California Proposition 209 and Affirmative Action
By Robert Harrington
Prop. 209 opponents aren't giving up
Democracy loses a round
Judge Henderson's injunction
Diversity
Democracy finally wins a round
Prop. 209 opponents aren't giving up
Proposition 209 won by a decisive majority, so affirmative action will end, right?
Not necessarily. This is California, remember? The election was just Round 1.
The American Civil Liberties Union filed a lawsuit in San Francisco the morning after the election claiming Proposition 209 is unconstitutional, students on UC campuses rioted and demanded that it be ignored, and the city attorney of San Jose proposed what amounts to an evasion of the new law.
All of this happened before Election Week was over.
On the face of it, the ACLU's task of defeating Proposition 209 in the courts seems insurmountable. The proposition is quite straightforward, and the language is very similar to key parts of the Civil Rights Act of 1964. The ACLU, pillar of civil rights causes, is in the position of defending discrimination. No one should underestimate them, however, or the folly of some judges.
I was curious about how they would make their case, so I looked up their brief. It is 26,000 words of lawyer-talk (they didn't do this in the wee hours on Nov. 6) and hard to read, especially for a non-lawyer such as myself. To make matters worse, it is full of euphemisms, something that has characterized affirmative action (a euphemism itself) since it began.
The gist of their case is two main points. The first is that 209 violates the Equal Protection Clause of the Fourteenth Amendment because it places minorities and women in the position of having to "run a special legislative gauntlet to enact beneficial policies." The second point is that 209 violates the Supremacy Clause because it "stands as an obstacle to . . . federal civil rights laws and is thus preempted."
On the first point, by "beneficial policies" they mean preferences based on race and sex. "Special legislative gauntlet" is the proposition process. Translating these, it becomes "Prop. 209 violates the equal protection rights of women and minorities because it places them in the position of having to propose and pass a proposition to restore sex- and race-based preferences." With only a few changes this argument becomes an all-purpose anti-proposition argument: "Proposition XYZ violates the equal protection rights of the losers because they would have to pass another state proposition to reverse it." Sort of a Gee Whiz argument.
The other point says in effect that California cannot adopt a colorblind standard because that would conflict with federal law. Really?
The ACLU's immediate objective is to obtain a Temporary Restraining Order (TRO), in which the word "temporary" is a sort of reverse lawyer joke, i. e., by lawyers on the rest of us. Whether they'll succeed is anyone's guess. Their case was described by one lawyer friend of mine as "pathetic," but it wouldn't be the first in that category to win.
San Jose City Attorney Joan Gallo's proposal pertains to city contracts. Her idea is to obtain essentially the same result as before by rejiggering city policies. Contractors will be required to either meet "parity" requirements or provide documentation "demonstrating" no discrimination.
She also proposes to change the name of the "Office of Affirmative Action/Contract Compliance" to "Office of Equality Assurance," another euphemism. As if anyone among the living hadn't noticed.
Mayor Susan Hammer was wise enough to delay a decision until the plan can be evaluated more thoroughly.
What we're seeing is reminiscent of what occurred after the Bakke decision in 1978. Nothing much happened then except switching from quotas to "goals with timetables" that were rigorously enforced. At the same time "diversity" was adopted as a moral imperative of the first rank, mainly because Justice Lewis Powell used it in his Bakke opinion. The fact that he was referring mainly to ideological and intellectual diversity, not racial diversity, had no effect.
The opponents of 209 told us during the campaign that they would fight it all the way, and now we're seeing what they meant. It's too bad all this energy can't be directed toward something useful.
San Jose Mercury News, November 18, 1996
Wednesday was a bad day for democracy in California. In a shootout between democracy and the courts, democracy lost.
In a display of arrogance of a height that only judges in our day are capable, U.S. District Judge Thelton Henderson ordered that implementation of Proposition 209 be suspended. To justify this action, Judge Henderson found merit in the lawsuit brought by the ACLU and other civil rights groups who claim that Prop. 209 is unconstitutional.
This event is being celebrated with great abandon by Prop. 209 opponents. They should think again. It was a test of who's in charge, and the people came in a poor second. Their ox may be gored next time.
