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There were small acts of cruelty to go with the larger violations of constitutional rights. Norman Mineta, later a congressman from California, was just ten years old when his family was loaded onto a train in the San Jose freight yards. He was wearing his Cub Scout uniform and carrying his baseball bat and glove, the American-born son of a prominent Japanese businessman who had lived in the area for forty years. Several of young Norman’s schoolmates came to the tracks to say good-bye, just in time to see the armed guards confiscate his baseball bat because, they said, it could be used as a weapon. It was a world turned upside down for these law-abiding, productive, and respectable families.
Tom Brokaw, from Shame
The history of United States is a history of the American people’s constant battle for the sacred rights of life and liberty. “All men are created equal” signified the ideal status of all humans. Yet, for almost 90 years after the Declaration of Independence was signed, slavery remained legal; it ended with the passage of the Thirteenth Amendment in 1865. Over the next 100 years, U.S. society expanded, with sustained economic growth, along with deepening discrimination toward blacks, especially in the South. The Civil Rights Act of 1964 guaranteed the individual right of every U.S. citizen to vote, and it banned discrimination in public facilities, in government, in education, and in employment based on race, color, religion, gender, or national origin. The passage of this federal law was a result of the 1960s nonviolent protests led by Martin Luther King, Jr., which were originally conceived to protect the rights of black men; the Civil Rights Act was broader, protecting the civil rights of everyone, including women (for the first time). Later, the protection was extended to disabled persons (via the Americans with Disabilities Act, 1990) and to a more limited degree to people with a different sexual orientation.1
Because California was not admitted to the Union until 1850, California avoided many of the controversies over slavery and civil rights that had troubled the rest of the nation. Its acceptance into the Union as a free state meant that it would never experience the institutional dehumanization of a slave society. California’s role in the Civil War was as banker for the Union, providing rich gold reserves but avoiding the bloody human cost. By 1876, just a few years before California drafted its second constitution, the U.S. Constitution had been permanently altered by the addition of the Thirteenth, Fourteenth, and Fifteenth Amendments. Equal protections were thus handed to California as a fundamental legal principle.2
Still, life was not easy for people of color in the latter part of the 1800s. In the areas of suffrage, education, and the right to provide testimony in court, equality was delayed for many of the state’s minority communities.3 From the passage of its first public school laws in 1851, California exhibited an unwillingness to provide schools that would “mix the races.” By 1870 California segregated white students from black, Indian, Chinese, and Latino students. While minorities had the right to vote after 1870, the state legislature did not formally ratify the Fifteenth Amendment until 1962, almost a century after it became part of the U.S. Constitution. Legislative roadblocks were established to prohibit blacks, Native Americans, and Chinese residents from testifying in court. Public law required the following:
No black or mulatto person or Indian shall be permitted to give evidence in favor or against any white person. Every person who shall have one-eighth part or more Negro blood shall be deemed a mulatto, and every person who shall have one-half Indian blood shall be deemed an Indian.4
These impediments demonstrate how the drama of differentness played out early in California’s development and how concomitant political power was distributed or denied.
The fight for civil rights in California is not merely pro forma. Though avoiding the Jim Crow past of many states, California’s racial demons are just as real.5 An early example of legal discrimination toward certain nationalities is the 1882 Chinese Exclusion Act,6 which was in effect for more than 60 years, barring Chinese people from coming to or returning to California. This discrimination was repealed by the passage in 1943 of the Chinese Exclusion Repeal Act.7 However, the most dramatic, perhaps, was the internment of Japanese Americans during World War II. Roosevelt’s Executive Order #9066 (1942) authorized the secretary of war to exclude “all persons of Japanese ancestry, both alien and non-alien” from the Pacific Coast area on a plea of military necessity. Though not a state law, the exclusion order resulted in curfews, detention, and ultimately relocation of Japanese Americans and Japanese residents throughout California and Hawaii. It is widely recognized that the military justification was suspect and that local interest groups fought hard to remove the Japanese for nonmilitary reasons. Supreme Court Justice Murphy argued as follows:
This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power” and falls into the ugly abyss of racism.8
Mr. Austin E. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, stated the following in the Saturday Evening Post:
We’re charged with wanting to get rid of the Japs for selfish reasons… . We do. It’s a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over…. They undersell the white man in the markets…. They work their women and children while the white farmer has to pay wages for his help. If all the Japs were removed tomorrow, we’d never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don’t want them back when the war ends, either.9
It was not until the 1960s that California embarked on an explicit path to remedy discrimination. With the passage of the federal Civil Rights Act in 1964 and the Voting Rights Act of 1965, the state responded with its own anti-discriminatory legislation. Under the Unruh Civil Rights Act, the state reaffirmed federal civil rights mandates. The act prohibited discrimination in public accommodations on the grounds of race, color, religion, gender, or national origin; sexual orientation was added in the 1990s. It further prohibited discrimination in employment hiring and firing, and it prohibited discrimination in the sale or rental of housing. De jure (“under the law”) legal guarantees tell only part of the story, however. De facto (“in fact”) bigotry and discrimination on the community level is just as important. Despite the significance of Brown v. Board of Education of Topeka (1954), Green v. School Board of New Kent County (1968), and Swann v. Charlotte-Mechlenburg Board of Education (1971), California’s public schools remained largely segregated well into the 1970s. Eventually they saw court-ordered integration through a program of mandatory busing.
Busing created a backlash that continues today. Anti-busing leaders in California argued that busing conflicted with neighborhood rights and that integrating less-prepared “inner city” students into high-performing suburban campuses would “dumb down” educational standards. Bobbi Fiedler, an anti-busing activist from L.A.’s San Fernando Valley, used the issue as a launching pad to win a congressional seat. Anti-busing sentiment had a profound impact on California communities across city–suburban–rural lines. White families started leaving the integrated school districts in droves to avoid forced busing—establishing “white flight” as the de facto response to de jure protections.
