MCLE Article and Self-Assessment Test
An Indiscriminate Measure
Now that Proposition 209 has survived judicial scrutiny, considerable litigation to determine its scope and reach can be expected
By Lew Hollman
Lew Hollman is a senior attorney with San Fernando Valley Neighborhood Legal Services, Inc. He serves as cochair of the Bias in the Profession Subcommittee of the Los Angeles County Bar Association's Minority Representation in the Legal Profession Committee. The views in this article are his own.
In 1927, during a period much like today in which deference to government was increasingly conditional, British legal philosopher Carleton Kemp Allen reflected that "law will never again be looked upon solely as a command, but as a function of society, which, to be understood, must be considered in alliance with the study of the whole structure of society."1 This is certainly true of Proposition 209-now Article 1, Section 31, of the California Constitution.
Proposition 209 grew out of a clash of values of the highest order. To assist in its passage, however, its drafters included provisions intended to deflect practical and legal arguments against it. Now that the preemptive attack on Proposition 209 in Coalition for Economic Equity v. Wilson has failed,2 the debate over the merits of Proposition 209 will shift to practical questions concerning its implementation:
- What constitutes state discrimination-or state action-that would fall under the proscription of Proposition 209?
- What are the effects of the exception regarding court orders?
- What are the ambiguities and practical problems involved in the exception for actions taken to establish or maintain eligibility for federal funds?
- What are the likely effects of Proposition 209 on the business of the courts?
Initiatives have always posed problems in interpretation. From the adoption of the initiative in California in reaction to the perceived political hegemony of the Southern Pacific Railroad at the beginning of this century3 to the recent (and short-lived) decision of Ninth Circuit Judge Stephen Reinhardt, joined by Judge Betty B. Fletcher, regarding term limits, initiatives have been criticized for the lack of studied process by which they are written and the resulting difficulties in interpreting and harmonizing them with existing law.4 Put on the ballot by petition, the "legislative history" of Proposition 209 consists solely of a tentative summary by the attorney general and the ballot arguments of supporters and opponents, with the arguments containing more polemics than analysis.5 The attorney general's summary dutifully addresses each provision, but with the rather unenlightening proviso that the effects of the initiative "[will] depend on such factors as (1) court rulings on what types of activities are considered 'preferential treatment' and (2) whether federal law requires the continuation of certain programs."6
The public debate was disappointing. Proponents endorsed Proposition 209 as a method for ending unfair preferences based on race, ethnicity, and gender. Opponents called Proposition 209 an attack on affirmative action. Polls, which direct much modern political debate, purported to show that voters gave different answers when asked whether they were in favor of preferences or affirmative action.
It would, however, be patronizing and inaccurate to characterize the vote on Proposition 209 as the result of semantics.7 A fairer description of public sentiment would draw the fault line between the principle of Proposition 209 supporters that all governmental distinctions based on race or gender8 are wrong, and the principle of opponents that government must affirmatively recognize and confront the still potent barriers of race and gender to achieve true equality of opportunity and the benefits of a diverse culture.
Proposition 209 embodies the principle that all governmental classifications based on race or gender are equally illegitimate, regardless of their purpose. UCLA Law School Professor Eugene Volokh, a constitutional scholar and legal adviser to the Proposition 209 campaign,9 has written that while some might argue that programs targeting assistance to women and minorities are morally different from programs targeting whites and males, "the core principle behind the CCRI [California Civil Rights Initiative] is that both forms of preferential treatment are equally invalid."10 Proposition 209 rejects the need seen by defenders of affirmative action for governmental action to address the persistent effects of conscious and unconscious discrimination.11
While Proposition 209 proponents see distinctions based on race or gender for benign or invidious reasons to be logically indistinguishable, opponents believe, to borrow the expression of Justice Oliver Wendell Holmes Jr., that "[u]pon this point a page of history is worth a volume of logic."12 Indeed, the popular phrase among Proposition 209 supporters that "two wrongs never make a right" reflects a moral insensitivity in its implied equivalence between the brutal mistreatment of many minorities and the systematic discrimination against women historically, and the incidental effects of affirmative action programs on whites.
Both sides claimed a commitment to a more equitable society rooted in traditional principles of justice. Voters pro and con believed that they were furthering justice, but they differed dramatically in their perspectives about the effect of race and gender on "competing claims to the advantages of social life."13
These arguments have been settled-for now-by the action of 54 percent of California voters. Unfortunately, they provide only limited guidance in determining the scope of, and interpreting the exceptions to, Proposition 209. The litigation launched in the wake of Proposition 209's passage is also unhelpful. The challenge of the plaintiffs in the Coalition litigation was limited to "that slice of the initiative that now prohibits governmental entities at every level from taking voluntary action to remediate past and present discrimination through the use of constitutionally permissible race- and gender-conscious affirmative action programs."14 The Ninth Circuit overturned the district court preliminary injunction issued by Judge Thelton Henderson in a decision distinguished more by its demagogic appeal to the popularity of Proposition 209 than legal analysis. Judge Diarmuid F. O'Scannlain, writing for the panel, declared that "[a] system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy."15
Proposition 209 declares: "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."16 Volokh deems discrimination and preferences to be coterminus: "Giving preferential treatment to one person equals discriminating against another."17 This argument is not entirely persuasive. Treating discrimination and preferences as identical violates the principle of construction that each word in a statute or constitution is assumed to have an independent meaning.18
Nonetheless, it is unclear what other meaning might have been intended. Opponents, of course, argued that affirmative action programs that were legal under the federal constitution were tools to overcome conscious and unconscious barriers faced by women and minorities, rather than preferences.19 The Mexican American Legal Defense and Education Fund (MALDEF), for example, declined to join the Coalition litigation at least in part because it was unwilling to concede that properly constituted affirmative action programs could be characterized as preferences.20 It seems highly unlikely, however, that any court will hold that Proposition 209 failed to change existing law with respect to race- and gender-conscious affirmative action programs. Plaintiffs in the Coalition litigation accepted an interpretation that treated as a proscribed preference under Proposition 209 any constitutionally permissible race- or gender-conscious program not subject to one of the stated exceptions.21 Courts in future decisions will agree.
