The San Jose Mercury News, November 18, 1996
Proposition 209 won by a decisive majority, so affirmative action will end, right?
Not necessarily. This is California, remember? The election was just Round 1.
The American Civil Liberties Union filed a lawsuit in San Francisco the morning after the election claiming Proposition 209 is unconstitutional, students on UC campuses rioted and demanded that it be ignored, and the city attorney of San Jose proposed what amounts to an evasion of the new law.
All of this happened before Election Week was over.
On the face of it, the ACLU’s task of defeating Proposition 209 in the courts seems insurmountable. The proposition is quite straightforward, and the language is very similar to key parts of the Civil Rights Act of 1964. The ACLU, pillar of civil rights causes, is in the position of defending discrimination. No one should underestimate them, however, or the folly of some judges.
I was curious about how they would make their case, so I looked up their brief. It is 26,000 words of lawyer-talk (they didn’t do this in the wee hours on Nov. 6) and hard to read, especially for a non-lawyer such as myself. To make matters worse, it is full of euphemisms, something that has characterized affirmative action (a euphemism itself) since it began.
The gist of their case is two main points. The first is that 209 violates the Equal Protection Clause of the Fourteenth Amendment because it places minorities and women in the position of having to “run a special legislative gauntlet to enact beneficial policies.” The second point is that 209 violates the Supremacy Clause because it “stands as an obstacle to . . . federal civil rights laws and is thus preempted.”
On the first point, by “beneficial policies” they mean preferences based on race and sex. “Special legislative gauntlet” is the proposition process. Translating these, it becomes “Prop. 209 violates the equal protection rights of women and minorities because it places them in the position of having to propose and pass a proposition to restore sex- and race-based preferences.” With only a few changes this argument becomes an all-purpose anti-proposition argument: “Proposition XYZ violates the equal protection rights of the losers because they would have to pass another state proposition to reverse it.” Sort of a Gee Whiz argument.
The other point says in effect that California cannot adopt a colorblind standard because that would conflict with federal law. Really?
The ACLU’s immediate objective is to obtain a Temporary Restraining Order (TRO), in which the word “temporary” is a sort of reverse lawyer joke, i. e., by lawyers on the rest of us. Whether they’ll succeed is anyone’s guess. Their case was described by one lawyer friend of mine as “pathetic,” but it wouldn’t be the first in that category to win.
San Jose City Attorney Joan Gallo’s proposal pertains to city contracts. Her idea is to obtain essentially the same result as before by rejiggering city policies. Contractors will be required to either meet “parity” requirements or provide documentation “demonstrating” no discrimination.
She also proposes to change the name of the “Office of Affirmative Action/Contract Compliance” to “Office of Equality Assurance,” another euphemism. As if anyone among the living hadn’t noticed.
Mayor Susan Hammer was wise enough to delay a decision until the plan can be evaluated more thoroughly.
What we’re seeing is reminiscent of what occurred after the Bakke decision in 1978. Nothing much happened then except switching from quotas to “goals with timetables” that were rigorously enforced. At the same time “diversity” was adopted as a moral imperative of the first rank, mainly because Justice Lewis Powell used it in his Bakke opinion. The fact that he was referring mainly to ideological and intellectual diversity, not racial diversity, had no effect.
The opponents of 209 told us during the campaign that they would fight it all the way, and now we’re seeing what they meant. It’s too bad all this energy can’t be directed toward something useful.