Wednesday, 4/9/97
Prop. 209 upheld by appeals court
Results delight some but provoke indignation from affirmative
action supporters
By Brooke Olson
Daily Bruin Staff
In a unanimous decision, a 9th U.S. Circuit Court of Appeals
board granted the state permission to enforce Proposition 209,
which prohibits racial or gender discrimination in public hiring,
contracting and education.
The ruling lifted a prior injunction against the amendment to
the state’s constitution, which was reviewed in the courts after
Chief U.S. District Judge Thelton Henderson blocked its enforcement
last December.
Rejecting civil rights groups’ arguments, the three-justice
panel said preferences based on race or gender are constitutionally
suspect and can be abolished by a state without violating the
rights of any individual.
Exactly how the ruling will affect the UCs remains to be seen,
administrators said.
Affirmative action was eliminated at the UC level in a July 1995
Board of Regents decision. Affirmative action was eliminated from
graduate admissions this fall and will cease to play a role in
undergraduate admissions in Spring 1998.
But the court’s ruling could also eliminate race and gender
considerations in financial aid and the funding of student groups
and various student support organizations, administrators said.
"Any program or organization that receives any kind of
university or public funding … and has some sort of ethnic,
racial or gender dimension to it may possibly be scrutinized" as a
result of this ruling, said Tom Lifka, associate vice chancellor of
student admissions services.
Under the court’s rules, enforcement of the amendment is
scheduled to take effect in 21 days. But opponents are virtually
certain to appeal further.
Opponents of the measure are likely to take the case to a larger
panel of the 9th Circuit Court and will probably ask the court to
continue the ban on enforcement while that appeal progresses.
Legal experts noted that it was "extremely likely" the court
would agree to hear the appeals.
"(Generally) it’s very rare to grant such a review … there are
only about five to 10 cases a year," said law professor Even H.
Caminker, and one of the attorneys representing some of the
plaintiffs. "On the other hand, it’s a high profile case."
Student reaction to the decision varied from severe
disappointment to enthusiastic approval.
"(The decision) will only intensify the resolve of the students
to continue to struggle over this issue," said Greg Vaughn,
director of internal university affairs and educational equity at
the UC Students’ Association.
"Obviously it’s a setback … but we certainly won’t let this
slow us down in our fight for diversity issues," Vaughn added.
Other students, though, lauded the court for reinforcing a
merit- – not race- or gender- – based society.
"Judge Henderson’s (injunction) was a disappointing abuse of
judicial power … and this ruling is a victory for civil rights,"
said Jason Steele, president of Bruin Republicans.
"It ends the racial spoil system, and I’m confident that if the
ruling is appealed, the Supreme Court will uphold the current
ruling," he added.
Many of the UC Regents who had voted to end affirmative action
at the UC level were also pleased with the ruling.
"I have always felt that it was unfair to a young child who
worked hard in high school and did well but was not accepted at
UCLA or Berkeley because of affirmative action," said Regent S.
Stephen Nakashima. "That some other student with less
qualifications was accepted (because of affirmative action) served
only as a penalty to the hard-working student.
"I have four children and I always tell them that if you work
hard and do well you’ll get rewarded … (but) then I have seen
these charts for medical schools where the real qualified ones were
not accepted but those who were disadvantaged were accepted … and
I thought it was unfair," Nakashima added.
Affirmative action supporters dismissed the idea that the
program allowed for preferential treatment of women and
minorities.
They contend that enforcement of Proposition 209 will only shut
the doors of opportunity to minorities and women by creating legal
standards which may permit discrimination.
"I think that the recent ruling by the justices is another
indication of the California judicial system turning its back on
diversity," said undergraduate President John Du.
The struggle over Proposition 209 began last Nov. 5, after the
initiative was approved by 54 percent of the voters.
The next morning, civil rights lawyers filed a suit in San
Francisco asking for an injunction against the initiative, claiming
that it violated the 14th Amendment to the U.S. Constitution.
Proposition 209 lost its first round in court when Henderson
issued that injunction Dec. 23, 1996.
Supports of Proposition 209 immediately filed a request for stay
of preliminary injunction, but Henderson refused to override his
decision.
The ruling was deferred to the Court of Appeals , where the
panel of three judges was selected by lottery.
All three judges were Republican appointees. In issuing the
decision, Judge Diarmuid O’Scannlain noted that the Constitution
"barely permits" preferential programs and does not prohibit a
state from abolishing them.
The affirmative action programs dismantled by Proposition 209
"work wholly to the benefit of certain members of one group and
correspondingly to the harm of certain members of another group,"
O’Scannlain said.
But the issue of affirmative action is far from resolved.
Student groups vowed to defend affirmative action as civil rights
lawyers once more began preparing appeals.
If the case falls into the hands of the U.S. Supreme Court,
their decision would be final unless, according to UCLA law
professor Jonathan Varat, "the people want to amend the
Constitution."
With reports from Marie Blanchard, Daily Bruin Senior Staff.