Supreme Court Allows Ban on Affirmative Action in Calif.

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California's state constitutional ban on racial and gender preferences in government hiring, contracting, and education won't be going away anytime soon.

The U.S. Supreme Court declined last week to review the 1996 ballot measure known as Proposition 209. The court's unanimous action leaves in place a federal appeals court ruling that said the measure does not violate the U.S. Constitution.

But the debate over the future of affirmative action continued on other fronts last week. In Houston, voters beat back an effort to eliminate preferential treatment for women and minorities in city contracting. The vote was the first ballot test for opponents of affirmative action since California voters adopted Proposition 209.

Meanwhile, President Clinton's nominee to head the civil rights division of the Department of Justice faced growing Republican opposition based largely on his views in support of affirmative action.

Under Review

With California's Proposition 209 under a legal cloud for the past year, few school districts in the state had taken any concrete steps to eliminate affirmative action programs. ("Schools Still Pondering Their Response To Prop. 209," Sept. 10, 1997.)

But the high court's refusal to disturb the state constitutional amendment is certain to hasten efforts to enforce the measure's language barring preferential treatment by state and local governments on the basis of race, sex, color, ethnicity, or national origin.

State Superintendent of Public Instruction Delaine Eastin will soon convene a task force made up of state education officials and local educators to examine which programs fall under the amendment, said Joanne Lowe, the deputy general counsel in the state education department.

"In practical terms, we are going to start working with districts to modify [affirmative action] programs, or working with the legislature to identify laws that need to be changed," Ms. Lowe said last week.

Shortly after the measure was adopted, Ms. Eastin identified 11 categories of programs that state education officials believed would fall under Proposition 209. These include school district voluntary desegregation programs, affirmative action hiring programs, education programs geared toward American Indian or Hispanic students, and minority preferences in district contracting.

Ms. Eastin filed a brief in the Supreme Court urging the justices to review the measure.

"The over 1,000 school districts and all county offices of education in California have programs established and funded by the legislature targeting racial minorities and girls," the brief noted.

Civil rights groups sought to overturn a ruling last April by the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, that Proposition 209 did not violate the U.S. Constitution.

A panel of the appeals court said it would be "a bizarre result" to find that Proposition 209 violates the equal-protection clause of the 14th Amendment to the federal Constitution because the state measure prohibits racial discrimination across the board.

The high court declined without comment to hear the appeal in Coalition for Economic Equity v. Wilson (Case No. 97-369). The court's action is not a ruling on the merits and sets no national precedent. Also, because the initial lawsuit was a challenge to the state amendment on its face, anyone who claims legal harm by the implementation of Proposition 209 could file a new challenge.

Even supporters of Proposition 209 such as Republican Gov. Pete Wilson have acknowledged that the California Constitution requires action by the legislature or a state appellate court to reverse statutes that are in conflict with a new constitutional provision such as the affirmative action ban.

Thus, state education officials say that preferences in education programs that are part of state law do not face immediate elimination.

But districts will now have to decide for themselves whether they need to eliminate programs because of the ballot measure, Ms. Lowe said. Some 60 districts have so-called voluntary desegregation programs, which means they are not required by court orders or consent decrees.

"Of course, if districts scrap their voluntary desegregation programs, they may open themselves up to desegregation lawsuits," Ms. Lowe said.

Court-mandated affirmative action programs are not affected by Proposition 209.

Houston Vote

Some experts predicted the Supreme Court's refusal on Nov. 3 to hear the appeal involving Proposition 209 would add momentum to efforts to eliminate racial preferences around the country. But that idea was not borne out in Houston, where 54 percent of voters cast ballots last week against a measure that would have eliminated a city program targeting 20 percent of contracts to minority- and women-owned firms.

Some observers said Houston Mayor Bob Lanier, a supporter of the affirmative action program, gave it a boost by engineering a change in the wording of the ballot measure to remove a reference to ending "racial preferences." Surveys suggested that wording would have benefited opponents of affirmative action.

In Washington, meanwhile, opposition was growing last week to the nomination of Bill Lann Lee to head the Justice Department's civil rights division, which oversees hundreds of school desegregation cases.

Sen. Orrin G. Hatch, R-Utah, the chairman of the Senate Judiciary Committee, said he could not endorse Mr. Lee primarily because of the nominee's support for affirmative action and his opposition to Proposition 209 in his position as Western regional counsel of the NAACP Legal Defense and Educational Fund.

"Unfortunately, much of Mr. Lee's work has been devoted to preserving constitutionally suspect race-conscious public policies that ultimately sort and divide citizens by race," Sen. Hatch said in a Nov. 4 speech on the floor of the Senate.

Democrats were struggling late last week to save Mr. Lee's nomination. They sought and received a delay in a scheduled Nov. 6 vote in the Judiciary Committee.

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