More difficult questions are certain to arise regarding the entities to which the proscription applies. The initiative campaign focused on relatively high-profile areas such as state college and university admissions policies, public contracting set-aside programs, and government hiring policies. But the "state" to which the prohibition applies is broadly defined to "include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state."22 The parameters of this definition are by no means obvious.
What constitutes state action under federal civil rights laws is a question that has dogged courts for more than a century.23 The U.S. Supreme Court has refused to limit itself to a precise definition: "This Court has never attempted the 'impossible task' of formulating an infallible test for determining whether the [s]tate 'in any of its manifestations' has become significantly involved in private discriminations."24 Not surprisingly, then, what constitutes state action has been a moving target over time, as the country's awareness of, and commitment to, civil rights has waxed and waned.
In the Supreme Court's first articulation of the state action requirement in the Civil Rights Cases in 1883, it was used to eviscerate federal efforts to address private discrimination against recently freed slaves by striking down a statute protecting African Americans from private discrimination in public accommodations.25 But near the dawn of the modern Civil Rights movement, the Court in Shelley v. Kraemer found that enforcement of racially restrictive covenants in deeds by state courts was state action, thus effectively voiding provisions of wholly private transactions.26 A little more than a decade later, Burton v. Wilmington Parking Authority held that discrimination in a privately owned cafeteria leasing space from a municipal parking authority constituted state action.27
Citing more recent retreats from such intervention, Volokh asserts that "a race-conscious hiring decision by a government contractor or government licensee isn't state action-it's not the state that's giving the 'preferential treatment.'"28 On the other hand, he believes the ban would apply if the state "pressures" a private entity to grant a preference based on race or gender, citing Robinson v. Florida29 and Lombard v. State of Louisiana,30 cases involving sit-ins seeking to end the segregation of blacks at public lunch counters in states where there were no statutes or ordinances prohibiting integrated dining.31 In Robinson, regulations requiring the maintenance of separate toilet and lavatory rooms were held to constitute state action because they were "bound to discourage" integrated dining.32 State action was found in Lombard based on the public statement of the superintendent of police that "'[sit-ins] are not in the community interest.'"33
The sit-in cases, like Shelley and Burton, illustrate that "[the] distinction between public and private action is not as substantial as might first appear."34 Moreover, the line between public and private action, described as a "thin wall"35 more than 35 years ago, has become almost nonexistent. The federal bailout of the Los Angeles County healthcare system in 1995, for example, relied heavily on partnerships between county facilities and private clinics, with the latter seeing almost exclusively "public" patients-indigents for whom the duty of care and reimbursement arises from state law.36 The current revolution in welfare reform will be similarly dependent upon the development of close relationships between public and private entities in areas such as child care, employment, and training.37
Whether the Proposition 209 proscription of race- and gender- conscious programs will apply to the private agencies (both profit and nonprofit) involved in welfare reform is difficult to predict. Case law delineating state action under the Fourteenth Amendment certainly suggests the possibility. The Supreme Court has held that "when private individuals or groups are endowed by the [s]tate with powers or functions governmental in nature, they become agencies or instrumentalities of the [s]tate and subject to its constitutional limitations."38 But the Court refused to find state action in the discharge provisions of nursing homes, despite heavy regulation of that industry and the substantial dependence of the homes on Medicaid funding.39
With devolution of responsibility for welfare shifting from relatively uniform federal programs to block grants delegating enormous discretion to state and local governments, it has become increasingly common for local welfare agencies to reach out to underserved populations by working in conjunction with community groups that often identify themselves by race or ethnicity. Thus, for example, in Pacoima and San Fernando, the Latin American Civic Association operates the Head Start program, which is linked to the job requirements of welfare recipients. Childhood health, immunization, and parenting programs are often advanced through grants to groups that historically have served, and are closely identified with, particular racial or ethnic groups. There are nonprofits receiving grants to provide African American or Latino inner-city youth with job readiness training and to counsel them to stay in school-formerly voluntary programs that are becoming mandatory under many welfare plans under development. Filipino community centers are connecting social services with disabled senior citizens who need home care to avoid institutionalization.