The battles over urban secession, school standards, and district control that are common today are a direct outgrowth of the busing controversy. What we are left with is a profound reflection about government’s inability to sustain civil and human rights legislation in the face of a hostile and vocal minority. Subsequent federal supreme courts have retreated from pressing full integration and equality of education in the face of hostile and vocal minorities. School desegregation remained a back-burner issue in the 1980s and 1990s, not only within the courts but also in Congress and in the state legislatures. By the time the twenty-first century rolled in, the issue of “inferior” versus “superior” school districts (based largely on racial and economic status) had replaced the busing controversy of past decades. This was clearly amplified in 2006, when Los Angeles Mayor Antonio Villaraigosa decided to go to the state legislature to seize control of the Los Angeles Unified School District, due to these schools’ historic underperformance.
The phrase affirmative action was first used by President Lyndon Johnson. Johnson argued that discrimination was sufficiently ingrained in U.S. culture that taking affirmative (rather than passive) action was necessary. His 1965 Executive Order 11246 required federal contractors to take affirmative action to ensure that applicants are employed and employees are treated during employment without regard to their race, creed, color, or national origin.
In 1967, Johnson expanded the executive order to include women. Affirmative action has come to refer to specific programs designed to expand access to education and the workplace to members of historically underrepresented groups. The National Organization for Women says that “affirmative action levels the playing field so people of color and all women have the chance to compete in education and in business.”10 Affirmative action programs have sought to expand the number of applicants from underrepresented groups and have given preference to members of specified communities in an effort to increase the numbers of women, African Americans, Latinos, and Asians in competitive educational and professional environments. Thus, if equality under the law sags under the weight of de facto discrimination, proponents argue “affirmative action is the bridge between changing the laws and changing the culture.”11 Since the late 1960s, affirmative action has taken many forms and has proven quite controversial.
Affirmative action was first challenged in the Bakke (1978) case. Allan Bakke, a white man, was rejected from UC Davis Medical School, although his grades and test scores were higher than those of students accepted to the 16 slots reserved for underrepresented applicants. (UC Davis had a special-admissions program that held aside 16 of the 100 medical school slots for members of underrepresented communities.) Bakke filed suit in state court, claiming he was a victim of racial discrimination. The California supreme court upheld Bakke’s legal challenge, and the state—on behalf of the University of California—appealed the case to the U.S. Supreme Court. In Regents of the University of California v. Bakke (1978),12 the Court ruled 5–4 that while racial preference can be used as a factor, a specific quota like the 16 percent quota used at UC Davis was unconstitutional and that Bakke should be admitted. Four justices supported the constitutionality of racial quotas (or set-asides) as a remedy for historical discrimination under the Civil Rights Act of 1964. Four justices opposed the quota system under their reading of the Fourteenth Amendment. Justice Lewis F. Powell, Jr., cast the swing vote. The final legal result was that while Bakke was admitted as an individual, the system of admissions used at UC Davis Medical School was declared constitutionally flawed. The Bakke decision was extremely important in determining that race and other factors could be used to allow a “preferential admission” program to ensure a diverse student body. A more refined affirmative action program would therefore be constitutionally maintained, not only in California’s higher educational system but throughout the rest of the nation.
By the late 1980s several court cases undercut Bakke, giving greater standing to claims of reverse discrimination, invalidating minority set-asides in cases where past discrimination against minorities was unproven, and limiting the use of statistics to demonstrate past discrimination, since statistics are aggregate and cannot legally prove intent.13 While the Civil Rights Act of 1991 confirmed many of the principles of affirmative action as an important remedy to discrimination, the future of affirmative action is in jeopardy.
Twenty-five years after Bakke, in June 2003, affirmative action was tested again in the Supreme Court. A white Michigan resident, Barbara Grutter, applied to the University of Michigan Law School and was ultimately denied admission. In December 1997, she filed suit, alleging that the university had discriminated against her on the base of race, in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and Title VI of the 1964 Civil Rights Act. In March 2001, Grutter prevailed in U.S. District Court in Detroit. Judge Bernard Friedman concluded that use of race in admission decisions is unconstitutional.14 In 2002, the Sixth Circuit Court of Appeals reversed the District Court’s decision.15 In June 2003, the case was appealed to the Supreme Court. Justice O’Connor delivered the 5–4 opinion that the U.S. Constitution doesn’t prohibit a university’s “narrowly tailored use” of race in admission decisions and cited Grutter’s claim, based on Title VI of 1964 Civil Rights Act, as invalid. The Supreme Court affirmed the judgment of the Court of Appeals.16
The Grutter decision further split the nation over affirmative action. For Republicans, the key point was that the Supreme Court’s decision struck down a rigid quota system in university admissions, but for the Democrats, the victory was that race could be used as a factor in making admission decisions.17 At best, this was a Solomonic decision.
In the midst of the rancor over California’s role in the 1996 presidential elections, opponents of affirmative action turned in some 1.1 million signatures on a ballot proposition to prevent race, ethnicity, or sex from being used as the basis for “discriminating against, or granting preferential treatment to, any individual or group.”18 Proposition 209 sought to dismantle the state’s longstanding commitment to affirmative action. The proposition stated:
The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.19
Critics argued that Proposition 209 was disingenuous, saying that discrimination was already banned by federal civil rights laws and pointing out that the third clause of the initiative presented an explicit attack on the protections against sexual discrimination ensured by Title X of the Civil Rights Act. The third clause of Proposition 209 declared:
Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.20
What “bona fide qualifications” are “reasonably necessary” was not defined. Because public safety agencies (e.g., police, fire departments) have traditionally used this line of argument to exclude women, this language elicited protest.
