of the opposite sex present, and
       (3) It is detrimental to the mental or physical welfare of individuals being observed or searched to have an individual of the opposite sex present.
       (c) Employers or other covered entities shall assign job duties and make other reasonable accommodation so as to minimize the number of jobs for which sex is a BFOQ.

Cf. Hardin v. Stynchcomb, 691 F.2d 1364, 1373 (11th Cir. 1982) (agreeing that privacy may justify sex-based job assignments, but demanding that the employer try to come up with staffing procedures that "will avoid the clash between privacy rights and equal employment opportunities"); Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, 1086 (8th Cir. 1980) (same); Bohemian Club, 187 Cal. App. 3d at 19-20, 22, 231 Cal. Rptr. at 780, 781-82 (quoting this regulation approvingly, and rejecting a privacy-based bona fide qualification claim).

115.      See Healey, 78 F.3d at 133 (attendants who had to discuss "hygiene, menstrual, and sexuality concerns" with patients at a hospital for emotionally disturbed and sexually abused children); Stone v. Belgrade Sch. Dist. No. 44, 703 P.2d 136, 141 (Mont. 1984) (high school counselors); City of Philadelphia v. Pennsylvania Human Relations Comm'n, 300 A.2d 97, 103-04 (Pa. Commw. Ct. 1973) (counselors at special school for children detained for committing crimes).

116.      Sedita, 755 F. Supp. at 810-11.

117.      Bohemian Club, 187 Cal. App. 3d at 21, 231 Cal. Rptr. at 781-82.

118.      Id. at 22-23, 231 Cal. Rptr. at 782; see also Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir. 1980).

119.      See 29 C.F.R. § 1604.2(a)(2) (1996); CAL. CODE REGS. tit. 22, § 1256.2-1(c) (1996).

120.      St. Cross v. Playboy Club, No. CFS 22618-70 (N.Y. Hum. Rts. App. Bd. 1971); Weber v. Playboy Club, No. CFS 22619-70 (N.Y. Hum. Rts. App. Bd. 1971); see also Wilson v. Southwest Airlines Co., 517 F. Supp. 292, 301 (N.D. Tex. 1981).

121.      See Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971); Levendos v. Stern Entertainment, Inc., 723 F. Supp. 1104, 1107 (W.D. Pa. 1989), rev'd on other grounds, 909 F.2d 747 (3d Cir. 1990); Wilson, 517 F. Supp. at 302-03.

122.      Cf. Diaz, 442 F.2d at 389.

123.      Some of the decisions suggest the question is more empirical, focusing on whether customers would leave the business. See, e.g., EEOC v. Sedita, 755 F. Supp. 808, 810, 811 (N.D. Ill. 1991) (stating that "in order to prove a factual basis for their sex-based hiring, the defendants are required to show that their clients would not consent to service from the opposite sex" and "would stop patronizing [defendant's business] if members of the opposite sex were hired," not just that "customers [would be] offended by the presence" of people of the opposite sex). Other decisions, however, reject this view. See, e.g., Hernandez v. University of St. Thomas, 793 F. Supp. 214, 217 (D. Minn. 1992) (specifically refusing to follow Sedita in determining whether sex was a bona fide qualification for a custodian in a women's dormitory). In my view, the inquiry into likely loss of clients is unsound. Certain dignitary concerns are strong enough that they should be accommodated even if most clients are unable to go elsewhere. Cf. Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 134 (3d Cir. 1996) (approving of sex classification as a means of accommodating privacy concerns of patients at a hospital for emotionally disturbed and sexually abused children and adolescents). Other customer preferences are sufficiently unjustifiable that they ought not be considered even if customers can shift to other businesses. Cf. Diaz, 442 F.2d at 387 (rejecting customer preference justification even though clients "overwhelmingly preferred to be served by female stewardesses").