Grants or contracts with such groups typically include nondiscrimination clauses, but the groups are intended to target hard-to-serve populations identified by race or gender. Their hiring policies invariably favor members from the populations they are trying to reach. Do such grants constitute state action "bound to discourage" nondiscriminatory treatment, like the regulations in Robinson? Do the grants "officially encourage" preferential treatment, in the same manner described by the police superintendent in Lombard? Assuming the grants are made in a race- and gender-neutral fashion, must recipients, nonetheless, scrap their race- and gender-conscious affirmative action plans?
If playing a role in welfare reform makes community groups instrumentalities of the state, Volokh would find that the targeting of their education and training programs, as well as their own race- and gender-conscious hiring policies, violate Proposition 209: "It doesn't matter whether it's an admissions program, training program, or mentoring program. Any government program that treats people differently based on one of the prohibited criteria is forbidden."40 He has stated that "recruitment campaigns intentionally targeted at a particular group are probably prohibited."41 Of course, so-called neutral programs would be acceptable to Volokh, even if they disproportionately benefited certain groups.42
The difficulty with this approach is that neutral programs may be far less effective in reaching the intended beneficiaries. Moreover, the very willingness of ethnic and racially identified community groups to participate in welfare reform could be affected if they are told that both their methods and their personnel policies are illegal.
Will Proposition 209 be held to ban private affirmative action plans that were created, at least in part, to avoid claims of unlawful discrimination under federal law, simply because the state enforces employment contracts? This is not likely. Shelley has never been applied in any other context for 50 years, and it may be fair to characterize the decision as sui generis precisely because its rationale could theoretically swallow the entire state action doctrine. While the other state action cases may arguably present a basis for applying Proposition 209, they reflect judgments reached in different contexts and at different times in U.S. history. Courts may find that the rather speculative harms of "reverse discrimination" provide a less compelling basis for judicial intervention into private spheres of action than the inability to purchase a home in the neighborhood of one's choice, a humiliating refusal to be served in a public building, and the threat of criminal prosecution for trespass. Nonetheless, it is unrealistically sanguine to believe that "few cases will be ambiguous," as Volokh has suggested.43
Proposition 209 contains four exceptions, apart from an unstated one-the U.S. Constitution's supremacy clause.44 Section (b) provides that Proposition 209 "shall only apply to action taken after the section's effective date."45 Given that Proposition 209's main target is discrimination and preferences "in the operation of public employment, public education, and public contracting," the apparent intent of Section (b) is to make it clear that the initiative would not nullify decisions predating its passage on hiring, admissions, and the awarding of contracts. This is consistent with general hostility to the retroactive operation of laws, including initiatives.46
Section (c) states that nothing in the proposition shall prohibit "bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting."47 This language is patterned after a similar employment discrimination exception under Title VII of the federal Civil Rights Act.48 The concern that courts will hold that Proposition 209 has overturned California's precedent of applying strict scrutiny to classifications based on sex is alarmist, at best.49
Section (d), while simple on its face, is far more problematic: "Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section."50 It appears that this exception, like Section (b), was intended to avoid upsetting "settled expectations," according to Volokh.51 That will not be its effect.
Not only do the vast majority of lawsuits never proceed to trial, but California courts depend upon pretrial dispositions to keep the justice system from collapsing.52 Many potential lawsuits are settled through negotiation without a complaint ever being filed. Agreement, followed by dismissal, is far more common than entry of a stipulated judgment or consent decree. This is common knowledge among practicing lawyers, if not voters. Given these practices, differentiating between agreements reached before Proposition 209 on the basis of whether or not they were incorporated into judgments will lead to many arbitrary results. But the possibility that this distinction could be applied to school districts is what could really explode those "settled expectations."
California funds programs to remedy the effects of racial isolation in schools resulting from court orders or the voluntary actions of school districts.53 Those districts that elected to remedy unconstitutional conditions voluntarily could face the loss of thousands, even millions, of dollars for such programs, while districts found by courts to be in violation of federal and/or state law would continue to receive state funds for identical programs. Pursuant to both voluntary and court-ordered programs, the state funds teachers' aides, class-size differentials, and magnet schools-not primarily busing programs-and these grant programs are explicitly race-conscious.54
On its face, Proposition 209 appears to dictate that California should be divided into a checkerboard of school districts, with different funding turning on the fortuitous history of their remedial programs. The attorney general had warned that "the measure could eliminate, or cause fundamental changes to, voluntary desegregation programs run by school districts."55 Even in districts like Los Angeles, where there is a long history of litigation resulting in various court-ordered remedies, questions remain whether existing programs, modified over the years without court involvement, have retained their character as "court order[s] or consent decree[s]…in force as of the effective date" of Proposition 209. A challenge has already begun in San Diego, where the San Diego Unified School District has petitioned for a writ of mandate or prohibition to reverse a trial court order modifying its jurisdiction in light of Proposition 209.56 Fifty million dollars in state desegregation funds is at risk,57 and the consequences for Los Angeles can only be imagined, given that the desegregation budget in the Los Angeles Unified School District exceeds $400 million annually.
