Battle Over Prop. 209 Moves to the Courts

The lopsided passage of Proposition 209 ended a campaign, but not this year’s bitter debate about fairness and opportunity in California.

On Wednesday, combatants on both sides of the landmark ballot measure on affirmative action moved swiftly to the courts, where they predicted that the fate of such programs in government hiring, contracting and public education ultimately would be decided by judges.

Despite the measure’s 54.3% to 45.71% victory at the polls, government officials at all levels--in news conferences and internal memos--said they will not even attempt to comply with Proposition 209’s rules until a court decision is issued on the proposition’s validity.

Gov. Pete Wilson, enjoying his own political victory because the controversial measure relied heavily on Republican assistance, made some attempt to assuage the anger left from the campaign by calling for increased attention to outreach and anti-discrimination programs.

At the same time, Wilson asked the courts to implement Proposition 209’s rules and he issued an executive order directing state agencies to identify the race and gender preference programs that he hopes to eliminate under the new law.

“Californians who voted for Proposition 209 ushered in a new era in this state,� Wilson said at a Century City news conference called to discuss the measure. “Compliance with Proposition 209 is no longer a matter of moral conscience. As of last night, it is the law.�

In all, at least three court actions from separate parties were triggered Wednesday by Proposition 209’s passage. Advocates for the initiative and the governor each sought court intervention to order that the measure be implemented.

So far, advocates have only identified a few programs they would target for elimination. Wilson gave state agencies three weeks to compile a list of more. And state attorneys indicated that implementation of the act may be done one program at a time.

The programs identified so far include a California Community Colleges rule to use race as a factor in hiring faculty and staff, as well as contract decisions involving race and gender at the California State Lottery Commission and the Department of General Services.

State attorneys have also interpreted a rarely used 1978 initiative to mean that an appellate court decision is required before state agencies can eliminate many programs targeted by Proposition 209. They said the 1978 measure was intended to prevent state bureaucrats from deciding the legality of programs under their jurisdiction.

Wilson’s court action Wednesday was aimed at getting that court approval. But the governor’s counsel said it could take until 1998.

Meanwhile, in federal court in San Francisco on Wednesday, a coalition of civil rights groups filed a lawsuit asking for an immediate order blocking Proposition 209, which amends the state Constitution.

“No statewide measure in American history has ever come close in scope or effect to Proposition 209’s chokehold on state and local government,� says the lawsuit, prepared by the American Civil Liberties Union, the Lawyers Committee for Civil Rights and other groups.

Comparing Proposition 209 to other measures that have been struck down by the courts, the lawsuit maintains that the initiative violates the U.S. Constitution’s equal protection clause because it singles out women and minorities, making it more difficult for them to win passage of laws and policies that benefit them.

Although other groups, such as veterans, can still seek legislation granting them preferences, women and minorities now cannot--unless they get voters to pass another constitutional amendment countering Proposition 209.

“Imposition of such a special burden offends core values of our constitutional democracy,� says the lawsuit, which also contends that Proposition 209 is preempted by federal law because it bans programs designed to ensure compliance with federal civil rights laws.

The legal gridlock was so confusing that throughout the state, government officials who should be preparing to implement the measure were instead indicating they will pause.

Members of the Los Angeles City Council--which vigorously opposed Proposition 209 from the beginning--said they would not change any of their affirmative action programs because of the initiative’s passage. The city will not sue to undo the measure--as it did two years ago with Proposition 187; rather, it will have to be sued to mandate enforcement.

Los Angeles County’s affirmative action compliance officer, John Hill, said confusion reigns in the halls of the county bureaucracy over how to deal with the measure.

“I don’t know what it’s going to mean,� Hill said. In a memo to the Board of Supervisors, he advised each county program to proceed as usual until the courts make a ruling.

At the University of California, President Richard C. Atkinson distributed a letter to the UC community Wednesday pledging to comply with the law but stressing the continuing importance of ethnic diversity at the nine campuses. Atkinson said UC will seek to find new paths to ensure that students, faculty and staff be drawn from all facets of the California population.

“California is changing and so must we,� Atkinson wrote. “What cannot change, however, is the university’s historic responsibility to serve Californians of every background and condition, including greater number of disadvantaged young people.�

State Supt. of Public Instruction Delaine Eastin urged school districts not to dismantle any programs that might be affected by Proposition 209’s anti-bias provisions until they are interpreted by the courts or the Legislature.

She also vowed to ensure that “Proposition 209 will have no bearing on the overall mission of the California Department of Education, which is to ensure equal educational programming and opportunities for all of our diverse and remarkable children.�

In many places, the measure also caused reflection and worry about whether this debate has left social scars.

Wilson blamed bad feelings about the measure on what he called a deceitful campaign against the ballot measure and political enemies who want to portray the governor as a heartless opportunist.

“They are being manipulated,� the governor said. “It is a very sad thing when anyone goes through a portion of their lives believing they have been caused harm by people who wish them well,� Wilson said.

In Los Angeles, 10 civil rights activists stood amid a circle of unlit red, white and yellow votive candles on the City Hall steps Wednesday at noon, calling for a massive rally Friday at noon in the same location.

“The entire community is hurt, is in tears, and is outraged,� said Cesar Cruz, an organizer with United Front in Orange County. “We are trying to bring the community of Southern California together to say, we as a community have not voted. We need to vote on the streets.