Irvine’s New Equity Resolution Sparks Concerns About Constitutionality

February 5, 2021 Updated: February 9, 2021

The City Council of Irvine, California, has unanimously approved a resolution to promote diversity, equity, and inclusion in city hiring practices, a policy that opponents say is unconstitutional and might lead to quota-based mandates.

The council voted 5-0 to approve the Diversity, Equity and Inclusion (DEI) resolution on Jan. 26. The measure calls for the formation of a DEI ad hoc committee to gather information on the hiring practices of the city and its vendors.

Irvine Mayor Farrah Khan says the resolution doesn’t violate the state’s constitutional ban on preferential treatment, as some opponents claim.

“We’re not implementing quotas or taking anything away from community members,” Khan told The Epoch Times on Feb. 2. “[The resolution] really is about providing more opportunities for those that maybe normally wouldn’t apply to government entities when it comes to looking for jobs, finding careers, filing applications for contracts, and just giving them that opportunity, making sure that we are making it as accessible to everyone.”

Two days after the resolution passed, a watchdog group called Californians for Equal Rights (CFER) sent a letter to the council, pointing out that the resolution potentially transgresses the state’s constitutional ban on preferential treatment. The letter noted that in the Nov. 3 election, more than 9.6 million Californians, or 57 percent, voted to reject Proposition 16—a measure that sought to repeal Proposition 209, the state’s constitutional ban on quota-based affirmative-action hiring policies.

CFER President Frank Xu says groups including the University of California and the city of Irvine are undermining the spirit of the proposition by enacting policies that contradict its intent.

“Nowadays, a lot of policies want to give preferential treatment to some groups over others, and that is just wrong. That will not solve any problems, but will cause new problems,” he told The Epoch Times.

Equal Opportunity

Proposition 209, passed in 1996, banned affirmative action in public employment, education, and contracting policies in California. Measures that focus on bridging equity gaps or setting goals related to hiring based on race or sexual orientation are problematic, according to Xu.

“Any time they say there is a goal, that is a problem, and that is a potential breach to the Constitution,” he said. “I firmly believe that everyone should be treated equally without regard to racial or sexual identity.”

Irvine Councilwoman Tammy Kim said the new DEI resolution reaffirmed “what we already believe as a city,” but added the city could do more to ensure “supplier diversity.”

“We have a very diverse city, we have an inclusive city, but we need to make sure that we’re doing all we can when it comes to actual equity—the equity piece,” Kim said at the council meeting. “We want to make sure that we’re looking at things such as supplier diversity when it comes to our vendors and the vendors that we select, and those that we do business with.”

She said the city also wanted to ensure “a slate of diverse candidates” in its hiring and promotion practices.

“I worked very closely in my corporate experience especially with Asian Americans, and we were hired at a high rate, but we weren’t promoted at a very high rate,” Kim said.

CFER’s letter states that the population in Irvine is 48.8 percent white, 41.2 percent Asian, 9.7 percent Hispanic, 4.9 percent multiracial, and 2.1 percent black—but the City Council only included one group in the community roundtable discussion that led to the formation of the resolution, “weakening democratic principles of civic engagement and fair representation.”

“Despite the diversity and multiple racial groups in the city—white, Asian, and Latino—they only talked with black American groups, and that’s just not right,” said Xu.

Equality Scorecard

The DEI resolution is also based in part on a city staff report that cites a Municipal Equality Index (MEI) scorecard, which ranks cities and companies based on policies that affect the LGBTQ (lesbian, gay, bisexual, transgender, and queer) community, including comprehensive health care benefits.

Irvine received a score of 93 percent in 2020, compared to the national average score of 64 percent. According to the city staff report, a cross-departmental group has been reviewing Irvine’s policies in response to the MEI.

“While Irvine is better than many other cities in terms of inclusion and diversity, gaps were identified … specific to LGBTQ matter,” according to the staff report.

Christina Shea, a former mayor of Irvine, told The Epoch Times she opposes the new DEI resolution. She agrees with CFER that it could contravene constitutional law.

“We should be hiring people through our vendors and our contractors based on qualifications, not based on racial preference or sexual preference,” she said.

Shea said that awarding contractors preferential treatment in the bidding process for offering more inclusive health care benefits—such as mental health treatment and hormone therapy—could significantly drive up labor costs for vendors. These costs could be passed along indirectly to the city and ultimately to taxpayers, she said.

“It’s like they are making the vendor become a psychologist,” she said.

The MEI scorecard suggests one area of improvement for Irvine is to “award contracts to fair-minded businesses taking steps to ensure an inclusive workplace.”

“You get two points if you’re a fair-minded business. What does that mean?” Shea asked. Irvine’s existing hiring policies—with a score of 93—are exemplary, not discriminatory, she said.

“Common sense has gone to hell in a handbag. This is not about diversity. This is about idiocy,” Shea said. “This is probably one of the weirdest policies I’ve ever seen.”

But Khan said the MEI system is being used throughout the United States.

“I was just in a conference with the U.S. mayors, and a lot of other cities are doing the same thing,” she said.

She said the index is used to make sure historically disadvantaged communities get a fair shake.

“Are we reaching out to communities that maybe we haven’t reached out to before? Are we doing the same thing when it comes to our contracting?” Khan asked.

“Are we reaching out to minority-owned businesses, educating them on how to apply for government contracts and things like that? It’s really trying to provide more to those that normally would not get involved, and kind of leveling the playing field so that everyone has an opportunity.”

Khan said it is too early in the development stages of the DEI committee to talk about the costs for the city or contractors to provide benefits such as inclusive health care.

“We didn’t vote on providing health care, benefits, or anything like that. Our vote was very general in collecting more data and finding opportunities for improvement.”

Once the new committee is formed, there will be more opportunities for community engagement, Khan said. City staff recommended that the committee meet quarterly, starting in March, with additional meetings in June, September, and December.

UC–Irvine Weighs In

Douglas Haynes, a history professor at the University of California–Irvine (UC–Irvine) and the school’s vice chancellor of equity, diversity, and inclusion, supported the resolution at the Jan. 26 meeting—provided it encompasses “the larger community of residents.”

“Diversity is about appreciating the broad cross-section of people,” Haynes said. “It’s not enough to sustain an affirmative environment, or appreciate the broad cross-section of people, without a real concerted effort around inclusion, where you’re actively promoting belonging and community building through communication, cooperation, and collaboration.”

Haynes encouraged the City Council to “analyze the data to identify opportunities and gaps” in equity as it moves forward with its DEI plan.

“You want to have an understanding of metrics, to inform priorities, to identify targets, and above all, to engage and share with the wider community and continually be reporting back.”

The city also received a handful of public comments on the issue, including one resident who said that race shouldn’t be a factor in the city’s hiring practices.

“Irvine has the MEI score of 93 and the national average is 64. So what’s the issue here?” asked one resident. “I don’t believe there’s any issue here. Why create one when there isn’t one?”

Responding to the resident’s comment, Khan said, “Equity is really leveling the playing field so that there is a chance for everyone.”

She added: “I’ll share a simple example. You have a fence in front of you. People have different heights, and then you tell them to jump over that fence.

“Of course, the shortest person isn’t going to be able to jump over that fence, so you provide them with a little bit of a boost so that they’re able to be at the same height and be able to jump over the fence. This is again, not taking anything away from anyone. This is not targeting anyone. It is making sure that we have policies that level the playing field.”