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Hastings Constitutional Law Quarterly

Abstract

This article assesses the impact of the proposed California Civil Rights Initiative ("CCRI"). If enacted, the CCRI will eliminate a vast array of programs designed to remedy past discrimination and advance equality of opportunity. Although the CCRI abolishes preferences based on race or gender, the term "preferences" is not defined. There is a risk that courts will give the term a broad construction and an even greater risk that governments voluntarily will forego affirmative action programs of all sorts to avoid litigation. Additionally, the CCRI will expand the legal authority for gender discrimination because it expressly permits gender to be so used if reasonably necessary to a bona fide qualification in contracting, education, and employment. No current law, federal or state, permits gender to be used as a basis for government action in education or contracting. Also, because the CCRI would amend the California Constitution to allow gender discrimination where reasonably necessary, it might be construed to eliminate strict scrutiny for gender discrimination.

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