I dissent.
The wry observation of Justice Rehnquist in his dissent in Steelworkers v. Weber (1979) 443 U.S. 193, 219 [61 L.Ed.2d 480, 499, 99 S.Ct. 2721], applies to this case: “In a very real sense, the Court’s opinion is ahead of its time: it could more appropriately have been handed down five years from now, in 1984, a year coinciding with the title of a book from which the Court’s opinion borrows, perhaps subconsciously, at least one idea.” That one idea is “doublethink,” the tortured abuse of *287words and phrases so that their meaning and effect become inverted.1 Thus here the majority purport to eliminate discrimination by means of creating discrimination; they construe equality of all persons regardless of race to mean preference for persons of some races over others; and a hiring program which compels compliance by a reluctant district attorney is described as voluntary. George Orwell is nodding complacently in his grave, as he wins vindication even before 1984 for his dire apprehensions about the misdirection of society.
Further adopting doublethink, the majority attempt to apply a semantic salve to their approval of the long-discredited racial quota. They seem to believe the leopard’s spots can be changed by calling them stripes, that a quota is somehow less a quota if it bears the label of a “racial hiring ratio” or a “race-conscious hiring program.” But the spots are still evident. “Quota” is an abbreviated version of the Latin “quota pars,” meaning how great a part, or the share or proportion assigned to each member of a total body. One for two, as provided in the Civil Service Commission order involved herein, is purely and simply a racial quota.
Because of the emotion that often beclouds reason when the subject of race is involved, perhaps a disclaimer is appropriate at the outset of this dissent. No member of this court need apologize for his record in opposing racial and sexual discrimination. Over the years we have forthrightly condemned unfair and discriminatory treatment of all persons, regardless of racial or sexual origin, whether that bias was manifest in racial restrictive housing covenants, prohibition of miscegenous marriages, judicial proceedings, employment opportunity or school segregation. We have consistently viewed sympathetically every effort to promote the American dream of equality of rights, duties and opportunity.
That does not mean, however, that we must give carte blanche approval to every proposal, however undemocratic, made in the name of purportedly improving race relations. Justice Powell, for himself and Justices Stewart and Rehnquist, in dissenting from dismissal of certiorari in Estes v. Metropolitan Branches of Dallas NAACP. (1980) — U.S. —, — [62 L.Ed.2d 626, 634, 100 S.Ct. 716, 723] wrote, “The pursuit of racial balance at any cost. . .is without constitutional or social *288justification. Out of zeal to remedy one evil, courts may encourage or set the stage for other evils.”
Respondents, now with the imprimatur of the majority, rely on a syllogism. Equality of opportunity is the goal of our society; affirmative action is a desirable method of enabling those who have been victims of prior discrimination to compete on a basis of equality; therefore in the name of affirmative action we must employ the discredited quota system, which is per se unequal and discriminatory, to achieve the goal. I agree with the major premise of the syllogism, and with the minor premise if all proponents can subscribe to one definition of affirmative action.2 The syllogistic conclusion—calling for a resurrection of a racial quota—is no more acceptable now than it was when the concerted opposition of intellectuals caused its demise several decades ago.
Those who recall the numerus clausus of many prestigious American universities before and after the turn of the century have an uneasy feeling of deja vu. Now, however, the virus is spreading beyond the field of education into employment and public service. Those who propose to recast our nation into a representative society, in which ability is secondary to race and sex, are making progress. The progress is attributable to political and social pressures by aggressive exponents of the new racism, and to apathy by those who still adhere to the traditional American ethic of achievement on the basis of merit.3
It was not many decades ago that racial and religious quotas—the numerus clausus—governed admissions to a great number of universities, particularly in their professional colleges. An enlightened attitude, prodded by aggressive activity by persons devoted to promotion of democracy, ultimately prevailed: educational institutions became convinced that quotas are essentially undemocratic and unjust. Now the trend, particularly in employment, is being reversed under new demands created by a combination of guilt feelings for the sins of ancestors and *289overzealousness by those who insist upon reconstructing a merit society into a representative society.