The ruling is a good example of the thesis of Robert Bork's "Slouching Towards Gomorrah," that the main threat to democracy in America is from the bureaucracy and the courts.
Proposition 209, voted on and approved by the people, is a pure and simple proclamation of non-discrimination. The ACLU's 26,000-word brief that purports to show that the proposition is unconstitutional is a mass of tangle logic and sophistry without equal.
Undoubtedly, many will say that my position does not show proper respect for our legal procedures; that there are serious constitutional issues which must be explored, and so forth. That idea is wrong. It represents a habit of thought, a mode we've fallen into, where everything must be submitted to the courts for approval. Judges have to decide every little thing: whose children get bused where, whether it's OK to say "God" in school, how many of what skin color contractors must have, and so on.
Many state and local officials announced even before the ruling that they weren't doing anything about Prop. 209 until the courts clarify it. They were paralyzed without detailed instructions from a judge.
A hopeful sign is that the vector of Appeals and Supreme Court decisions in the past few years makes it unlikely that Judge Henderson's order (assuming he turns it into an injunction, which seems inevitable) will survive appeals. The trend toward increasing scrutiny of race-conscious actions by government is developing into a tsunami that will overwhelm Henderson and his colleagues in spirit in a few years if not sooner.
More specifically, consideration of race in college admissions was declared to be in violation of the Fourteenth Amendment in the Hopwood case this year by the Fifth Circuit Court of Appeals in Texas. If the logic of Hopwood attains the wide acceptance it deserves, Judge Henderson will be in the singular position of having accepted an argument that a law which outlaws something which is already unconstitutional is unconstitutional. Meanwhile, however, it appears that we will be forced to endure an ocean of insufferable nonsense from the ACLU and its allies before we can get to that conclusion.
San Jose Mercury News, November 28, 1996
Regarding the Times' comment in the Dec. 31 (1996) editorial that it is "highly doubtful" that the present Supreme Court will follow the precedent of the Seattle case, the basis of Judge Thelton Henderson's temporary injunction against Proposition 209. That is certainly correct, but you fail to draw the obvious conclusion: Judge Henderson's decision is flawed because it depends on a forecast of precisely that which is "highly doubtful," namely that 209 will be rejected by the Supreme Court. It is virtually certain that at least five justices, Rehnquist, O'Connor, Scalia, Thomas and Kennedy, will uphold it if they get the chance.
Retirement of one or two of these (most likely Rehnquist and/or O'Connor) could change the balance, as you say, particularly considering the president's opposition to 209. For this reason, your remark that the appellate courts should act "both with dispatch and, let's hope, with unusual clarity" is surely a sentiment (at least the "with dispatch" part) not shared by other opponents of 209.
The plaintiff's only way to win is almost certainly to delay the proceeding until at least one of those five retires. Considering their skill in manipulating the system, demonstrated by getting the case move to a former director of the ACLU, they will undoubtedly stretch it out. Meanwhile, they lose nothing because the status quo is maintained by the injunction.
The composition of the court was considerably different in 1982 when Seattle v. Washington was decided. It included Blackmun, Marshall and Brennan, three of the most activist judges of the present era. They were in the minority by 1989 when the court struck down a minority set-aside program in Richmond v. Croson. At that time, George Will remarked, "The Court is gingerly backing out of the swamp."
They backed out further in 1993 in Shaw v. Reno, which outlawed racial gerrymandering in North Carolina. In that decision, Sandra Day O'Connor wrote:
Classifications of citizens based solely on race are by their nature odious, to a free people whose institutions are founded upon the doctrine of equality, because they threaten to stigmatize persons by reason of their membership in a racial group and to incite racial hostility.
That wording surely qualifies for the "unusual clarity," if not the direction, you hope for. In fact, clarity, unusual or any other kind, is not possible in a decision going the other way because affirmative action is vague and arbitrary by definition. This fact was made unusually though unintentionally clear by Justice William Brennan in Johnson v. Transportation Agency, Santa Clara County (1987). In it he described the affirmative action plan as a "flexible, case-by-case approach," a formula for exercise of arbitrary power that would be hard to beat. Brennan went on to state, amazingly, that it was "fully consistent" with Title VII of the Civil Rights Act of 1964.
