When Does Promoting Diversity Justify Eliminating Equal Opportunity?

Suppose your company tore up its commitment to be an Equal Opportunity Employer and replaced it with a policy of using race, sex, color, ethnicity, or national origin to address diversity. How would you feel—as an employee, or as a prospective new hire, customer or business partner? Better yet, how would you feel if your state government did the same thing with respect to its public employment, education and contracting decisions?

That’s essentially the question California voters will be considering when they vote on Proposition 16 on November 3.  Backed by California Governor Gavin Newsom, Democratic vice-presidential nominee Kamala Harris as well many others, Prop 16 would repeal an earlier amendment to the California Constitution, which was added by Proposition 209 in 1996. The 1996 amendment generally prohibits state and local governments from discriminating against, or granting preferential treatment to, individuals or groups on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, education, or contracting. Why eliminate this commitment to equal opportunity? The official ballot text for Prop 16 euphemistically states that it would “Allow Diversity as a Factor in Public Employment, Education, and Contracting Decisions.” Put another way, it would protect affirmative action efforts that might otherwise be attacked as discriminating against or granting preferential treatment to individuals or groups on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, education, or contracting.

In a world where businesses are stepping up their internal and external commitments to diversity, the approach in Prop 16 is filled with land mines. By way of a few examples: When and how does affirmative action justify discrimination? Who decides which groups should benefit from a diversity commitment? Is it always acceptable to discriminate against white males if they have majority status? What about discriminating against one minority group (e.g., Asian-Americans) to increase diversity for another minority group? Where do identity politics and the opinions in social and legacy media fit into the judgments about which individuals and groups should benefit from diversity and which should face discrimination? How would Prop 16 interplay with federal laws and regulations?

Most Americans support diversity in concept. The hard part is deciding how to implement the changes needed to protect and enhance diversity. Affirmative action has its place, but I struggle with the idea that it’s acceptable to improve “diversity” by allowing corporations or state or local governments to intentionally disregard our core American commitment to equal opportunity in employment, education and contracting.

In our current era of bitter partisan politics and loss of trust in our major public and private institutions, we need more collective support for the concepts that bind us together, not more identity politics that will pit us against each other. We can do a lot to improve equal opportunity for all Americans without taking opportunity away from some. None of us got to pick our race, sex, color, ethnicity, or national origin. All of us get to decide what to do with the cards we were dealt. But we need opportunity to make it happen.

If we decide we need quotas (something I do not support) or better protections for specific affirmative action efforts, let’s have those conversations. But let’s not give some unelected bureaucrats the right to decide who deserves equal (or better) opportunity and who deserves discrimination and why. If we allow that to happen at the government level, it will just be a matter of time before those decisions will be applied to private enterprise as well.