124.      See Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981); Diaz, 442 F.2d at 389.

125.      See Healey, 78 F.3d at 128 (child care specialist working with emotionally disturbed and sexually abused children and adolescents); Torres v. Wisconsin Dep't of Health & Soc. Servs., 859 F.2d 1523, 1532-33 (7th Cir. 1988) (en banc) (correctional officers specifically engaged in rehabilitation of female prisoners, a large fraction of whom had been abused by men; court stressed narrowness of decision); Long v. California State Personnel Bd., 41 Cal. App. 3d 1000, 116 Cal. Rptr. 562 (1974) (chaplains at facilities for delinquent boys); City of Philadelphia v. Pennsylvania Human Relations Comm'n, 300 A.2d 97, 103 (Pa. Commw. Ct. 1973) (supervisors of children detained for various crimes at a Youth Center; children tended to "have a history of troubled and varied backgrounds"; "[e]motional and social problems [were] the rule and not the exception"); St. John's Home for Children v. West Va. Human Rights Comm'n, 375 S.E.2d 769, 769 (W. Va. 1988) (child care workers supervising "aggressive, emotionally disturbed, violent, male adolescents housed in the boys' cottage of a school for delinquent children"); EEOC Dec. No. 76-130, 1976 WL 5024 (Aug. 10, 1976) (providers of sex education and counseling for mentally handicapped); see also Dothard v. Rawlinson, 433 U.S. 321, 335-37 (1977) (accepting sex as a bona fide occupational qualification for prison guards in an unusually dangerous prison environment, where sex offenders were mixed with the general population); cf. Jatczak v. Ochburg, 540 F. Supp. 698, 704 n.4 (E.D. Mich. 1982) (dictum) (suggesting that sex may be bona fide qualification for certain teachers of mentally ill young adults). But see State ex rel. Coleman v. Guggenheim, No. C-840847, 1985 WL 11525, at *2 (Ohio Ct. App. Oct. 30, 1985) (refusing to accept this argument for mental patients generally, as opposed to mental patients with "psychiatric disorders involving sex and sexual identification").

      The same may be true for people whose emotional disturbances are only temporary. See Moteles v. University of Pa., 730 F.2d 913, 920 (3d Cir. 1984) (dictum) (suggesting sex may be a bona fide qualification for police officers investigating rape cases, and dealing with rape victims).

126.      See Healey, 78 F.3d at 132-34.

127.      But see Vikram D. Amar & Evan H. Caminker, Equal Protection, Unequal Political Burdens, and the CCRI, 23 HASTINGS CONST. L.Q. 1019, 1039 n.72 (1996) (suggesting that the interest in intellectual diversity might make sex a bona fide qualification); Jeffrey C. Martin, Recent Developments Concerning Accrediting Agencies in Postsecondary Education, LAW & CONTEMP. PROBS., Autumn 1994, at 121, 122, 126-33 (describing diversity admissions program demanded by an accrediting body).

128.      Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 314 (1978) (Powell, J.).

129.      See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) ("[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . ."); Dothard, 433 U.S. at 333 ("[T]he federal courts have agreed that it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes . . . ."); Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235-36 (5th Cir. 1969); 29 C.F.R. § 1604.2(a)(1)(i)-(ii) (1996).

130.      29 C.F.R. § 1604.2(a)(1)(ii); see also City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707-08 (1978) ("It is now well recognized that employment decisions cannot be predicated on mere 'stereotyped' impressions about the characteristics of males or females . . . . Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.").

131.      468 U.S. 609 (1984).

132.      Id. at 628.

133.      Id.

134.      Cf. Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 7-19 (making the same point about race). See generally Michael Stokes Paulsen, Reverse Discrimination and Law School Faculty Hiring: The Undiscovered Opinion, 71 TEX. L. REV. 993, 1000-03 (1993); Eugene Volokh, Diversity, Race as Proxy, and Religion as Proxy, 43 UCLA L. REV. 2059, 2062-70 (1996).

135.      Roberts, 468 U.S. at 627 (noting that an organization seeking to maintain a particular message can still select people based on "ideologies or philosophies"). Of course, such selection must itself accord with constitutional norms; for instance, it seems likely that a public university admission preference for students with a particular belief system would be unconstitutional. Cf.

O'Hare Truck Servs., Inc. v. City of Northlake, 116 S. Ct. 2353, 2361 (1996) (generally barring discrimination in government contracting based on political affiliation). On the other hand, considering students' experiences wouldn't pose any First Amendment problems, and a university may even be able to consider people's philosophical or political beliefs in contexts in which they are more directly relevant, for instance when trying to get a diversity of opinions among students in a limited-capacity seminar. Cf. id. at 2354 (noting that even discrimination based on political affiliation is permissible when such affiliation "is an appropriate requirement for the effective performance of the [task] involved").

136.      438 U.S. 265 (1978) (Powell, J.).

137.      See Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir.) (concluding that Bakke is no longer good law, and that diversity is not a sufficient justification for race discrimination), cert. denied, 116 S. Ct. 2581 (1996); articles cited supra note 134 (criticizing Justice Powell's rationale).

