Major affirmative action programs that seemed to be headed for the scrap heap as a result of Proposition 209 have won a new lease on life because of a state court decision.
The ruling came late Monday, when Sacramento Superior Court Judge Lloyd G. Connelly Jr. upheld three affirmative action statutes, including a program that governs the hiring of more than 150,000 civil servants in California. The judge also struck down two other affirmative action laws, holding that they contained illegal preferences based on race and gender.
But the full implications of the decision did not become clear until lawyers for both sides in the hotly contested affirmative action debate studied Connelly’s opinion.
Unless it is reversed by a higher court, lawyers on both sides of the contentious issue now say, Connelly’s decision would greatly limit the scope of the controversial ballot proposition, which was aimed at banning racial preferences in hiring, contracting and university admissions.
In essence, the judge ruled that Proposition 209 does not ban all affirmative action programs, just those that create rigid preferences or preferences not based on evidence of discriminatory practices.
The effect of the ruling would be to sharply limit the impact of a proposition that Gov. Pete Wilson, its chief sponsor, has looked on as one of his major achievements as governor.
The ruling would allow many of the state’s existing affirmative action laws to remain on the books. For example, the state will be able to continue using racial and gender considerations in deciding which public employees to hire.
Moreover, if the University of California Board of Regents were to change its mind and decide to repeal its ban on affirmative action--an idea being pushed by some regents--the ruling could provide guidance for what type of race-based recruiting efforts would survive a legal attack.
Wilson has denounced the decision. Connelly’s ruling effectively holds that Proposition 209 “allows ‘limited preference measures’ unless racial proportionality in employment is achieved,” Wilson objected. That, he said in a statement, “flies in the face of Proposition 209’s total ban on preferences.”
Supporters of affirmative action have seized on the same language. Jeffrey Bleich, a leading civil rights lawyer from San Francisco, hailed the decision as “a major victory for assuring that affirmative action will continue.” Bleich represented a coalition of organizations seeking to uphold the three state statutes that were found legal by Judge Connelly.
The judge’s decision drew a sharp distinction between laws that impose a rigid numerical quota for advancing minorities or women and those that are more flexible.
Proposition 209 prohibits the use of race and gender to discriminate against--or grant preferences to--any individual or group, the judge wrote. But, he added, the measure does not “prohibit the use of race and gender without discriminatory or preferential intent and effect for the purpose of equalizing employment, education and contracting opportunities.”
When an affirmative action program is supported by “a strong basis in evidence of discriminatory practices,” then the law allows “narrowly drawn preferential action,” the judge stated.
Wilson’s legal affairs secretary, Daniel Kolkey, and Mark Gallagher of the Pacific Legal Foundation in Sacramento, which represents Wilson in the case, said they were particularly troubled by the judge’s language because it stated that some “preferential” measures are acceptable. Both attorneys maintained that Proposition 209 flatly prohibits any preferential measures.
But Erwin Chemerinsky, a USC constitutional law professor and supporter of affirmative action, said he believes the line drawn by the judge is a reasonable interpretation of what is permissible under the ballot initiative.
Wilson and Kolkey are predicting that portions of Connelly’s ruling will be overturned on appeal. Part of their confidence appears to stem from the fact that the appeal will be heard by a panel of judges from the 3rd District Court of Appeal in Sacramento. All but two of the 12 judges on that court were appointed by Wilson or his Republican predecessor, George Deukmejian. By contrast, Connelly is a former Democratic member of the state Assembly who became a judge in 1992.
It is not clear whether Wilson’s successor as governor, Gray Davis, will pursue an appeal. Davis opposed Proposition 209 in 1996. He was unavailable for comment on the matter Wednesday.
Kolkey and Gallagher contend that Ward Connerly, a key proponent of the proposition and Wilson’s co-plaintiff in the suit, can pursue the appeal on his own.
Bleich disputes Connerly’s legal standing to pursue an appeal without Wilson, although legal experts say that Connerly may be on firm ground because of fairly liberal California rules on the subject.
In the meantime, however, Connelly’s ruling stands as the law.
The judge’s ruling struck down two state laws that required race and gender preferences in public contracting and bonding, but upheld three others that called for goals and timetables in hiring and contracting and in the state lottery.
The laws that he struck down included a general contracting policy that aimed for at least 15% of all state contracts to go to minority-owned businesses, 5% to female-owned enterprises and 3% to disabled veterans.
The judge also invalidated a similar contracting policy that specifically applied to professional bond services awarded without competitive bid by state agencies.
Connelly said that the bond program’s goals “resemble rigid quotas which must be met regardless of whether available and qualified minority and women business enterprises have been or are being denied equal contracting or subcontracting opportunities by the awarding agency or its contractors.”
Those improper programs “stand in marked contrast to the goals established by individual state agencies for the employment of minorities and women in particular Civil Service positions . . . and those established by individual community college districts for the employment of minorities and women in particular job categories,” he wrote, referring to the affirmative action programs he upheld.
Under the California Constitution, in order to void a law, it must either be repealed by the Legislature or overturned by an appellate court. Wilson originally filed his lawsuit in 1995 before the passage of Proposition 209. The suit was amended after the proposition passed.
Since passage of the proposition, there have been several other suits filed against local affirmative action programs in Mountain View, San Francisco and San Jose. All those cases are still pending, although a trial judge has struck down San Jose’s program.