California repudiates racial, ethnic, & sex preferences

NAS Update, December 1, 1996

The California Civil Rights Initiative, also known as Proposition 209, was approved by 54 percent of California voters on November 5th. Proposition 209, which amends the state constitution, says simply that “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 in the operation of public employment, public education, or public contracting.” In remarks quoted in The Chronicle of Higher Education, NAS president Stephen H. Balch, underscored the Initiative’s likely far-reaching impact on academic life by noting that “quotas and preferences are inextricably linked to radical multiculturalism, political correctness, and declining academic standards.”

The Initiative’s convincing margin of victory was attained despite a vituperative barrage of unprecedented ferocity and deception launched by its adversaries. The low point of this campaign involved the use in television spots of pictures of David Duke, who had been invited to the state by the Initiative’s opponents to mislead voters into thinking he was one of its champions.

The Initiative was the brainchild of two leading members of the California Association of Scholars—Tom Wood, its executive director, and Glynn Custred, who also serves as a member of the board of the NAS. Their joint involvement in the efforts of the CAS to expose the injustice of preferential policies in California higher education provided the intellectual spur for bringing the issue before the state’s electorate.

Immediately after the Initiative was passed, a coalition of groups, including the American Civil Liberties Union and the Coalition for Economic Equality, moved to overturn the people’s verdict in the federal courts, arguing that it violated, among other things, the Equal Protection Clause of the Fourteenth Amendment. Originally, the case was randomly assigned to be heard by Judge Vaughn Walker of the U.S. District Court in San Francisco, but the plaintiffs successfully convinced Chief Judge Thelton Henderson, a Carter appointee, to take it himself. Judge Henderson had earlier upheld San Francisco’s minority contracting program against a constitutional challenge. On November 27th he issued a temporary restraining order blocking the implementation of Proposition 209 at least until a hearing on a preliminary injunction set for December 16th. In doing so, Henderson opined that the legal opponents of Proposition 209 had “demonstrated a strong probability of success in proving that it violated the Equal Protection and Supremacy Clauses of the United States Constitution.”

The Orwellian logic of this claim is that Proposition 209 violates the rights of women and racial minorities because, under its language, discrimination on the grounds of age, disability, or veteran status is still allowable. In other words, unless every possible form of “discrimination” is banned none can be—a doctrine that, if fully applied, would render unconstitutional the Civil Rights Act of 1964. “The case against 209 is ludicrous,” said Michael S. Greve, executive director of the Center for Individual Rights, a Washington-based public interest law firm that applauds the Initiative. “The attorneys can’t possibly believe their own argument.”

Greve was dismayed that Judge Henderson took the case at all, saying that his obvious bias will, wrongly, lead him to issue an injunction against 209. Such an injunction would be appealed to the Ninth Circuit Court of Appeals, where, according to Greve, “anything can happen,” since the deciding judges will be selected from a pool of forty-seven candidates via lottery. The case could eventually wind up in the United States Supreme Court.

Greve estimates that the litigation necessary to uphold Proposition 209 will cost about 1.5 million dollars in legal fees, but that the supporters of the proposition should eventually prevail because the constitutional case against it is so weak. The Clinton administration is likely to “sit this one out,” said Greve, since there is no interpretation of a federal statute to be decided.

When the University of California Board of Regents voted to abolish racial and ethnic preferences in the UC system in July 1995, the plan was to begin the application of the new undergraduate admissions policy in the spring of 1998. After Proposition 209 passed, UC moved up the schedule so as to encompass those who would enter in the fall of 1997. However, on December 8th, Judge Henderson, at the behest of the anti-209 coalition, extended the reach of his injunction to include UC activities as well.

University of California students at Berkeley, in anger at the endorsement of Proposition 209 by the Daily Californian, stole nearly all 23,000 copies of the student paper on November 5th. And, in the days immediately following, students took over the Campanile Clock Tower on campus, resulting in twenty-three arrests. UC/Berkeley Chancellor Chang-Lin Tien and several vice chancellors met with about 250 students in a attempt to defuse the protest. He told the students that, though in disagreement with Proposition 209, he could not accede to their request to refuse to comply with it. But California State University and the state’s community colleges are refusing to act on Proposition 209 until the matter is settled in the courts. Lawyers for both systems claim that Proposition 209 conflicts with state statutes with which they must comply. UC operates independently of such state laws.

The passage of the Initiative, whatever its immediate fate in the federal district and appellate courts, sends a clear and powerful message to America’s higher education leadership about the public’s rejection of racial, ethnic, and sex preferences. Both the NAS and the CAS, together with a growing number of other NAS state affiliates, will be coordinating their efforts to drive this point home. There are few people better suited to give intelligent and principled leadership on this issue than are our members, and a national retreat is now being considered to prepare those NAS members interested in leading the public debate to do so more effectively.

A great victory has been achieved, but much yet needs to be done to realize all its promise.