Last November, the voters of California adopted a state constitutional amendment, known as the California Civil Rights Initiative ("CCRI"), that barred racial and gender discrimination and preferences in government contracting, employment, and education. A coalition of beneficiaries of racial and sexual set-asides, represented by the ACLU, immediately sued to block CCRI's enforcement, arguing that its broad mandate of equal treatment violates the Fourteenth Amendment's guarantee of equal protection because the end of racial and gender preferences would distort the political process in a racial manner by preventing them from lobbying municipalities and the state legislature for preferences. ACLU attorneys were assisted primarily by the Employment Law Center, a program of the taxpayer-subsidized San Francisco Legal Aid Society, and by the feminist group Equal Rights Advocates. They have been joined by the Clinton Justice Department, which has filed briefs further arguing that CCRI is unconstitutional.
The CCRI was originally assigned to Judge Vaughn Walker, a Bush appointee, but it was transferred to the docket of San Francisco's chief federal judge, Carter-appointee Thelton Henderson, who once served on the boards of both the ACLU and the Equal Rights Advocates, after Henderson claimed that the CCRI case was related to a year-old case on his docket that challenged San Francisco's municipal contracting preferences as a violation of the city code and federal law. Judge Henderson then issued an injunction against CCRI, concluding that it violates equal protection and also is preempted by Title VII of the Civil Rights Act of 1964.
Sponsors of the CCRI, represented by the law firm of Cooper & Carvin and the Center for Individual Rights, petitioned the Ninth Circuit Court of Appeals to stay Henderson's injunction. At oral argument on February 10, a panel of the Ninth Circuit consisting of Judges Leavy, O'Scannlain, and Kleinfeld greeted the ACLU's arguments with skepticism, and ordered expedited briefing on the merits of the appeal.
The ACLU relies on a novel interpretation of two Supreme Court rulings, Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969), each of which overturned state ballot initiatives that prevented local governments from enacting antidiscrimination laws. Seattle dealt with a state referendum that shifted the authority to order busing to remedy racial imbalance in the schools from a Seattle school district where minorities had a significant influence, to the state legislature, which was virtually all-white. Hunter involved an amendment to a city's charter that required that any racial antidiscrimination ordinance be invalid unless confirmed by a two-thirds supermajority of the city's voters. In both cases, the Supreme Court held that the referenda violated the Fourteenth Amendment by intentionally distorting the political process on racial issues to the detriment of minorities. The ACLU argues that CCRI similarly distorts the political process in California on the subject of affirmative action by preventing minorities from seeking racial preferences from local government and forcing them instead to petition the statewide electorate to amend the state constitution if they want to enact racial preferences.
The ACLU's argument that Seattle and Hunter bar a statewide ban on racial preferences is disingenuous because this very proposition was rejected in Seattle and its companion case, Crawford v. Board of Education of Los Angeles, 458 U.S. 527 (1982), which held that the voters of California were within their rights when they passed a referendum eliminating the state constitutional right to be bused to a school with racial balance and barring state courts from ordering such busing.
Crawford rejected the ACLU's argument that the voters of California distorted the political process in a racial manner by forcing minorities to go to what the ACLU argued was a new and "remote level of government" --the statewide referendum-- if they wished to reinstate busing. (Of course, the ACLU's contention that a constitutional amendment is a distortion of the political process because it can be changed only by referendum is tantamount to defining every civil liberty guaranteed by the Bill of Rights and state constitutions as a distortion of the political process. Each can be altered only by subsequent constitutional amendment, invariably requiring proponents of the subsequent amendments to go to a "remote" level of government.)
Crawford observed that while the antibusing amendment dealt with a racial issue of particular concern to minorities, it worked a change in substantive law rather that the political process, defining state constitutional rights rather than altering the procedures by which laws dealing with race are adopted. Like the antibusing amendment sustained in Crawford, the CCRI defines citizens' substantive rights under the state constitution, rather than changing the process of government decisionmaking.
Concurring in Crawford, Justice Blackmun, who wrote the opinion striking down the Washington antibusing law in Seattle, explained that he was voting to uphold California's amendment in part because deciding to the contrary would prevent the states from repealing "statutory affirmative-action" programs -- just as the voters of California have done through CCRI. Id. At 546-47. Similarly, Blackmun's Seattle ruling rejected the dissent's prediction that his decision would prevent a state from repealing affirmative action in "local employment" for "racial minorities" on the theory that such repeal would distort the racial decisionmaking process. Id. At 480 n.23; id. At 498 n.14 (Powell, J., dissenting).
The insincerity of the ACLU's argument that CCRI unconstitutionally distorts the political process is illustrated by the fact that the ACLU never made this argument in the two long years it spent loudly and unsuccessfully urging the voters not to adopt CCRI. The ACLU's purported legal basis for opposing CCRI in 1995 and 1996 was the utterly baseless contention that CCRI would legalize sex discrimination and bar women from predominantly-male occupations. After the voters of California approved CCRI in November 1996, the ACLU suddenly changed its tune. It stopped arguing that CCRI legalized sex discrimination, and began arguing that CCRI unconstitutionally distorts the political process in a racially discriminatory manner.
Like Proteus, the ACLU's arguments against CCRI change whenever it is expedient, consistent only in opposing voters' right to govern themselves. If the Ninth Circuit panel rejects the ACLU's "political process" argument, the ACLU will no doubt come up with brand new rationalizations for striking down CCRI and thwarting the will of the people. The ACLU and the denizens of California's vast "diversity" industry have too great a stake in institutionalized racial divisions to allow California's experiment with colorblindness to survive.
Mr. Bader is Associate Counsel at the Center for Individual Rights.