States Focus on Affirmative Action in 1997

While the notion of affirmative action first came to prominence as a federal mandate, activity in the state government arena provided grist for debate over the topic in 1997. Affirmative action is, most notably, the object of Executive Order 11246, a directive by President Johnson that continues to be the law for federal contractors. Nevertheless, actions by state and local officials--particularly in California and Texas--have shifted the focus on affirmative action away from the federal context.

In November of 1996, California's Proposition 209--which outlaws both discrimination and "preferential treatment" based on race, sex, color, ethnicity, or national origin in public employment, contracting and education--gained approval by that state's voters. By year's end, however, a trial court judge had ruled the measure unconstitutional. Meanwhile, in Texas, officials at educational institutions--particularly colleges and universities--were studying the effect of Hopwood v. State of Texas, which restricts schools from considering applicants' race or ethnicity in student admissions.

In 1997, then, as Texans coped with Hopwood and Californians watched the progress of Prop. 209 through the appellate courts:

• The Texas state legislature ordered that the University of Texas--the loser in Hopwood--accept all students who finish in the top ten percent of their high school class, regardless of those students' SAT scores.
• Voters in Houston rejected a proposed ordinance that would have prohibited affirmative action in public contracting and employment. Arguing against the measure, the city's white mayor declared, "[l]et's not turn back the clock to the days when guys who look like me got all of the city's business."
• The Oakland city council overhauled its prior practice of targeting minority--and female-run businesses for public contracting. The newly-modified standards prefer locally-owned businesses, in recognition that Oakland is (in the words of its city attorney) "a majority minority community."
• Nearly 50 law firms in the San Francisco Bay Area announced that they would not recruit associates from University of California law schools if those schools did not increase their respective pools of minority students.

Eventually, the opponents of Prop. 209 lost their legal challenge. A federal appeals court reversed the trial court decision and upheld the measure; the US Supreme Court refused to hear the case and left the court of appeals' decision intact. Not surprisingly, then, other states--Arizona among them--have stepped up their efforts to enact laws like Prop. 209.

At the beginning of the current session, SCR 1005 was introduced in the Arizona legislature. Unlike last year's anti-preference proposal (which called for the enactment of a statute, and which ultimately failed), SCR 1005 proposes an amendment to Arizona's constitution. The new amendment would outlaw discrimination against or granting "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."

Subject to the provision would be the "state, universities under the jurisdiction of the Arizona Board of Regents, community colleges under the jurisdiction of the State Board of Directors for Community Colleges and any city, county, school district, special district or other political subdivision or government instrumentality." The ultimate decision on SCR 1005--assuming its passage by the legislature--will rest with the voters; as the proposal would amend the state constitution, voter approval is required before it can become law.

The results of a nationwide poll taken last December by the New York Times showed that most Americans favor affirmative action. At the same time, though, they oppose race-based decisions in both employment and school admissions. Accordingly, when SCR 1005 is presented to Arizona voters this November (if the bill receives legislative support), the distinction between affirmative action and minority-based preferences will no doubt have taken center stage by the end of 1998.

Published in the Special EEO Edition 1998 of In Brief