This initiative and later public policies continued to stir controversy even at the dawn of the twenty-first century because they target equity programs that are largely responsible for giving traditionally underrepresented communities (e.g., women, blacks, Latinos, Asians) greater access to education, business, and professions. Advocates of Proposition 209 argued that affirmative action programs had served their purpose but that they are no longer appropriate. Opponents—mainly Democrats—saw the initiative as a “wedge issue,” just as Proposition 187 (the anti-immigration initiative) had been. California had been critical in Clinton’s election victory in 1992, and this issue threatened to divide the state electorate, which was leaning toward Clinton once again in 1996.
As California goes, so goes the nation. Two years after Proposition 209 was ratified in California, Washington became the second state to abolish affirmative action when voters approved Initiative 200. After the vote, UC Regent Ward Connerly—who help finance and campaign for the Washington initiative—announced that the initiative process provided the best vehicle to further the anti-affirmative action movement. Later, Connerly would back similar initiatives in other states.21 However, a nationwide grassroots movement to roll back affirmative action is still far from certain. Voters in Houston, Texas, rejected a citywide initiative to ban affirmative action, and activists in Florida failed to gather enough signatures to place a version of Proposition 209 on that state’s ballot (although in 2000, Florida changed its college admissions programs such that it essentially eliminated affirmative action). In January 2006 language banning racial preferences in public education and hiring for the so-called Michigan Civil Rights Initiative (MCRI) was approved for the vote that year. Michigan voters approved Proposition 2 by a margin of 58 percent to 42 percent.
Although Proposition 209 became California state law, the battle over affirmative action programs in the state is far from over. In 1998 San Francisco’s Board of Supervisors balked at CCRI, voting to extend—and even expand—the city’s affirmative action program. In a plan backed by Mayor Willie Brown, San Francisco upheld its Business Enterprise program, giving preferences to minority- and women-owned businesses—as well as local businesses—in the awarding of city contracts. Even under this 10-year-old program, 89 percent of construction dollars went to firms owned by white men. Supervisor Amos Brown, who sponsored the plan, remarked, “It’s not about giving anyone anything they don’t deserve in a just society. This legislation is about inclusion.”22 Charging that the San Francisco program contradicts the will of the majority of the state’s voters, Ward Connerly vowed a legal challenge.
At the University of California, where the rollback of affirmative action began, policy was in constant flux. The Board of Regents would eventually move to modify UC admission requirements to circumvent Proposition 209, even though they could not overturn its restrictions.23 The declining minority enrollments at UC Berkeley tell the story. Just two years after Proposition 209 was passed, only 3.5 percent of incoming freshmen were African American and 7.5 percent were Latino. These figures were approximately half of what they were the previous year.24
Our discussion and analysis of the fate of affirmative action in California and beyond leaves us with two major questions: Should any subset of Americans receive preference in education, jobs, or government contracts because of skin color or gender? Alternatively, have affirmative action programs, which began in the 1960s to help blacks, Latinos, and Native Americans overcome generations of discrimination, succeeded in eliminating their disadvantages in gaining access to education and the upper ranks of the workforce? Some say that affirmative action is a compromise—giving up on colorblindness in order to obtain integration. Are colorblindness and integration two values in conflict with each other? According to Jeffrey Lehman, former dean of the University of Michigan Law School:
Unfortunately, those values are in conflict. The admissions pool at the most selective universities reflect the cumulative effect of history, sociology and economics, public investments and private choices. Because those variables are not race-independent, a colorblind admissions process is unlikely to produce meaningful racial integration.25
Today, in reflecting on the passage of Proposition 209, the diversity question within higher education and other public sector programs continues to play out. California has always been (rightly or wrongly) viewed as the harbinger of a multicultural/multiethnic/multilingual future in America. Can the state achieve real racial integration in its elite-training career institutions and maintain a colorblind admissions policy that is not race dependent?
A decade after the passage of Proposition 209, the numbers speak for themselves: census data from 2000 confirm that the United States is 14 percent Latino and 13 percent African American. California is 35 percent Latino and 7 percent African American. Since the passage of the proposition, entering classes at the two flagship UC campuses, Berkeley and UCLA, have put admissions of Latinos between 11 percent to 14 percent and of African Americans between 2 percent and 4 percent. Out of the 4,422 students in UCLA’s freshman class of 2006, 100 were black.26 In September 2006 UCLA announced that it would shift immediately to a “holistic” admissions process in which student’s academic records will be viewed in light of their personal experiences and challenges (and presumably within the spirit and law imposed by Proposition 209).27 UC Berkeley adopted holistic review several years ago and has since seen its number of underrepresented minority students rise. Ironically, more than half of UCLA’s student population are minority students—with Asian American students representing a larger percentage of the UCLA population than they do overall in the state’s demographics.
Is it time for a new ballot initiative that would amend Proposition 209 to authorize the kind of conservative affirmative action that has become the national norm? Affirmative action may not be the perfect fix to California’s long history of unequal access, but without an alternative, California’s underrepresented minority populations are likely to lose even more ground.
“Identity politics” became a politically correct buzz phrase in the 1990s, a decade epitomized by escalating tensions in California between majority and minority groups. Identity politics has generally been described as the tendency for each minority group to define issues solely or primarily in terms of their own group interests, values and priorities.28 The terminology of identity politics was long used to analyze the politicization of racial and ethnic groups. By the late 1970s however, especially in California (as a major national trendsetter), women and the gay, lesbian, bisexual, and transgender (GLBT) communities adopted their own version of identity politics in the quest for fuller civil right inclusion.
