Affirmative-Action Rollback Sifts Through a Legal Sieve

Scott Emblaidge is in a bind.

The deputy city attorney of San Francisco oversees a 1989 city ordinance that gives minorities and women preferences as subcontractors in city contracts. Now, though, Californians have voted in Proposition 209 to end state affirmative-action programs, including those involving public contracting.

Whether San Francisco sticks with its own court-approved policy or makes adjustments in keeping with Prop. 209, Mr. Emblaidge sees a lawsuit ahead. "If we continue to enforce the program as it currently exists, we will undoubtedly face legal action by nonminority contractors," he says. "If we were to abandon it under the new Prop. 209, we will undoubtedly face legal action by minority contractors."

California is bracing for an inevitable legal battle over fairness and equality in public employment and education, prompting many government officials to put compliance with Prop. 209 on hold. Meanwhile, affirmative-action reformers from here to Washington are seizing on the voter-tested rollback in California - and laying plans to dismantle such programs elsewhere.

It could be several years, however, before legal skirmishes are resolved concerning Prop. 209 - the most sweeping repudiation of affirmative action in the policy's 30-year history.

While Republican Gov. Pete Wilson has given state agencies three weeks to compile lists of programs to target for elimination, few affirmative-action programs are likely to end any time soon. Under terms of a 1978 California ballot initiative, an appellate court ruling is required before state agencies can eliminate such programs.

"California voters decided then that they didn't want agency bureaucrats themselves deciding some program was unconstitutional, but rather have a court decide," says Daniel Kolkey, Governor Wilson's secretary for legal affairs. Mr. Kolkey estimates such a process could take until 1998.

At the federal level, courts will also test the constitutionality of Prop. 209.

IN the meantime, "it's a mess right now," says attorney Edward Chen of the American Civil Liberties Union in San Francisco. "Dozens of agencies from water to transit to cities and counties are calling us to ask, 'What is our obligation?' about various programs. I am not sure what to tell them."

Still, some state institutions are not waiting for clarification to move ahead. University of California Provost C. Judson King, for instance, issued a letter Friday advising that the 50,000 high school students currently applying for admission to the University of California will be evaluated without regard to race or gender. He also said financial-aid programs using university or state funds will no longer take race and gender into account, "effective immediately."

Passed by a margin of 54.3 percent to 45.71 percent, Prop. 209 amends the state Constitution to read: "Neither the state of California or any of its political subdivisions shall use race, sex, color, ethnicity, or national origin as a criterion for discriminating against, or granting preferential treatment to, any individual or group in the operation of the state's system of public employment, public education or public contracting."

Observers say scores of state programs could be eliminated and at the local level, perhaps several hundred. Those identified so far include a California Community College rule to use race as a factor in hiring faculty and staff and decisions by the California State Lottery Commission and the Department of General Services involving race and gender.

In federal court, a lawsuit filed by the American Civil Liberties Union asks for an injunction against any actions until broader issues are decided. It maintains that Prop. 209 violates the US Constitution's "equal protection clause" under the 14th Amendment. The federal court injunction could be clarified as early as this week. The suit itself could take several months.

ACLU lawyers and other observers say there is significant federal case law to back up their position. In a 1982 US Supreme Court decision in the State of Washington v. Seattle School District, justices struck down, 5 to 4, an initiative that would have prohibited school boards from assigning pupils to schools on the basis of race.

But the legal wrangling may not deter affirmative-action opponents from using Prop. 209 as a springboard to end such policies in other states, such as Michigan, Oregon, and Georgia.

Still, some may wait to see what happens at the federal level. In his campaign for reelection, President Clinton gave a lukewarm endorsement to affirmative action: "Mend it, don't end it." It's not clear whether the Republican-controlled Congress will move aggressively on the issue.