As Professor Alexander Bickel pointed out in The Morality of Consent (1975) pages 132-133: “A quota is a two-edged device: for every one it includes it cuts someone else out... ,[1i] If the Constitution prohibits exclusion of blacks and other minorities on racial grounds, it cannot permit the exclusion of whites on similar grounds; for it must be the exclusion on racial grounds which offends the Constitution, and not the particular skin color of the person excluded.
“The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society. Now this is to be unlearned and we are told that this is not a matter of fundamental principle but only a matter of whose ox is gored. Those for whom racial equality was demanded are to be more equal than others. Having found support in the Constitution for equality, they now claim support for inequality under the same Constitution. Yet a racial quota derogates the human dignity and individuality of all to whom it is applied; it is invidious in principle as well as in practice. Moreover, it can as easily be turned against those it purports to help. The history of the racial quota is a history of subjugation, not beneficence. Its evil lies not in its name but in its effect; a quota is a divider of society, a creator of castes, and it is all the worse for its racial base, especially in a society desperately striving for an equality that will make race irrelevant.”
But, argue exponents of the new race-consciousness, their scheme is different: they now propose to use the quota to include, not exclude, racial groups. The answer is obvious: for every person quota-ed in, another is quota-ed out. There is no way in which a numerical quota can be benign. If it favors one, it necessarily rejects another.
In the case at hand, the Civil Service Commission ordered the racial quota to remain in effect until “the percentage of minorities in the classes of Attorney I and Attorney II in the District Attorney’s office is 8%.”4 Why the figure should be 8 percent, and not 4 percent, 16 percent, or 32 percent is not revealed. What is evident, however, is that merit is not the goal, but racial representation in a specific percentage *290probably related somewhat to that existing in either the community population or the work force.
This requirement of proportionality is inspired by an anachronistic vision of an ideal society, one pervaded by ethnic identification. In that society toward which we are being propelled, the numerical proportionality of races is the principal measure for distribution of society’s benefits—not merit, not objective qualification, not competitive achievement.
The foregoing is not a fanciful observation. It can be read into the commission’s order and also into Justice Brennan’s separate opinion in University of California Regents v. Bakke (1978) 438 U.S. 265 [57 L.Ed.2d 750, 98 S.Ct. 2733], in which he wrote: “. . .States also may adopt race-conscious programs designed to overcome substantial, chronic minority underrepresentation where there is reason to believe that the evil addressed is a product of past racial discrimination.” (Id., at p. 366 [57 L.Ed.2d at p. 819].) In other words, race-conscious—read: discriminatory—programs are valid so long as “the evil addressed” is the result of racial discrimination; but “the evil” is used not to describe racial discrimination but “minority underrepresentation.” It is minority underrepresentation that is considered evil per se. Implicit in this premise to which the Civil Service Commission, and now the majority of this court subscribe, is that it is not racial discrimination per se that is objectionable, but the fact that the social structure fails to conform to their concept of model representative employment practices.
This court should not approve the imposition of a racially representative utopia on the people of any political subdivision. As Justice Douglas insisted in his dissent in DeFunis v. Odegaard (1974) 416 U.S. 312, 342 [40 L.Ed.2d 164, 183, 94 S.Ct. 1704], such a concept runs counter to the very theory of equal protection: “The State, however, may not proceed by racial classification to force strict population equivalencies for every group in every occupation, overriding individual preferences. The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized.”
It is now clear that undergirding much of the rhetoric supporting racial quotas, and preferential treatment in general, is a view of justice that demands not that the state treat its citizens without reference to their race, but that it rearrange and index them precisely on the basis of *291their race. The objective is not equal treatment but equal representation.
The majority here rely primarily on two recent Supreme Court cases: Bakke and Weber. Neither lends them any comfort; indeed, both support the conclusion of the trial court..