California women (under Hiram Johnson’s administration in 1911) were given the right to vote—nine years before the United States adopted the Nineteenth Amendment. Yet they have long been denied equal rights and political power. Male-dominated institutions have long placed a gender-based “glass ceiling” on the recruitment and advancement of women. In the past, women were confined to household chores and child care and, later, as they entered the labor market post-World War II, they were relegated to “women’s work” (e.g., as flight attendants, nurses, teachers). Ironically, women have been the majority of the population of the state even since the mid-1950s. What they have lacked is political strength and a feminist consciousness. There have been women serving in elected positions in the California state assembly since 1918. It was not until 1976, however, that the state senate had its first woman senator. Rose Ann Vuich was a second-generation Serbian American from the farm town of Dinuba, located on the outskirts of Fresno, California. According to Terry McHale:
Her political career was launched in 1976 when she was chosen to replace the presumed Democratic candidate, who had withdrawn from the race.
It was assumed that her Republican opponent, an Assemblyman, was unbeatable. The Democratic Caucus viewed Vuich as sincere, but naïve. They thought her inde-fatigability and grassroots understanding of the district was more old-fashioned than practical and remained unconvinced that she could compete with her opponent’s connections and political wiles. As a result, Vuich had little money for her campaign. However, she had enough for a thirty-second television piece mocking her opponent for voting to fund Southern California freeways while failing to appropriate money for Highway 41 in their own district. She blamed him publicly for the “freeway to nowhere.” The criticism caught fire and the “Freeway Lady” won the race.
As the state’s first female Senator, Rose Ann Vuich made a habit ringing a bell several times a day when colleagues addressed the collective members of the Senate as “Gentlemen,” failing to note that the chamber was no longer an exclusively male domain. And it was Vuich’s election, not the Capitol’s extensive retrofit in the 1970s, that made necessary the conversion of a closet into a women’s bathroom. The bathroom, located behind the Senate floor, is still referred to as “The Rose Room.” Vuich was not a commanding speaker, yet she had a piercing intelligence and could handle the spotlight when necessary. On the issues, she was key vote against a costly Los Angeles prison and said no to the confirmation of Dan Lungren (future attorney general and Republican nominee for governor) for state treasurer. The latter drew the wrath of statewide politicians who vainly sought a strong candidate to oppose her.
Vuich, who reflected the conservative make up of her district, was re-elected three times. A strong advocate for agriculture, she made a habit of bringing fresh produce to the Senate and withholding it from hungry colleagues until she explained how beneficial the agricultural industry was to the overall health of our state.
After sixteen years in Senate, a time when she proved that graciousness was not a sign of weakness and that being a woman was not a barrier to providing daring leadership, she retired in 1992. The election of Rose Ann Vuich, the farm kid from the Central Valley, marked the beginning of positive change when subsequent women legislators joined her in shaping the past quarter century. She will forever remain a symbol of great leadership to all women.29
The first woman in California to hold statewide office was Ivy Baker Priest, who was elected state treasurer in 1966 and held the office for two terms. In 1974 the City of San Jose elected the state’s first woman mayor.
As they have elsewhere, women have had a difficult time gaining access to political power in California. They were long underrepresented in those main funneling careers that legislators usually pursue. They lacked financial resources and the electoral tools that normally propel qualified, ambitious candidates into office. With the passage of term limits set forth by Proposition 140, there was supposed to be a more equal playing field for “new blood” to compete in competitive districts. The record has been a mixed bag: There are certainly more women and underrepresented minorities now in the legislature. The evidence, however, is still murky as to whether the quicker cycling of new members via term limits has produced better representation or—equally critical—better public policies.
The California Legislative Women’s Caucus was formed in 1985 by nine Democrats and six Republicans. Its purpose is to “encourage collegiality, participation in cooperation among elected women in California government and to promote the interests of women, children and families through legislation.”30
Advances in gender equality have been made in California over the past three decades. One can even attribute the feminization of human services as a by-product of the women’s movement benefiting all Californians—including families and children.
What does a “women’s legislative agenda” look like today? Essentially, we can divide this into four major categories:
1.Family—Issues pertaining to children, foster care, adoption, child care, and custody.
2.Work—Issues related to pay equity, fair treatment in the workplace, sexual harassment, and family leave from work (see example below).
3.Health—Issues related to female-specific cancer, sexual education, contraception (e.g., morning after pill), stem cell research, and reproductive rights (see example below).
4.Safety—Issues pertaining to domestic violence, rape/sexual assault, prison treatment, and prostitution.
Two examples show the influence the women’s movement has had on the contemporary California political landscape.
FAMILY LEAVE. On July 1, 2005, a groundbreaking new paid-leave law went into effect in California, making it easier for employees to spend time with new infants or to care for ailing relatives. The family leave law provides employees with up to 55 percent of their regular pay for up to six weeks of leave time. This law, a first in this country in terms of national social policy, covers 13 million Californians, or nearly one-tenth of the American workforce. A study of 169 countries by the Harvard School of Public Heath found that the United States is one of only five countries that do not offer paid leave for new mothers. In California, paid leave is funded through a 0.08 percent payroll tax that is expected to generate close to $130 million a year for the program.
PARENTAL NOTIFICATION. Not only can we see proactive public policy fashioned by and primarily for women, but sometimes a “reactive” mobilization is orchestrated by the same people in order to keep bad policy from becoming law. For example, Proposition 85—the Parents’ Right to Know and Child Protection Initiative—qualified as an initiative for the November 2006 ballot. The initiative would have required that a parent or legal guardian of a young woman under age 18 be notified 48 hours before the woman may legally have an abortion. If it was deemed not in the best interest of the young woman to inform her parent or legal guardian of her intentions to have an abortion, she would have been able to ask a judge for a waiver of the notification requirement. Women’s health advocates argued that requiring parental permission for underage girls adds extra trauma to those in abusive or incestuous relationships and favors young women with the education and resources to go through the process. Obtaining a waiver from a judge is a difficult process for a young woman to undertake, and the results can be contingent on the personal beliefs of the judge issuing the waiver. With strong opposition from most mainstream women’s and health groups in the state, the measure was defeated by 54 percent to 46 percent.