138.      Cf. Cass R. Sunstein, Three Civil Rights Fallacies, 79 CAL. L. REV. 751, 755-57 (1991).

139.      UAW v. Johnson Controls, Inc., 499 U.S. 187, 204 (1991); 29 C.F.R. § 1604.4(b) (1996) (stating that bona fide qualification "must be justified in terms of the peculiar requirements of the particular job and not on the basis of a general principle such as the desirability of spreading work").

140.      CALIFORNIA BALLOT PAMPHLET, supra note 8, at 32 (Argument in Favor of Proposition 209) (uppercase text changed to lowercase), reprinted in Appendix B.

141.      See Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 133 (3d Cir. 1996) (not specifically passing on role model justification in a bona fide qualification claim in which employer was looking for role models of both sexes); Fairbairn v. Board of Educ., 876 F. Supp. 432, 437-38 (E.D.N.Y. 1995) (rejecting bona fide qualification claim in which employer was looking for male role models); State ex rel. Coleman v. Guggenheim, No. C-840847, 1985 WL 11525, at *1-*2 (Ohio Ct. App. Oct. 30, 1985) (rejecting bona fide qualification claim in which employer was looking for male role models); EEOC Dec. No. 82-4, 1982 WL 21177 (Jan. 19, 1982) (same); EEOC No. LA 68-4-538E, 2 Fair. Emp. Prac. Cas. (BNA) 537 (June 16, 1969) (same); cf. Podberesky v. Kirwan, 38 F.3d 147, 158 (4th Cir. 1994) (discussing program which sought to make certain students into role models for others).

      The few cases that have accepted "role model" arguments in the bona fide qualification contexts have focused on whether a person's conduct--specifically, unwed pregnancy--may make the person an unfit role model; they did not involve cases in which the role model argument was based on the employee's sex itself. See Chambers v. Omaha Girls Club, Inc., 834 F.2d 697 (8th Cir. 1987); Vigars v. Valley Christian Ctr., 805 F. Supp. 802 (N.D. Cal. 1992); Dolter v. Wahlert High Sch., 483 F. Supp. 266 (N.D. Iowa 1980); cf. Chambers v. Omaha Girls Club, Inc., 840 F.2d 583, 584 (8th Cir. 1988) (Lay, C.J., dissenting from denial of rehearing en banc) (criticizing the role model argument).

142.      The existing California Education Code seems to strictly forbid single-sex public schools, see CAL. EDUC. CODE § 220 (West 1994), but of course that could be modified by the Legislature.      It's not clear whether single-sex public schools are constitutional even under existing law. Compare Vorchheimer v. School Dist., 532 F.2d 880, 887-88 (3d Cir. 1976) (all-girls' and all-boys' schools, which provide substantially equivalent educations, constitutional under intermediate scrutiny), aff'd by an equally divided court, 430 U.S. 703 (1977), with Garrett v. Board of Educ., 775 F. Supp. 1004, 1006-08 (E.D. Mich. 1991) (all-boys' school unconstitutional under intermediate scrutiny); id. at 1006 n.4 (not deciding whether the result would be different if the government offered comparable all-girls' schools as well). Cf. United States v. Virginia, 116 S. Ct. 2264, 2276 n.7 (1996) (not resolving the constitutionality of all-girls' or all-boys' K-12 schools). There is a wide-ranging debate on this question. Cf. Kristin S. Caplice, Note, The Case for Public Single-Sex Education, 18 HARV. J.L. & PUB. POL'Y 227, 230 (1994) (arguing that single-sex schools are constitutional); Sharon K. Mollman, Note, The Gender Gap: Separating the Sexes in Public Education, 68 IND. L.J. 149, 152 (1992) (arguing that single-sex schools for girls may be constitutional, but single-sex schools for boys aren't); Editorial, Beyond VMI--The Supreme Court Shouldn't Ban All Single-Sex Schools, PITT. POST-GAZETTE, Jan. 19, 1996, at A18; Susan Estrich, Laws Stand in Way of Single-Sex Schools, USA TODAY, July 25, 1996, at 15A (arguing that single-sex schools are constitutional and are a good idea); Rene Sanchez, In East Harlem, a School Without Boys, WASH. POST, Sept. 22, 1996, at A1 ("Regardless of how good their educational intentions are, public schools cannot segregate by gender . . . ." (quoting Norman Siegel, executive director of the New York Civil Liberties Union)).

