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Court Lets Affirmative Action Ban Stand Justices Clear Way For States To Follow California’s Lead

Tue., Nov. 4, 1997

The Supreme Court refused to hear a legal challenge to California’s ground-breaking ban on affirmative action programs Monday, clearing the way for the state to end preferences for women and racial minorities.

The court’s action is expected to encourage states throughout the country to follow California’s lead in abolishing affirmative action programs by government agencies. Similar measures already have been proposed in about 25 states, including Washington.

The nine Supreme Court justices, without comment or dissent, made final a lower court ruling that the California ban is constitutional. Their action is legally binding in many Western states but does not establish a national precedent or end the legal conflict in California.

Proposition 209, as the California measure is known, was approved by 54 percent of the state’s voters a year ago. It prohibits state and local government agencies from continuing to give “preferential treatment” to racial minorities and women in public employment, education and contracting.

“The states now have the green light to move ahead with initiatives of their own,” Michele Justin, a lawyer for the conservative Pacific Legal Foundation, which represents leading advocates of the measure, said Monday.

“The Supreme Court decision today validates our belief that the Constitution protects all Americans from discrimination based on their race or gender,” said John Carlson, a conservative commentator who is leading the campaign to gather signatures for Initiative 200 in Washington state.

Dubbed the “Washington State Civil Rights Initiative” by backers, Initiative 200 would ban preferential treatment based on race or gender in public employment, college admissions and contracting.

“Our campaign for the civil rights initiative has received a huge boost in momentum,” Carlson said.

But Mark Rosenbaum, who directed the constitutional attack on Proposition 209 in California on behalf of the American Civil Liberties Union and several civil rights groups, said the court fight against that measure is far from over. “It depends on what unfolds in the next several weeks,” he said. “According to the governor (California Gov. Pete Wilson), everything from voluntary school desegregation to early childhood programs for American Indian children will be affected, so there’ll be no shortage of opportunities for legal challenges.

“This (Supreme Court action) comes as a severe and painful disappointment. It’s the first time in the nation’s history state and local governments have been stripped of their authority to attack race and gender discrimination,” said Rosenbaum, the ACLU’s legal director in Los Angeles.

By spurning the ACLU petition, the Supreme Court effectively cleared the way for anticipated confrontations between state and local governments in California. Officials in San Francisco, Los Angeles County and elsewhere have said they plan to continue their affirmative action programs regardless of Proposition 209.

In fact, San Francisco, Marin County and Pasadena officials told the justices in a legal brief the measure “plunges local government into a dilemma of constitutional significance.”

They said they could be sued by racial minorities if they failed to provide affirmative-action remedies for past discrimination but could be sued by whites if they continue such programs.

The Pacific Legal Foundation is already trying to enforce Proposition 209 on behalf of a white contractor who is challenging an affirmative-action program in San Jose, Justin said.

The Supreme Court’s action left intact a 9th Circuit U.S. Court of Appeals ruling that concluded Proposition 209 is consistent with both the Constitution’s guarantee of “equal protection of the laws” and federal civil rights law.

That decision is legally binding in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington.

In its Supreme Court petition, the ACLU-led challengers said Proposition 209 would make second-class citizens of minorities and wipe affirmative-action programs that have been upheld - or even required - by lower courts, based on Supreme Court precedents.

“Proposition 209 seeks to lock shut the window for state and local (affirmative) action that (Supreme Court) decisions have so painstakingly left open,” the challengers said.

While the measure eliminates preferences based on race and sex, they said it leaves intact government preferences for veterans and lobbyists, and university preferences for rich donors and children of alumni.

It was the second time in two years the Supreme Court has declined to review a nationally controversial ruling against affirmative action.

Last year the court allowed affirmative action to be barred in public university admissions in Texas, Louisiana and Mississippi, resulting in a sharp reduction in minority enrollments at the University of Texas Law School

The next political development will occur Tuesday when Houston voters decide on a referendum to eliminate minority preferences in contracting.

xxxx STATUS OF I-200 In Washington state, the campaign for the anti-affirmative action Initiative 200 has raised more than $75,000 and will rely on paid signature gatherers to circulate some petitions. If the necessary 179,248 signatures are gathered, the 1998 Legislature can approve the measure or ignore it. If lawmakers choose to do the latter, then the measure would go to voters next November. Gov. Gary Locke, a Democrat who backs affirmative action, has no veto power over initiatives.


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