Other examples of the strength of the state’s women’s community abound: California is the first state to ban gender discrimination in community youth athletic programs. California has also been a trendsetter in the area of laws concerning abusive partners. A new law now allows an imprisoned woman a chance for a new trial or reduced sentence if she can prove that her crime was committed under coercion of an abusive partner. The law could mean release from prison for women who felt they would be severely beaten by their abusers if they chose not to carry out criminal acts.
One of the earliest gay-related references from the pre-state of California is found in Captain Alarcón’s brief observation, dating to 1540, of the Native Americans in the area:
There were among these Indians three or four men in women’s apparel.31
In the 1777 publication of Spanish missionary Francisco Palóu’s Founding of the Santa Clara Mission, we get another early version of the gay-themed life among the aboriginal Californians, as he chronicled the life of Junipero Serra and the nine Franciscan missions founded in California:
Two laymen arrived at the house of a convent, one of them is unusual clothing, but the other dressed like a woman and called by them a Joya [Jewel] … The head of the Mission went to the house with a sentry and a soldier. The couple was caught in the act of committing the nefarious sin. They were duly punished for this crime, but not with the severity it properly deserved. When they were rebuked for such an enormous crime, the layman answered that the Joya was his wife! They were not seen again in the Mission or its surrounding after this reprimand. Nor did these disreputable people appear in the other missions, although many Joyas can be seen in the area of Canal de Santa Barbara; around three, almost every village has two or three [of them].32
While many date the struggle for GLBT civil rights to the Stonewall riots of June 1969 in New York City, California was one of the main incubators of the GLBT liberation movement. In 1951 the Mattachine Society was founded in Los Angeles to stop the police harassment against the male homosexual minority community. It later evolved, under its founder Henry Hay, into a multipurpose early civil rights organization dedicated in part to “political action” against “discrimination and oppressive legislation.”33 The first organized lesbian civil rights organization in the United States, the Daughters of Bilitis, was found by Del Martin and Phyllis Lyon of San Francisco in 1955. One of their founding principles of purpose was “changes through the due process of law in the state legislatures.”34
As in other law reform and civil rights movements, the fashioning of GLBT “identity politics” was a melding of the personal with the political. Being a second class citizen with diminished rights violated the social contract of fundamental human rights. Civil rights can be understood as the right of equal treatment under the laws—the right of full citizenship. These groups argued that if we are to live in a truly civil society, we must agree to respect the rights of others and subject our activities to reasonable government restrictions enacted for the good of the entire society.
The debate over same-sex marriage reached the courts after the city of San Francisco unilaterally granted nearly 4,000 marriage licenses to same-sex couples in 2004. This would have made them eligible for more than 1,000 federal protection clauses, including family and medical leave, Social Security benefits, tax breaks in joint filing, long term care insurance, and the ability to sponsor a partner for immigration benefits. However, the California supreme court ordered the city to stop issuing the certificates after four weeks. Subsequently, the court decided that same-sex marriage was a constitutional right guaranteed under the state constitution. In its milestone ruling in May 2008, the California supreme court ruled in a 121-page opinion that gay and lesbian couples can legally marry. In the Republican-dominated court, the majority in a 4–3 ruling struck down the state’s ban on same-sex marriage and virtually any law that discriminates on the basis of sexual orientation.
The ruling cited a 60-year-old precedent that struck down a ban on interracial marriage in California. The three dissenting justices argued that it was up to the electorate or legislature to decide whether gays and lesbians should be permitted to marry. In 2000, over 61 percent of the California electorate approved an initiative, Proposition 22, that defined only marriage between a man and woman as valid and recognized in California. Opponents of the court’s majority opinion attacked it as “judicial tyranny” and argued that the court had overstepped its boundaries and created a new right out of thin air—making gay marriage a natural right.
In 2004, Massachusetts became the first state to legalize gay marriage, and the California decision had ripple effects on other state judiciaries. For example, the Iowa supreme court ruled in 2009 that denying marriage to same-sex couples violates the Equal Protection and Due Process guarantees in the Iowa state constitution. No state has ever passed a constitutional amendment to ban same-sex marriage after the court has granted marriage equality.
According to 2000 census data, California has an estimated 100,000 same-sex households, about one-quarter of them with children. Protect Marriage, a coalition of social and religious conservative groups, submitted over 690,000 valid signatures to qualify a ballot initiative, Proposition 8, on the November 2008 ballot to overturn the court’s decision.
Proposition 8 passed by a narrow margin of 52 percent. It was probably the most expensive campaign for a proposition in California’s history, with both sides spending in excess of $40 million. Lawsuits were immediately filed, alleging that on its face, Proposition 8 is an improper revision rather than an amendment of the California constitution because it eliminated an existing right only for a targeted minority. Under this legal argument, the California constitution cannot be changed through a simple majority vote but must first be approved by two-thirds of the legislature. The California Supreme Court upheld Proposition 8 in May 2009, but let stand the thousands of same-sex marriages performed legally before the measure’s ratification.
| Shame | Tom Brokaw |
There were small acts of cruelty to go with the larger violations of constitutional rights. Norman Mineta, later a congressman from California, was just ten years old when his family was loaded onto a train in the San Jose freight yards. He was wearing his Cub Scout uniform and carrying his baseball bat and glove, the American-born son of a prominent Japanese businessman who had lived in the area for forty years. Several of young Norman’s schoolmates came to the tracks to say good-bye, just in time to see the armed guards confiscate his baseball bat because, they said, it could be used as a weapon. It was a world turned upside down for these law-abiding, productive, and respectable families.
