Equity & Diversity

Schools Still Pondering Their Response to Prop. 209

By Robert C. Johnston — September 10, 1997 4 min read

California’s ban on affirmative action programs in public education and government agencies has had little impact on school districts since its passage last November in a statewide vote.

Instead, school officials have watched the measure bounce through the federal courts, one of which allowed the law to go into effect late last month. (“Calif. Measure Barring Racial Preferences Reinstated,” April 16, 1997.)

Just last week, the U.S. Supreme Court refused a request to again suspend enforcement of the law known as Proposition 209 while its opponents seek a full hearing before the high court on the larger issue of the measure’s constitutionality.

The high court has not yet said whether it will consider the constitutional question. All of the activity has left local school officials unsure of what to do next.

“I know that the uncertainty about the status of this measure creates considerable complexity for you,” state Superintendent of Public Instruction Delaine Eastin wrote in an Aug. 26 letter to superintendents.

The state education department has told local school officials to consult a lawyer and “cautiously consider any changes” in educational programs.

“Right now, it’s really a waiting game,” said Abe Hajela, the legal counsel to the California School Boards Association. “Everyone’s waiting to see who makes the first interpretation.”

‘It’s the Law’

When it was passed nearly a year ago, Proposition 209 made California the first state to ban government use of race or gender preferences in education, employment, and contracting.

But opponents of the ban have sued the state over the measure, arguing that it prohibits race- and gender-based programs designed to remedy past discrimination.

Last December, a federal district judge blocked the law’s enactment, ruling that it likely violated the U.S. Constitution’s guarantee of equal protection under law.

But a three-judge panel of the U.S. Court of Appeals for the 9th Circuit overturned that decision in April, ruling that the law was constitutional. Civil rights groups appealed the ruling to the full 9th Circuit court, which last month refused to hear the case and opened the door finally to the law’s enforcement on Aug. 27.

That action has made Proposition 209’s status crystal clear as far as the state’s chief executive is concerned.

“It’s the law in California.” said Lisa Kalustian, a spokesman for Republican Gov. Pete Wilson, a strong supporter of the measure. “Any entity that doesn’t comply is opening itself up to a lawsuit.”

But complying with the broadly worded measure is not easy, in part because of pre-existing California statutes that support affirmative action programs in schools and other government programs.

Statutes that conflict with Proposition 209 must be overturned by the legislature or in court.

Gov. Wilson has filed a lawsuit to have some of those laws nullified.

For all the attention that the measure has drawn in the state and nationally, there have been few changes in local school policy.

State Board Support

Al Mijares, the superintendent of the 52,000-student Santa Ana public schools, said that his district had no plans to stop considering race in its decisions regarding employment.

“If we had two people running neck and neck, we would definitely give the nod to the Hispanic.

That’s because we are 90 percent Hispanic,” he said. “We just believe we need the role models for our community.”

Waldemar Rojas, the superintendent of the 66,000-student San Francisco schools, marched with the Rev. Jesse L. Jackson Sr. across the Golden Gate Bridge on Aug. 28 to protest Proposition 209.

Al Mijares

But when it comes to enforcing the new ban, San Francisco schools spokeswoman Gail Kaufman said, the call is up to the district’s lawyers. “I don’t believe that anything has changed,” she said. “A lot of questions need to be answered.”

That is the sentiment at the state level as well, where Ms. Eastin is unsure about the future of math and science programs for black and Hispanic students, early education programs for Native Americans, and new single-sex public academies. (“Calif. Opens Single-Sex Academies,” in This Week’s News.)

The department will wait until “it is clear there will be no further legal review of Proposition 209" before offering additional guidance on these and other programs, she wrote to the superintendents.

California also spends $100 million a year on “voluntary desegregation” programs in 50 districts to help remedy past discrimination.

Henry Der, the director of external affairs for the state education department, said that because the 1996 measure exempts court-ordered programs, some districts may seek court mandates to keep them in place.

In a related action, a superior court judge in San Diego recently said he would let the city’s court-ordered desegregation program lapse at the end of this school year if Proposition 209 withstands a Supreme Court challenge.

State Board Support

In another move, the state school board has reversed its support of a 1982 court-sanctioned desegregation agreement in San Francisco.

The board voted 9-1 with one abstention on Aug. 20 to side with the plaintiffs in the case of Ho v. San Francisco Unified School District. (“S.F. Reforms Put on the Line in Legal Battle,” Dec. 11, 1996.)

The plaintiffs hope to overturn the desegregation agreement, charging that students of Chinese descent face quotas that limit their enrollment in the city’s competitive public schools.

And that stand may signal a willingness by the board to aggressively enforce Proposition 209.

“My major goal is that I would like everyone to have an equal opportunity,” said Yvonne Larsen, who is the president of the school board and an appointee of Gov. Wilson. “I’d be concerned about preferences going to someone that might be less qualified than someone else.”

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