August 11, 2003
Classification by Race, Ethnicity, Color, or National Origin.
Initiative Constitutional Amendment
The state and local governments collect
information on race, color, ethnicity, or national origin of their employees
and other individuals for various purposes. In most cases, the federal
government requires this information to ensure compliance with federal
nondiscrimination laws (particularly equal employment opportunity laws) and as
a condition of receiving various federal funds. For example, state and local
government agencies collect race-related information on adopted children and
include this information in reports required by the federal government. In some
cases, however, state and local agencies collect this type of information when
not required by the federal government. For instance, state government collects
race-related information on students applying to state universities for
admission (whether or not they eventually enroll).
The California Constitution currently allows the
collection and use of race-related information. In the areas of public
employment, public education, and public contracting, the Constitution,
however, prohibits state and local governments from providing “preferential
treatment” based on race, color, ethnicity, or national origin.
This measure restricts, effective January 1, 2005, state
and local governments from “classifying” information on a person’s race,
ethnicity, color, or national origin for the purposes of public education,
public contracting, public employment, and other government operations.
“Classifying” would include the collection by a governmental entity of
an individual’s race-related information. It would also affect to an unknown
extent (as discussed below) the use of race-related information by
governmental entities. In our discussion, we use the phrase “collection and
use” in place of the measure’s term “classifying.”
Exemptions. The collection and use of
race-related information by state and local governments would be prohibited
unless specifically exempted. The measure allows the continued collection and
use of race-related data for a variety of reasons, including:
- To comply with federal law.
- To remain eligible to receive money from the federal government.
- To comply with a court order in force as of the effective date of the measure.
- To allow law enforcement agencies to describe individuals.
- To place prisoners and assign undercover law enforcement officers.
- To collect and use information related to medical research subjects and patients.
- To allow the Department of Fair Employment and Housing (DFEH) to collect certain race-related information through 2014.
In addition, for those government operations unrelated
to public education, public contracting, and public employment, the measure
allows the Legislature to pass (by a two-thirds vote of each house) and the
Governor to sign, legislation approving the collection and use of such data to
serve a “compelling state interest.”
Information Collected for Most Programs Would Continue
Much of the race-related information collected by state
and local government agencies could continue to be collected under the
measure’s exemptions. The majority of this information is currently required by
the federal government. For example:
- Government agencies collect race-related information on job applicants and employees to meet federal equal employment opportunity requirements.
- Public schools (kindergarten through grade 12) collect race-related information on students. The
federal government requires most of this information to monitor and evaluate (1) specific educational programs and (2) student test results and achievements.
- The University of California (UC), California State University (CSU), and California Community Colleges collect race-related information on enrolled students and employees to meet federal funding requirements.
- State and local government agencies collect race-related information on individuals who receive services related to cash assistance, alcohol and drug treatment, mental health, and food stamps. Most of this information is required by the federal government.
- Law enforcement agencies collect and compile race-related information to meet various federal requirements.
The DFEH enforces the state’s equal opportunity laws. Many
of the department’s race-related activities are required by the federal
government. To the extent that DFEH’s race-related activities are not required
by the federal government, the measure allows DFEH to continue this work
through 2014 (at which time the Legislature could vote to continue these
Information Collected for Some Programs Would Be Restricted
State and local government agencies also collect and use
race-related information independently of federal requirements. To the extent
these activities are not covered by the measure’s other exemptions, this
information could no longer be collected. For instance, agencies could no
longer collect race-related information associated with:
- Companies doing business with the state.
- Public school students participating in a limited number of specific state education programs and tests. Prospective UC and CSU students.
- High school students participating in some UC educational outreach programs.
- College students participating in the state's loan forgiveness program.
- Students taking state teacher credentialing exams.
In those areas where agencies were restricted in their
activities, state and local governments would have reduced race-related
information. In such cases, the measure could have some impact on future public
Effects on Some Programs Uncertain
For some current government activities, the effect of the measure is
unknown and would depend on future interpretation of the measure’s language by
courts and future actions by the Legislature. For instance, the federal
government compiles demographic information on the state’s population
(primarily through the Census). This information generally is aggregated—that
is, not tied to specific individuals. Many state and local agencies then
use this information for a variety of purposes. It is unclear under the measure
whether state and local agencies could continue to use the race-related components
of this information for evaluation, program, and reporting purposes.
Under the measure, state and local agencies could continue
to collect race-related information to meet federal requirements. The measure,
however, is not clear whether these entities could then continue to sort and
analyze the information for other purposes.
In the area of law enforcement, the measure allows
officers to describe individuals by race-related classifications (such as
during a search for a criminal suspect). It is unclear if the measure also
would allow law enforcement agencies to then use the information in other
ways—such as analyzing crime trends by race.
In addition, the state and local agencies collect a variety of public
health information through the use of surveys of the public which may include
race-related information. It appears that this activity could continue under
the measure’s medical research exception. Future court and/or legislative
actions could affect the measure’s implementation in this regard.
Much of the race-related information currently assembled
and used by state and local governments could continue to be collected under
the measure. In some instances, the continued collection of information would
depend on federal program and funding decisions. With regards to information
which no longer could be collected under the measure, state and local
governments could experience minor one-time costs to modify forms and data
collection systems. These agencies could also experience minor annual savings
due to the reduced collection and use of race-related information. On balance,
the measure would not result in a significant fiscal impact on state and local
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