Racial and gender discrimination have long been illegal, so to include a discrimination ban in the initiative "is to play off people's emotions and deceive them," said Jeffrey Gordon, an attorney for the anti-209 side.
"What the voters need to know is that the programs that are going to be eliminated are known as affirmative action," he said. "That's the term people understand. And the reason [the measure's authors] put preference there is they think it's a hot-button term that people will vote against."
Supporters counter that there is nothing devious about the wording. They say a discrimination ban was included because they wanted to reiterate that principle. And they say they do not use the term "affirmative action" because it is too vague.
Moreover, backers emphasize the measure would not ban all affirmative action programs--just those involving race and gender-based preferences. As examples of the kind of efforts that would be allowed under Proposition 209, proponents have said that state agencies could grant contracting preferences to small, fledgling businesses or that public universities could give admission preferences to the economically disadvantaged.
Proponents are so sensitive to the issue that in court proceedings, they disputed not only certain mentions of affirmative action in the state legislative analyst's report, but which phrases should modify the term.
"Words," Gordon said, "in this case are king."