ACLU Files Federal Lawsuit to Block Implementation of California's Anti-Affirmative Action Initiative

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Wednesday, November 6, 1996

SAN FRANCISCO -- The ACLU affiliates in Northern and Southern California --

working with the Lawyers' Committee for Civil Rights, the Employment Law

Center and a coalition of civil rights organizations -- filed a lawsuit in

federal district court in San Francisco this morning to block implementation

of Proposition 209.

Plaintiffs, which include a broad spectrum of business, education and civil

rights groups and individuals, charge that the anti-affirmative action

initiative, approved yesterday by California voters, violates the 14th

Amendment and the Supremacy Clause of the United States Constitution.

"No statewide measure in American history has ever come close in scope or

effect to Proposition 209's chokehold on state and local government," said

Mark Rosenbaum, legal director of the ACLU of Southern California.

"The measure treats the unfinished business of rooting out discrimination as

if it were none of the government's," Rosenbaum said. "While the measure is

breathtaking in its sweep, there is nothing new in its methodology which

disenfranchises minorities and women from reliable and effective

participation in our political process."

Plaintiffs argue that Proposition 209 violates the Equal Protection Clause of

the Constitution because it would block legislation needed to protect

minorities and women from discrimination.

"While other groups," the court documents said, "may continue to pursue their

interests in attaining preferential legislation and policies at every level

of state and local government ... racial minorities, under Proposition 209,

may now only do so by securing a popular majority and amending the state

constitution."

"The anti-affirmative action law," said Ted Wang of the Lawyers' Committee

for Civil Rights, "would prevent governments from eliminating ongoing,

identified discrimination."

Alluding to Prop. 209's text of 37 words, attorney Judith Kurtz of Equal

Rights Advocates said, "With just over 35 words, Proposition 209 would

negate 35 years of progress."

"This law turns back the clock on women's advancement," said Kathy Rodgers,

executive director of the NOW Legal Defense and Education Fund. "Without

affirmative action, women will once again lose critical opportunities for

economic equality."

Plaintiffs contend the initiative violates the Equal Protection clause by

barring women and minorities from seeking protective race- or

gender-conscious legislation when other groups are permitted to seek whatever

preferential treatment they please.

Further, plaintiff attorneys claim that Proposition 209 prevents state and

local governments from meeting their constitutionally mandated duty to remedy

discrimination against women and racial minorities. "Proposition 209 would

not only prevent states from adopting affirmative action programs designed to

serve compelling interests, it would prevent them from fulfilling their

constitutional duty under the Equal Protection Clause to redress past

discrimination against minorities," court documents argue.

"This mean-spirited initiative artificially limits the ability of public

agencies to address the continuing issues of racism and sexism that abound in

this country," said Bill McNeil of the Employment Law Center.

Plaintiffs charge that the measure violates the Supremacy Clause of the U.S.

Constitution by outlawing the very state and local programs established to

ensure compliance with federal laws such as Title VI and VII of the federal

Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972.

The Supremacy Clause forbids states from obstructing federal law.

"Proposition 209 undermines enforcement of federal civil rights laws which

depend upon voluntary compliance by government agencies, compliance which

often requires affirmative action to undo the effects of prior

discrimination," said Ed Chen, attorney with the ACLU of Northern California.

"By outlawing all public affirmative action programs, the measure interferes

with governmental efforts to comply voluntarily with federal civil rights

laws."

Court documents identify programs threatened by Proposition 209, including:

-- The K-12 grade MESA (Math, Science & Engineering) Program--and state

university and local college equivalents for minority students

-- State and municipal contracting programs to eliminate discrimination and

increase participation by minorities and women

-- Financial aid, tutoring and outreach programs at public colleges,

universities and graduate schools for minorities and women

-- The Ten School Programs, for low-performing, primarily African-American

schools which promotes parental involvement and improve school resources.

-- Police and fire department programs to remedy past discrimination against

women and minorities and ensure that departments reflect the communities they

serve

-- Voluntary school desegregation programs by school districts which consider

race, ethnicity and gender in magnet school or college preparatory admissions

With their lawsuit, Coalition for Economic Equity vs Wilson, plaintiffs have

submitted more than 75 declarations from prominent historians, business and

civil rights leaders, academicians, economists, parents and students

including: the nation's leading African American historian, Dr. John Hope

Franklin; Mary Frances Berry, Chair U.S. Commission on Civil Rights; Judith

Rosener, Professor of Management, U.C. Irvine; Don Nakanishi, Director of

Asian American Studies UCLA; Charles Young, Chancellor, UCLA; Ricardo Romo,

Vice Provost, University of Texas; Michael Drake, UCSF School of Medicine;

and Nobel Prize winner and former UC Berkeley Chancellor Glenn T. Seaborg.

These declarations testify to the continuing vitality of affirmative action

and the grave injury that would result from ending it.

Abby Leibman, executive director of the California Women's Law Center said,

"This unconstitutional initiative must be challenged, or women and girls will

find themselves back in the 1950s instead of ready to enter the 21st

Century."

Attorney Julie Su of the Asian Pacific-American Legal Center said, "Asian

Americans should not be used as a racial mascot by angry white males intent

on destroying the principle of equal opportunity for all. This unwise

initiative is divisive and would hurt California."

UCLA Law School Professor Evan Caminker said, "The Supreme Court has

invalidated earlier voter initiatives that blocked minority groups from

seeking favorable legislation as a subtle yet serious form of race

discrimination. Based on these cases, Proposition 209 should also be held

unconstitutional."

"Proposition 209 has only one purpose: to reverse gains made by women and

persons of color during the past 30 years," said Professor Karl Manheim of

Loyola Law School. "It embodies the very sort of invidious race and sex

discrimination that the Equal Protection Clause was designed to prevent and

is therefore unconstitutional."

U.C. Davis Law School Professor Vikram Amar said, "Proposition 209 runs afoul

of the equal protection principles affirmed by the Supreme Court which is the

law of the land."

Professor Erwin Chemerinsky of U.S.C. Law School said, "Proposition 209

eliminates programs that exist to help African-Americans, Latinos, Asians and

women. Thus, it is clearly discriminatory in its present and future impact

and a denial of equal protection."

Plaintiffs include 11 individuals and 12 organizations representing labor,

education, women's business groups, and minority organizations including the

California Federation of Labor/AFL-CIO; California N.A.A.C.P. and the lead

plaintiff organization, Coalition for Economic Equity. The Coalition

comprises business and contracting organizations such as African-American

Agenda Council, the African-American Contractors of San Francisco, the

Asian-Indian Association of American and the San Francisco Hispanic Chamber

of Commerce.

Joining the ACLU's affiliates in Northern and Southern California are the

Lawyers' Committee for Civil Rights of the San Francisco Bay Area, the

Employment Law Center, the N.O.W. Legal Defense & Education Fund, Equal

Rights Advocates, the California Women's Law Center, the Asian

Pacific-American Legal Center, Professor Karl Manheim of Loyola Law School,

Professor Vikram Amar of the University of California Davis Law School, and

Professor Evan Caminker of UCLA Law School.

More information is available at the ACLU of Southern California's web site

at <<http://www.aclu-sc.org/>>

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Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu