By Jennifer L. Bowman, On-line Forty-Niner
May 15, 1997
With the November passing of Proposition 209, the California Civil Rights Initiative, there remains a great deal of controversy surrounding the topic of affirmative action.
To understand the initiative, which has been put on the shelf by the U.S. District Court, one needs to take a look at the history of the proposition and of affirmative action itself.
For California, affirmative action guidelines began about the time that Ronald Reagan was governor. Reagan asked that every citizen consciously adopt a personal commitment to affirmative action.
Today, with Pete Wilson as governor, the state's position on affirmative action is much different.
Wilson, an advocate of Proposition 209, led an attack on the system as early as 1995 when he single-handedly banned some affirmative action groups in California. Wilson and his supporters claim the proposition will encourage equal opportunity by eliminating racial and gender preferences.
Proposition 209 recalls history by echoing the words of the 1964 Civil Rights Act, which outlawed discrimination against women and minorities. The 37-word article was passed November 5, 1996, by 54 percent.
Proponents of Proposition 209 argue the initiative will prohibit discrimination or preferences based on sex, race or national origin in state and local government, education and contracting programs.
Opponents contend that many voters did not understand that Proposition 209 would end affirmative action because the clause was not clear in its wording. The also say affirmative action opens doors and that the system is not based on quotas or set-asides.
Immediately following the passing of Proposition 209, members of the American Civil Liberties Union and other groups filed suit in District Court in San Francisco, charging that the proposition violates the Constitution's guarantee under the law. The suit sought and received a temporary restraining order from Judge Thelton Henderson.
Henderson said his decision to halt the initiative, for now, was based on the fact that the proposition discriminated against women and minorities who currently need and benefit from affirmative action.
Henderson also said that at the same time, the initiative left out other minority groups such as military veterans and college alumni. His legal justification, however, was based on his conclusion that the initiative violates the 14th Amendment's equal protection guarantee, which he said exists in order to "level the playing ground" that is an imbalance from the past.
Now, Proposition 209 attempts to defy the 1954 ruling. On July 20, 1995, Richard Atkinson, president of the University of California system, and in agreement with Governor Wilson, ordered that no consideration be given to race upon considering applications for admission.
Upon hearing this, UC Santa Cruz students (more than 100 of them) blocked the entrance to the Student Services Building, asking the school to reject the order. The first school to apply the rule was UC Irvine, although a temporary restraining order has been placed on implementation. Currently, no further action has been taken by any schools.
However, the court system seems to favor the order. This year, the U.S. Supreme Court struck down a University of Texas Law School policy that favored African-Americans and Latinos over whites with higher test scores.
"It is true that the courts are increasingly hostile toward preferential programs and we actually think that is good," Proposition 209 co-author Tom Wood told Future magazine in September 1996.
For now, an injunction keeps Proposition 209 on hold.
Judge Henderson's order has greater bearing than a passing vote by citizens in the 1996 election. Unless an appeal by Attorney General Dan Lungren wins at the Supreme Court level, affirmative action should stay in effect.