High Court Allows Prop. 209’s Repeal of Affirmative Action

The Supreme Court rejected a broad challenge to California’s Proposition 209 on Monday, clearing the way for full enforcement of the nation’s first across-the-board repeal of affirmative action in state and local government.

Without a dissenting vote, the justices turned aside an appeal from the American Civil Liberties Union claiming that government sometimes has “an affirmative duty . . . to employ race preferences” to make up for past or present discrimination against minorities.

Instead, the justices let stand a lower-court ruling saying that the U.S. Constitution requires the government to treat all people equally, regardless of race.

The outcome marks a major victory for the champions of a new colorblind standard for government.

Gov. Pete Wilson, the chief sponsor of the successful voter initiative, stressed that the civil rights movement of the 1960s originally sought to eliminate race as a factor in government decisions, not to elevate it to a prime consideration.

“It is time for those who have resisted Prop. 209 to acknowledge that equal rights under law, not special preferences, is the law of the land,” Wilson said. “A measure that eliminates any form of discrimination based on race and gender violates no one’s constitutional rights.”

Foes of affirmative action predicted that their resounding triumph in California will echo nationwide.

Voters in Houston will decide today whether to repeal the city’s affirmative-action programs. Advocates are seeking to put a similar measure before the voters of Washington state.

Until now, however, no one has followed California’s lead.

On Capitol Hill, Republican leaders have been hesitant in repealing affirmative action, fearful of alienating women and minority voters. Last year, House Speaker Newt Gingrich (R-Ga.) endorsed a proposal that would have repealed the federal government’s use of racial preferences in contracting and jobs, but he also refused to bring the bill to a floor vote.

But that may be changing. The House Judiciary Committee announced that it will vote Thursday on a bill patterned after Proposition 209. Dubbed the Civil Rights Act of 1997, the bill would prohibit the government from discriminating against or granting preferential treatment to anyone on the basis of race or gender “in connection with federal contracts, employment or other programs and activities.”

Rep. Charles T. Canady (R-Fla.), the principal sponsor of that legislation, predicted Monday the court’s ruling would add momentum to his bill. “The Supreme Court’s decision today echoes the growing chorus of voices calling for equal protection of the law for all Americans regardless of race or gender,” he said in a statement.

But, despite the new enthusiasm, the concerns about backlash from women and minorities remain and may well scuttle the legislation. One senior administration official said Monday that the court’s decision does nothing to change that fundamental political dynamic.

“I don’t think this is really going to change that equation,” the official said. “It is really a political question about how far you want to push the issue.”

Low-Key Response at White House

The White House, in keeping with President Clinton’s “mend it, don’t end it” stance on affirmative action, had a low-key reaction Monday.

“I think our views of Prop. 209 are very well known,” said Press Secretary Mike McCurry. In the lower courts, the administration submitted friend-of-the-court briefs calling the measure unconstitutional.

One White House aide said the court decision underscored the need for Clinton to try to lead public opinion in favor of affirmative action and to oppose measures similar to Proposition 209 when they appear in other states.

In addition, the administration will continue to oppose discrimination by other available means, such as the current Education Department review of whether admissions policies in the University of California system are discriminatory.

“Departments will continue to investigate complaints of discrimination and will enforce civil rights laws,” the aide said.

The court’s action removes a legal hurdle for conservatives in other states looking to challenge affirmative-action programs. But it may not spur an immediate increase in those efforts because the principal barriers have been political and financial, not legal, said Jennifer Nelson, executive director of the American Civil Rights Institute in Sacramento, a group working to encourage Proposition 209-style ballot initiatives.

Besides Washington, other states with repeal efforts underway are Colorado, Florida, Ohio, Arizona and Nevada, Nelson said.

Over the last four years, the Clinton administration and the Supreme Court have been on a collision course on the issue of affirmative action.

The administration, speaking through the Justice Department, repeatedly has insisted that “race-conscious” programs remain legal. But the justices have routinely rejected this view and ignored the administration’s legal briefs on the question.

Indeed, Monday’s decision refusing to hear an appeal on Proposition 209 comes as no surprise.

Justices Have Rejected All Race-Based Plans

During the last decade, the justices have rejected every race-based affirmative-action plan to come before them, whether involving public contracts, college admissions, student scholarships or voting districts.

The last state or local affirmative-action plan upheld by the court came in a 1987 ruling involving the Alabama Highway Patrol.

In that case, white supervisors had refused for more than 20 years to promote blacks above the level of patrolman. Because of this brazen pattern of discrimination, the high court on a 5-4 vote upheld a judge’s order requiring the promotion of one black for each white.

Since then, a more conservative high court has taken control and frowned upon affirmative action. In a series of opinions, the justices have declared that the Constitution generally bans all race discrimination, whether against blacks or whites.

In April, a panel of the U.S. 9th Circuit Court of Appeals based in San Francisco cited these opinions in upholding Proposition 209, on a 3-0 vote.

It would be “a bizarre result,” wrote Appeals Court Judge Diarmuid O’Scannlain, to say Proposition 209 violates the Constitution’s equal treatment principle because it forbids all race discrimination across the board.

Undeterred, the ACLU lawyers asked the Supreme Court to hear the appeal in the case (Coalition for Economic Equity vs. Wilson, 97-369) and to strike down Proposition 209.

The lawyer called Monday’s one-line order rejecting their appeal “a severe and painful disappointment.”

Proposition 209 is “mean-spirited and unjust,” said Mark Rosenbaum, the chief lawyer in the case, and “its enforcement ushers in the resegregation of California.”

Passed by a 54% to 45% vote of the California electorate last year, the measure says “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.”

Rosenbaum argued that, despite the measure’s neutral language, it was targeted to hurt blacks, Latinos, Asians and women.

“Proposition 209 is 1990s-style discrimination against minorities and women, more insidious than any statewide measure since the era of Southern resistance to Brown vs. Board of Education,” he said, referring to the 1954 ruling that outlawed school segregation.

Lawsuits Involving Enforcement Seen

Although lawyers on both sides said Monday’s decision ends the major legal challenges to Proposition 209, there are likely to be further lawsuits involving its enforcement.

“There will be lots of litigation on the margins,” said UCLA law professor Eugene Volokh, a supporter of the proposition.

One point of dispute could be so-called magnet schools that seek to draw students from across the city into integrated classrooms. Can those schools continue even if officials consider a pupil’s race or ethnicity as an eligibility factor?

Another area of contention concerns outreach efforts by public employers. For example, is it now illegal for a fire department or police department in California to make a special effort to recruit minorities or women?

Clearly, the law forbids “preferential treatment” in selecting among applicants, but some say that merely encouraging more minorities and women to apply for jobs can still pass muster.

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What Happens Now?

Almost 6,000 government entities --including the Legislature, cities, counties, school districts and other agencies --will screen their regulations for compliance with Proposition 209. Here are some of the key issues:

EDUCATION: Local school districts will consider their hiring and contracting practices. Universities and colleges will also review admissions policies that consider race or gender.

LOCAL GOVERNMENT: Several local governments are expected to ignore any changes portending further legal actions by Proposition 209 supporters. Others will take steps to change their regulations to comply with the ballot measure.

STATE GOVERNMENT: The Legislature will consider the removal of policies that consider race or gender. Meanwhile, Gov. Pete Wilson is also seeking court action to change specific laws.

ELSEWHERE: Supporters, led by Ward Connerly, vow to repeal affirmative action laws in other states. Congress is considering a bill to end affirmative action in public hiring and contracts.