Proposition 209 Stirs
Affirmative Action Debate

Its wording would seem to mirror that of anti-discrimination laws which have existed for decades. But its passage reignited controversy over affirmative action in 1996.

The text of Proposition 209--also known as the California Civil Rights Initiative--includes no express reference to affirmative action. This new provision of California's constitution, however, requires that the state "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."

Higher Education

The "state," as defined by Prop. 209, includes California's university system and virtually every other public entity, such as any "community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state."

The duty of affirmative action is most prevalent in federal practice, as Executive Order 11246 (signed by President Johnson and continued by every president since) requires that federal contractors use affirmative action to employ women and minorities.

Prop. 209 could not impinge upon federal mandates. The measure acknowledges as much, holding that it may not "be interpreted as prohibiting action which must be taken to establish or maintain any federal program, where ineligibility would result in a loss of federal funds to the state."

Where Prop. 209 would have a profound effect, however, is in public higher education--specifically, college and university admissions. Ever since the US Supreme Court's decision in Regents of the University of California v. Bakke, consideration of race and ethnicity has been permissible in screening applications for enrollment.

The ability of a publicly funded institution in California to deem race or ethnicity a "plus" factor--as the term was coined in Bakke--would be dubious, however, under Prop. 209.

Ultimately, Prop. 209 passed with 54 percent of the votes cast on the measure last November. The balloting was preceded by vociferous debate, which included public pronouncements on the issue by both major presidential candidates. (President Clinton opposed the measure; Senator Dole supported it.)

The day after the election, attorneys filed suit in federal court to preclude Prop. 209 from taking effect. In Coalition for Economic Equity v. Wilson, US District Court Judge Thelton Henderson issued a temporary restraining order (and, in December, a preliminary injunction) against the initiative.

In his ruling, Judge Henderson characterized the issue in the suit as "whether the particular method chosen by Proposition 209 to curtail affirmative action is unlawful because it violates the United States Constitution."

Equal Protection

Noting that the equal protection clause of the 14th amendment to the Constitution guarantees "racial minorities the right to full participation in the political life of the community," Judge Henderson held that "[t]his guarantee not only prohibits the outright exclusion of women and minorities from the political process, but also prohibits more subtle distortions of the political process that place special burdens on the ability of women and minorities to achieve beneficial legislation."

Judge Henderson based his order on a 1982 US Supreme Court case, Washington v. Seattle School District No. 1. That decision invalidated an anti-school busing initiative by Washington state voters, and may be the linchpin as well when he makes his final ruling on Prop. 209's constitutionality later this year. Whatever the outcome, an appeal from the decision is virtually certain.

Congressional Action

While Prop. 209's immediate effect is limited to California, the initiative intensified the national debate over affirmative action prompted earlier by the introduction in Congress of the Dole-Canady bill. That legislation was also known as the Equal Opportunity Act ("an oxymoron if there ever was one," according to one Department of Labor representative), and purported to outlaw racial and ethnic preferences in employment.

Like Prop. 209, Dole-Canady made no mention of affirmative action in its text, but was viewed nevertheless as an assault on federal affirmative action required by Executive Order 11246. Officials of the Office of Federal Contract Compliance Programs--the division of the Department of Labor charged with enforcing the Executive Order--decried the bill, reiterating that affirmative action disavows the use of preferences or quotas.

By the time Congress adjourned in 1996, Dole-Canady had lost momentum. In light of that fact--and President Clinton's "mend-it-don't-end-it" support of affirmative action--the courts might be the final arbiter over the extent to which government may mandate programs geared toward rectifying past discrimination.

Published in the Special EEO Edition 1997 of In Brief