On Nov. 5, 1996, Californians woke up and headed to the polls, showing strong support for an incumbent Democratic president, modestly increasing the state’s minimum wage (to $5 per hour), seating an 80-member state Assembly and half of a state Senate, and by a narrow margin banning affirmative action by state organizations.
Prop. 209, the so-called California Civil Rights Initiative (CCRI), amended the state constitution to add language forbidding public institutions, including the state’s massive and renowned network of public colleges and universities, from giving preference to underrepresented minorities in hiring and admissions practices. It passed with about 55 percent of the vote, upending decades of affirmative action initiatives like UC Berkeley’s Educational Opportunity Program, which launched in 1964 during the civil rights struggle.
Though California was the first to overturn affirmative action — even after the U.S. Supreme Court upheld affirmative action policies as constitutional in 1978 — other states including Washington, Michigan and Arizona would come to pass similar measures.
Prop. 209 was hotly debated in the Bay Area Jewish community. Synagogues sponsored numerous forums and debates. Rabbis weighed in from the pulpit. The S.F.-based Jewish Community Relations Council conducted what it described as an “exhaustive fifteen month examination” of the issue, placing questions on affirmative action in a community survey, creating a task force of board members, and canvassing synagogues.
On balance, JCRC members opposed Prop. 209, though the decision was not unanimous: the ratio was about 3:1. Chair Judith Chapman announced the verdict in a letter on June 25, 1996, calling the initiative, from the perspective of the majority, “an unwarranted retreat from society’s obligation to correct centuries of discrimination directed against women and minorities.”
This election season, Californians get a redo. Prop. 16 would amend the state constitution, repealing the 1996 addendum root and branch. The measure, already approved by the Legislature amid this summer’s nationwide protests against police brutality, would allow public universities and other institutions, such as state government offices, public health departments and police and fire departments, to once again consider race and sex in contracting, hiring and admissions decisions.
Supporters of Prop. 16 point to statistics showing the CCRI led to immediate declines in admissions for underrepresented groups, particularly at the state’s most selective public universities like UC Berkeley and UCLA.
According to a study released by the UC Berkeley Goldman School of Public Policy this summer, the affirmative action ban caused the UC system’s roughly 10,000 annual freshman applicants from underrepresented minority groups to “to cascade into lower-quality public and private universities,” causing them to earn 5 percent less income on average between the ages of 24 and 34.
Admit rates for African American applicants at UC Berkeley declined by more than half, from around 0.5 before the CCRI to a low of 0.2 percent in 1998, according to a September report in the Daily Californian. An even more precipitous drop was seen for Native American applicants, while admit rates for white applicants remained more or less constant. Today Black undergraduates at UC Berkeley make up about 3 percent of students — from a high of 7.4 percent in 1989.
That American Jews today, a majority of whom vote Democratic and who are more liberal than any other religious group, would support affirmative action policies seems like a given — particularly in the Bay Area. According to a Gallup report last year, 82 percent of Democrats support affirmative action generally.
But Jewish community support is never unanimous, no matter what the issue — a ballot measure, a political figure or even the appropriate sweetness of a holiday kugel. The outpouring of support today for Prop. 16 by major Bay Area Jewish organizations and lawmakers, alongside advocacy efforts, reflects an embrace of a policy that has a rocky history with American Jews, and may even divide them still.
“We’re not free until all people are free,” Jewish law professor David Oppenheimer, who advocated against Prop. 209, told J. after its passage in 1996, calling it “a terrible step backwards in the struggle for freedom.”
And yet, exit polls conducted by the Los Angeles Times in 1996 showed a Jewish community more or less split on the issue. Fifty-eight percent of Jewish voters were against Prop. 209 (and therefore in support of affirmative action), while 42 percent supported the constitutional amendment to ban it. Notably, African Americans, making up 26 percent of voters, supported the proposition by 74 percent, according to the L.A. Times poll.
Many critics of the measure said its language, and title, were crafted to obfuscate its purpose.
The text, closely modeled in syntax after the Civil Rights Act, reads: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
From JCRC members who supported Prop. 209 came arguments against race-based affirmative action that have a long history within the mainstream Jewish community. Some said preferences based on race, gender and ethnicity were “equivalent to discrimination” based on those traits, Chapman, the JCRC chair, recounted in her statement. Others believed affirmative action policies were for the good, but they should be based not on immutable qualities like race and sex, but on “economic disadvantage.”
Historically, while Jewish objections to race-based affirmative action have varied, many reveal scars left over from quota systems, which were common at American universities until the 1950s and capped the number of Jewish students at Yale, Princeton and other universities around the country.
Those quotas were not hidden. Particularly in the interwar period, universities “were very above-board about it,” said Jonathan Sarna, a historian and professor of American Jewish history at Brandeis. “Year after year, the same number of Jews were accepted. When you reached that number, there was no way that a Jew would be accepted above it. It was known how difficult it was to get into many of those places.”
As a result, “the Jewish community strongly, deeply supported merit-based admissions,” said Sarna, who earned a Ph.D. at Yale in the 1970s.
In 1978, when the issue of affirmative action in higher learning took center stage as a topic of national debate via a landmark Supreme Court case, Regents of the University of California v. Bakke, it was three national Jewish communal organizations — the Anti-Defamation League, the American Jewish Committee and American Jewish Congress — that led the opposition to the UC system’s affirmative action policies. The three groups filed court briefs on behalf of Allan Bakke, a white engineer who alleged discrimination based on race after twice being rejected from the UC Davis School of Medicine.
At issue was the use of racial quotas — exactly 16 places, out of 100, had been reserved for African Americans and other minorities — as well as the legality of considering race in college admissions at all. A divided court would strike down the former but uphold the latter, and rule that Bakke had indeed been discriminated against. The ruling was considered a win by the Jewish organizations, but not by many Black civil rights groups.