In our decision in Bakke this court manifested specific disapproval of racial quotas. (Bakke v. Regents of University of California (1976) 18 Cal.3d 34, 62 [132 Cal.Rptr. 680, 553 P.2d 1152].) We declared that no program “in history has been so thoroughly discredited in contemporary times as the use of racial percentages.” The doctrine of stare decisis should dictate adherence to that elementary truth a bare three years after it was declared. Previous opinions, particularly when approved in substance by the United States Supreme Court, remain binding, even though, to use the words of Justice Marshall, “the composition of this Court has radically changed.” (Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 584 [33 L.Ed.2d 131, 152, 92 S.Ct. 2219] (Marshall, J., dis.).)
Since they cannot rely on a single prior decision of this court, the majority devote many pages of analysis in a futile effort to avoid the reality of the United States Supreme Court decision in Bakke. It can be argued that conclusions about individual justices’ opinions lie in the eye of the beholder. But no matter how disingenuous the majority here become, they cannot escape the one undeniable result: the Davis medical school 84-16 admission quota plan was declared invalid and Allan Bakke, a white male who alleged racial discrimination because of the quota, was ordered admitted to the school.
If there be any doubt, here are the key holdings of Justice Powell in his lead opinion for himself and for Chief Justice Burger, Justices Stewart, Rehnquist and Stevens: “In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class.... The fatal flaw in [the Davis] preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment.” (438 U.S. at pp. 319-320 [57 L.Ed.2d at pp. 789-790]; italics added.) Therefore, held the Supreme Court (at p. 320 [57 L.Ed.2d at p. 790]), “that portion of the California court’s judgment holding [the Davis] special *292admissions program invalid under the Fourteenth Amendment must be affirmed.”5
Among the strange arguments advanced to justify racial quotas is criticism of Justice Powell’s opinion in Bakke declaring that equal protection “cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” (Id. at pp. 289-290 [57 L.Ed.2d at pp. 770-771].) One would have thought that principle to be unexceptionable, but do not underestimate the guile of the prolific apologists for modern racism.
The Powell passage is “quotable” but “ill-considered,” writes Kenneth W. Simons in Philosophical Perspectives on Affirmative Action (1979) 77 Mich.L.Rev. 513, 518-519. “Courts may treat the discriminations differently. .. blacks, but not whites, fall under it.”' In other words, equal protection depends upon skin pigmentation! I cite this as an illustration of the excesses and the obscurantism which permeate the drive to restructure ours into a wholly representative society. The majority fall into the same error: paradoxically they perpetuate elitism in order to preserve egalitarianism.
Parenthetically, I note that in his Bakke opinion and appendix Justice Powell referred with approval to the admissions policies of Harvard University. The history of Harvard on racial quotas is instructive. In 1922, then President Lowell made a public statement, declaring that racial quotas were under consideration, words that were ominous in the xenophobic post-World War I milieu. A Committee of Thirteen was appointed by the Overseers in 1922 and ultimately submitted a report firmly rejecting the notion of racial quotas. The faculty adopted the report, and it has remained university policy to this day. (See Dean Rosovsky, From Periphery to Center, Harv. Magazine (Nov.-Dec. 1979) p. 81 ff.)
Consistent with the views of Harvard on quotas, the court in Bakke not only did not approve, but specifically invalidated the 84-16 quota system used at Davis. Thus reliance on Bakke is clearly counterproductive to the majority. Next they lean heavily but with equal futility on *293Weber, a case in which five justices did uphold a racial classification program at the plant of the Kaiser Aluminum & Chemical Corporation, a private employer, which had entered into an employment contract with the United Steelworkers of America, a union representing the private employees. (Justices Powell and Stevens, who had been in the Bakke majority, did not participate in Weber.)
