Proposition 209:

The Death of Legal Affirmative Action in California

            The state of California brought the debate over affirmative action back to the national spotlight with Proposition 209. Proposition 209 was a California ballot initiative that abolished racial and gender preferences by amending Article I of the state Constitution. It specifically stated: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The only exceptions are court-approved consent decrees or federal programs requiring preferences as a condition of the grant. . Californians Against Discriminations and Preferences originally formed in 1994 to qualify Proposition 209 for the ballot. It was supported by then Governor Pete Wilson and Ward Connerly, the Chairman of the California Civil Rights Institute. The opponents include the ACLU of Southern California and the Feminist Majority among new groups that formed specifically to fight the Proposition. The objective of Proposition 209 was to end what proponents saw as “reverse discrimination” that required “costly bureaucracies to administer racial and gender discrimination” (Argument in Favor of Proposition 209). Affirmative action and the results of Proposition 209 are still being debated, which is why it is an important policy to analyze and evaluate.

            After the Civil Rights Act of 1964 and Voting Rights Act of 1965, civil rights leaders turned to affirmative action as a way to give underprivileged minorities what they perceived as a chance of social and economic equality (Dallek, 2001). Affirmative action found support from both President Johnson and Nixon, who both supported racial quotas. The support for affirmative action cemented itself by the beginning of the 1970s, and many institutions began instituting their own affirmative action programs. In 1978, the Supreme Court decision Bakke v. University of California permitted universities to “use race as a plus factor in admissions” and after it was noted that “affirmative action had become deeply entrenched in American society” (Dallek, 2001).

            It was not until the 1990s did affirmative action opponents lobby hard against affirmative action, and in 1995 the Regents of the University of California voted to stop using affirmative action in admissions and hiring. The opponents of affirmative action in California argued that “Government cannot work against discrimination if government itself discriminates” (Argument in Favor of Proposition 209), and that it was “an unfair government program that exacerbated an already large racial divide” (Dallek, 2001).

            Leading the charge for Proposition 209 was Ward Connerly. Connerly is the Chairman of the California Civil Rights Institute, and is one of the nation’s foremost opponents of racial preferences. A New York Times article described Connerly as “a millionaire businessman with the oratorical gallop of an evangelist, is the man who successfully led the challenge against California's racial bookkeeping” (Bearak, 1997). Proposition 209 was firmly opposed by Wade Henderson, the Executive Director of Leadership Conference on Civil Rights, and Karen Manelis, the President of California American Association of University Women. They argued that Proposition 209’s “real purpose is to eliminate affirmative action equal opportunity programs for qualified women and minorities including tutoring, outreach, and mentoring” and supporters were playing “the politics of division for their own political gain” (Rebuttal to Argument in Favor of Proposition 209).

            When debating about California’s affirmative action policies, neither side tried to compromise. The policy choices were either the status quo, or an abolition of affirmative action. They could have decided to allow a lower percentage of quotas for affirmative action in hiring and college recruitment, but both sides would only stick to their guns. The issue became increasingly partisan with the Presidential election coming. Bob Dole strongly supported it and Bill Clinton was against the ban on affirmative action. The GOP wished to use it as a wedge issue to gain votes, but instead polls show them hurting the Proposition’s chance of passing.  Ward Connerly, who led the charge for the proposition, said that if it were to fail, the GOP Chairman John Herrington would be responsible, because he turned it into a partisan issue. The San Francisco Chronicle reported that “A week before election day, 46 percent of likely voters support Proposition 209, while 41 percent oppose it -- a major shift from the double-digit leads the measure enjoyed over the past two months. Thirteen percent were undecided.” Democrats also oppose it 54%-32% and Republicans supported it 60%-30% (Gunnison, 1996). In the end, there would be no two party solution; one side would have to receive absolute victory.

               On November 5th of 1996, that is exactly what happened. For a year volunteers gathered signatures around California to get ballot Proposition 209 on the ballot, and it passed 54% to 46% with 4,736,180 votes to 3,986,196 votes. The day after the vote, the ACLU challenged it in the U.S. District Court in San Francisco, because they believed it to be unconstitutional. In response, the Pacific Legal Foundation filed suit for immediate implementation. Judge Thelton E. Henderson ruled Proposition 209 to go through further legal examination before implemented, because he believed it might be unconstitutional. 

               It wasn’t until August 22, 1997 that the 9th U.S. Circuit Court of Appeals cleared the way for the law to be implemented by refusing to grant a hearing to those who say the initiative is unconstitutional. The 9th Circuit said that the rehearing failed to achieve a majority of the 18 judges eligible to vote, although no vote total was released (Roman, 1997). The Proposition was finally adopted.

            A week later however, the Supreme Court refused an emergency request to block enforcement until a further review. The ACLU filed the request trying to get an extension of the appellate court’s decisions to hold implementation of the law until its constitutionality was reviewed. It was now up to Attorney General Dan Lungren to enforce the law statewide, while many cities and localities were planning on not changing their racial preferences. "We're going to stretch the envelope as far as we can and chip away at 209," said Nate Miley, city councilman and vice mayor of Oakland” (Morello, 1997).

San Jose scrapped its affirmative action ordinance and replaced it with a new “outreach” law requiring employers to show they solicited minority and female subcontractors with letters and faxes a month after the proposition was passed. In June of 1997, the new plan was challenged by a lawsuit from an electrical contractor who lost a $200,000 contract to a competitor who purchased materials from a woman (Morello, 1997). His case was picked up by the conservative Pacific Legal Foundation who vowed to start suing cities and localities that violate the ban on preferences.

