Court Rejects 209 Challenge

Supreme Court lets stand California's affirmative action ban

BY BERT ELJERA

The U.S. Supreme Court rejected Monday a challenge to California's Proposition 209, the measure that bans consideration of race or gender as a factor in hiring, contracting, or school admission.

The court, rejecting arguments by a coalition of civil-rights groups, let stand a ruling that the anti-affirmative-action measure does not violate constitutional rights.

America's highest court last month refused to suspend Proposition 209 while it studied the constitutional challenge.

Monday's action, taken without comment, does not set any national precedent, but could encourage voters in other states to adopt similar measures.

A U.S. Circuit Court of Appeals ruled in April that Proposition 209, adopted by a public initiative in 1996, is a neutral measure that promotes equality.

But the appeal argues that the measure relegates racial minorities and women to the status of second-class citizens in California.

The measure, an amendment to the state Constitution, says that state and local governments cannot "discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin."

Opponents of the measure told the justices that Prop. 209 will block even those government efforts to enforce racial or gender preferences that are "permitted or required" by the federal Constitution.

"Proposition 209 seeks to lock shut the window for state and local action that [past Supreme Court rulings] have so painstakingly left open," the appeal contended.

"Proposition 209 leaves public universities free to grant admissions preferences" to "children of alumni, donors or friends of university officials," the appeal said. "Municipalities are free to grant hiring preferences to veterans or those with close political ties to local officials."

Only preferences based on race and sex will be banned, the appeal said.

Lawyers for California and several local governments in the state urged the justices to reject the challenge, which they called premature.

"No group of persons is singled out for disadvantageous treatment" by the California measure, state Attorney General Dan Lungren told the court.

The Supreme Court ruling was received with shock and disappointment by opponents of Prop. 209 and other activists in the Asian Pacific American community.

"We're disappointed that the Supreme Court did not honor the request to hear the case," said Lisa Lim, executive director of the Chinese for Affirmative Action. "[But] we're still working on different fronts to combat the effects of 209."

She said her organization, in partnership with other Asian Pacific American civil rights advocacy groups, are looking at the effects on government programs in California since Prop. 209 became law in August.

Approved by 54 percent of California voters last November, Prop. 209 bans the use of racial and gender preferences in hiring, public contracting and college admissions.

"This [Supreme court] decision does nothing to promote race relations in America," Lim said.

Ed Chen, staff attorney of the American Civil Liberties Union of Northern California, said that the ruling "leaves cities and counties in a horrible dilemma, without guidance on how to comply with federal laws against discrimination and with Prop. 209, which bans affirmative action remedies.

"We are left with these gaping questions: What does 209 really mean? To what extent does federal law require affirmative action?" Chen said.

He said there seems to be an inherent conflict between the effort to remedy past discrimination and the enforcement of Prop. 209. He cautioned against "read[ing] too much" into the ruling.

"This is not an affirmation by the court of Prop. 209," he said. "It's simply a refusal to hear the case. This could be for any number of reasons, including that the meaning of 209 is not clear yet. The court often wants to see what a measure really means before determining its constitutionality."

A three-judge panel of the Ninth Circuit Court of Appeals in San Francisco upheld the constitutionality of Prop. 209 in August. The full court declined to hear the case, and the proposition became part of California law on Aug. 28.

That action prompted the ACLU and other civil rights organization to take the case to the Supreme Court. The petitioners were hoping the court would hear the case and issue a clear-cut ruling on affirmative action.

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