Weber, as stressed repeatedly by its majority, is factually inapposite to a compulsory program involuntarily imposed on and by a public agency. Justice Brennan, writing the lead opinion in which Justices Stewart, White, Marshall and Blackmun joined, declared over and over that the Kaiser plan “does not involve state action” and therefore he emphasized “the narrowness” of the inquiry (id., at p. 200 [61 L.Ed.2d p. 487]). Indeed, on almost every page of his opinion, Justice Brennan spoke redundantly of the parties “voluntarily agreeing” (id., p. 200),. Congress “did not intend wholly to prohibit private and voluntary” efforts (id., p. 203 [61 L.Ed.2d p. 489]), Congress did not intend to prohibit acts by “the private sector” (id., p. 204), there is no absolute prohibition against “all private, voluntary” action {id., p. 204), there is no “legislative prohibition of all voluntary, private” efforts (id., p. 204 [61 L.Ed.2d p. 490]), legislators “resisted federal regulation of private business” (id., p. 206 [61 L.Ed.2d p. 491]), “Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary” action (id., p. 207), title VII “does not condemn all private, voluntary” plans (id., p. 208 [61 L.Ed.2d p.492]), title VII permits discretion for plans adopted in “the private sector voluntarily” (id., p. 209).
If there is any other manner of expression by which the Supreme Court could have made it more clear in Weber that it approved the plan because it was voluntary, not involuntary as here, and in private industry, not in the public realm as here, it escapes me as it apparently eluded Justice Brennan. I am confident, in view of the obvious significance of its repeated and emphasized qualifications, that the Supreme Court would have reached a contrary result if racial preferences had been imposed involuntarily by a public agency and affected public employment.
In short, just as there is no California authority there is no persuasive rationale in United States Supreme Court cases supporting compulsory imposition of racial quotas in public employment.
*294Finally, the majority read title VII of the federal Civil Rights Act as if it were designed to protect minorities only. This view offends the thoughtful opinion of Justice Marshall for a unanimous court in McDonald v. Santa Fe Trail Transp. Co. (1976) 427 U.S. 273 [49 L.Ed.2d 493, 96 S.Ct. 2574]. He reviewed the congressional history of title VII and concluded it “was intended to ‘cover white men and white women and all Americans’” and it created an “‘obligation not to discriminate against whites’” (id., p. 280 [49 L.Ed.2d p. 501]). A quota system that excludes whites from one out of three appointments to public employment solely on the basis of their race is manifestly discriminatory.
It is significant that in his Weber opinion Justice Brennan did not quarrel with McDonald. Indeed, he declared that an argument based on McDonald was “not without force” but he found it not to be controlling because the Kaiser plan in Weber was “voluntarily adopted by private parties.” (Weber, at p. 200-202 [61 L.Ed.2d at pp. 487-488].) Once again the implication is clear that if a compulsory program for public employment was involved, McDonald would control.
Griggs v. Duke Power Co. (1971) 401 U.S. 424, 430-431 [28 L.Ed.2d 158, 164, 91 S.Ct. 849], another unanimous decision, clearly holds title VII “does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.”
Under compulsion of Weber I would be required to agree with the majority that a voluntary program in private enterprise would not offend title VII.6 But that is not this case—I repeat: this is a compulsory program in public employment, an employment paid by the taxpayers of all races and both sexes. The majority nevertheless indulge in a travesty of retroactive myth to bend the history of title VII, and its unequivocal language, to serve the very purpose the act was intended to prohibit. Justice Rehnquist reminds us of the congressional history in *295his devastating dissent in Weber. Senators Humphrey, Dirksen, Kuchel, Clark and Case, ardent proponents of the Civil Rights Act, assured their colleagues over and over that racial quotas were not contemplated and were unacceptable. To assert otherwise is flagrant history revisionism.
