Excerpts From Court Decision and Chief Justice’s Partial Dissent

Following are excerpts from the decision by Justice Janice Rogers Brown and the separate opinion dissenting in part by Chief Justice Ronald M. George. Footnotes and citations are omitted.

Majority Opinion by Justice Janice Rogers Brown:

The United States was founded on the principle that “all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” (Declaration of Independence.) Yet our history reflects a continuing struggle to enable every individual to fully realize this “self-evident” article of faith. That struggle demarcates the historical and cultural context within which we decide the issue before us.

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Although the United States Supreme Court had rejected the principle of separate but equal and had directed the admission of students to public schools “on a racially nondiscriminatory basis with all deliberate speed” (Brown vs. Board of Education 1955), many officials charged with implementing the mandate were reluctant if not recalcitrant. . . . In response, Congress enacted the Civil Rights Act of 1964. As the floor debates and committee reports attest, Congress intended that the act . . . “be ‘colorblind’ in its application.”

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The analytical framework . . . underwent substantial modification in 1979 when the United States Supreme Court decided Steelworkers vs. Weber. A majority of the court found . . . “that an interpretation . . . that forbade all race-conscious affirmative action would ‘bring about an end completely at variance with the purpose of the statute’ and must be rejected.” Because “Congress’ primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with ‘the plight of the negro in our economy’ ” and “private and voluntary affirmative action efforts [was] one method of solving this problem,” Congress could not have meant to ban them absolutely. The court further interpreted Title VII to permit race-conscious action “whenever the job category in question is ‘traditionally segregated.’ ”

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In the wake of Weber, Title VII jurisprudence underwent a sea change in less than a decade.

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Our own decisional law has mirrored this change in focus from protection of equal opportunity for all individuals to entitlement based on group representation. During the period the United States Supreme Court was issuing its great decisions, California was not without its own “judicial harbingers of a prejudice-free society,” opinions in which “this court had consistently maintained that race or similar characteristics are not a qualification or disqualification for the benefits of society.”

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Following Weber, however, this court in Price vs. Civil Service Com. (1980) declined to reaffirm its categorical hostility toward racial classifications and approved a race-conscious hiring program that required the appointment of minority applicants on a preferential basis until the appointing agency attained a certain percentage of minority employees. Because the program was remedial and intended “to overcome the continuing effects of past discrimination” as well as “bring[ing] about the full participation of minority individuals in our society,” a majority found it did not violate Title VII or California’s Fair Employment Practices Act (FEPA).

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As with decisions of the United States Supreme Court, we thus find a fundamental shift from a staunch antidiscrimination jurisprudence to approval, sometimes endorsement, of remedial race- and sex-conscious governmental decision-making.

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. . . As we have explained, those who supported and enacted “the historic Civil Rights Act” sought to ensure equal opportunity for all and eliminate race and sex from decision-making in employment and other areas. By 1996, however, judicial construction of both the act and the equal protection clause had engrafted a series of qualifications permitting race- and sex-conscious programs formulated to remediate the lingering effects of past discrimination or conspicuous imbalance in the work force. If the electorate had determined merely to reiterate this status quo, an initiative amending the state Constitution would be unnecessary. Rather, we have concluded the “something more” the voters intended was essentially a repudiation of the decisional authority that permitted such discrimination and preferential treatment notwithstanding antecedent statutory and constitutional law to the contrary.

Concurring and Dissenting Opinion by Chief Justice Ronald M. George:

I agree with all of my colleagues that the particular features of the affirmative action program that are challenged in this case violate Article I, Section 31 of the California Constitution--the section added to the California Constitution in 1996 by the voters’ passage of Proposition 209--because these features grant “preferential treatment” to individuals or groups on the basis of race or gender as proscribed by this newly added constitutional provision.

I cannot join the majority opinion, however, because in my view the major portion of that opinion’s discussion is not only unnecessary to the resolution of the issue before us, but is likely to be viewed as less than evenhanded. Particularly in a case involving an initiative measure that is as sensitive and potentially divisive as Proposition 209, I believe it is essential that this court speak through an opinion whose language and analysis clearly demonstrate to the parties and to the public that the court appreciates that its task is simply to interpret and apply the initiative’s language so as to effectuate the electorate’s intent. Viewing the majority opinion as a whole, I believe it falls short of this standard.

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[By] using misleading and unflattering slogans to characterize past judicial decisions upholding race-conscious and gender-conscious affirmative action programs--describing such decisions as “replac[ing] individual right of equal opportunity with proportional group representation” and as endorsing a change “from protection of equal opportunity for all individuals to entitlement based on group representation”--the majority opinion, in my view, will be widely and correctly viewed as presenting an unfair and inaccurate caricature of the objective or justification of the overwhelming majority of race- or gender-conscious affirmative action programs. Nowhere does the majority opinion consider alternative rationales for affirmative action programs--grounds that cannot be as easily disparaged when not saddled by the catch phrases (“proportional group representation,” “entitlements based on group representation”) employed by the majority opinion.

The terminology employed by the majority opinion ignores the circumstance that, in many instances, race or gender have been utilized as a “plus” factor in the affirmative action setting--not because of any belief in group entitlement or proportional representation, but rather to obtain the benefits that are anticipated to flow from the inclusion of one or more persons from groups that are not currently represented in a given entity or organization. For example, at a time when no woman or member of a racial minority ever had served on the United States Supreme Court, if a president, in choosing among equally qualified candidates for a seat on the court, were to have taken into consideration a candidate’s race or gender as a factor in the decision whom to appoint, the use of race or gender could not accurately be characterized as based on group entitlement or proportional representation, but rather likely would rest on the belief that such a characteristic of the candidate would bring something worthwhile to the court as a whole, both in terms of the public’s relative confidence in the institution and because members of such previously unrepresented groups might add something distinctive and valuable to the court’s deliberations and decision-making. Similarly, when a college or university whose student body has been and continues to be almost all-white voluntarily decides to institute an affirmative action policy under which qualified minority applicants are given special consideration, the justification for the policy may not be based upon any notion of “entitlement based on group representation” or “proportional group representation,” but instead may well stem from a genuine belief on the part of the institution that an integrated student body will provide a better education for all students attending the school. And a comparable justification may underlie many of the affirmative action programs voluntarily instituted in recent years by those large corporations that have concluded that an integrated work force (including management) enables the organization to better serve its diverse clientele.

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Finally, in my view, the general theme that runs throughout the majority opinion’s historical discussion--that there is no meaningful distinction between discriminatory racial policies that were imposed for the clear purpose of establishing and preserving racial segregation, on the one hand, and race-conscious affirmative action programs whose aim is to break down or eliminate the continuing effects of such segregation and discrimination, on the other--represents a serious distortion of history and does a grave disservice to the sincerely held views of a significant segment of our populace. As is demonstrated by the numerous and lengthy past judicial decisions that have considered race- and gender-conscious affirmative action programs, the legal questions posed by such programs have been widely understood as difficult and close, but the majority opinion’s presentation does not do justice to the legal and historical arguments that have been articulated on both sides of the issue.