When Bob Dole of Russell, Kansas, got to know Danny Inouye of Honolulu in the same rehabilitation hospital in Michigan after the war, they had a good deal in common for two young men from such distinctly different backgrounds. Both were trying to learn to live without the use of an arm as a result of combat wounds suffered as Army lieutenants in the mountains of Italy … [but] Inouye’s route to that hospital took a few turns not imposed on the young man from Kansas. Inouye was a Japanese American, raised in Hawaii. On December 7, 1941, Inouye, who was just seventeen, was preparing to attend church when he heard a hysterical local radio announcer explain that Pearl Harbor had been attacked.
Young Inouye was enrolled in a Red Cross first-aid training program at the time, so he went directly to the harbor and began helping with the hundreds of casualties. In effect, he was in the war from the opening moments. He stayed on duty at the Red Cross medical aid facility for the next seven days. In March 1942, the U.S. military repaid Inouye by declaring that all young men of Japanese ancestry would be designated 4-C, which meant “enemy alien,” unfit for service. Inouye says, “That really hit me. I considered myself patriotic, and to be told you could not put on a uniform, that was an insult. Thousands of us signed petitions, asking to be able to enlist.” The Army decided to form an all-Japanese American unit, the 442nd Regimental Combat Team. Its shoulder patch was a coffin with a torch of liberty inside. The motto was “Go For Broke.” Before the war was over, the 442nd and its units would become the most heavily decorated single combat unit of its size in U.S. Army history. Daniel Inouye went on to become Hawaii’s first congressman, and the first Japanese American in Congress.
… Nao Takasugi was a junior studying business at UCLA when the Japanese bombed Pearl Harbor. Suddenly, because of his ancestry, he was subject to a strict curfew: He couldn’t be out before 6 a.m. and after 6 p.m. He couldn’t go five miles beyond his family home in Oxnard, which ruled out UCLA, more than fifty miles away. Then, in his neighborhood, came the posting of Executive Order 9066. “Here I was,” he says, “a nineteen-year-old college student full of ambition and ideals. All of that just came crashing down.” The Takasugi family—the parents, four daughters, and Nao—were told to prepare whatever personal possessions they could carry in their hands and report to the railroad station in Ventura. The railroad station was bristling with armed guards. The Takasugi family, just days before a respected and productive family of American citizens, boarded for an unknown destination, their most fundamental rights stripped in the name of fear.
Nao Takasugi later earned an MBA at Wharton, became mayor and a member of the city council of Oxnard, and became a California State Assemblyman in 1992.
Senator Inouye and Assemblyman Takasugi are currently on the board of the Japanese American National Museum.
Source: Tom Brokaw, The Greatest Generation. Copyright © 1998 by Tom Brokaw. Reprinted by permission of Random House, Inc.
The struggle for equality in California has not been easy. Ever since California became a state, communities of color, gender, and different sexual orientations have been subjected to institutional and de facto discrimination. The internment of Japanese Americans is but one ugly footnote in California’s—and the nation’s—past. The landmark civil rights legislation of the 1960s forced leaders to find new ways to break down the barriers to social and economic advancement. From Bakke to Proposition 209, affirmative action policies designed to advance equality first came under fire in California. Like many other policy innovations in California, the movement to end affirmative action through direct democracy is taking hold in other states.
Whether California will assertively and affirmatively develop new approaches to ensure equal access in the post-affirmative action era is not yet clear. Without doubt, there is a long way to go. The state’s changing demographics may actually solve the problem more quickly than the conflicted policy approaches of the past. California Republicans (Arnold Schwarzenegger notwithstanding) have already experienced a backlash: Since 1998, Latinos and Asians have turned out to vote in record numbers against a party that had taken tough anti-immigration and anti-affirmative action positions, prompting fears among Republican leaders that these issues may be damaging in the long run—having alienated too many potential supporters. California’s majority white population is expected to slip under 50 percent within the next decade. With no ethnic majority, the state’s minority communities may fare better.
Still, equal protection over race, gender, sexual orientation, and class continues to create serious impediments to equality throughout the state. It is always easier to talk about recognizing people’s civil rights and liberties than it is to practice these policies. In the end, the issue revolves about the distribution of power and resources. The political system never remains static—it is in constant flux, with new demands of under-represented populations who want some of the American dream. Furthermore, equal rights is not a zero-sum formula (i.e., “I got mine, so you can’t have yours”). What we have witnessed in California over the past 30 or 40 years is the rise of “coalition politics,” where groups ban together for a louder voice in public policy results. In reality, it is just the reversal of zero-sum: It’s more of a philosophy that if one group is discriminated against, we are all affected. So, for example, hybrid coalitions have formed in California as supporters and legislative backers of the gay marriage bill—from the California Council of Churches, to the Mexican American Legal Defense and Education Fund, to Asian Americans for Civil Rights and Equality. In the end, civil rights cannot be built in a vacuum: The true mosaic of civil liberties in California must be painted in one broad landscape. Equal justice concerns are basic fibers in the state as we have evolved from our soiled past. Equal protection and equal access under the law will no doubt remain a contested terrain in California in the twenty-first century. The course is in our hands to determine whether we become a “melting pot” or more a “salad bowl” of shared American values of justice.
Editor’s note: The internment of Japanese Americans was tested in Korematsu v. United States. The following excerpts include the U.S. Supreme Court’s majority opinion sustaining the internment, as well as a particularly harsh dissent from Justice Murphy.
MR. JUSTICE BLACK delivered the majority opinion of the Court.
The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a “Military Area,” contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States. The Circuit Court of Appeals affirmed,35 and the importance of the constitutional question involved caused us to grant certiorari.
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21,1942, 56 Stat. 173, which provides that “… whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.”
Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities….”
One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a “protection against espionage and against sabotage.” In Hirabayashi v. United States, 320 U.S. 81, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.
The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.
In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one’s home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.
In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them.
