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With only a month to go before the next election, lawyers need to tell the public about the true impact of California’s Proposition 54: It will allow the state to perpetrate racial discrimination without detection. Although those who write about California initiatives often try to portray initiatives as being much better or much worse than they truly are, for those who understand Prop 54, no hyperbole is necessary — its purpose and effect is to allow discrimination. For this reason, at its annual meeting last month, the American Bar Association unanimously called upon all lawyers to oppose California’s Proposition 54 — the so-called “Racial Privacy Initiative” — because it would devastate efforts to detect, stop and remedy race discrimination in this state. The Conference of Delegates of the California Bar Associations last week denounced Proposition 54 for the same reasons. Lawyers of all political stripes and perspectives oppose Proposition 54 because lawyers — better than any other group — understand the true implications of Prop 54: If it passes, there will be no effective way to stop California’s public entities from discriminating on the basis of race or ethnicity. For those unfamiliar with the Racial Privacy Initiative, its most telling feature is that it has nothing to do with keeping race “private” from those who discriminate. Government officials who are in a position to discriminate — supervisors, contracting agencies, law enforcement officials — will still know the race of the people who apply to them for jobs, or seek contracts from them, or are being detained by them. Instead, the Racial Privacy Initiative makes race “private” only to the people charged with stopping discrimination. Specifically, it prevents the government from collecting any information about the race or ethnicity of people being denied jobs, losing their government positions, being rejected for government contracts or benefits or being detained by law enforcement. You can’t stop what you can’t see. Those who discriminate on the basis of race rarely come right out and say that they are denying people jobs or contracts because of race, or that they are pulling over drivers or withholding benefits because of race. Instead, they always have an excuse. The way to discover and prove most cases of discrimination, therefore, is to look at the pattern or practice of a person or agency. For example, faced with complaints of racial profiling in a wide area of law enforcement — from traffic stops to immigration enforcement to criminal prosecution — states began collecting and analyzing racial and ethnic data to determine whether discrimination was occurring. Similarly, state agencies charged with ensuring equality in housing and employment have always needed to collect data to know whether a housing agency or government employer is excluding racial groups. Efforts to recognize and combat discrimination depend upon the very data that Proposition 54 bans. Organizations combating hate crimes couldn’t do their work, because there would be no record of the race of the victim or the perpetrator to let watchdogs or prosecutors distinguish between crimes and hate crimes. Prejudiced landlords and bigoted employers would also avoid detection because California’s Department of Fair Employment and Housing would not be able to collect and analyze data on the race or ethnicity of California’s work force and residential population. Instead, Prop 54 would artificially freeze the DFEH’s statistics as of March 5, 2002, (making them stale and unreliable) and then eliminate statistics altogether after 10 years. Local governments, too, would be prevented from testing for race- or ethnicity-based discrimination in housing markets because testing requires collecting and sorting information by race or ethnicity. In short, Prop 54 would not prevent discrimination — only hide its existence and cloud its remedies. It erases 50 years of jurisprudential effort against discrimination. Proposition 54 would not only allow discrimination in legal rights: It would bar necessary scientific knowledge that can protect the health and well being of all Californians. Many environmental and health issues are properly and necessarily tracked by race and ethnicity. Without this information, demographers would not have been able to discover, for example, that minorities are, in fact, more likely to suffer from childhood lead poisoning and pesticide-related illnesses, and to ingest contaminated food. Public health services need to know that African-American children are five times more likely than white children to suffer from childhood lead poisoning — widely recognized as the most serious environmental health hazard facing young children — so that they can address this epidemic. In fact, Prop 54 is a threat to the courts themselves, which are charged with administering equal protection under the law. Prop 54 would halt monitoring the role of race and ethnicity in criminal convictions or sentencing, unless a special bill was passed by a supermajority of both the Senate and Assembly and signed by the governor. The proponents of Prop 54 know all this, and they advocate for Prop 54, not despite it’s devastating effect on anti-discrimination efforts, but because of it. Prop 54 is not about the margins of civil rights law — it goes to its very heart. Only a few years ago, Prop 54′s author, Ward Connerly, tried to accomplish this same thing by filing a suit in state court to declare the collection of racial data unlawful. In rejecting his claim, the Third District Court of Appeal in Connerly v. State Personnel Board, 92 Cal.App.4th 16, instructed that there is nothing discriminatory about collecting demographic information, and, in fact, that information is necessary to help stop prejudice. Connerly drafted Prop 54 not to spare victims of discrimination, but to allow civil rights opponents to pretend that there is no discrimination. The proponents of Prop 54 have an appealing slogan, that “race is irrelevant.” We wish that were true. But race is always relevant to racists. Ignoring race does not stop racism, it allows it to flourish. Lawyers know it, the authors of Prop 54 know it, and the public needs to know it, too, before Oct.7. Jeff Bleich, a partner at Munger, Tolles & Olson, is president of the Bar Association of San Francisco.

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