Nonetheless, while much litigation can be expected in this contentious area of law, the more persuasive view is that Proposition 209 will not result in the arbitrary checkerboard. There is, to begin with, some authority in Coalition itself to support the argument that Proposition 209 does not apply to desegregation programs. In distinguishing Washington v. Seattle School District No. 1,58 which invalidated an initiative precluding school districts from requiring students to attend schools away from their neighborhoods, the Coalition court stated that "[u]nlike racial preference programs, school desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights."59 The court, however, was referring specifically to pupil assignment programs, not remedial programs characterized by targeted class-size differentials and admission quotas to magnet schools.60 The attorney general took the same position with respect to busing without analyzing other desegregation remedies.61
More persuasive is the argument that there is a preexisting constitutional duty by school districts to address de facto segregation that must be harmonized with Proposition 209. It is a settled rule of construction that "all presumptions are against a repeal by implication."62 In Crawford v. Board of Education of the City of Los Angeles, the California Supreme Court declared that "[g]iven the fundamental importance of education…a school board bears an obligation, under [the equal protection clause] of the California Constitution…to attempt to alleviate segregated education and its harmful consequences, even if such segregation results from the application of a facially neutral policy."63
Additional support for this independent constitutional authority to overcome the effects of de facto racial isolation is found in an unlikely source: Proposition 1, the antibusing initiative that amended the equal protection clause of the California Constitution in 1979.64 Proposition 1 took away from courts the authority to order pupil school assignment or transportation except under circumstances in which such actions would be a permissible remedy under federal law for conduct that constituted a violation of the Fourteenth Amendment's equal protection clause.65 Proposition 1 limited this proscription by making it clear that "[n]othing herein shall prohibit the governing board of a school district from voluntarily continuing or commencing a school integration plan after the effective date of this subdivision as amended."66 This expression of popular intent to preserve the right of districts to act voluntarily to address racial isolation, in conjunction with the constitutional duty to address de facto segregation, strongly suggests that Proposition 209 does not preclude either voluntarily adopted remedial programs in public schools or the reimbursement of their costs by the state.
This is perhaps the reason Education Code Section 42249, authorizing the funding of voluntary desegregation programs, is not included in the lawsuit filed by Governor Wilson and Proposition 209 supporter Ward Connerly to declare certain state programs unconstitutional.67 Nor is it listed among the more than 30 laws the governor identified for the legislature as requiring modification or repeal in light of the passage of Proposition 209.68
Although Section (d) exempts only those judgments rendered before the passage of Proposition 209, the supremacy clause guarantees that all judgments based on federal law are excepted. More interesting is the fact that Proposition 209 does not purport to limit judicial remedies,69 and thus it does not prohibit future race- or gender-conscious remedies based upon appropriate findings of violations of state antidiscrimination laws as well as violations of federal law. But the ability to grant relief from Proposition 209 is limited to the judiciary, a fact likely to have unintended consequences in a litigation-weary state.
Outside the field of school desegregation, giving courts a monopoly on fashioning race- and gender-conscious remedies to claims of discrimination is likely to increase what Boalt Hall Professor Paul J. Mishkin has described as "institutional litigation"-cases in which "lower federal courts have, in the name of remedying perceived constitutional violations, ordered affirmative changes in, and undertaken pervasive and continuing supervision of, the operation of state or local governmental units such as prisons, mental hospitals, or schools."70 Anticipating more recent conservative fears, he cautioned two decades ago that such litigation "can be used essentially to bypass majoritarian political controls."71 Because courts alone retain authority to implement race- and gender-conscious remedies, more institutional litigation can be expected.
Perhaps the most difficult exception to imagine in practical operation is subsection (e), which exempts "action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state."72 Volokh candidly admits that the exception was added "simply…to foreclose any possible campaign argument that '[t]he CCRI would cost California voters $X million in federal money,' based on some program that opponents might have unearthed."73 He suggests that the exception is narrow: "I don't know how many federal programs really require race or sex discrimination."74 But the scope of the exception cannot rest on the demonstrably incorrect notion that the federal government defines "discrimination" in the same manner as Proposition 209.75
Federal law requires that organizations receiving federal funds, participating in federal programs, or contracting with the federal government must demonstrate that they do not discriminate on the basis of race, gender, and other grounds such as disability.76 Moreover, although a statute such as Title VI of the Civil Rights Act of 1964 only makes intentional discrimination illegal, implementing regulations may-and do-prohibit actions that have a disparate impact on protected groups even in the absence of discriminatory intent.77 Satisfying those duties may require race- and gender-conscious affirmative action programs.
An additional problem with this exception is that there is no mechanism to inform agencies whether a modification or elimination of their affirmative action programs will result in the denial or termination of funding. The days are long gone when Abraham Lincoln opened the White House to a daily influx of supplicants requesting help in obtaining jobs, contracts, and promotions and receiving a personal answer in due course.78 No one has the authority to tell a school, police department, or other public agency that its application for, or continued receipt of, federal funds is dependent on maintaining a particular affirmative action program.