The prospect of returning to that swamp of policy-making judges is quite depressing, but Clinton's previous Supreme Court nominations do not give us reason for optimism.
Morgan Hill Times, January 17, 1997
Few words divide us more sharply than diversity. In the cant of modern liberalism, diversity is the representation of races and sexes in all walks of life in proportion to their numbers in the general population. Diversity of this type is considered an ideal of democracy, axiomatic and self-evident, no discussion required. In terms that liberals would be loath to admit, it is an article of faith.
An editorial in the San Jose Mercury News ("Missing minorities," Feb. 10, 1997) illustrates my point. Speaking with alarm about an 8 percent drop in enrollment applications from African-Americans and 4 percent from Latinos for the University of California, the Mercury News said: "Now is the time for members of the Board of Regents to stand up and repeat, loud and clear, that their new admissions policy will deliver campus diversity." Clearly, they consider this a matter about which there can be no argument; a settled question that no decent person would dare to oppose.
The idea of diversity in the sense used here is not just a subject of prattle among editorialists; it is ascendant, indeed treated as part of the mission, in our colleges and universities. As a political idea -- a matter of the rights of one group as against another -- it is an enemy of intellect, the free reign of ideas, and strikes at the heart of what we used to think the university was all about. It is an example of the closed mind in Allan Bloom's book, "The Closing of the American Mind."
The special irony of this moral urging by liberals is that they never tire of telling us how much they resent people who attempt to "impose their morality on others." I believe that this contradiction is completely unconscious. They fail to realize not only that their insistence on diversity is precisely such an attempted imposition, but that the underlying proposition is as well.
The fascination with diversity derives from liberals' belief in moral relativism, which denies that there is any universal moral law. It is this belief that leads to their insistence that all "value systems" have equal claims for our minds; that each person has the right to choose one for himself. That is, until it comes to the matter of diversity; then we must all "stand up and repeat, loud and clear," our allegiance or suffer the disapprobation of the editorialists of the Mercury News and their many colleagues in spirit.
February 15, 1997
Democracy finally wins a round
Democracy finally won a round April 7 in the fight over Proposition 209 when the Ninth Circuit Court of Appeals threw out the preliminary injunction signed by Judge Thelton Henderson last December. The action and acid language of the opinion were a sharp rebuke to Judge Henderson and the plaintiffs. The ACLU-led losing attorneys reacted angrily, revealing as much about how they really feel about their case as anything else.
The Ninth Court found that Judge Henderson based his decision on erroneous legal premises in both main arguments by plaintiffs, based on the Equal Protection Clause and the Supremacy Clause, respectively. It granted all the facts of the original plaintiff's case and drew "all reasonable inferences in plaintiff's favor," but found "as a matter of law, Proposition 209 does not violate the United States Constitution."
University of Southern California law professor Erwin Chemerinsky characterized this decision as "the epitome of conservative judicial activism." How far we've come when a court which declines to assert judicial review is accused of activism!
There are so many eminently quotable passages in the opinion that it is hard to choose.
"Plaintiff's counsel," (presumably Mark Rosenbaum, ACLU attorney) drew a particularly sharp rebuke by telling the court that "[t]he people of the State of California are not entitled to make a judgment as to whether compelling state interests have been vindicated. That is for the courts." Judge Diarmuid F. O'Scannlain, who wrote the opinion, disagreed in the severest terms: "Au contraire! That most certainly is for the people of California to decide, not the courts. Our authority in this area is limited to deciding whether the interests proffered by the people are sufficient to justify a law that classifies among individuals. If the federal courts were to decide what the interests of the people are in the first place, judicial power would trump self-government as the general rule of our constitutional democracy."
The doubletalk of the plaintiff case was revealed for what it was. Of the ACLU's charge that 209 denies certain races and one gender equal protection, Judge O'Scannlain said, "If merely stating this alleged equal protection violation does not suffice to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence."
Regardless of how much the opponents of Proposition 209 may rationalize the "conservatism" of the 3-judge panel, the tight logic and incisive language of Judge O'Scannlain's opinion sets a high bar for any court to jump over, even the Supreme Court.
Gilroy Dispatch, April 14, 1997