High Court Refuses to Block Prop. 209

WASHINGTON — The Supreme Court, rejecting pleas from advocates of affirmative action, refused Thursday to block the enforcement of California’s Proposition 209 and its ban on “preferential treatment” by race or gender in state and local government.

Last week, lawyers for the American Civil Liberties Union--representing a coalition of advocacy groups--and San Francisco officials had urged the justices to intervene on an emergency basis to stop the measure from taking effect.

They appealed to Justice Sandra Day O’Connor, who handles emergency requests from West Coast states. She in turn referred the request to the full court, which denied it without comment Thursday afternoon.

“We’re disappointed, but we’re still hopeful they will take the case on its merits,” said Ramona Ripston, executive director of the ACLU of Southern California.

Gov. Pete Wilson applauded the decision and said it “eliminates one more roadblock that a determined group of special interests have attempted to put in the way of ending unfair racial preferences.”

In Sacramento, the governor told reporters he will move to dismantle “the so-called affirmative action bureaucracies” that impose illegal preferences. “Everyone is welcome to apply, everyone is welcome to participate, but they now know it will be on a truly level playing field,” he said.

Although not a final ruling, Thursday’s action by the Supreme Court strongly suggests that the justices are unlikely to overturn Proposition 209.

In arguing for a stay of the affirmative action ban, the groups had said it would force cities and counties to immediately rewrite contracting procedures that favor minorities and women. Similarly, police and fire departments will be forced to abandon “race- and sex-conscious” policies that prefer minorities and women in hiring and promotions. They also maintained that school officials will be obliged to abandon magnet schools and voluntary desegregation programs that steer pupils to schools based on their race.

All of these affected people will suffer “irreparable injury” if Proposition 209 goes into effect now, their petition said.

Under the court’s rules, an emergency request to halt enforcement of a new law is typically granted if at least four of the nine justices believe that the appeal raises an important constitutional question and that there is “fair prospect” the full court would ultimately strike it down.

In recent years, the Supreme Court, led by Chief Justice William H. Rehnquist, has repeatedly said the Constitution does not allow the government to use race as a deciding factor, whether for awarding contracts or for drawing electoral boundaries. The court’s conservative majority also regularly sides with the states when they are challenged in federal court.

In this case, Wilson is defending a measure passed by 54% of the voters in 1996. It says state and local agencies “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.”

California now becomes the first state to abolish affirmative action by law. Fearing a wave-like action spreading from the West Coast, national advocates have supported the attempt to block Proposition 209 from taking effect.

Harvard University law professors Laurence H. Tribe and Christopher Edley Jr. and Stanford University law professor Kathleen Sullivan were among those who signed the ACLU brief that maintains the California measure is unconstitutional.

They have one more appeal pending. Now known as Coalition for Economic Equity vs. Wilson, the petition is one of about 1,500 such appeals that will be considered by the justices in early October.

The lawyers make two main arguments as to why Proposition 209 should be struck down as unconstitutional.

First, they say local governments and state agencies need flexibility to adopt affirmative action policies to remedy past discrimination. For example, if minority entrepreneurs and female-owned businesses have been excluded from winning city contracts in the past, city agencies have an “affirmative duty” now to steer business their way to right the past wrong, they argue.

Second, they say Proposition 209 “tilts the political playing field solely against racial minorities.” Other groups, such as veterans, can go to city councils or the state Legislature and seek preferential treatment, but racial minorities and women may not do so in California.

In two past decisions, the high court has said such a change in the political structure that targeted minority groups was unconstitutional even if the rule was otherwise racially neutral.

Last year, a federal judge in San Francisco temporarily blocked Proposition 209 from taking effect, but the U.S. 9th Circuit Court of Appeals reversed his decision and declared the measure constitutional. Since it believed there was “no likelihood” of the measure being struck down, the 9th Circuit put it into effect even before the ACLU could ask the Supreme Court to intervene.