Notwithstanding the uncompromising language in Proposition 209, affirmative action programs established pursuant to federal statutes or regulations are probably protected by the supremacy clause. The Supreme Court has stated that "we must generally assume…that Congress when it enacts a statute is not making the application of the federal act dependent on state law."79 The proponents of Proposition 209, however, are unlikely to agree.80
Any significant change in the law generates litigation, but Proposition 209 can be expected to be unusually productive. Much of the litigation will be funded by taxpayers. In addition to their own fees,81 public agencies will be paying the fees of at least one private litigant whenever that litigant succeeds in either defending or striking down a particular program. This is so because subsection (g) provides the same remedies for violations of Proposition 209 "as are otherwise available for violations of then-existing California antidiscrimination law."82 The Unruh Civil Rights Act, for one, mandates the right to damages and the recovery of attorney's fees to prevailing parties.83
More significantly, however, Proposition 209 represents a revolution that has turned traditional civil rights law upside down, outlawing remedial programs intended to benefit historically disadvantaged groups. In doing so, it has appropriated the language and principles of the modern Civil Rights movement. Many affirmative action programs developed during the past 35 years to assist in overcoming illegal or unconscious discrimination are now, by definition, discrimination programs. When all assumptions, rules, and victims have been transformed by a main force, rather than an evolution of ideas, it is hard to predict how earlier precedents can or should be applied.
Like all revolutions, Proposition 209 upset existing power relationships. The campaign tapped a sea of resentment over race- and gender-conscious programs, and Proposition 209 supporters will press to see their views of civil rights implemented. But despite some high-profile African Americans, Latinos, and women expressing agreement with the principle of Proposition 209, there is little evidence that by declaring race- and gender-conscious programs illegal, the significance of race and gender will decline. To the contrary, many women and people of color consider the ground gained in the modern Civil Rights movement to be at risk and are mobilizing in response.
Wherever affirmative action programs are left in place, critics will bring suit to eliminate them. Wherever the programs are eliminated, claims will arise that, absent affirmative action, the resulting systems are illegal. Forecasting events to come are the MALDEF and the NAACP Legal Defense and Education Fund complaints charging that the pre-Proposition 209 action of the University of California Board of Regents to eliminate race or gender as criteria for admissions to the university violated its duties as a federal contractor to assure equal employment opportunity84 and its obligations as a recipient of federal funding to avoid both intentional discrimination and criteria or methods of admission that have a discriminatory impact on women or minorities.85 As Proposition 209 is invoked to eliminate other affirmative action programs, claims in response that the actions violate federal and state laws can be expected.
This should hardly be surprising. While noting the judiciary's failure to establish a controlling rationale or definitive doctrine concerning race-based affirmative action, Mishkin, who represented the University of California at Davis medical school in the Bakke86 case, points out that "in each case [up to Metro Broadcasting, Inc. v. FCC87] opinions were based on the idea that race was ultimately to be understood in a remedial context."88 To the extent the remedial rationales of earlier race- and gender-conscious affirmative action programs were well-grounded, the elimination of affirmative action plans would indeed suggest that the resulting "color-blind" admissions, hiring, or contracting processes are thereby rendered discriminatory once again.
Finally, the exception for actions necessary to obtain or continue to receive federal funds is wholly uncharted water. It is unclear whether the federal government will commit itself to an aggressive defense of federally approved affirmative action programs, but the beneficiaries of those programs can be expected to do so-just as Proposition 209 supporters can be expected to challenge the continued existence of such programs.
Historian John Higham takes it for granted that the modern Civil Rights movement is over, having followed the pattern of two earlier cycles of racial reform: "slowly rising discontent; liberation and euphoria; breakdown and retreat."89 Consistent with this dim view, no empirical data support the demise of what might be called "traditional" race and gender discrimination. In 1994, for example, the federal government received more than 91,000 complaints of discrimination in employment alone, the vast majority brought by women and minorities.90
Persistent inequalities exist between minorities and women, and white males.91 These are troubling facts. Government has an essential role in maintaining the social conditions conducive to democracy and equal opportunity, because "equality exists not by nature, nor for 'man' except on a religious or metaphysical plane; it exists in civil society, by law, and by the form and policies of the state."92 Benign neglect, in the face of persistent inequality, is questionable state policy.
But "breakdown and retreat" is too pessimistic a phrase to describe the state of civil rights in the aftermath of Proposition 209. Indeed, its passage by what is still a predominantly white voting population may be viewed at least in part as a reaction to the growing size and political power of nonwhite populations. At least one branch of government, in any event, will continue to be deeply involved in addressing inequality and discrimination. From determining the scope of Proposition 209's prohibitions to sorting out the meaning of its exceptions, the ambiguities and idiosyncrasies of Proposition 209 will keep the courts busy for many years to come.
Elimination of Bias Training
The Bias in the Profession Subcommittee of the Los Angeles County Bar Association's Minority Representation in the Legal Profession Committee, chaired by Lew Hollman of San Fernando Valley Neighborhood Legal Services, Inc. and Rhonda Reeves of Heller, Ehrman, White & McAuliffe, has developed a two-hour training on elimination of bias. The training, which qualifies for MCLE credit, is presented at law firms and integrates firm personnel in role-playing that generates discussion of bias with respect to race, gender, ethnicity, sexual orientation, and disability. The philosophy of the training is that bias in the legal profession is a problem that ultimately must be solved by attorneys rather than consultants, so the training is conducted by volunteers. The subcommittee expects the training to become self-perpetuating, with people receiving the training agreeing to participate in subsequent trainings. In this way the availability of the training will not be dependent upon a small number of subcommittee members.
