By Joan Biskupic
Washington Post, November 4, 1997
The Supreme Court yesterday removed the last significant legal hurdle to California’s statewide ban on affirmative action, rejecting a challenge by civil rights groups that had argued the law was unconstitutional.
Campaigns to eliminate preferences based on race and sex are underway in several states, and people on both sides of the issue predicted the court’s action would reinvigorate those efforts. Voters in Houston, the nation’s fourth-largest city, are deciding today whether the local government should abandon such long-standing preferences in the area of public contracting.
When the initiative passed last year, California became the first state in the country to abolish affirmative action in a variety of state programs, from hiring and college admissions to government contracting. The controversial measure drew national attention and was stopped from taking effect for nearly a year while it was challenged in court.
By deciding not to accept the case yesterday, the Supreme Court left in place a lower court ruling that found Proposition 209 constitutional. The 9th U.S. Circuit Court of Appeals stressed that when the government gives an advantage to individuals based on their race, it penalizes people who belong to another race. Civil rights groups claimed the law unfairly stripped local governments in California of their traditional authority to help minorities.
Yesterday’s Supreme Court action, while not a ruling on the merits of Proposition 209, was a powerful signal, especially in light of a recent string of high court decisions that have served to limit the scope of race-based government policies.
“You would have to be living on a different planet not to think this is a very significant decision,” said Ward Connerly, who spearheaded the fight for Proposition 209. He said he now spends about a third of his time traveling to other states to help activists with similar initiatives, adding that efforts are blossoming particularly in Colorado, Florida and Washington state.
“This is a green light to all the other states that want to copy Proposition 209,” said Stanford law professor Kathleen M. Sullivan, who had helped the American Civil Liberties Union in its challenge to the California measure. “At our count, there were 26 other states in some stage of progress.”
California is just beginning the lengthy, but largely procedural, process of eliminating preference programs.
At the municipal level, there are several state hurdles that must be crossed before the law can be imposed. Under California law, Gov. Pete Wilson (R) is required to file a lawsuit seeking a ruling that state affirmative action statutes are in conflict with Proposition 209. Hoping to speed the process, Wilson in September asked the Democratic-controlled legislature to repeal or amend 30 statutes that he identified as granting illegal race or gender preferences. But the legislature adjourned for the year without acting.
At the county level, the process is also moving slowly. In most cases, county minority contracting programs are embedded in state laws that still have to be removed from the books, either by the state appellate courts or the legislature.
In the meantime, civil rights activists said yesterday they have not abandoned hopes of fighting the law.
Mark Rosenbaum, of the ACLU Foundation of Southern California, said he will continue to seek an effective legal strategy to challenge Proposition 209. While the Supreme Court declined to hear the civil rights groups’ appeal this term, it could consider a new challenge in the future. One avenue opponents could choose is to find an individual who was particularly hurt by Proposition 209 and have that person sue to challenge the law’s constitutionality.
Once the law is fully enforced, there are almost certain to be other legal issues to be resolved. For example, the law states 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.” But does “preferential treatment” apply only when a black or Hispanic person is specifically chosen over an equally qualified white person, or does it also prevent outreach and recruitment of people traditionally kept out of certain jobs?
Proposition 209, approved with 54 percent of the vote, outlaws some programs that the Supreme Court has allowed, either to remedy past discrimination or, at colleges and universities, to provide a diverse mix of students.
“Proposition 209 seeks to lock shut the window for state and local action that [court] decisions . . . have so painstakingly left open,” the challengers said in Coalition for Economic Equity v. Wilson. They said the law violates the Constitution’s equal protection guarantee by preventing governments from specifically favoring women and minorities.
In rejecting their argument, the 9th Circuit said it would be “paradoxical to conclude that by adopting the equal protection clause of the 14th Amendment, the voters of the state thereby had violated it.” The 9th Circuit ruling is in effect in the western nine states and two territories in that jurisdiction.
The justices did not make public their individual votes in the case yesterday. It takes four votes to accept a dispute for oral argument and review. The current court is narrowly divided on issues of race-based policies, and it is likely that those on either side of the divide were unsure they could get the five votes necessary to decide the case in their favor.
Staff writer William Claiborne in California contributed to this report.