Opinion: Vote ‘yes’ on Proposition 16 to reduce social injustice and fight systemic racism and sexism

It will allow the use of affirmative action to remedy some longstanding injustices.

We would like to share some thoughts with the many folks in Berkeley who would like to reduce social injustice. It is particularly important for allies of the Black Lives Matter movement or those who think that systemic racism and sexism should be opposed. There is a very easy way that you personally can do something that will make a clear and significant positive difference for years to come: vote YES on Prop 16. Unfortunately, many of you have not yet heard about it, or find its ballot description confusing, or wonder why it is even necessary. Jessica is a psychoanalyst (white) with a long involvement in social justice and Gibor (Black) was UC Berkeley’s first vice chancellor for equity and inclusion, where he saw firsthand and was deeply involved in dealing with the effects of the current laws at UC Berkeley and in surrounding K-12 schools. He is now retired and the opinions in this piece are purely personal.

Prop 16 permits (but does not mandate) the use of affirmative action to remedy some longstanding injustices. It repeals Prop 209, which banned such remedies. That passed in 1996 partly because of its very disingenuous title: “The California Civil Rights Initiative.” It should have been called “The California Impedes Social Justice Initiative,” but they needed to hide its true intent. It was passed by only one-third of registered voters (one of the many tragedies of low voter turnout). The promoters’ intent became even clearer when they next tried to pass Prop 57, which would have forbidden even collecting data on race or ethnicity (what better way to hide racism?). Fortunately, that one didn’t pass.

Prop 209 had only one objective: to forbid any use of affirmative action as a remedy for systemic injustice in higher education, contracting, and other spheres of public activity. There had already been a lengthy effort to incorrectly taint affirmative action as the use of quotas to allow unqualified people to gain unearned advantages. In fact, it opens doors to qualified people from groups who have historically been unfairly disadvantaged. Prop 209 was sold as promoting “fairness,” because it forbids both discrimination and preferences based on race, sex, color, ethnicity, or national origin. Sounds good, right? Let’s take a close look.

Its promoters forgot to mention that the uses of “discrimination” and “preferences” are very skewed in the legal system practiced by the USA (meaning in the presence of systemic racism and sexism). We illustrate that with actual but particular examples often involving the Black/White dichotomy from higher education, but there are many other examples involving other populations and situations.


Let’s first look at discrimination. If a white student with a higher SAT score is not admitted while a Black student with a lower SAT is, that is taken as evidence of discrimination based on race (against whites). Never mind that admission is not based solely or even mainly on SAT scores, and forget that other white students with lower SATs were also admitted. Also forget about the fact that diversity has clearly been accepted as an educational benefit. Case law on this started with the Bakke case involving the University of California, which abolished racial quotas but endorsed diversity. The situation is particularly fraught at UC Berkeley, where there is a much larger number of qualified applicants than there are slots. We could fill the entire freshman class with high-scoring engineers, but then we wouldn’t have much of a university!

On the other hand, it is not evidence of discrimination that severely underfunded public schools are filled with students of color, or that women’s pay for comparable work is 80% of men. That judgment only makes sense given an implicit assumption that everyone has the same access to opportunity. The American legal system further demands clear proof that there was direct discriminatory intent when disparities occur; the fact that it is obvious what was intended and then occurred doesn’t count.

What about preferences as interpreted by the legal system? it is probable evidence of preferences if more than the usual number of Black students are chosen out of a pool of applicants that is pre-selected to meet all the qualifications for admission. Eyebrows are raised if after having had none for decades, there are not one but two women on the Board of Directors, or more than one member of color on the department’s faculty. Many assume that any such folks must have gotten their positions through preferences rather than their talents. It is an actual preference if affirmative action is utilized to remedy decades of de facto discrimination, but that historical discrimination cannot be weighed against the current preference.

Prop 209 also ignores preferences that accrue primarily to whites (invisible white privilege). UC Berkeley tries with its holistic admissions procedures to remove or balance the advantages for admissions that only the (heavily white) affluent can gain, but to the extent they remain, they are not forbidden. The fact that deciding committees for high positions or contracts are often composed largely of white men is also not evidence that preferences based on race or gender might occur. Such preferences may not have bad intent – we all prefer the familiar and have unconscious biases – but they are preferences nonetheless, and the committee composition reflects historical discrimination. This Cal Matters article has relevant data and information.

To illuminate the fundamental question of where fairness lies, let’s pretend the following is a Dickens tale.

In a village long ago and far away, children in Group A are fed gruel and forced to work in sweatshops for long hours in addition to cleaning and cooking for everyone. Children in Group B go to school in preparation for taking over jobs and power and get full meals. This goes on for years; Group A remains uneducated and undernourished. Eventually, the sweatshops are closed, and Group A begins to get tutoring once a week. But then some of them complain about their food situation and are punished by being locked in tiny rooms.

One day those in charge decide that maybe they’ve been unfair in feeding Group A only gruel, and begin to serve them somewhat better meals (without dessert). This unfortunately means that Group B gets half as much meat as before (it is in limited supply). They are asked to show some generosity and many agree to do so. After a month, however, many in Group B begin to object to getting less meat than they used to. They point out that they already gave up half of “their” meat for a month, and in any case, it wasn’t them who had fed Group A poorly. Why should they “suffer” for Group A’s problems?

Should Group B receive as much meat as they used to (at the renewed expense of Group A) or should Group B continue to be generous until Group A is reasonably nourished? If Group B refuses to be generous, do they become complicit in inequity?

Finally, we want to point out that everyone will benefit from Prop 16, beyond having done the right thing. A fair society will not waste talent through bigotry, and when opportunities are equitable there will be less crime and resentment. Numerous articles suggest that resources will be more widely available, diverse role models will motivate children from all groups, diverse professionals will more fully serve their groups, diverse thinking will produce better innovation. Social justice is an investment in society and its future growth that benefits all parts of society. Vote YES on Prop 16!

Jessica Broitman, Ph.D., is a psychoanalyst with a long involvement in social justice. Gibor Basri, a professor emeritus of astronomy, was UC Berkeley’s first vice chancellor for equity and inclusion.