One illustration will suffice. On March 30, 1964, Senator Hubert H. Humphrey led the debate in the Senate on the Civil Rights Act. He analyzed the measure, section by section, in order to persuade the Senate to adopt the proposal, which had both bipartisan support and opposition. When Senator Humphrey came to title VII, he reassured the Congress as follows: “Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial ‘quota’ or to achieve a certain racial balance. [If] That bugaboo has been brought up a dozen times; but it is nonexistent. In fact, the very opposite is true. Title VII prohibits discrimination. In effect, it says that race, religion and and national origin are not to be used as the basis for hiring and firing. Title VII is designed to encourage hiring on the basis of ability and qualifications, not race or religion. [U] In Title VII we seek to prevent discriminatory hiring practices. We seek to give people an opportunity to be hired on the basis of merit....” (Italics added.)
Dr. John H. Bunzel, former President of San Jose State University, has concluded that “When the Civil Rights Act of 1964 was passed, Congress reflected the general normative consensus that Americans wanted not only to eliminate discrimination but to make employment opportunity independent of race, colour, religion, sex or national origins. The law intended to ‘bring Americans together’, not to separate them into categories. It was a sentiment expressed by individuals and groups from every walk of life who participated in the legislative process that gave political sanction not to racially preferential treatment, or special privileges for some, or the concept of statistical parity among groups, but to the elimination of discrimination against anyone.” (Bunzel, Affirmative Action, Negative Results (Nov. 1979) Encounter, 43, 51.)
The Supreme Court majority in Weber avoided the congressional history by drawing a distinction between requiring quotas and permitting quotas. The former is prohibited, the latter tolerable.
*296Accepting that rationale at face value, I would hold that the Civil Service Commission’s quota must fall. There can be no question that its formula is compulsory, the district attorney being compelled to adhere to it in all hiring. And obviously, the emphasis placed in Weber on private industry cannot be related to public employment which by law must be governed by merit selection. (Sacramento County Charter, art. XVI, § 71-F, subds. (a)-(c).) The majority try in vain to find authorization for racial quotas in county charter sections 61 and 71-F, subdivision (f). But the sections, recited in footnote 7 of the majority opinion, pointedly prohibit discrimination on the basis of race, color, creed, sex, national origin or political affiliation. Some exception is provided for “economically, socially, physically or mentally deprived persons” of all races. The civil service order in this case does not involve any of such persons, only the prohibited categories of race and sex.
While I need not discuss the merits of the commission’s program, or of rule 7.10 upon which it is based, I cannot resist observing that the scheme is hopelessly flawed and that it is unlikely to serve the purpose for which it is purportedly devised.
Rule 7.10 provides that minority personnel shall be appointed in a number “necessary to attain a fair approximation of minority representation in the classification consistent with the population mix in the County of Sacramento.” Minorities are defined as “Blacks, Indians, Mexican-Americans, Spanish-Americans, Orientals, other non-Whites and women.” Whoever drafted that definition obviously lacked knowledge of modern demography, for women, ever since World War II, have been a majority in our society, not a minority.
Under the rule, however, the district attorney could appoint one white female for every two white males and he would satisfy the commission. But would he satisfy the Blacks, Indians, Mexican-Americans, Spanish-Americans, Orientals or other non-Whites? I doubt it. The result would be what historians call the Law of Unintended Consequences. (See, e.g., White, In Search of History (Warner Books ed. 1979) p. 304.)
Therein lies one of the numerous vices in compelling such artificial devices as racial quotas in employment. Inevitably one minority group will not be placated by the selection of a member of another group. Even if it were possible for representation to be predicated on popula*297tion, a qualified Samoan or Eskimo would have no chance of employment because the numbers of his race in our state population total is infinitesimal.
