Gender blindness and the Hunter doctrine.

• Author: Goodman, Ryan

As a factual matter, the recent reinstatement of the California Civil Rights Initiative (CCRI)(1) withdrew many opportunities for racial minorities and women in important public sectors.' As a, legal matter, the Ninth Circuit decision that justified this result -- Coalition' for Economic Equity v. Wilson (CEE)(3) -- rests on questionable grounds. The court employed novel reasoning to distinguish the Supreme Court's "political structure" equal protection precedent -- the so-called Hunter doctrine(4) -- which invalidates initiatives that obstruct minorities seeking beneficial local legislation. The CEE court held that the Hunter doctrine provides " equal protection rights against political obstructions to equal treatment," not equal protection rights against political obstructions to preferential treatment."(5) Promising its argument on the heavy constitutional presumption against race-based preferences, the court explained: Since the Equal Protection Clause "barely permits" such preferences, given the rigors of strict scrutiny, the "political structure" cases surely do not require unencumbered political access to them.(6)

In this Case Note, I accept for argument's sake CEE's interpretation of the Hunter doctrine. I argue that the court's use of strict scrutiny to do its heavy lifting involved significant slippage with regard to sex-based equal protection. Although CEE's holding applies to race- and sex-based programs, its analysis depends on factors unique to race-based strict scrutiny: the most restrictive means and purpose tests,(7) the underlying fact that courts persistently disfavor race-based preferences, and the rhetoric of colorblindness. None of these factors applies to current sex equality doctrine, however, rendering the application of CEE's final conclusions to sex-based preferences problematic.

I

The CEE court reached its conclusion by relying principally on the Supreme Court's race neutrality cases. Citing Adarand Constructors, Inc. v. Pena(8) and City of Richmond v. J.A. Croson Co.,(9) Judge O'Scannlain explained that race-based preferences are "prohibit[ed] . . . in all but the most compelling circumstances."(10) The court also cited United States v. Virginia (VMI)(11) -- the first and last time a sex equality case was mentioned in the court's political structure analysis -- for that case's strongest proposition: Sex-based classifications "demand an `exceedingly persuasive justification.'"(12) Based on these precedents, the court explained that the Constitution "erects obstructions to preferential treatment by its own terms."(13) Yet the profound difference in "terms" that current doctrine mandates for race, as distinct from sex, and the resulting difference in "obstructions" were never discussed.

Instead, the court's subsequent analysis conflated race and sex further. The court reasoned that states can enact (or not enact) all other constitutionally permissible classifications and that it therefore would be "anomalous" if states were required to make readily available "preferences based on the most suspect and presumptively unconstitutional classifications -- race and gender."(14) This analysis bootstraps sex into the same position as race.

In the remainder of the court's argument, sex-based analysis dropped out. The court submitted that the Fourteenth Amendment's commitment to colorblindness invites rooting out laws that erroneously claim "race somehow matters."(15) The court also paraphrased Adarand's strongest language,(16) a necessary step before its penultimate statement that the Constitution "barely permits" such program.(17) With these claims as its predicate, the court ultimately resolved, "`[I]t would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the state thereby had violated it.'"(18)

The court's rationale has since prompted the plaintiffs to claim that CEE imported Justice Scalia's repudiated theory of absolute colorblindness.(19) Their claim is convincing since CEE's holding effectively means racial minorities may seek only neutral programs under the Hunter doctrine. Perhaps most significantly, though, CEE concerns race and sex classifications. That is, Judge O'Scannlain's opinion ratcheted up the legal force of colorblindness while incidentally latching sex "equality" to it.

II

Under current law, the level of scrutiny given to sex classifications as compared to race classifications involves differences in both degree and kind.(20) Consequently, whenever CEE notes special rigors that attach to race-based preferences, the argument strays further from applicability to gender.

Indeed, the standards of intermediate scrutiny would likely favor many sex-based programs that CCRI bans. Numerous justifications for sex-based classifications can satisfy the "important slate interest" test.(21) And under the "substantially related" test the Court generally will not second-guess legislative uses of such classifications, even when neutral alternatives are conceivable.(22) Sex-based preferences, in short, are fir from "barely permit[ted]."

In practice, the level of scrutiny can decide the fate of preferential programs. As Justice Stevens explained in Adarand: Equal protection law now "produce[s] the anomalous result that the Government can more easily enact affirmative action programs to remedy discrimination against women than...