The subcommittee works with individuals from the participating firm to select from among the many hypotheticals developed by the subcommittee those that will be most helpful and appropriate for the firm. The training creates a safe and comfortable atmosphere in which sensitive questions can be raised. Participants are assured that they will be treated with respect and there will be no bashing of any person's point of view. The training is not a dispute resolution mechanism, and problems involving specific individuals are not discussed. It is easier to increase sensitivity and understanding of issues of bias outside the context of specific conflicts.
Four or five hypothetical situations that raise questions concerning various types of bias are acted out. Between each role-playing exercise, observers and presenters participate in discussing the issues raised. Possible techniques for avoiding problems, or resolving them, are proposed. Time is reserved at the end for a more general discussion, including critiques of the training, and solicitation of individuals who might be interested in participating in a subsequent presentation.
The subcommittee believes that open discussion by attorneys from all areas of the profession is essential to the elimination of bias in the profession because it is, after all, attorneys themselves who must ultimately find a solution to the problem. By giving the training at law firms, the message is reinforced that this is a problem that must be addressed in each law office by its own personnel. The training recognizes that we are all members of a problem-solving profession and are, in that sense, already experts. Firms that are interested in participating in the training are encouraged to contact Lew Hollman at (818) 834-7530. Members of the subcommittee will respond promptly to all inquiries.-L.H.
1 Carleton Kemp Allen, Law in the Making 23 (1927).
2 Coalition for Economic Equity v. Wilson, 122 F. 3d 692 (9th Cir. 1997), as amended on denial of reh'g and reh'g en banc, Aug. 21, 1997, cert. denied, 118 S. Ct. 17 (1997).
3 David D. Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution 222-23 (1989), quoted in Arne R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 Temp. L. Rev. 1203, 1210 & n.50 (Fall 1996).
4 Former President and Supreme Court Chief Justice William Howard Taft feared the process would weary the electorate with frequent elections on "all the fads and nostrums [that can be devised by the] active but impractical minds" of a small percentage of the voters. Schmidt, supra note 3, at 54, quoted in Leonard, supra note 3, at 1208. See Jones v. Bates, 127 F. 3d 839, 859-60 (9th Cir. 1997) (initiative struck down because it inadequately informed voters of its effect), rev'd en banc, Bates v. Jones, 131 F. 3d 843 (1997).
5 The complete ballot pamphlet contents regarding Proposition 209 are reprinted in Appendix B to Eugene Volokh, The California Civil Rights Initiative: An Interpretive Guide, 44 UCLA L. Rev. 1335, 1393 (June 1997) (hereinafter Volokh). Ballot arguments are a permissible aid to interpretation but are often inconclusive due to their typically simplistic and always partisan nature. See, e.g., Delaney v. Superior Court, 50 Cal. 3d 785, 803 (1990) (arguments relevant but inconclusive); Lundberg v. Alameda, 46 Cal. 2d 644, 652 (1956) (arguments inconclusive).
6 Volokh, supra note 5, at 1394, 1395-96.
7 The recent municipal election in Houston rejecting repeal of a city affirmative action program does not change this assumption. A statewide initiative in Texas would provide a closer basis for comparison and almost certainly would yield the same result as the vote on Proposition 209, regardless of the wording.
8 Despite the sorry history of race as anything more than a badly misunderstood social construct, considerations of color, national origin, and ethnicity are generally subsumed beneath its rubric. Hence, for convenience, this article will use "race and gender" as a shorthand reference to the prohibition on discrimination or preferences based on "race, sex, color, ethnicity, or national origin" contained in Proposition 209. Cal. Const. art 1, §31(a).
9 Volokh, supra note 5, at 1403 n.2.
10 Id. at 1344 n.28.
11 See Michael Selmi, Testing for Equality: Merit, Efficiency, and the Affirmative Action Debate, 42 UCLA L. Rev. 1251, 1279-89 (June 1995), for a discussion of the persistence of unconscious and economically inefficient discrimination. Selmi concludes that "[c]onscious efforts may be necessary to stem the influence of these unconscious factors." Id. at 1289. See also Lew Hollman, Confronting Inequality, CWL FOCUS ON…"Affirmative Action," Nov./Dec. 1995, at 7 (hereinafter Hollman) ("Achieving a society where equal opportunity truly exists requires directly confronting inequality…and taking affirmative steps to end it.").
12 New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
13 John Rawls, A Theory of Justice 5 (1971): "[I]nstitutions are just when no arbitrary distinctions are made between persons in the assigning of basic rights and duties and when the rules determine a proper balance between competing claims to the advantages of social life."
14 Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, 1489 (N.D. Cal. 1996), rev'd, 122 F. 3d 692 (9th Cir. 1997), as amended on denial of reh'g and reh'g en banc, Aug. 21, 1997, cert. denied, 118 S. Ct. 17 (1997).
15 Coalition, 122 F. 3d at 699. The panel ridiculed the plaintiffs' equal protection arguments as "teeter[ing] on the brink of incoherence." Id. at 702. It even adopted a querulous tone toward the U. S. Supreme Court with respect to precedents addressing burdens on the political rights of groups that historically have been the subject of discrimination: "Is it possible for a majority of voters [presumably lumping together women and minorities] impermissibly to stack the political deck against itself? The Supreme Court leaves us, quite frankly, a little perplexed as to the answer." Id. at 704 (bracketed comment added). The panel found "compelling" the novel-and unprecedented-theory of a pro-Proposition 209 amicus that would delink the analysis of the discriminatory impact of an initiative from its content and rely instead on an analysis of the electorate. Id. at 705 n.13. In short, the decision had more the tone of the Proposition 209 campaign than considered judicial review.