… The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.36
We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 547; Block v. Hirsh, 256 U.S. 135, 154–155. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kawato, 317 U.S. 69, 73. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
… It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified.
MR. JUSTICE MURPHY, dissenting.
This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power” and falls into the ugly abyss of racism.
In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.
At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” Sterling v. Constantin, 287 U.S. 378, 401.
The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so “immediate, imminent, and impending” as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. United States v. Russell, 13 Wall. 623, 627–628; Mitchell v. Harmony, 13 How. 115, 134–135; Raymond v. Thomas, 91 U.S. 712, 716. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast “all persons of Japanese ancestry, both alien and non-alien,” clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an “immediate, imminent, and impending” public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.
It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.
That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General’s Final Report on the evacuation from the Pacific Coast area.37 In it he refers to all individuals of Japanese descent as “subversive,” as belonging to “an enemy race” whose “racial strains are undiluted,” and as constituting “over 112,000 potential enemies … at large today” along the Pacific Coast.38 In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal,39 or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.
Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be “a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.”40 They are claimed to be given to “emperor worshipping ceremonies”41 and to “dual citizenship.”42 Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty,43 together with facts as to certain persons being educated and residing at length in Japan.44 It is intimated that many of these individuals deliberately resided “adjacent to strategic points,” thus enabling them “to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so.”45 The need for protective custody is also asserted. The report refers without identity to “numerous incidents of violence” as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the “situation was fraught with danger to the Japanese population itself” and that the general public “was ready to take matters into its own hands.”46 Finally, it is intimated, though not directly charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area,47 as well as for unidentified radio transmissions and night signaling.
The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage, and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation.48 A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.49
The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.
No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247–252. It is asserted merely that the loyalties of this group “were unknown and time was of the essence.”50 Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these “subversive” persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be.
Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free,51 a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combating these evils. It seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved—or at least for the 70,000 American citizens—especially when a large part of this number represented children and elderly men and women.
Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals.
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the constitution.
1. Employment Nondiscrimination Act, H.R. 3285, 2003.
2. In fact, as early as 1875 a Latino, Romualdo Pacheco, was California’s governor.
3. Susan Anderson, “Rivers of Water in a Dry Place—Early Black Participation in California Politics,” in Byran O. Jackson and Michael B. Preston, eds., Racial and Ethnic Politics in California (Berkeley: Institute of Governmental Studies, University of California Berkeley, 1991), pp. 55–69.
4. Ibid, p. 61.
5. “Jim Crow” refers to the institutionalized segregation of African Americans in the South following the end of slavery.
6. Brief from the Center for Educational Telecommunications, Chinese Exclusion Act, www.cetel.org/1882_exclusion.html.
7. Brief from the Library of Congress (LOC), The Chinese in California, 1850–1925, http://memory.loc.gov/ammem/award99/cubhtml/chron.html.
8. See Supreme Court Justice Murphy, in his dissenting opinion in Korematsu v. United States (1944).
9. Frank J. Taylor, “The People Nobody Wants,” Saturday Evening Post 24, no. 66 (May 9, 1942): 214.
10. National Organization for Women, Talking About Affirmative Action, www.now.org/issues/affirm/talking.html.
11. Ibid.
12. 438 U.S. 265 (1978).
13. See Wards Cove Packing Co. v. Atonio (1989), Patterson v. McClean Union (1989), Adarand v. Pena (1995), and Hopwood v. University of Texas Law School (1996).
14. In the conclusion of the Grutter vs. Bollinger case, Judge Bernard Friedman delivered the court conclusion: “The University of Michigan Law School’s use of race as a factor in its admission decisions is unconstitutional and a violation of Title VI of the 1964 Civil Rights Act. The law school’s justification for using race—to assemble a racially diverse student population—is not compelling state interest. Even if it were, the law school has not narrowly tailored its use of race to achieve that interest.” See www.vpcomm.umich.edu/admissions/legal/grutter/gru-op.html.
15. Professor Randall of the University of Dayton School of Law summarized the Grutter case for the importance of intervention: “Students of color—not university administrators—have the broadest, deepest and most urgent interests in preserving affirmative action. After all, when race can no longer be a factor in admission decisions, it is minority students who are denied access to higher education opportunities.” Vernellia R. Randall, Grutter v. Bollinger: University of Michigan Law School Affirmative Action Case, http://academic.udayton.edu/race/04needs/affirm14.html.
16. “In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI and 42 U. S. C. §1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.) (”Title VI… proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment“); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389–391 (1982) (the prohibition against discrimination in §1981 is co-extensive with the Equal Protection Clause). The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.” See Grutter vs. Bollinger (2003).
17. Brief from CNN, Courts’Affirmative Action Decision Add Fuel to Political Debate, June 23, 2003, www.cnn.com/2003/ALLPOLITICS/06/23/affirmative.reax/index.html.
18. As a proposed constitutional amendment, the proposition required 693,230 valid registered voters’ signatures. The extra margin of over 1 million would guarantee that it would meet the threshold enforced by the secretary of state’s office.
19. Ballot text of Proposition 209 (1996), clause 1, lines 1–3.
20. Ibid., clause 3, lines 5–7.
21. Richard Paddock, “Affirmative Action Era Over, Foe Says,” Los Angeles Times (November 26, 2006): B1.
22. Rachel Gordon, “Supes Extend Affirmative Action Plan,” San Francisco Examiner (September 23, 1998): A8.
23. Larry Gordon, “UC Regents Move Toward Easing Admissions Requirements,” Los Angeles Times (February 5, 2009): B1.
24. Ibid.
25. Jeffrey S. Lehman, “At UC, Race Must Matter,” Los Angeles Times (August 26, 2006): B17.
26. Peach Indravudh, “Events Mourn Death of Diversity,” Daily Bruin (November 3, 2006): 1.
27. Rebecca Trounson, “UCLA to Blacks: You’re Welcome,” Los Angeles Times (November 11, 2006): B1.
28. Michael B. Preston, Bruce E. Cain, and Sandra Bass, eds., Racial and Ethnic Politics in California, Volume II. (Berkeley: Institute of Governmental Studies, University of California Press, 1988).
