White House Joins Attack on Prop. 209

Escalating the battle over affirmative action, the Clinton administration announced Friday that it will join the legal attack on the California voter initiative that bars preferential treatment based on race, ethnicity or gender in all state programs.

“Given his strong opposition” to Proposition 209, Clinton decided “as the nation’s chief constitutional officer . . . to act to defend the Constitution,” said White House Press Secretary Mike McCurry. The president believes that affirmative action must “remain available as a tool to address persistent discrimination in our society.”

McCurry said that Clinton did not lightly wish to go against the “will of the people” of California, who approved Proposition 209 in November’s election by 54% to 46%. But the president decided that the measure presents a “significant overriding constitutional concern,” McCurry said.

A Justice Department spokesman said that its lawyers were not ready to discuss what arguments they will use against Proposition 209 or exactly how they will intervene.

U.S. District Judge Thelton E. Henderson in San Francisco, responding to a lawsuit filed by the American Civil Liberties Union, temporarily blocked Proposition 209 from taking effect, saying that there is a “strong probability” he will find it unconstitutional.

The judge has said he plans to rule by Monday on whether to continue blocking enforcement until a full hearing is held on the proposition and its constitutionality.

The administration’s civil rights lawyers could ask to join the lawsuit being heard in Henderson’s courtroom as a party to the case, or instead file a friend of the court brief on behalf of the plaintiffs. Lawyers for the ACLU said they were delighted by the administration’s decision to enter the legal dispute.

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“This is an early Christmas present,” said Mark Rosenbaum, legal director for the ACLU of Southern California. “When the United States weighs in on a question of civil rights, it certainly adds clout to your argument.”

Gov. Pete Wilson, a major supporter of Proposition 209, denounced the White House move as “Orwellian” and as repudiation of the idea that the Constitution protects everyone equally, regardless of race, sex or ethnic heritage.

“Today, the Clinton administration says that a prohibition on discriminating against all races is itself discrimination,” Wilson said.

Atty. Gen. Dan Lungren said that his office will try to move the case as quickly as possible to the U.S. Supreme Court.

During the campaign, Clinton dealt gingerly with the issue of Proposition 209. Despite repeated visits to California, he did not make a point of speaking out against the effort to do away with state affirmative action programs until a few days before the Nov. 5 election.

The legal case on the measure turns on the meaning of the 14th Amendment to the U.S. Constitution, which says that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

McCurry was asked Friday how Proposition 209’s ban on “preferential treatment” by race, ethnicity or gender violates the equal-protection clause. “The arguments have related to the nature of discrimination: denying an identified group--in this case, women and minorities--access to a process that would be available to other identified groups,” such as veterans or athletes, he said.

Wilson took exception to that comment. “Veterans earn their preferences. They are not born to them,” he said.

Although the administration’s intervention may strengthen the plaintiff’s case in the lower courts, its impact on the Supreme Court is unclear. Indeed, the Clinton White House has been decidedly out of step with the high court on matters of race and affirmative action.

Since 1993, administration lawyers have filed briefs in seven cases urging the Supreme Court to allow “race-conscious” programs in awarding government contracts, in drawing electoral districts, in awarding college scholarships and in admitting students to law school. In every case, the administration has been rebuffed.

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However, nearly all the recent Supreme Court rulings limiting affirmative action have come on 5-4 votes. If Proposition 209 cases take several years to reach the high court, the outcome could be different if one member of the conservative majority retires and is replaced by a Clinton appointee.

The ACLU’s attack on Proposition 209 relies heavily on a 1982 high court ruling involving busing in Seattle. On a 5-4 vote, the court struck down a Washington voter initiative that stripped the Seattle school board of the authority to order voluntary busing for racial desegregation.

By forbidding busing, the state had “placed special burdens on the ability of minority groups to achieve beneficial legislation,” wrote Justice Harry A. Blackmun. The statement is a key to the ACLU’s attack on Proposition 209.

Left unmentioned is a related ruling that was handed down on the same day, June 30, 1982. It upheld a California voter initiative that barred forced busing in Los Angeles.

The state’s voters in 1979 amended the state Constitution to strip state and local officials of the power to order busing, except when mandated by a federal court.

In Crawford vs. the Board of Education of Los Angeles, the Supreme Court upheld that measure on an 8-1 vote.