Alan Dershowitz, who helped draft an amicus curiae brief on behalf of the American Jewish Committee at the time, told the Washington Post that among many Jews, “we feared that our hard-earned right to be admitted on the merits would be taken away.”
Despite close civil rights-era ties, “there was little love lost” between Blacks and Jews during the affirmative action debates of the 1970s, Marc Stern, legal director of the American Jewish Congress, told the Jewish Telegraphic Agency.
One 1977 New York Times article quoted an NAACP civil rights lawyer who provided insight into the conflict. Jews were particularly concerned about the Bakke case “because they tend to place a high value” on education, the article said. The lawyer Joseph Rauh (who happened to be Jewish himself), put it succinctly: “Affirmative action hits Jews where it hurts.”
Still many Jews and Jewish organizations recognized the need to diversify higher education, even if they disagreed about how to do it.
“Even then, the Jewish community was split,” Sarna said. On the one hand, many were “deeply disturbed by the idea that there should be quotas. The very word brought back very bad memories.” On the other hand, some supported quotas as “floors, not ceilings.” In other words, quotas to require a minimum number of minority students, to enhance diversity, rather than a maximum, to prevent it.
“Some people believe it was the way to go, some did not,” Sarna said of the Jewish community. “I would say in some ways it’s still divided.”
Recent polling on Prop. 16 shows a general public similarly divided, and perhaps confused by the ballot proposition, too. Published by ABC News Oct. 2, the poll showed 31 percent of Californians in favor, 47 percent opposed and 22 percent unsure.
Bay Area Jewish communal organizations, including the JCRC and the regional office of the ADL, have expressed strong support for Prop. 16. Leaders of these organizations, and others within the Jewish community, cite a number of factors, including a climate of racial tension and recent visible examples of structural racism, the desire to correct decades of racist laws and policies, and Biblical interpretations that reflect on Jewish values of social and racial justice.
Though it does not usually advocate publicly for state ballot measures other than issuing policy statements, this year the JCRC is urging yes on Prop. 16, as well as on Prop. 15, a property tax to support schools, and Prop. 17, an expansion of voting rights for parolees. It has held public forums and a phone banking event.
“JCRC’s advocacy agenda usually focuses on state and local legislation,” a Sept. 8 statement read. But, citing a country “fractured by structural racism and economic inequality,” the JCRC had been moved to support ballot measures “that reflect our values and will help remedy parts of our broken system of government.”
“In Deuteronomy we are told tzedek, tzedek, tirdof: Justice, justice, you shall pursue,” said Senior Rabbi Jacqueline Mates-Muchin of Oakland’s Temple Sinai, at a JCRC forum Oct. 14 called “The Season of Politics, Justice and Faith.” Describing her support alongside interfaith leaders, Mates-Muchin said she interprets the word “pursue” to refer to a commandment that “every generation recognize the places that we are falling short” and take measures to address them.
Earlier this year, the California Legislative Jewish Caucus, a consortium of 16 Jewish lawmakers and allies in Sacramento, voted unanimously in support of the legislation that would send Prop. 16 on to voters. The bill was included in a slate of measures termed the “Tikkun Olam bill package.”
In explaining her office’s support for Prop. 16, Nancy Appel, senior associate regional director of the ADL for the Central Pacific, said she opposed those who would argue ours to be a “truly meritocratic and race-blind society.”
“We don’t live in that society,” Appel said during a Sept. 25 forum organized by the National Council of Jewish Women California. That view “in no way addresses the lived experiences of African Americans for generations, or Native Americans, or other racial minorities who have continued to suffer the compounded negative impacts of racist laws and policies, like separate but equal, redlining, and barriers to the ballot box.”
Appel’s view represents a shift from 1978, when the ADL did not support minimum quotas, nor did it support considering race in university admissions. “It would seem difficult to allow race to be used as one factor,” general counsel Arnold Foster told JTA after the Bakke ruling, “without it becoming the determining factor.”
Today things are different. In a formal statement from the ADL, sent by Appel, the organization wrote that it sees Prop. 16 “as an effective means to help achieve racial and gender equity in California without resorting to quotas.”
“California’s 25 year experiment in race- and gender-neutral public hiring, contracting, and education decisions has failed,” the ADL statement read. “That type of system can’t succeed in a world where women and people of color are paid less, given fewer chances to access higher education, and are denied job opportunities.”
The ADL stipulated that Prop. 16 is not about “granting preferences” based on factors such as race and sex, but is about “taking these factors into consideration as part of a holistic review,” a distinction the ADL has historically made since expressing support for affirmative action programs.
Though supporters of Prop. 16 are outspending their opponents more than 16:1, the fate of the measure remains highly uncertain. What is known is that many prominent mainstream Jewish organizations, and popular Jewish lawmakers with strong constituent backings, are supporting it. This despite the fact that today’s affirmative action policies do not benefit most Jews and may, as the NAACP attorney suggested, “hit them where it hurts.”
Sarna offered his view on the Jewish community’s attitude toward the policy.
“A few things, I think, have shaped the liberal part of the Jewish community” on affirmative action, he said. “Number one is the realization that while Jews have benefited [from societal shifts over time], African Americans still have lower college attendance than whites. They haven’t benefited. That’s a problem, and you can’t stick your head in the mud and ignore that problem.”
Also, many Jews may be aware of current studies in the fields of education and social sciences showing that “diversity promotes better educational and, in some cases, better business outcomes,” he said. “Some of the data is impressive” on that front.
Lastly, Sarna said, “I think there are people who support it because we are taught that the Torah’s ways are ways of peace, darchei shalom. And in the interest of social peace, they argue, we should promote these policies. Because having social peace is certainly something Jews believe in.”