16 Cal. Const. art. 1, §31(a).
17 Volokh, supra note 5, at 1341-42. See also id. at 1342-43, especially 1342 nn.18 & 19.
18 See generally 7 B. E. Witkin, Summary of California Law, Constitutional Law §94, at 147 (9th ed. 1988) ("Give significance, if possible, to every word or part….").
19 See Hollman, supra note 11.
20 Conversation with Tom Saenz, MALDEF counsel (Jan. 14, 1998).
21 Coalition, 946 F. Supp. at 1489.
22 Cal. Const. art. 1, §31(f).
23 See Charles L. Black Jr., The Supreme Court 1966 Term-Foreword: "State Action," Equal Protection, and California's Proposition 14, 81 Harv. L. Rev. 69, 91 (Nov. 1967): "[W]hat we see exhibited is a 'doctrine' without shape or line. The doctrine-in-chief is a slogan from 1883. . . [and the] sub-doctrines are nothing but discordant suggestions."
24 Reitman v. Mulkey, 387 U.S. 369, 378 (1967) (citation for internal quote omitted).
25 The Civil Rights Cases, 109 U.S. 3, 13-15, 25 (1883).
26 Shelley v. Kraemer, 334 U.S. 1, 19-20 (1948).
27 Burton v. Wilmington Parking Authority, 365 U.S. 715, 724-25 (1961).
28 Volokh, supra note 5, at 1339-40 and 1340 n.10.
29 Robinson v. Florida, 378 U.S. 153 (1964).
30 Lombard v. State of Louisiana, 373 U.S. 267 (1963).
31 Robinson, 378 U.S. at 154, 156; Lombard, 373 U.S. at 268.
32 Robinson, 378 U.S. at 156.
33 Lombard, 373 U.S. at 270. The superintendent also stated that "the police department…is ready and able to enforce the laws of the city of New Orleans and the state of Louisiana," presumably in reference to the trespass laws under which the participants were ultimately arrested. Id. (footnote omitted).
34 P. Kauper, Civil Liberties and the Constitution 166 (1962).
36 Welf. & Inst. Code §17000.
37 Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, 110 Stat. 2105 (Aug. 22, 1996).
38 Evans v. Newton, 382 U.S. 296, 299 (1966). See also Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 627 (1991) ("The selection of jurors represents a unique governmental function delegated to private litigants by the government and attributable to the government for purposes of invoking constitutional protections against discrimination by reason of race.").
39 Blum v. Yaretsky, 457 U.S. 991, 1005-12 (1982).
40 Volokh, supra note 5, at 1345.
41 Id. at 1351.
42 Id. at 1348.
43 Id. at 1339.
44 U.S. Const. art. VI.
45 Cal. Const. art. I, §31(b).
46 See generally 7 B. E. Witkin, Summary of California Law §496, at 687-90 (9th ed. 1988).
47 Cal. Const. art. I, §31(c).
48 Civil Rights Act, 42 U.S.C.A. §2000e-2(e) (1994).
49 Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 17 (1971).
50 Cal. Const. art. I, §31(d).
51 "[Like Clause (b), this section] likewise protects a specific, narrow category of settled expectations." Volokh, supra note 5, at 1386.
52 Neary v. Regents of Univ. of Cal., 3 Cal. 4th 273, 277 (1992), quoting Lynch, California Negotiation and Settlement Handbook vii (1991) (foreword by then California Supreme Court Justice Malcolm M. Lucas): "The need for settlements is greater than ever before. 'Without them our system of civil adjudication would quickly break down.'"
53 Compare Educ. Code §44243.9 (court-mandated programs) with Educ. Code §44249 (voluntary programs).
54 In addition to creating a more enriched learning environment, most magnet schools are also intended to guarantee a desegregated learning experience to white and minority students, which requires assigning races to the schools in specific ratios.
55 See Volokh, supra note 5, at 1395.
56 Board of Educ. v. Superior Court, Fourth App. Dist. Ct. of App., 4th Civil No. DO29639, filed Oct. 21, 1997 (seeking to reverse the order in Carlin v. Board of Educ., San Diego Unified Sch. Dist., San Diego Sup. Court No. 303800, filed Dec. 1967).
57 San Diego Sch. Dist.'s Petition for Writ of Mandate or Prohibition or other Appropriate Relief, at 2, in Board of Educ., 4th Civil No. DO29639.
58 Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982).
59 Coalition, 122 F. 3d at 707 n.6.
60 See id. (citing Associated Gen. Contractors of Cal. v. San Francisco Unified Sch. Dist., 616 F. 2d 1381 (9th Cir. 1980)), which distinguished between "stacked deck" programs "favoring members of minorities in the competition with members of the majority for benefits" and "reshuffle" programs "in which the state neither gives to nor withholds from anyone any benefits because of that person's group status, but rather ensures that everyone in every group enjoys the same rights in the same place." Associated, 616 F. 2d at 1386. The Associated court specifically disagreed with case law suggesting that school desegregation cases-the reshuffle cases-could create a constitutional duty to impose stacked-deck affirmative action remedies. Id. at 1386 n.9.
