California’s public colleges are scrambling to rethink their affirmative-action efforts in response to the passage last week of Proposition 209, a ballot initiative that bars the state from using preferences based on race or gender.
Few plan to make any major changes soon, however, since the measure is likely to be tied up in the courts for some time.
The bitterly contested amendment to the state constitution garnered 54 per cent of the vote. The success of the measure, also known as the California Civil Rights Initiative, is expected to bolster campaigns for similar legislation in other states.
Within hours of its passage, however, a coalition of national organizations opposed to the measure, including the American Civil Liberties Union and the National Organization for Women, filed a federal lawsuit to block its implementation. They argued that the measure obstructs federal civil-rights laws and violates the U.S. Constitution’s equal-protection clause.
Ted Wang, of the Lawyers’ Committee for Civil Rights, said the measure"would prevent governments from eliminating ongoing, identified discrimination.”
The initiative’s sponsors and supporters, meanwhile, went to a state court to begin hammering away at California statutes that contradict the amendment. Their lawsuit specifically challenges a law that requires the Board of Governors of the California Community Colleges to consider race and ethnicity in hiring and promoting faculty and staff members.
The initiative"must be enforced because the voters of California made it clear that the historical rationale underlying preference programs -- compensating minorities for harm done to their ancestors -- is no longer appropriate today,” said Sharon L. Browne, a lawyer for the Pacific Legal Foundation, which is representing the measure’s backers.
The lawsuit"seeks to usher in a new era for civil rights in California,” she said.
Many student groups had campaigned against Proposition 209, and its passage ignited a new round of protests on campuses across the state.
At the University of California at Berkeley, more than 200 students occupied a landmark bell tower on the day after the election. Several demonstrators chained themselves to metal poles atop the tower, while others camped out on the ground and prevented police from entering the building. A statement issued by the demonstrators called the tower"a symbol representing the University, and the Ivory Tower of elitism and exclusionism.” It said:"Our occupation defies the passage of Proposition 209. Our occupation is an act of resistance and reclamation.”
The students vacated the building the following morning, after police arrested 23 of those inside and charged them with trespassing.
Also last week, students at Berkeley staged a rally, blocked several of the city’s intersections, and burned issues of the student newspaper, which had endorsed Proposition 209 in an editorial.
Campus police investigated the theft of about 4,000 copies of the November 4 issue of The Daily Californian, which carried the endorsement, and nearly all 23,000 copies of the November 5 issue, in which the endorsement was reprinted. The paper issued a second, 5,000-copy reprint of the November 5 issue and published an editorial contending that its staff’s free-speech rights had been abridged.
Berkeley was just one of several campuses where protests occurred. More than 100 students blocked entry to the student-services building at the University of California at Santa Cruz throughout a full day last week to protest Proposition 209’s passage.
The ballot measure says:"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.” It exempts preferences that are required under federal law and lets state agencies establish"bona fide” and"reasonably necessary” sex-based qualifications related to jobs.
Because the constitutional amendment is worded to take effect immediately, public-college officials seemed pressured last week to show that, at the very least, they were trying to determine how to comply.
“California is changing and so must we,” the president of the University of California, Richard C. Atkinson, said in an open letter the morning after the vote.
“Now,” he said,"we must look at the broader issue of how, in light of Proposition 209, we can best fulfill our responsibilities as a public university in the nation’s most ethnically and culturally diverse state.”
Gail Heriot, a professor of law at the University of San Diego and a leader of the effort to pass Proposition 209, said the amendment had been intended, in part, to give additional legal backing to a decision by the University of California regents in July 1995 to eliminate the university’s use of preferences in hiring, contracting, and admissions. One regent, Ward Connerly, was chairman of the pro-209 campaign.
In a letter to the chancellors of the University of California’s nine individual campuses, Provost C. Judson King said Proposition 209 simply mirrored the regents’ ban on preferences in hiring and contracting, which took effect in January. He noted, however, that the passage of the constitutional amendment also forced the university to stop awarding financial aid based on race. And, he said, it must immediately put in place its ban on preferences in admissions, which, under the regents’ policy, was supposed to take effect for students seeking to enroll in spring 1998.
Officials at California State University and the state community-college system appeared to be waiting for guidance from the state Legislature and the courts.
“What we are going to do now is wait for the outcome of these various court cases,” said Colleen A. Bentley-Adler, a spokeswoman for the California State University System. She said the courts needed to define"what they mean by preferences.”
Chancellor Thomas L. Nussbaum of the California Community Colleges plans to advise the presidents of the system’s 106 campuses that any policies and programs potentially affected by Proposition 209"can and should be maintained” until the relevant legal questions are settled, according to his spokesman, Kyle P. Orr.
Proposition 209 has generally been interpreted as prohibiting public colleges from using preferences in hiring, contracting, admissions, and the distribution of scholarships and financial aid.
In campaigning against Proposition 209, its foes contended that it also endangered a host of other college programs. Following its passage, Kimi Lee, executive director of the University of California Student Association, predicted the abolition of outreach programs for prospective students and retention programs for minority students."Even ethnic and gender centers -- cultural centers and rape-crisis centers -- are at risk,” she said.
Ms. Heriot last week maintained that Proposition 209 poses no threat to programs that don’t use preferences or exclude certain groups."Proposition 209 doesn’t ban all affirmative action,” she said."There are outreach programs that don’t discriminate. I’m for those.”
Before election day, college officials tended to concur with students in saying that many programs would be threatened by Proposition 209. Several issued statements warning that the measure jeopardized many of their efforts to serve minority students and would cause their enrollments of blacks and Hispanics to plunge.
After last week’s election, however, many contended that their institutions generally had eliminated race- and gender-based preferences already, and that most of their policies and programs should pass muster under the new law.
In the weeks leading up to the election, President Clinton spoke out against Proposition 209, while Bob Dole openly supported it. Its emergence as a largely partisan issue -- and a blitz of television advertisements against it -- seemed to narrow its once-wide lead in the polls, but failed to defeat it.
Brenda A. Trolin, an expert on labor issues for the National Conference of State Legislatures, last week predicted that the victory of the California initiative would give momentum to similar campaigns in more than a dozen other states.
“California is a very diverse community in terms of racial and ethnic groups,” said Gerald A. Reynolds, a legal analyst for the Center for Equal Opportunity, a Washington research organization that has been critical of affirmative action."If California can adopt an initiative of this type, than just about any other state can do it.”
Lisa Guernsey contributed to this report.
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