Prop. 209 a Blueprint for Court Fights, Scholars Say

By BETTINA BOXALL

Oct. 31, 1996 12 AM PT

TIMES STAFF WRITER

At a mere 23 lines, Proposition 209 is one of the shortest and simplest initiatives on next week’s ballot. But if the measure passes, its reach will be long. From voluntary school desegregation programs to police hiring to the awarding of contracts, Proposition 209 could cut a broad swath through the public sector.

Legal scholars say its precise impact is in many ways impossible to predict because the initiative raises a host of questions that will probably take years of court battles to resolve.

But interviews with professors from the state’s leading law schools and lawyers representing state agencies point to a broad array of programs and policies that could run afoul of the initiative, which bans local and state government-sponsored affirmative action for women and minorities.

“This is a major reshaping of public institutions in the state,” said UC Berkeley law professor Dan Rodriguez.

The measure could do much more than eliminate obvious affirmative action preferences, such as giving women or minorities extra consideration in public hiring or college admissions.

For example, the independent state legislative analyst’s office says the future of UC’s Mathematics, Engineering and Science Achievement (MESA) mentoring and study program would be in doubt because the 25-year-old project targets minority students at the elementary through university levels and tries to draw them into math and science fields.

Under 209, dozens of privately endowed scholarship funds in the UC system would be subject to legal challenge because they are limited to women or particular ethnic groups, according to the UC general counsel.

Voluntary magnet and school desegregation programs will be vulnerable to the extent that they take students’ race into account, according to the state Education Department’s general counsel.

The legislative analyst’s office predicts that a police department could be challenged for launching a recruiting drive specifically aimed at women or minorities.

Proponents do not dispute that 209 will affect a variety of programs. But they argue that much affirmative action can simply be refashioned to replace race and gender considerations with some other factor, such as socioeconomic background.

“We’ll see a new thinking in the way government approaches affirmative action,” said Yes on 209 spokeswoman Jennifer Nelson.

Opponents have seized on 209’s effect on such outreach efforts as MESA in arguing that the initiative will do far more than the public realizes, gutting programs that have helped women and minorities get into everything from medical school to contracting.

Compared with many of the tortuously long initiatives on the state ballot, Proposition 209 appears readily understandable.

The proposed constitutional amendment bars state and local governments from discriminating or granting “preferential treatment” on the basis of race, ethnicity, national origin or gender in public contracting, employment and education.

But just what is preferential treatment?

In interviews with The Times, 11 constitutional and discrimination law experts--who have not been in the forefront of campaigning for either side--generally agreed that the term is not that well defined legally.

“The concept of a preference is extremely vague,” UCLA law professor Evan Caminker said. “It will require some judicial interpretation to figure out what preferential treatment means.”

A number of practices involving efforts such as recruiting and outreach may or may not survive, depending on how they are run and how narrowly or broadly judges interpret the initiative.

“The language isn’t clear,” UCLA law professor Julian Eule said. “There’s an awful lot of leeway here about what courts are going to do.”

Both Caminker and Eule question the measure’s constitutionality.

“It’s an attempt to use a bypass of the ordinary legislative process to undo the gains minorities have achieved,” Eule said. “When it is used to reassert majority rule--and the entire goal of the Constitution is to prevent, and create checks against, pure majority preferences--that’s deeply constitutionally problematic.”

But others interviewed said 209 should pass constitutional muster, particularly because it includes a nondiscrimination clause. “I’d be quite surprised if it was found to be unconstitutional,” said UC Berkeley law professor Robert Post.

Another point of contention revolves around Clause C of the initiative.

More than 110 California law professors signed a statement that the provision could weaken California’s unusually strict sex discrimination laws because it permits the government to consider “bona fide qualifications based on sex which are reasonably necessary” in public employment, contracting and education.

Now, women cannot be discriminated against unless there is a “compelling need.” Clause C, the argument goes, would amend the state Constitution to allow gender discrimination if it is “reasonably necessary”--a lower standard.

A majority of legal scholars interviewed reject that interpretation, however.

“I don’t see that it is going to change sex discrimination law,” said Stanford University law professor Tom Grey.

He and others say Clause C applies only to the initiative and does not amend other sections of the Constitution. Still, Grey added, “there’s no guarantee of how courts will construe the language. It’s open to the other reading.”

Gauging the initiative’s impact is further complicated by a provision exempting court orders or consent decrees in force when the measure goes into effect.

