Civil Rights Leaders Worry About Mixed Signals From Davis

By DAVE LESHER

June 28, 1999 12 AM PT

TIMES STAFF WRITER

SACRAMENTO — Gov. Gray Davis is sending mixed messages about his approach to affirmative action, causing concern among some civil rights leaders about whether he will fulfill his campaign promise to be a racial healer.

Recently, they say, the governor has taken two seemingly inconsistent actions.

First, Davis ended the governor’s role in a lawsuit filed by his Republican predecessor, Pete Wilson, that seeks to enforce Proposition 209, the 1996 ballot measure ending affirmative action programs in government.

At the same time, however, he has continued an executive order Wilson issued that blocks the state from monitoring the ethnic and gender diversity among the contractors it hires.

Civil rights groups have challenged the executive order in court, with Davis now assuming Wilson’s former role as the defendant in that suit.

Earlier this month, a state appellate court ruled against the civil rights groups. Now they face a problem--either take Davis to the state Supreme Court within the next two weeks or persuade him to rescind the order.

So far, Davis has not responded to their pleas.

“Many of us in the civil rights community are disappointed that he hasn’t taken a more proactive stance with respect to overturning some of the prior executive orders,” said Francisco Lobaco, state legislative director for the American Civil Liberties Union. “He made very positive statements during his campaign about the need for diversity in the state. So we in the civil rights community will hold him to those statements.”

Lobaco and others said they remain confident that Davis will emerge as a leading civil rights governor. For the time being, they attribute the unsteady course to the difficulties of launching a new administration.

But just as Davis faced a difficult path on illegal immigration and Proposition 187, the governor is also finding it hard to reconcile his support for affirmative action programs and his official responsibility to implement the ballot measure that ended them.

Davis opposed Proposition 209 when voters passed it in 1996. But he has also insisted repeatedly that he will uphold the will of the voters even when he disagrees with the policy.

Since Proposition 209 passed, the ballot measure has been litigated and upheld all the way to the U.S. Supreme Court. But Davis still must take many steps to implement the new law.

The California Constitution, for example, requires an appellate court ruling before any state program can be dismantled by a ballot measure. The purpose of the constitutional provision is to prevent state bureaucrats from making their own legal interpretations about how to apply the law.

Wilson and Ward Connerly, the chairman of the Proposition 209 campaign, filed a lawsuit years ago seeking the necessary appellate court rulings to dismantle the five major contracting and hiring programs in state government that gave special consideration to minority and women applicants.

Portions of the suit were upheld at the Superior Court level last year and the case is now pending in an appellate court.

With his January inauguration, Davis automatically assumed Wilson’s role as a plaintiff in the suit. But in February, he dropped his participation in it. The suit was unaffected because Connerly is continuing the appeal alone.

A spokesman for the governor said Davis sees some merit in continuing the suit, and the governor might have remained a plaintiff if it could not have proceeded without him.

“It would be different if the suit was in jeopardy, but it’s not,” said Davis spokesman Michael Bustamante.

The governor faced a similar situation last spring with Proposition 187.

The 1994 ballot measure to end government benefits for illegal immigrants was challenged and it is now pending before a federal appellate court.

Davis also opposed Proposition 187. But in that instance, legal experts say, if he dropped the case, the proposition would probably be dead because it was found to be unconstitutional by a U.S. district court last year.

As a result, Davis has initiated a controversial and unusual mediation process in hopes of reaching a compromise settlement on benefits for illegal immigrants that both respects the will of the voters and satisfies the proposition’s critics.

Davis’ tentative steps on such controversial social issues have helped him maintain his politically moderate reputation. But they also have strained relations with liberal groups that have high hopes for the first Democratic governor in 16 years.

They remember his frequent pledge during last year’s campaign: “I will put an end to the divisive wedge issues that have marked and marred our recent past.”

Some are now concerned that he is not ending those divisive issues. Lately, Davis has been silent on some pending gay rights issues.

And he has declined to initiate a healing gesture at the University of California Board of Regents, which was deeply torn by a wrenching vote Wilson orchestrated in 1995 to end affirmative action in school admissions.

Wilson used the vote to kick off his ill-fated presidential campaign, and some leading administrators quit their jobs out of anger at the politicization of a respected educational institution.

Some university and civil rights leaders would like the board to rescind its 1995 vote, even though the action would be purely symbolic, since Proposition 209 now precludes affirmative action programs. They say it would help purge a bad memory by reversing the university’s official sanction of the controversial policy.

“The governor does not at the moment seem to want to make any political statement on affirmative action,” said Beth Parker, an attorney with Equal Rights Advocates in San Francisco. “Similar to the battle on Proposition 187, he seems to be taking a conservative approach.”

The most recent civil rights controversy for Davis involves an executive order that Wilson signed in 1998, shortly after the state dismantled a quota system that directed a portion of all state contracts to businesses owned by women and minorities.

Wilson’s order directed the state to stop asking contractors to identify their ethnicity or gender. If it was irrelevant to the state’s decision to hire a contractor, he reasoned, the state should not be asking the question.

But civil rights groups say they need the information to monitor whether discrimination is taking place in awarding contracts. They point out that the same information is still collected in university admissions, even though the data can no longer be used for admissions decisions.

“Without that kind of statistical information, evidence of discrimination or exclusion is swept under the rug,” said Oren Sellstrom, an attorney with the Lawyers Committee for Civil Rights in San Francisco, which challenged Wilson’s executive order.

Earlier this month, a state appellate court ruled that Wilson’s action was legally justified. But since it was an executive order of the governor, Davis also has the authority to rescind it by decree.

Bustamante said he was uncertain whether Davis has made a final decision about letting the order stand. But he also questioned the purpose of the data if affirmative action programs are no longer in place.

“Under the law, it’s irrelevant,” he said. “Gov. Davis intends to enforce the law.”