Legal Test for California's Affirmative Action Ban

Foes of affirmative action hope to follow in the footsteps of California voters and pass state and federal laws that will effectively end racial and gender preferences in hiring and education.

But before such a rollback can take place, the courts must rule on the constitutionality of Proposition 209, the ballot initiative behind the reform movement.

A landmark case will soon go before Federal District Court Judge Thelton Henderson, who heard arguments on Dec. 16 over the issuance of a preliminary injunction barring implementation of Prop. 209 until a court decision is reached.

The complexity of the constitutional issues raised in the case, leaves judicial experts sharply divided over the likely outcome.

"Our position is the case is very clear given existing precedents of the Supreme Court," says Ed Chin, the lead lawyer for the American Civil Liberties Union (ACLU) team arguing to overturn the California ballot measure.

"I'm confident the US Supreme Court will uphold the California Civil Rights Initiative," says Eugene Volokh, a University of California constitutional law professor and a Proposition 209 supporter.

As written, the CCRI amends the California constitution to bar discrimination against, or preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in public employment, education, or contracting. According to the official ballot analysis prepared by the state legislature, this measure would preclude a wide variety of "affirmative action" programs, such as for university admissions or granting public contracts, designed to aid minorities and women who have been victims of discrimination in the past.

The plaintiffs argue that, despite its apparent neutrality, the law violates the Equal Protection Clause of the 14th Amendment of the Constitution by creating barriers in the political process to attempts to remedy past or present discrimination. In the past, supporters of affirmative action could go to local or state governments to seek such programs. And the Supreme Court has ruled that under strictly defined terms of proof of discrimination, such programs are indeed constitutional.

Now those seeking redress would have to resort to a statewide initiative to amend the Constitution. "Women and minorities who come before local government with strong evidence of discrimination would not be heard anymore because of Proposition 209," says Mr. Chin.

This argument rests on the legal precedent of a 1982 Supreme Court decision, "Washington v. Seattle School District No. 1," which struck down a statewide initiative forbidding the use of busing in a local school district for purposes of racial integration. In a 5-to-4 decision, the court majority ruled that a program designed to benefit a minority cannot be removed by a ballot initiative where minorities do not have equal access to the political process.

In order for this ruling to apply, it must be proved the effect of the law falls on a minority group. But supporters of Prop. 209 argue that the Seattle precedent does not apply. "To say that a law that prohibits discrimination is discriminatory doesn't make sense," says Professor Volokh.

"Proposition 209 is well and carefully drafted," says University of California at Berkeley law professor Franklin Zimring. "So it's going to be an awful lot harder for a successful constitutional tack to be sustained."

Judge Henderson has already indicated, however, that he finds the constitutional arguments against 209 to be persuasive. In a statement on Nov. 27 ordering a temporary restraint on implementing the law, the judge stated that the opponents had "demonstrated a probability of success on their equal protection claim." On Monday he extended that order pending his ruling on an injunction, which will be made within a week.

Supporters of 209 have been highly critical of Judge Henderson, an African-American jurist who began his career in the Justice Department in the early 1960s working in the civil rights crusade. On Monday they filed a formal declaration before the court arguing that Henderson's earlier membership on the board of directors of the ACLU and the Meiklejohn Civil Liberties Institute (which filed an amicus brief in this case) constitute evidence of personal bias and that he should therefore excuse himself from hearing the case.

No matter what happens in the federal district court, the case is almost certain to be appealed, first to the Ninth Circuit Court of Appeals and then to the Supreme Court. Backers of 209 believe it will be upheld at both levels.