143.      See, e.g., Bohemian Club v. Fair Employment & Hous. Comm'n, 187 Cal. App. 3d 1, 20, 231 Cal. Rptr. 769, 781 (1986).

      '[W]hat really is important is the spirit of camaraderie, the male camarad[e]rie where men get together and they are free of the element of the battle of the sexes or the competition or distraction of having the other sex present. It is a single-sex gathering, and that is a very special thing.'

Id. (quoting views of former Governor Edmund G. Brown); Don DeMaio, Rhode Island Private Schools Enjoying Enrollment Increases, PROVIDENCE BUS. NEWS, Oct. 17, 1994, § 1, at 30; Guys Have Given Me a Hard Time, 1st Female at Citadel Complains, ORLANDO SENTINEL, Apr. 6, 1994, at A7; Traci Johnson Mathena, Best Western, BALT. SUN, Oct. 30, 1994 (Magazine), at 8.

144.      See, e.g., Holmes v. California Army Nat'l Guard, 920 F. Supp. 1510, 1531 (N.D. Cal. 1996) (discussing the military services' views on this subject); Mixed Company at Sea, DAILY TELEGRAPH (London), May 25, 1991, at 12; Kathleen Parker, Class Struggle: Yahoos vs. Single-Sex Courses, ORLANDO SENTINEL, Feb. 28, 1996, at E1. Cf. EEOC Dec. No. 76-122, 1976 WL 5018 (July 19, 1976) (rejecting claim that sex was bona fide qualification for police officer job because "'the wives of [the officers would] scratch[] their eyes out' because their husbands have been working in a patrol car with women").

145.      See supra note 113 and accompanying text.

146.      See Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971).

147.      See supra Part II.A.3.b.

148.      See supra cases cited in note 125.

149.      Of course, persuasive evidence that single-sex education is more effective may influence a court here, though it might not be dispositive. Compare Diaz, 442 F.2d at 389 (concluding that loss of business due to failure to accommodate customer demand does not justify sex classification), with Torres v. Wisconsin Dep't of Health & Soc. Servs., 859 F.2d 1523, 1530 (7th Cir. 1988) (concluding that possible interference with prisoner rehabilitation due to failure to accommodate preference for same-sex correctional officers may justify sex classification).

150.      Cf. Petrie v. Illinois High Sch. Ass'n, 394 N.E.2d 855, 861 (Ill. App. Ct. 1979).

151.      See Dothard v. Rawlinson, 433 U.S. 321, 331-32 (1977).

152.      See supra Part II.A.3.b.

153.      Diaz, 442 F.2d at 388 (emphasis omitted); see also, e.g., Reidt v. County of Trempealeau, 975 F.2d 1336, 1339 n.3 (7th Cir. 1992); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981); Bohemian Club v. Fair Employment & Hous. Comm'n, 187 Cal. App. 3d 1, 21, 231 Cal. Rptr. 769, 781 (1986); 29 C.F.R. § 1604.2(a)(2) (1996); CAL. CODE REGS. tit. 2, § 7290.8(3) (1996).

154.      Of course, schools do often segregate their teams by age, in large part because of the relationship between age and height, weight, and strength.

155.      See generally Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 17-20, 485 P.2d 529, 539-41, 95 Cal. Rptr. 329, 339-41 (1971).

156.      See Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1131-32 (9th Cir. 1982); Striebel v. Minnesota State High Sch. League, 321 N.W.2d 400, 402 (Minn. 1982); B.C. v. Board of Educ., 531 A.2d 1059, 1066 (N.J. Super. Ct. App. Div. 1987); Kleczek v. Rhode Island Interscholastic League, Inc., 612 A.2d 734 (R.I. 1992).

157.      Compare Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, 393 N.E.2d 284, 296 (Mass. 1979) (impermissible under strict scrutiny), with Petrie v. Illinois High Sch. Ass'n, 394 N.E.2d 855, 862-63 (1979) (permissible under strict scrutiny, though acknowledging that "the question is a close one").

