Foes of affirmative action hope to follow in the footsteps of
California voters and pass state and federal laws that will
effectively end racial and gender preferences in hiring and
But before such a rollback can take place, the courts must rule
on the constitutionality of Proposition 209, the ballot initiative
behind the reform movement.
A landmark case will soon go before Federal District Court Judge
Thelton Henderson, who heard arguments on Dec. 16 over the issuance
of a preliminary injunction barring implementation of Prop. 209
until a court decision is reached.
The complexity of the constitutional issues raised in the case,
leaves judicial experts sharply divided over the likely outcome.
"Our position is the case is very clear given existing
precedents of the Supreme Court," says Ed Chin, the lead lawyer for
the American Civil Liberties Union (ACLU) team arguing to overturn
the California ballot measure.
"I'm confident the US Supreme Court will uphold the California
Civil Rights Initiative," says Eugene Volokh, a University of
California constitutional law professor and a Proposition 209
As written, the CCRI amends the California constitution to bar
discrimination against, or preferential treatment to, any
individual or group on the basis of race, sex, color, ethnicity or
national origin in public employment, education, or contracting.
According to the official ballot analysis prepared by the state
legislature, this measure would preclude a wide variety of
"affirmative action" programs, such as for university admissions or
granting public contracts, designed to aid minorities and women who
have been victims of discrimination in the past.
The plaintiffs argue that, despite its apparent neutrality, the
law violates the Equal Protection Clause of the 14th Amendment of
the Constitution by creating barriers in the political process to
attempts to remedy past or present discrimination. In the past,
supporters of affirmative action could go to local or state
governments to seek such programs. And the Supreme Court has ruled
that under strictly defined terms of proof of discrimination, such
programs are indeed constitutional.
Now those seeking redress would have to resort to a statewide
initiative to amend the Constitution. "Women and minorities who
come before local government with strong evidence of discrimination
would not be heard anymore because of Proposition 209," says Mr. …