29. From Terry McHale, Capitol Morning Report (February 4, 2002), as quoted at www.sen.ca.gov/womenscaucus/history.htp#RoseAnn.
30. Ibid.
31. Cited in Jonathan Katz, Gay American History: Lesbians and Gay Men in the USA (New York: Thomas Y. Crowell, 1976), p. 285.
32. Ibid., p. 292.
33. Ibid., p. 412.
34. Ibid., p. 426.
35. 140 F.2d 289.
36. Hearings before the Subcommittee on the National War Agencies Appropriation Bill for 1945, Part II, pp. 608–726; Lieutenant General J. L. DeWitt, Final Report, Japanese Evacuation from the West Coast, 1942, pp. 309–327; Hearings before the Committee on Immigration and Naturalization, House of Representatives, 78th Cong., 2d Sess., on H.R. 2701 and other bills to expatriate certain nationals of the United States, pp. 37–42, 49–58.
37. Lieutenant General J. L. DeWitt, Final Report, Japanese Evacuation from the West Coast, 1942. This report is dated June 5, 1943, but was not made public until January 1944.
38. Further evidence of the Commanding General’s attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739–740 (78th Cong., 1st Session): “I don’t want any of them [persons of Japanese ancestry] here. They are a dangerous element. There is no way to determine their loyalty. The West Coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast… . The danger of the Japanese was, and is now—if they are permitted to come back—espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty…. But we must worry about the Japanese all the time until he is wiped off the map….”
39. Final Report, p. 9, casts a cloud of suspicion over the entire group by saying that “while it was believed that some were loyal, it was known that many were not.”
40. Final Report, p. vii; see also pp. 9, 17. To the extent that assimilation is a problem, it is largely the result of certain social customs and laws of the American general public. Studies demonstrate that persons of Japanese descent are readily susceptible to integration in our society if given the opportunity…. The failure to accomplish an ideal status of assimilation, therefore, cannot be charged to the refusal of these persons to become Americanized or to their loyalty to Japan. And the retention by some persons of certain customs and religious practices of their ancestors is no criterion of their loyalty to the United States.
41. Final Report, pp. 10–11. No sinister correlation between the emperor worshipping activities and disloyalty to America was shown.
42. Final Report, p. 22. The charge of “dual citizenship” springs from a misunderstanding of the simple fact that Japan in the past used the doctrine of jus sanguinis, as she had a right to do under international law, and claimed as her citizens all persons born of Japanese nationals wherever located. Japan has greatly modified this doctrine, however, by allowing all Japanese born in the United States to renounce any claim of dual citizenship and by releasing her claim as to all born in the United States after 1925. See Harrop A. Freeman, “Genesis, Exodus, and Leviticus: Genealogy, Evacuation, and Law,” Cornell L. Q. 28 414, 447–448, and authorities there cited; Carey McWilliams, Prejudice, (1944) 123–124.
43. Final Report, pp. 12–13. We have had various foreign language schools in this country for generations without considering their existence as ground for racial discrimination. No subversive activities or teachings have been shown in connection with the Japanese schools. McWilliams, Prejudice, (1944) 121–123.
44. Final Report, pp. 13–15. Such persons constitute a very small part of the entire group, and most of them belong to the Kibei movement, the actions and membership of which are well known to U.S. government agents.
45. Final Report, p. 10; see also pp. vii, 9, and 15–17. This insinuation, based purely upon speculation and circumstantial evidence, completely overlooks the fact that the main geographic pattern of Japanese population was fixed many years ago with reference to economic, social, and soil conditions. Limited occupational outlets and social pressures encouraged their concentration near their initial points of entry on the Pacific Coast. That these points may now be near certain strategic military and industrial areas is no proof of a diabolical purpose on the part of Japanese Americans. See McWilliams, Prejudice, (1944) 119–121; House Report No. 2124 (77th Cong., 2d Session.), pp. 59–93.
46. Final Report, pp. 8–9. This dangerous doctrine of protective custody, as proved by recent European history, should have absolutely no standing as an excuse for the deprivation of the rights of minority groups. See House Report No. 1911 (77th Cong., 2d Sess.), pp. 1–2 and House Report No. 2124 (77th Cong., 2d Sess.), pp. 145–147. In this instance, moreover, there are only two minor instances of violence on record involving persons of Japanese ancestry. Carey McWilliams, “What About Our Japanese-Americans?” Public Affairs Pamphlets, no. 91 (1944): 8.
47. Final Report, p. 18. One of these incidents (the reputed dropping of incendiary bombs on an Oregon forest) occurred on September 9, 1942—a considerable time after the Japanese Americans had been evacuated from their homes and placed in assembly centers.
48. Special interest groups were extremely active in applying pressure for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.), pp. 154–156, and McWilliams, Prejudice, (1944) pp. 126–128. Mr. Austin E. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, frankly admitted: “We’re charged with wanting to get rid of the Japs for selfish reasons… . We do. It’s a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over… . They undersell the white man in the markets…. They work their women and children while the white farmer has to pay wages for his help. If all the Japs were removed tomorrow, we’d never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don’t want them back when the war ends, either.” From Frank J. Taylor, “The People Nobody Wants.”
49. See notes 4–12, supra.
50. Final Report, p. vii; see also p. 18.
51. Final Report, p. 34, makes the amazing statement that as of February 14, 1942, “The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.” Apparently, in the minds of the military leaders, there was no way that the Japanese Americans could escape the suspicion of sabotage.