158.      See UAW v. Johnson Controls, Inc., 499 U.S. 187, 202-03 (1991); Dothard v. Rawlinson, 433 U.S. 321, 331-32 (1977). Where the woman is a minor, of course, the ultimate decision might be made by her guardians. Privacy concerns may sometimes also be present in some sports, such as wrestling, where normal contact might sometimes involve touching of the chest or the genital area. But see Adams v. Baker, 919 F. Supp. 1496 (D. Kan. 1996) (exclusion of girls from boys' wrestling team violates the Equal Protection Clause, and privacy is not a sufficient justification for the exclusion because "wrestling is an athletic activity and not a sexual activity"; note that the case involved total exclusion from the only available wrestling team, rather than the creation of separate boys' and girls' teams). In most sports, though, these concerns would be too attenuated and hypothetical to count.

159.      Of course, I mean here the best athletes within a particular sport and often a particular age range.

160.      See Levendos v. Stern Entertainment, Inc., 723 F. Supp. 1104, 1107 (W.D. Pa. 1989), rev'd on other grounds, 909 F.2d 747 (3d Cir. 1990).

161.      And, after all, having a women-only team plus a men-only team would be discriminatory, too. See City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (defining discrimination as "treat[ing] a person in a manner which but for that person's sex would be different" (internal quotation marks omitted)).

162.      Cf. Darrin v. Gould, 540 P.2d 882, 893 (Wash. 1975) (applying close to a per se ban on sex discrimination under the Washington Constitution, though at times talking the language of strict scrutiny); Commonwealth v. Pennsylvania Interscholastic Athletic Ass'n, 334 A.2d 839, 843 (Pa. Commw. Ct. 1975) (applying per se ban). But cf. O'Connor v. Board of Educ., 449 U.S. 1301 (1980) (Stevens, J., in chambers) (upholding, under intermediate scrutiny, exclusion of girls from boys' team when girls' team existed); O'Connor v. Board of Educ., 645 F.2d 578, 580-82 (7th Cir. 1981) (same); Yellow Springs Exempted Village Sch. Dist. Bd. of Educ. v. Ohio High Sch. Athletic Ass'n, 647 F.2d 651, 657-58 (6th Cir. 1981) (dictum) (suggesting that exclusion of girls from boys' team may pass intermediate scrutiny).

163.      See Norwood v. Dale Maintenance Sys., Inc., 590 F. Supp. 1410, 1417-23 (N.D. Ill. 1984); see also 7 C.F.R. § 15a.61 (1996); 10 C.F.R. § 1040.57 (1996); 34 C.F.R. § 106.61 (1996); 45 C.F.R. § 6.61 (1996).

164.      See supra note 114.

165.      See CAL. GOV'T CODE § 12995(b) (West 1992). This situation might not technically fall within the terms of the California Fair Employment and Housing Commission bona fide qualification regulation: The regulation applies only when people must "observe other individuals in a state of nudity," which doesn't quite apply here. see CAL. CODE REGS. tit. 2, § 7290.8(b) (1997). Still, having to live with someone--even if they won't see you naked--does implicate privacy concerns, albeit of a slightly different sort, and I think courts should recognize these concerns as being worthy of accommodation.

166.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 30-31 (Analysis by the Legislative Analyst) (describing clause (c) as exempting sex classifications justified by "privacy and other considerations based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting"), reprinted in Appendix B.

167.      The center's employment decisions are covered by the CCRI, but if it chooses to employ only women, that may pass muster under bona fide qualification principles. See, e.g., Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir. 1996) (holding that sex was a bona fide qualification in a program aimed at treating emotionally disturbed and sexually abused adolescents and children); Moteles v. University of Pa., 730 F.2d 913, 920 (3d Cir. 1984) (acknowledging that "the special needs of rape victims" might justify a preference for women as investigating officers). Cf. Family Violence Prevention and Services Act, 42 U.S.C. § 10406(a)(2) (1994) ("Nothing in this chapter shall . . . [prohibit consideration of an] individual's sex in those certain instances where sex is a bona fide occupational qualification or programmatic factor reasonably necessary to the normal operation of that particular program or activity."). If sex doesn't qualify as a bona fide qualification for employment, then sex-based staffing would in any event be illegal under Title VII and under state antidiscrimination statutes, even without the CCRI.

168.      Cf. Personnel Adm'r v. Feeney, 442 U.S. 256, 280-81 (1979) (holding that a program that disproportionately benefits one sex is nonetheless not discriminatory in the absence of intentional discrimination).

