1996 Passage of 209


The Passage of 209:  Its Meaning for the Future


Jerry Kang
UCLA School of Law

Nov. 1996

(c) 1996.  All Rights Reserved.

Proposition 209, the anti-affirmative action ballot initiative, passed on November 5, 1996 with 54% of the vote.  While its passage reflects, in my view, a radical color-blindness unwarranted by morality or public policy, it is nevertheless the law.  Although its enforcement has been temporarily enjoined, one should not count on the courts ultimately to strike down 209 as violating the federal Constitution.  As such, for those of us skeptical that formalistic pleas to color-blindness will ensure racial equality, Prop. 209 cast a dark cloud over the State of California.

Two silver linings, however, can be found in that dark cloud.  First, there was no overwhelming mandate in its favor.  Notwithstanding the fact that pro-209 forces tremendously outspent the anti-209 campaign, notwithstanding the fact that many voters did not realize that 209 would end all affirmative action, the final tally was so close that a mere 5% shift in votes would have changed the outcome.

Second, Asian Pacific Americans (“APAs”) resoundingly rejected 209.  One extensive poll, conducted by the Asian Pacific American Legal Center with the aid of UCLA social scientists, queried over 950 APAs, both English and non-English speakers, in Southern California.  To much surprise, that poll found that 76% voted against 209.   Moreover, the vote was bi-partisan:  73% of Republican APAs voted against 209; 79% of Democratic APAs did the same.  Other exit polls are consistent with this finding.  For example, the L.A . Times—which was more representative in that it sampled the entire state, but less representative in that it interviewed far fewer APAs and only English-speaking ones at that—reported that 61% of APAs voted against 209.

These numbers are nothing short of staggering.  They demonstrate that APAs have not bought into the “model minority” and “model victim” rhetoric.   It is a fact that APAs are not always included in affirmative action programs (and in certain cases, rightly so).  Seeing a potential wedge issue, conservative politicians argued that affirmative action is, therefore, not in our self-interest.   Notwithstanding our being bombarded with this message, we rejected a narrow conception of self-interest and chose instead a broader vision of social justice.  Not seduced by facile arguments, we delved instead deeper into the issues and concluded that affirmative action still has some place in our society.

In declaring support for affirmative action programs, even though APAs are not always direct beneficiaries, we sent a powerful message this election day.  To any White person who complains against the “preferential treatment” received by racial minorities, we can now respond:

As a racial minority, I continue to suffer from various forms of racial discrimination.  I have personal stories as well as statistical documentation to prove it.  And in that sense, I am disadvantaged compared to you, simply because of the color of my skin.  Nevertheless, I am willing to bear the same burden that you bear caused by affirmative action.  I am willing to share this burden to help us get beyond racism, to reach a fairer society.  I am willing to go beyond my self-interest in order to strive for a community of justice.  Are you?

With the pro-209 forces taking their show national, that is a question that the entire country  must now ask.