There are innumerable other imponderables that emerge in the race-typing business. I suggest only a cursory sample. What percentage of blood makes one a Black or an Indian—75 percent, 50 percent, 25 percent? Does the term Indian apply to native Americans or to natives of India? The Spanish-American category would include a person from Argentina, but not one from Brazil because the latter would be a Portuguese-American. How long is a person deemed to be a Mexican-American before he loses the hyphenation—for one generation after his forebears crossed the border, for two generations, forever? Why are only racial minorities enumerated and not religious minorities, when it is a fact of history that religious discrimination has been a pervasive element in American life from early colonial days?7
These defects are not endemic to the Sacramento program alone, they are the inevitable by-product of injection of race as an employment qualification. Thus they, or similar fatal flaws, would appear in any employment scheme that emphasized race, or group characteristics, rather than individual merit.8
The district attorney pointed out that he had practical difficulty in recruiting minorities because most of those who were well qualified pre*298ferred to accept appointment from the public defender or other governmental agencies. This problem of selecting qualified persons for professional employment was mirrored in comments about the judiciary by then Attorney General Griffin Bell in an address to the American Law Institute on May 18, 1979 (63 Judicature at p. 118): “‘The influx of women and minorities into the bar is still a recent phenomenon, and there is not yet a large pool of women and minority lawyers of sufficient maturity and experience.... [II] Thus, the process is fraught with tension....’” As to this tension, the President of the United States on Law Day, 1979, declared firmly that “Basing present discrimination on past discrimination is obviously not right.” ((May 15, 1979) 47 U.S.L. Week 2726.)
In October 1977, the United States Commission on Civil Rights issued a formal statement on affirmative action. In it the commission urged removal of “institutional obstacles to equal employment opportunity” (italics added), and while it encouraged achievement goals, it time and again warned against fixed racial quotas. (See U.S. Com. on Civil Rights, Toward an Understanding of Bakke (1979) p. 183.) Its conclusion was, that although we are far from achieving our goal, the “aspiration of the American people is for a ‘colorblind’ society, one that ‘neither knows nor tolerates classes among citizens’.” Again in its November 1979 bulletin (Civil Rights Update) the commission reported that the Department of Health and Social Services has issued guidelines on college admission policies “without violating the ban on strict racial or ethnic quotas in the U.S. Supreme Court’s Bakke decision.” Thus it is clear that the federal agency directly concerned with eliminating discrimination understands, as a matter of administrative interpretation, that racial quotas are forbidden.
A few apologists for racial quotas are becoming somewhat restive at the excesses such programs spawn. Professor Bernhardt, while analyzing and approving Weber in 65 A.B.A.J. 1321, concludes by warning that “Allowing choice based on race admittedly is a dangerous step, and future developments should be watched to prevent affirmative action programs from becoming a new tyranny.” We are, indeed, on the pathway to that new tyranny.
Justice Black once declared, “Great nations, like great men, should keep their word.” (F. P. C. v. Tuscarara Indian Nation (1960) 362 U.S. 99, 142 [4 L.Ed.2d 584, 611, 80 S.Ct. 543].) Our nation gave its word *299over and over again: it promised in every document of more than two centuries of history that all persons shall be treated equally. However it is rationalized, a preference to any group constitutes inherent inequality. Moreover preferences, for any purpose, are anathema to the very process of democracy. As Justice Murphy wrote, “We of this nation are one people undivided in ability or freedom by differences in race, color or creed.” (Akins v. Texas (1945) 325 U.S. 398, 410 [89 L.Ed. 1692, 1700, 65 S.Ct. 1276].)
At the dawn of a new decade, this court has a rare opportunity to offer a ringing declaration in support of racial equality. Unfortunately the majority elect to approve a preferential and undemocratic program of expediency; the result is likely to convert the 1980’s to a decade of disillusionment, an era in which “racism, racial spoils systems, racial competition, and racial odium will be fixtures of government in the United States even into the twenty-first century.” (Van Alstyne, supra, 46 U.Chi.L.Rev. at p. 778.) We must, in the words of Justice Jackson, “avoid these ends by avoiding these beginnings.” (Board of Education v. Barnette (1943) 319 U.S. 624, 641 [87 L.Ed. 1628, 1639, 63 S.Ct. 1178, 147 A.L.R. 674].)
