Anti-Preference Measure Sparks Competing Suits

By Robert C. Johnston — November 13, 1996 6 min read

Educators were unclear last week how passage of the broadly worded California Civil Rights Initiative will affect affirmative action, voluntary desegregation efforts, and academic programs targeting minorities and women in the state.

California voters overwhelmingly approved Proposition 209, a state constitutional amendment that ends racial and gender preferences in public schools and colleges as well as in government hiring and contracting.

“For the time being, nothing in the district is going to change,” Gail Kaufman, the spokeswoman for the San Francisco school district, said following the Nov. 5 vote. “There’s still a fair amount of interpretation to do.”

Quick and easy answers are unlikely. Competing federal and state lawsuits were filed the day after the measure passed with 54 percent of the vote. One suit seeks its immediate enforcement; the other asks the court to stop it from taking effect.

Whatever the outcome, the measure is having an immediate ripple effect. Rep. Charles T. Canady, R-Fla., said last week that because of its success in California, he will introduce a similar bill in the next Congress.

Questions for Schools

The amendment states in part: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Authors of the initiative patterned the wording after anti-discrimination language in the federal Civil Rights Act of 1964.

The measure does not change personnel or other decisions made before its passage last week. And it does not apply to court-ordered programs, such as school desegregation, or affect race- and gender-based federal programs.

While the amendment went into effect immediately, school districts and other government employers are just starting to review affirmative action hiring and contracting practices that allow racial and gender preferences.

For example, the San Bernardino County office of education allows race or gender to be used as a “tie breaker” to decide between two equally qualified job applicants. And it is far from alone.

“Without [affirmative action], women will once again lose critical opportunities for economic equality,” argued Kathy Rodgers, the executive director of the National Organization for Women’s legal defense and education fund. OW is one of several civil rights groups seeking a court injunction to block the amendment.

Several important questions for K-12 schools surround how the law applies to voluntary desegregation.

Currently, 50 California school districts get $98 million in state funds to desegregate schools or improve achievement in racially isolated areas. The money can help pay for magnet programs, smaller classes, and materials.

“It’s a voluntary setup,” said Henry Der, the state’s deputy superintendent for external affairs. “Districts and communities try to desegregate and improve outcomes of students who suffer the effects of segregation practices.”

Mr. Der said that communities, in order to get around Proposition 209, might seek court-ordered desegregation decrees.

The law also raises doubt about whether schools will be able to continue other local efforts such as math and science programs aimed at girls.

There are also numerous tutoring and mentor programs for minority students, many of which are run in conjunction with local colleges.

Activities that receive federal funds would not be covered, but state-funded efforts may have to be adjusted.

“Programs will not need to be abolished, just reconfigured a bit to be more inclusive,” said Michael Lynch, a senior public-policy fellow with the Pacific Research Institute, a San Francisco-based organization that backed Proposition 209.

Opponents of the measure have claimed it would also curtail girls’ sports in public schools. But Abhas Hajela, a lawyer for the California School Boards Association, said that certain provisions in the measure seem to rule that out.

Of the concerns about sports being curtailed, Mr. Hajela said: “I’m not sure if that wasn’t more politics than legal reasoning.”

Mixed Guidance

One day after Proposition 209 passed, state Superintendent of Public Instruction Delaine Eastin cautioned school districts not to act rashly, urging them to await guidance from the courts or the state legislature.

“I would not, for example, dismantle district magnet school programs or take drastic steps to eliminate other school programs,” she said.

The state education department is forming a task force to review K-12 programs that might need to be modified to comply with the amendment.

Gov. Pete Wilson, a Republican who had backed the measure, wasted no time in voicing his elation over the initiative’s victory, and issued an executive order calling on state agencies to comply with the new law immediately.

“Beginning today, Californians will be judged by one standard and one standard alone: their individual merit,” Mr. Wilson said.

Among other provisions, the governor’s order gives state agencies three weeks to identify statutes and programs that grant race or gender preferences in hiring, contracting, or education programs.

And regulations will be written, Mr. Wilson added, that prohibit affirmative action hiring practices.

University Reacts

Officials of the University of California system, which earlier this year banned race and gender as factors in admissions, hiring, and contracting, took the approval of Proposition 209 in stride.

“We are well along in this process as a result of the regents’ actions last year,” university President Richard C. Atkinson said last week.

But certain policy provisions adopted by the university that were not slated to become effective until the spring of 1998 will be moved up.

For example, admission and financial aid decisions made after last week should no longer consider race, sex, skin color, or national origin, according to the letter the university sent to its chancellors.

Federal aid awarded on the basis of race and gender criteria will not be altered, it added.

Tirso del Junco, the chairman of the university’s board of regents, said that the system will strive to represent the state’s diversity, but without preferences.

“We will need to look to new ways of accomplishing this goal--through mentoring, outreach, and other methods,” he said. “Most important of all is the need to work with K-12 schools.”

In a testament to the high emotions surrounding Proposition 209, virtually every copy of the University of California at Berkeley’s free student newspaper, which contained an editorial endorsing the initiative, was taken from its rack the morning before the polls opened.

Aftershocks Reported

Even if Proposition 209 gets tied up in the courts, its passage is setting off similar debates across the country.

“In light of Proposition 209’s success, further inaction by elected officials is simply unacceptable,” said Rep. Canady, who is already looking for a sponsor in the Senate for his bill.

Mr. Canady sponsored a bill in the current Congress that would have prohibited the federal government from giving preferential treatment based on race, ethnicity, or sex in employment, contracting, or program administration.

The bill, which had 100 cosponsors, was killed by the House leadership.

The California proposition paves the way for a new national reconsideration of affirmative action, said Clint Bolick, the vice president of the Institute for Justice, a legal advocacy group based in Washington.

“The California initiative can have a seismic impact,” he said, “emboldening voters, politicians, and judges throughout the country to eliminate racial classifications.”

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A version of this article appeared in the November 13, 1996 edition of Education Week as Anti-Preference Measure Sparks Competing Suits


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