61 Atty. Gen. Reply Brief at 10, in Coalition, 122 F. 3d 692. Volokh disagrees with the attorney general's view of race-conscious busing programs and would certainly disagree with respect to the other explicit race-conscious programs. Volokh, supra note 5, at 1344 n.27.
62 Flores v. Workmen's Comp. Appeals Bd., 11 Cal. 3d 171, 176 (1974).
63 Crawford v. Board of Educ. of the City of Los Angeles, 17 Cal. 3d 280, 297 (1976).
64 Cal. Const. art. I, §7 (historical note).
65 Cal. Const. art. I, §7(a).
66 Id. (emphasis added).
67 Wilson v. State Personnel Board, et al., No. 96-CS-01082 (Sacramento County Sup. Ct., filed June 30, 1997).
68 "Wilson Unveils List of Current State Statutes Which Grant Race- or Gender-Based Preferences in Violation of Proposition 209," Press Release PR97:331 (Sept. 9, 1997).
69 Far from modifying California remedial law, Proposition 209 guarantees the same remedies that are available for the violation of California antidiscrimination laws in effect at the time of its passage. Cal. Const. art. I, §31(g).
70 Paul J. Mishkin, Federal Courts as State Reformers, 35 Wash. & Lee L. Rev. 949, at 949 (Fall 1978).
71 Id. at 958.
72 Cal. Const. art. I, §31(e).
73 Volokh, supra note 5, at 1387.
75 The Clinton administration opposed Proposition 209 and supports some forms of race- and gender-conscious affirmative action. See generally Affirmative Action Review: Report to the President (1995). The out-of-court settlement of Piscataway Township Bd. of Educ. v. Taxman, Supreme Court No. 96-679, means that no further clarification of federal law regarding voluntary affirmative action programs can be expected this term.
76 See, e.g., Title VI of the Civil Rights Act of 1964, which precludes discrimination under any program or activity receiving federal financial assistance. 42 U.S.C.A. §2000d (1964).
77 See Alexander v. Choate, 469 U.S. 287 (1985), 292-93 & nn. 8-9, stating that this conclusion reflects the essential doctrine gleaned from the various opinions in Guardians Ass'n v. Civil Service Comm'n of New York City, 463 U.S. 582 (1983); accord, Villanueva v. Carere, 85 F. 3d 481, 485 (10th Cir. 1996); City of Chicago v. Lindley, 66 F. 3d 819, 827 (7th Cir. 1995).
78 See David Herbert Donald, Lincoln 285 (1995).
79 Jerome v. United States, 318 U.S. 101, 104 (1943). When federal policy is implemented by regulation, pursuant to statute, the result is no different. See, e.g., Kahn v. I.N.S., 36 F. 3d 1412, 1414-15 (9th Cir. 1994) (overturning an INS rule that looked to state law to determine family ties in deportation proceedings, thus precluding uniformity nationwide).
80 Volokh asserts that affirmative action programs would have to be "essential" to the receipt of funds, not merely "generally consistent with the spirit of the federal program." Volokh, supra note 5, at 1387.
81 Only in unusual circumstances can a public agency recover fees from a private litigant, even when it prevails. See, e.g., Code Civ. Proc. §1021.5 ("With respect to actions involving public entities, this section [authorizing fee awards] applies to allowances against, but not in favor of, public entities….").
82 Cal. Const. art. I, §31(g).
83 Civ. Code §52.
84 Complaint filed Jan. 10, 1997, with Helene H. Hasse, Regional Director (Region IX), Office of Federal Contract Compliance Programs.
85 Complaint filed Mar. 19, 1997, with Stefan Rosenzweig, Regional Director (Region IX), U. S. Dept. of Education.
86 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
87 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).
88 Paul J. Mishkin, Foreword: The Making of a Turning Point-Metro and Adarand, 84 Cal. L. Rev. 875, at 875 (July 1996). The decision in Adarand Constructors Inc. v. Pena, 115 S. Ct. 2097 (1996), overruling aspects of Metro Broadcasting, marked a reaffirmation, Mishkin argues, of the traditional rationale of "using race only 'to overcome race'" and a rejection of Metro's group-based "concept of 'diversity.'" Id. at 881.
89 John Higham, America's Three Reconstructions, The New York Review of Books, Nov. 6, 1997, at 52. The two earlier cycles were the era of the American Revolution and, of course, the post-Civil War Reconstruction. Id.
90 Hearings, Committee on the Judiciary Subcommittee on the Constitution, 1995 Fed. News Serv., July 20, 1995 (testimony of Devall Patrick, then assistant attorney general in charge of the Civil Rights Division), cited in Marty B. Lorenzo, Race-Conscious Diversity Admissions Programs: Furthering a Compelling Interest, 2 Mich. J. Race & L. 361, 417 (Spring 1997).
91 See, e.g., Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal (1993); Glass Ceiling Commission Report (1995).
92 II Dictionary of the History of Ideas, Equality, at 147 (1973).
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