A number of existing gender- and race-based affirmative action programs adopted under court order would therefore be preserved, such as the Los Angeles Police Department’s hiring goals for women and minorities.

Education will perhaps feel the greatest impact if Proposition 209 becomes law.

The initiative would spell the end of race and gender preferences in public college admissions and hiring--although University of California regents stole that thunder when they voted last year to stop using race, gender or ethnicity as criteria in admissions as of Jan. 1, 1997, and in hiring and contracting beginning last January.

The change will result in a significant drop in the number of Latino, African American and Native American students admitted, while the enrollment of white and Asian students will rise, according to a UC report.

Beyond admissions, a number of long-standing programs could also be affected.

Public university scholarships restricted to women or minorities would be illegal, according to UC Berkeley professor Jesse Choper.

Terry Colvin, spokesman for the UC president’s office, said the UC general counsel believes that racial, ethnic and gender preferences would have to be dropped from about $28 million in financial aid programs, including $7 million in privately endowed scholarships targeting groups, such as Portuguese men or undergraduate women at UC Berkeley.

Several legal scholars, including Stanford law professor John Donohue, said that under a broad reading of the initiative, funding for a women’s center or an African American cultural center on a public campus could be challenged.

Joseph Symkowick, general counsel of the state Department of Education, said magnet schools--which offer enriched programs to attract a diverse student body--would be threatened in their present form because many of them take race into account in admitting students.

The enrollment criteria would have to be changed, undercutting magnet programs’ primary purpose: integration.

Similarly, Symkowick said voluntary desegregation programs, including busing and remediation efforts, would violate 209 because of their racial considerations.

There is a twist, however: Many existing magnet and involuntary school desegregation programs would be saved because they are under court order.

Richard Mason, general counsel for the Los Angeles Unified School District, said he believes most of the district’s desegregation efforts, including magnet programs, would continue unchanged because they stem from a 1981 court order.

Given that loophole, Symkowick predicted advocates in many school districts will attempt to preserve voluntary desegregation programs by seeking a federal court order.

The initiative would also end racial or gender preferences in public hiring and contracting.

State goals to award a certain percentage of public contracts to women- and minority-owned businesses would probably be eliminated, according to the legislative analyst’s office.

A number of experts said that if a police department trying to diversify its force was considering two equally qualified applicants--one an African American woman and one a white man--the woman could not be chosen on the basis of her race and gender.

But what could a public agency do to diversify its pool of applicants, to make sure minorities and women apply? Could a police department or school district encourage Latinos or Asians to apply?

“Whether that constitutes a preference, I don’t think anyone can tell you,” Post said.

State hiring practices have already been revised by Gov. Pete Wilson, who last year rolled back some state affirmative action programs. As a result, the state Civil Service system stopped considering race and gender in its hiring, said Ted Edwards, affirmative action manager at the State Personnel Board.

State departments nonetheless retained hiring goals and timetables as a way of “monitoring” work force composition, said Edwards, who predicted that they would survive 209 because they do not factor into the ultimate hiring decision.

The legislative analyst’s office is not so sure.

“We’re pretty confident that hiring goals and timetables would be gone” because they create a dynamic that favors “underrepresented” groups, said Robert Turnage, of the legislative analyst’s office.

Six law professors, including UCLA’s Jonathan Varat and UC Hastings law professor Joseph Grodin, a retired state Supreme Court justice, said it is conceivable 209 could be used to challenge maternity benefits at public agencies that do not offer comparable paternity benefits.

The extent to which 209 would limit future court orders is another murky area.

The legal experts say that under the federal supremacy doctrine, federal judges in California would not be bound by Proposition 209. Similarly, they said, state judges invoking federal law could continue to order affirmative action as a remedy for discrimination.

But Linda Hamilton Krieger, acting law professor at UC Berkeley, predicted that things would be different for judges deciding cases under state law.

“It really ties judges’ hands in the future in ways that I think people may not realize,” Krieger said.

Even a judge who finds a government agency guilty of serious discrimination under state law would not be able to direct the agency to correct the situation with specific hiring goals and timetables outlawed by 209, she said.

Although uncertainty abounds in discussions of Proposition 209, there is one safe bet. There will be lawsuits aplenty.

“I think it’s going to create a tremendous amount of litigation,” Stanford law professor Barbara Babcock said.