Published Online: April 16, 1997

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Calif. Measure Barring Racial Preferences Reinstated

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A federal appeals court last week reinstated a California constitutional amendment that bars state and local governments from using racial or gender preferences in education, employment, and contracting.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously overturned a federal district judge who had blocked the ballot measure known as Proposition 209 from taking effect. The district judge ruled last December that the amendment, passed by California voters in November, likely violates the U.S. Constitution's guarantee of equal protection under the law.

School officials throughout the state have been warned that if the measure takes effect, they no longer would be allowed to conduct minority-teacher-recruitment programs or set aside percentages of public contracts for companies owned by women or members of minority groups.

Other programs called into question by the measure include voluntary desegregation plans, college-high school mentoring programs targeted at minority students, and single-sex public schools. ("Anti-Preference Measure Sparks Competing Suits," Nov. 13, 1996.)

The panel of Republican-appointed appeals court judges ruled on April 8 that the initiative does not violate the federal equal protection clause because it has the same goal as that clause: to eliminate government classifications based on race and sex.

"Proposition 209's ban on race and gender preferences, as a matter of law and logic, does not violate the equal protection clause in any conventional sense," said the opinion by U.S. Circuit Judge Diarmuid F. O'Scannlain.

The court cleared the way for the measure to take effect within three weeks. But a coalition of civil rights groups that challenged the measure said last week that it would seek a rehearing before a larger panel of the 9th Circuit court.

Implications for Schools

The decision is "a grave disappointment," said Mark Rosenbaum, the legal director of the American Civil Liberties Union of Southern California.

But Republican Gov. Pete Wilson, a strong backer of the measure, said the ruling brings the state "one step closer to ensuring the kind of society which will afford genuine equality and access to opportunity to all of its citizens."

State education officials have stressed that even if the provision takes effect, its full implications for school districts will only become clear through what is likely to be years of additional litigation.

In a letter to school superintendents after the passage of Proposition 209 last fall, Delaine Eastin, the state schools chief, said that "any state or local school district program" based on race or sex could be invalidated. But she urged districts not to drop effective programs right away.

Joseph R. Symkowick, the general counsel of the state education department, said the measure's immediate impact would be on employment practices.

"But we believe it would require separate state court action to remove such things as voluntary desegregation programs," he said.

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