Proposition 209 ends preferences in California
“LET’S NOT PERPETUATE THE MYTH THAT ‘MINORITIES’ AND WOMEN CANNOT COMPETE WITHOUT SPECIAL PREFERENCES. LET’S INSTEAD MOVE FORWARD BY RETURNING TO THE FUNDAMENTALS OF OUR DEMOCRACY: INDIVIDUAL ACHIEVEMENTS, EQUAL OPPORTUNITY AND ZERO TOLERANCE FOR DISCRIMINATION AGAINST ANY INDIVIDUAL.”
PETE WILSON, WARD CONNERLY AND CCRI BALLOT ARGUMENT FOR PROPOSITION 209
CIR intervened in a case levied by liberal interest groups against the enforcement of Proposition 209, the California Civil Rights Initiative (CCRI). The CCRI, which won a majority vote in 1996 referendum, banned the use of race and gender preferences in state university admissions, employment, and contracting. After hearing arguments from CIR, the courts dismissed the challenge, dealing proponents of affirmative action a massive defeat.
- Read the text of Proposition 209
Second-guessing the will of California’s voters
The CCRI was the culmination of a trend against racial preferences in California. Beginning with the University of California Board of Regents’ decision to abolish racial preferences on July 20, 1995, a number of regents and businessmen drafted Prop 209 and won placement on the November 1996 ballot.
Supporters of race preferences waged a massive counter-campaign, but California voted in Prop 209 by 54.7% to 45.3%. Some of the propositions opponents, preparing for the worst, were immediately ready with a suit against Governor Pete Wilson charging that the CCRI was unconstitutional.
On November 6, one day after the election, plaintiffs called the Coalition for Economic Equity and represented by the ACLU filed suit in the Northern District of California. Their case relied on an argument by Vikram D. Amar and Evan H. Caminker that the lower courts should hold Prop 209 unconstitutional in light of the precendentWashington v. Seattle School District No.1 (1982), which prevented a ballot measure that would ban busing for the end of integration. They also filed a Notice of Related Case claiming that their new brief is related to one assigned to Judge Thelton Henderson. Wilson and the state filed an opposition that was denied on November 13 as Henderson took charge of the case.
The strategy of the supporters of race preferences paid off on November 27, when Judge Henderson issued a restraining order prohibiting the enforcement of Prop 209. CIR was among the firms that defended Wilson against the CEE and appealed what was seen as political decision.The court promised that the decision would only stand until December, when it would be decided if Prop. 209 had to stopped by an injunction. On December 23, the injunction was filed on the grounds that Prop. 209, which banned all racial discrimination, was in violation of the 14th Amendment’s equal protection clause. CIR joined the defendents in taking the case to the Court of Appeals.
Recovering the law
Prop. 209 went to the courts as reports surfaced that city and county governments were willfully refusing to enforce the change in California’s constitution. The CEE argued that the anti-discriminatory effect of Prop. 209 was “facial” and that the initiative’s impact was on constitutionally permissable “race- and gender-conscious programs narrowly tailored to eliminate discrimination.”Numerous firms and public-interest groups filed amicus briefs for the defendent, and on April 14, 1997, the Court of Appeals ruled that the CCRI was constitutional and the injunction had to cease. Later in the year the Supreme Court declined to view a petition by the ACLU and CEE, establishing Prop. 209 as the law of the land.
- Read the decision by the Ninth Circuit to lift the injunction
What’s happening now?
The constitutional amendment of Proposition 209 remains in place. Legal challenges and charges of violation still occur, and many organizations that opposed it during the trial maintain efforts to bring back race preferences.