169.      See supra note 113 and accompanying text. Compare EEOC v. Sedita, 755 F. Supp. 808, 810-11 (N.D. Ill. 1991) (sex is not bona fide occupational qualification for instructor at a women's health club), with Livingwell (North) Inc. v. Pennsylvania Human Relations Comm'n, 606 A.2d 1287, 1294 (Pa. Commw. Ct. 1992) (sex is bona fide public accommodation qualification for patrons at a women's health club).

170.      See materials cited supra in note 167.

171.      See CAL. CONST. art. XVIII, § 4 (initiatives take effect "the day after the election").

172.      CAL. CONST. art. I, § 31, cl. e, reprinted in Appendix A.

173.      See CALIFORNIA BALLOT PAMPHLET, supra note 8, at 30-31 (Analysis by the Legislative Analyst) ("[The CCRI's] prohibitions would not apply to those government agencies that receive money under federal programs that require such affirmative action." (emphasis added)), reprinted in Appendix B.

174.      Perkins v. City of Chicago Heights, 47 F.3d 212, 216 (7th Cir. 1995) (internal quotation marks and citations omitted); see also Stone v. City of San Francisco, 968 F.2d 850, 861, 864 (9th Cir. 1992) (noting that federal consent decree may override state law when "necessary to remedy [federal] constitutional violations," but the court must "make . . . findings that other alternatives [are] inadequate before it authorize[s] the Sheriff to override applicable state laws. Such findings are essential for any grant of authority to be 'least possible power to the end proposed'"); People Who Care v. Rockford Bd. of Educ., 961 F.2d 1335, 1337 (7th Cir. 1992); Overton v. City of Austin, 748 F.2d 941, 957 (5th Cir. 1984); Dillard v. City of Foley, 926 F. Supp. 1053, 1065-67 (M.D. Ala. 1995). But see Badgley v. Santacroce, 800 F.2d 33, 38-39 (2d Cir. 1986) ("When the defendants chose to consent to a judgment, rather than have the District Court adjudicate the merits of the plaintiffs' claims, the result was a fully enforceable federal judgment that overrides any conflicting state law or state court order"; the remainder of the decision, however, suggests that the court of appeals strongly believed that there was in fact a constitutional violation, and that the decree was necessary to resolve the violation.).

175.      CAL. CONST. art. I, § 31, cl. g, reprinted in Appendix A.

176.      Compare Bonner v. City of Santa Ana, 45 Cal. App. 4th 1465, 1472, 53 Cal. Rptr. 2d. 671, 675 (1996) (no damages in equal protection claims), with Laguna Publ'g Co. v. Golden Rain Found., 131 Cal. App. 3d 816, 853, 182 Cal. Rptr. 813, 835 (1982) (damages available in free press claims).

177.      CAL. CIV. PROC. CODE § 1021.5 (West 1980).

178.      Cf. CALIFORNIA BALLOT PAMPHLET, supra note 8, at 30 (Official Title and Summary Prepared by the Attorney General) ("Requires uniform remedies for violations."), reprinted in Appendix B.

179.      See, e.g., People v. Acosta, 48 Cal. App. 4th 411, 416-20, 55 Cal. Rptr. 2d 675, 677-80 (1996) (discussing which cases are affected by statutes modifying post-trial remedies); see also Tapia v. Superior Court, 53 Cal. 3d 282, 287-89, 807 P.2d 434, 436-37, 279 Cal. Rptr. 592, 594-95 (1991) (discussing which cases are affected by statutes modifying trial procedures); Strauch v. Superior Court, 107 Cal. App. 3d 45, 49, 165 Cal. Rptr. 552, 554 (1980) (same).

180.      See Clausing v. San Francisco Unified Sch. Dist., 221 Cal. App. 3d 1224, 1237, 271 Cal. Rptr. 72, 78 (1990); Taylor v. Madigan, 53 Cal. App. 3d 943, 951, 126 Cal. Rptr. 376, 381 (1975).

181.      CAL. CONST. art. XVIII, § 1 (legislative proposal); id. art. II, § 8(b) (initiative proposal; to be precise, the petitions must be "signed by electors equal in number to . . . 8 percent . . . of the votes for all candidates for Governor at the last gubernatorial election"); id. art. XVIII, § 4 (majority vote requirement).

182.      Of course, the U.S. Constitution itself significantly constrains any race- or sex-conscious program.

183.      CAL. CONST. art I, § 31; CALIFORNIA BALLOT PAMPHLET, supra note 8, at 94 (text of proposed law).

184.      CALIFORNIA BALLOT PAMPHLET, supra note 8, at 30-33.