Affirmative Action California Style-proposition 209: the Right Message While Avoiding a Fatal Constitutional Attraction Because of Race and Sex

• Publication year: 1997
• Citation: Vol. 21 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 2FALL 1997

Affirmative Action California Style-Proposition 209: The Right Message While Avoiding a Fatal Constitutional Attraction Because of Race and Sex

L. Darnell Weeden(fn*)

I. Introduction

The issue addressed in this Article is whether California's Proposition 209, which prohibits race- and gender-based affirmative action, passes constitutional muster under the Equal Protection Clause of The Fourteenth Amendment of the United States Constitution.(fn1) When voters in California passed Proposition 209 on November 5, 1996, it was enacted into law as part of California's Constitution.(fn2) This amendment provides that in public employment, education, or contracting, the state will not practice discrimination or give preferential treatment to a person or group because of race, sex, color or national origin.(fn3)

Governmental laws or policies authorizing race- or gender-based preferences in the public sector are as hotly debated today as they have been for the last twenty-three years. In DeFunis v. Odegaard, DeFunis alleged before the United States Supreme Court in its first reverse race discrimination suit that he was not admitted to a state law school because he was white.(fn4) DeFunis argued that he was a victim of racial discrimination because he was not eligible for the racial preference in admissions awarded to Blacks, Chicanos, American Indians, and Filipinos.(fn5) By the time the DeFunis case was argued before the Supreme Court the issue of reverse race discrimination was moot because DeFunis was about to graduate from law school and a decision by the Supreme Court would not have affected the outcome.(fn6)

Although the DeFunis decision introduced the Supreme Court to the emotionally charged issue of reverse race discrimination against white males, the Supreme Court's constitutional rationale for an affirmative action mechanism in the political process dates back almost six decades to its dictum in United States v. Carolene Products Co.(fn7) The Carolene Products case suggested that discrete and insular minorities who suffer prejudicial discrimination, and who have not been historically protected in the political process are entitled to some sort of special protection from the federal judicial branch.(fn8) Providing special protection or privileges for minorities and women to promote fairness in the political process has become the battle cry for many who support affirmative action policies based on gender or race in the public sector.

Professor Rosenfeld, for example, argues that only in an ideal world should racial or gender differences be irrelevant in considering opportunities in public education and employment.(fn9) Professor Rosenfeld further argues that equality of opportunity cannot be satisfied with race- and gender-neutral policies once a state has practiced official racial segregation or gender discrimination.(fn10) Thus, he supports raced-based affirmative action on the theory that affirmative action is a preference to compensate for other unjustified preferences aimed at restoring fair competition while advancing equality for minority groups.(fn11)

Using race-based affirmative action programs to compensate minorities for unjustified societal racial discrimination exemplifies an expansive view of equality. But the Supreme Court has stated that societal discrimination does not, by itself, provide adequate justification for a race-based affirmative action plan.(fn12) Professor Rosenfeld is correct in his conclusion that rejecting societal-based race discrimination as a permissible remedy under equal protection is to adopt a position of marginal equality.(fn13) In an affirmative action plan based on gender, the Supreme Court has approved gender preferences for women for the sole purpose of overcoming the effects of societal discrimination.(fn14)

It is important to understand that under race-based affirmative action programs, the Supreme Court has marginalized equality in favor of expanding the concept of antidiscrimination. The great irony of Proposition 209's attack on affirmative action is that the Proposition forces us to realize that antidiscrimination and pro-affirmative action are headed on a constitutional collision course. California's antiaf-firmative action laws present this single question: may race- and gender-based discriminatory preferences be denied to minorities or women without violating antidiscrimination or equal protection laws? Both the Equal Protection Clause and certain civil rights acts grant to all people the equal protection of the law.(fn15)

There are few compelling reasons to support race-based classifications, whether the classification is old-fashioned discrimination based on prejudice or new age discrimination based on preference. Laws prohibiting affirmative action programs based on race are constitutional unless the government shows that it is remedying past discrimination which justifies the race-based preference.(fn16) Similarly, laws prohibiting gender-based affirmative action programs for women should be considered constitutional where a gender-based preference is not substantially related to an important governmental interest. One such important governmental interest is remedying female under-representa-tion in an area where women have been excluded because of a policy of sexual stereotypes.(fn17)

This Article will analyze the Equal Protection Clause in relation to the government's ability to classify and will discuss whether race is a prohibited classification. The author will closely critique the case of Coalition For Economic Equity v. Wilson,(fn18) which challenges the constitutionality of Proposition 209 because of its political burdens on interests important to racial minorities and women. The author will argue that Proposition 209's Equal Protection standard should be illicit state action rather than political burdens. Finally, the author will critique the Wilson court's understanding of violations of the Equal Protection Clause. This understanding is rejected here because the mere repeal of existing legislation is permissible even if that repeal impacts racial minorities or women.

II. Equal Protection Clause Analysis and the Government's Ability to Classify

The Equal Protection Clause of the Fourteenth Amendment was designed to place on the states an affirmative duty to protect all persons equally in the exercise of their natural and inalienable rights to life, liberty, and property.(fn19) The Equal Protection Clause, once described as the argument of last resort in one's constitutional arsenal,(fn20) is now a powerful first strike tool used by those who believe they are victims of unlawful discrimination. America made its first official statement in support of equality in 1776 in the Declaration of Independence, declaring it to be a self-evident truth that all people are created equal.(fn21) The incorporation of the concept of equality into the Fourteenth Amendment was the result of the effort of organized abolitionists.(fn22)

The Equal Protection Clause demonstrates a general requirement of equality for all persons without exception.(fn23) However, the demand for equal protection does not mean that laws apply universally to all persons.(fn24) Instead, the government must be able to classify special groups or classes of persons for benefits or burdens if it is to function at all.(fn25) The battle for the special benefits of race-based affirmative action demonstrates why the Equal Protection Clause must be properly understood as a general requirement of equality for all persons without exception. Race is simply not an appropriate basis for classification, and neither burdens nor benefits should be based on a person's race. However, this notion of equality conflicts with the government's basic right to classify. The Supreme Court recognized this conflict when it stated, "Indeed, the very idea of classification is that of inequality. . . ."(fn26)Here, then, is a paradox: The equal protection of the laws is a "pledge of the protection of equal laws." But laws may classify. And "the very idea of classification is that of inequality." In tackling this paradox the Court has neither abandoned the demand for equality nor denied the legislative right to classify. It has taken a middle course. It has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification.(fn27)

In the affirmative action debate, however, one may ask whether it is ever "reasonable" for the government to classify persons on the basis of race if there is truly only one race-the human race. Given that there is only one human race, the question arises whether an important governmental interest exists to justify race-based classifications that treat persons as not similarly situated for equal protection purposes because of the color of their skin or the size of their noses. Race-based affirmative action laws treat members of the human race as though they were different and not similarly situated. This disparate treatment results in social, political, and legal decisions based on something other than race. The Equal Protection Clause requires that persons similarly situated be treated similarly as a process of promoting equality.(fn28) Nevertheless, it is fair to ask what the words "similarly situated"...