California's Proposition 209 is a big step closer to implementation. But the national debate over affirmative action, greatly intensified by this exercise in "direct democracy," is no closer to resolution.
The ballot measure, titled the California Civil Rights Initiative, passed last November with a 54 percent majority. It would reverse longstanding state and local policies in California giving minorities and women a step-up in hiring and college admissions.
On April 8, a three-judge panel of the United States 9th Circuit Court of Appeals unequivocally struck down a ruling by a lower federal judge who suspended enforcement of Prop. 209 on grounds of doubtful constitutionality. The three appellate jurists had no such doubts, effectively rebuking their lower court colleague for placing his judgment above that of 4,736,180 voters.
But we have not heard the last from opponents of Prop. 209. They argue that the proposition violates the "equal protection" clause of the 14th Amendment to the US Constitution. It does so, they assert, by erasing the ability of racial minorities and women to seek redress from state and local governments through programs that grant preferences, while maintaining such preferences for other groups - veterans, for example, or the elderly. Moreover, they argue, Prop. 209 clashes with federal civil rights law requiring special efforts to broaden opportunities for minorities and women.
These objections warrant conclusive federal bench review - despite the three judge panel's decision. Such review could come from the full appeals court, the US Supreme Court, or both.
In any case, California's officials will have to accelerate contingency plans for complying with 209. The University of California, the state's premier institution of higher learning and the focus of much affirmative action controversy, has something of a jump on this. Even before Prop. 209 surfaced, the university had been phasing out race-based preferences that could be attacked as quotas. Since the initiative's passage, officials have committed themselves to work more closely with elementary and secondary schools in the state to better prepare disadvantaged students for higher education.
That's a solid idea, Prop 209 or not. UC's officers have made it clear they haven't forsaken their diversity goals.
Other state agencies have a lot of sorting out to do. How will they reconcile 209 with federally funded programs that specify consideration for minority contractors or workers? More legal action at the state level seems inevitable.
It's worth noting that California's voters had in fact sorted out for themselves just what a "yes" vote on Prop. 209 meant. Opponents of the measure frequently criticized it as deceptive for using the words "civil rights" and for not mentioning affirmative action. But a post-election survey by the Field Research organization indicated that 91 percent of "yes" voters knew very well they were voting to roll back traditional affirmative action programs.
Opponents may say that's irrelevant, that even a majority can't roll back a constitutional right. But is affirmative action as practiced for the last three decades a matter of constitutional right, or policy choice? If the latter, a disaffected public has to be listened to and the policy rethought. That doesn't necessarily mean that a majority of Americans - in California or anywhere else - are having second thoughts about the civil rights victories won in the 1960s. Those can't be rolled back.