In addition to all else, the revival of racial quotas tragically denigrates the eloquent words of the first Justice Harlan, dissenting in Plessy v. Ferguson (1896) 163 U.S. 537 [41 L.Ed. 256, 16 S.Ct. 1138], words that have served as an inspiration to civil rights advocates for more than eight decades: “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.... It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.”
Racism will never disappear by employing devices of classifying people and of thus measuring their rights. Rather, wrote Professor Van Alstyne, “one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one’s own life—or in the life or practices of one’s government—the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: in all we do in life, whatever we do in life, to treat any person less well than another or to favor any *300more than another for being black or white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding.” (46 U.Chi.L.Rev. at pp. 809-810.)
There is no United States Supreme Court case upholding racial quotas in public employment. There is no California case upholding racial quotas in any employment. The majority opinion is wholly unsupported by precedent and worse, it is regressive in concept. Therefore, I agree with the Court of Appeal that the judgment of the trial court should be affirmed.
Clark, J., and Richardson, J., concurred.
Respondent’s petition for a rehearing was denied March 20, 1980, and the dissenting opinion was modified to read as printed above. Mosk, J., Clark, J., and Richardson, J., were of the opinion that the petition should be granted.
In the “doublethink” and “Newspeak” of Orwell’s 1984 a key word is “blackwhite.” It means a “loyal willingness to say that black is white,” but in addition: “the ability to believe that black is white, and more, to know that black is white, and to forget that one has ever believed the contrary.” (Orwell, 1984 (1949) p. 175).
If affirmative action means preparation and training for the underprivileged so that they may have the skills to compete on a basis of equality, then it is an essential program. But if affirmative action is interpreted as justifying preferences in the actual competition for society’s benefits, then it is undemocratic and violative of the equal protection clauses of the federal and state Constitutions.
The aggressive proponents of the new racism are actually a small segment of the nation’s population. Only 11 percent of the people favor preferential treatment; even among non-whites, only 30 percent favor preferences over selection on ability. (Lipset & Schneider, The Bakke Case: How Would it be Decided at the Bar of Public Opinion (1978) 1 Pub. Opn. 38.)
This may give an impression of being a mere temporary expedient. But the French, with a cynicism born of experience, have an appropriate saying: “rien ne dure comme le provisoire" (nothing lasts like the provisional).
The only portion of our Bakke judgment reversed was that which prohibited all consideration of race. The high court would permit an admissions program “involving the competitive consideration of race and ethnic origin.” (438 U.S. at p. 320 [57 L.Ed.2d at p. 790].)
Racial quotas in private industry have never been approved by this court. Indeed, we specifically disapproved such hiring practices in Hughes v. Superior Court (1948) 32 Cal.2d 850, 856 [198 P.2d. 885].
For a discussion of other insoluble dilemmas in assigning benefits: to which races, how much to each race, which test of race is to be used, see Van Alstyne, Rites of Passage (1979) 46 U.Chi.L.Rev. 775, 804-808.
Verification of confusing and false ethnic claims for purposes of teacher assignment plagued the Los Angeles Unified School District in 1976 and 1977. To avoid being included in a compulsory program involving transfer to a distant school, some white teachers were declaring themselves black, some black teachers insisted they were white, others were asserting they were of American Indian origin.
The district thereupon created an Ethnic Designation Committee which promulgated a precise series of proof requirements to establish the ethnicity of teachers. The criteria employed by the district to determine the ethnic makeup of individual teachers include:' verification of racial or ethnic ancestry to the grandparents’ generation; birth certificates of the individual and his parents and grandparents; affidavits by a school administrator and a clergyman attesting to the teacher’s racial identity. (See Los Angeles Unified School District, Memorandum No. 10, Feb. 2, 1977.)
This tracing of blood lines back to grandparents by a public agency bore remarkable similarity to the Nuremberg Laws of Nazi Germany, a fact that did not escape the attention of some civil rights groups in Los Angeles. After a public protest, on May 18, 1977, the district announced it would no longer implement memorandum No. 10.
It will be recalled that the racial identification policies of Nazi Germany began with the civil service.