In 2001, the Pacific Legal Foundation criticized Attorney General Bill Lockyer for refusing to enforce the law. Instead, the Foundation has been taking localities not abiding by the law to court, and winning most of the time.

            San Francisco has been publicly violating the law with its race- and sex-based public contracting program which it extended another five years in 2003. They have been losing court battles at the San Francisco Superior Court and First District Court of Appeal and now it will be reviewed the California’s State Supreme Court. It is currently a pending case for the California Supreme Court to decide this year.

            Supporters of the proposition knew they were going to have to monitor enforcement themselves and planned on having to file many lawsuits. Even over eleven years after its passage, the racial preferences haven’t been fully eliminated in California.

            When evaluating Proposition 209, the analysis is based on support or opposition to the bill. Opponents believe it has been a disaster, while supporters claim a success. Most of the controversy is over college admissions and enrollment, rather than state and local business contracts for these such as roads. Although, supporters believe money has been saved in comparison to federal contracts that use preferences.

            When looking at the admissions and enrollment numbers for the eight undergraduate colleges for the University of California, enrollment and admissions of minority students dropped from 1997 after the law took effect in 1998, but largely rebounded by 2007. For the purposes of researching the opportunity for college, admissions are more relevant than enrollment. In 1997, white students made up 42 percent of admissions, with African Americans at 4 percent, Asians at 26 percent, Latino/Chicano at 14 percent, and 13 percent other/unknown. The following year, whites dropped to 35 percent, African Americans to 3.2 percent Asians to 24 percent, Latinos/Chicanos to 13.4 percent, meanwhile other/unknown increased to 23 percent. By 2007, white students made up 36 percent, African Americans 4 percent, Asians 26 percent, Latinos/Chicanos 14 percent, and other/unknown 14 percent. The 6 percent drop in white student admission shows an increase in diversity by itself (President, 2008).

            The enrollment stats show a very similar story with minority students dropped off slightly in 1998 and rebounding by 2007. In 1997, white students were 39 percent of enrolled students, and by 2007 they were only 31 percent. In the same period Latinos/Chicanos increased from 13 percent to 17 percent and Asians from 29 percent to 33 percent. African Americans started at about 4 percent and ended around 3.7 percent (President, 2008).

            It seems that there was a consequence that nobody intended in that the colleges became more diverse, but from different ethnicities other than African Americans that are the main focus of racial preferences in public debate. Opponents predicted that whites would benefit from proposition 209, but it’s clear that is not the case. Regardless of the statistics, it remains clear that the battle over racial preferences in California is not over, and has a long road ahead.

            Researching this initiative was a perfect example of grassroots political action with activists gathering signatures to form the initiative. Influential groups such as Ward Connerly’s American Civil Rights Institute and the Pacific Legal Foundation clashed with the well-known American Civil Liberties Union. The courts showed their power by putting a hold on the proposition after its passage, before the 9^th Circuit Court of Appeals refused to grant a hearing on its constitutionality, and Proposition 209 was implemented. The Pacific Legal Foundation is currently working on seven separate court cases related to enforcing Proposition 209.

The vote on Proposition 209 shows growing unrest by mass publics to affirmative action; meanwhile liberal bastions such as San Francisco show their devout commitment to it. The opinions and commentary on affirmative action and Proposition 209 show just how divisive the debate still is and will remain for years to come. Since 1996, it has become less a hot-button issue, but like many social issues, it has the chance of starting a riot when it comes to national attention. It cannot be much longer before it comes back to the spotlight.

Reference

Argument in Favor of Proposition 209. (n.d.). Retrieved March 31, 2008, from CA Secretary of State: http://vote96.sos.ca.gov/BP/209yesarg.htm

Bearak, B. (1997, July 27). Education. Retrieved March 31, 2008, from New York Times: http://query.nytimes.com/gst/fullpage.html?res=9C07E0DD153AF934A15754C0A961958260&sec

Dallek, M. (2001). Affirmative Action. In P. Boyer, The Oxford Guide to United States History (p. 10). New York: Oxford University Press.

Gunnison, R. B. (1996, October 30). Prop. 209 Lead Dwindles. Retrieved April 8, 2008, from SFGate: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/1996/10/30/MN23948.DTL&hw=proposition+209&sn=007&sc=653

Morello, C. (1997, November 17). Opponents chip away at PROP. 209. Retrieved April 9, 2008, from USA Today: http://proxy.kennesaw.edu:2101/us/lnacademic/results/docview/docview.do?risb=21_T3478429438&format=GNBFI&sort=BOOLEAN&startDocNo=626&resultsUrlKey=29_T3478363725&cisb=22_T3478429440&treeMax=true&treeWidth=0&csi=8213&docNo=645

President, U. O. (2008, January). University of California Application, Admissions, and Enrollment of California Resident Freshman. Retrieved April 9, 2008, from University of California Office of the President: http://www.ucop.edu/news/factsheets/Flowfrc_8907.pdf

Rebuttal to Argument in Favor of Proposition 209. (n.d.). Retrieved March 31, 2008, from CA Secretary of State: http://vote96.sos.ca.gov/BP/209yesrbt.htm

Roman, N. E. (1997, August 22). Calif. bias ban survives appeal. Retrieved April 9, 2008, from The Washington Times: http://proxy.kennesaw.edu:2101/us/lnacademic/results/docview/docview.do?risb=21_T3478281746&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T3468743640&cisb=22_T3478281749&treeMax=true&treeWidth=0&csi=8176&docNo=6