State's Voter Initiative Goes Into Effect Today
By William Claiborne,Washington Post Staff Writer
LOS ANGELES — After nearly a year-long battle in the courts, California can now begin implementing a controversial new law that eliminates race and sex as factors in a variety of state programs, from hiring to education and contracting.
The measure makes this state the first in the country to abolish affirmative action programs, a move that has captured the interest of public officials nationwide in the face of growing pressure to scrap or limit racial preferences. Campaigns for similar bans are underway in several other states.
A coalition of civil rights groups fought the initiative in various federal courts, arguing that the law abolished only programs that benefited women and minorities while keeping preferences for those who sought them on such grounds as age, disability or veteran status.
But on Tuesday, the 9th U.S. Circuit Court of Appeals denied the groups' latest attempt to prevent the law from going into effect, clearing the way for it to take effect Thursday.
The American Civil Liberties Union plans to appeal to the Supreme Court in a last-ditch attempt to halt the law. However, the high court rarely grants emergency requests to postpone the effects of a new law or to otherwise intervene in a case before a hearing on its merits.
This means that in theory, at least, government agencies from the biggest state offices in Sacramento down to the smallest local water and sewer districts have to immediately begin dismantling affirmative action programs that are in conflict with the voter-approved ban.
Called Proposition 209, or the California Civil Rights Initiative, the law requires that the state "not discriminate against, or grant preferential treatment to, any individual or group on the basis or race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting."
The ban does not affect private corporations or other non-government groups, nor does it apply to federal affirmative action programs or state programs needed to maintain eligibility for federal aid.
But potentially, enforcement of the ban could quickly cut a wide path through many public sector affirmative action programs, from police department efforts to increase the number of black and Hispanic officers in their ranks to recruitment drives for female firefighters. In contracting, many government agencies will be forced to abandon long-standing practices aimed at awarding bids to minority or women-owned businesses.
While the measure has overcome several key legal hurdles, state and local governments are far from sorting out how they will obey the new law. And some county officials said that in a practical sense, bureaucratic procedures will delay enforcement even if the Supreme Court does not intervene.
"Will we stop it [affirmative action] tomorrow? No. We'll have to take a look at what Proposition 209 means to our day-to-day efforts in encouraging recruitment of women and minorities and utilizing minority-owned businesses for contracts when they are underrepresented," said Dennis Tafoya, senior deputy of the Los Angeles County Affirmative Action Compliance Office.
Tafoya said his department's attorneys will have to study the implications of the law and that the County Board of Supervisors, which does not meet until next Tuesday, will have to take action before any dismantling of programs can take place.
"What is a race-conscious or gender-conscious preference? Then when you have a definition, what programs does it apply to? It's not an overnight thing. We don't just send out a directive to all of our departments saying `disregard these programs.' It's not that simple," Tafoya said.
Some affirmative action compliance officials also contend that the language in the measure is ambiguous and that the courts could be called upon to define what constitutes a racial or gender preference. Consequently, the question of what Proposition 209 means for the average Californian remains murky.
Steve Keil, legislative representative for the California State Association of Counties, predicted that local governments will initially be cautious to assure that changes do not violate U.S. Equal Employment Opportunity Commission rules. But he said he expects the new law to have a "chilling effect" on affirmative action officials, probably followed by litigation to clarify the terms of the measure.
Other legal barriers also remain. In order to strike down dozens of state laws requiring preferences, separate action in state court will be needed. Gov. Pete Wilson (R), a staunch opponent of preferences, has filed a lawsuit in Superior Court in Sacramento that seeks, ultimately, a state appellate court ruling declaring five categories of state affirmative action laws unconstitutional so that they can be removed from the statutes.
Moreover, social policy analysts say that legal interpretations and commitments to adhering to the spirit and letter of the law could differ widely between communities with varying political ideologies, such as traditionally liberal San Francisco and some conservative areas of Orange County. This could further slow down enforcement in some communities.
Nonetheless, the co-authors of the initiative said today that the appeals court's refusal to further block the ban was "the last remaining obstacle" to enforcement of the measure. Conservative scholars Glynn Custred and Thomas Wood threatened to take legal action against state agencies that fail to promptly apply the new law.
Wood condemned a statement by American Civil Liberties Union lawyer Edward Chen, who said he hoped state and local agencies will not dismantle their affirmative action programs until the U.S. Supreme Court decides whether it will review the ban. "If Mr. Chen has been accurately reported, he has urged public officials in California to violate their oaths of office and to violate the law by not complying with a provision of the state constitution," Wood said.
ACLU Southern California branch spokeswoman Ann Bradley said the group's attorneys were preparing a request for a Supreme Court stay but that it will not be submitted before the law takes effect. "The bottom line is we are seeking [a review]," said Bradley. "So, the other side would be wise to hold off until we do it."
In the state's education programs, the biggest change has come not from Proposition 209, but from a similar measure enacted in 1995 by the University of California Board of Regents. That measure, which was not affected by the court injunction that tied up the voter-approved initiative, banned the use of preferences in admissions.
The new policy went into effect for graduate students this fall, and the results have been mixed. The incoming class at the University of California at Berkeley's law school has only one black student after black admissions dropped 81 percent; 14 blacks who were accepted decided to go elsewhere. But at the state university system's five medical schools, enrollment of blacks will be about the same as before the affirmative action rollback.