U.S. to test ban against preferences Affirmative action prohibited last month by Calif. initiative

Clinton was prodded to act

Justice Department says move violates 14th Amendment

December 21, 1996|By NEW YORK TIMES NEWS SERVICE

WASHINGTON -- Plunging into a contentious legal and political arena, the White House announced yesterday that the administration had decided to join a challenge to the constitutionality of a successful California ballot initiative that bans affirmative action programs by the state and its local governments.

The Justice Department had recommended the administration's intervention after concluding that the ballot initiative, Proposition 209, approved by California's voters last month, violated the equal protection clause of the 14th Amendment.

The initiative, amending the state constitution, forbids California to use race, ethnicity or sex as a basis for preferences in hiring, promotion, contracting or school admissions.

"Rather than remedying what's wrong with the affirmative action programs that exist, Proposition 209 has the effect of abolishing affirmative action," Mike McCurry, the White House press secretary, said yesterday in announcing the administration's decision. "The president believes that we need to continue to have that as a tool to remedy discrimination in our society."

Although Proposition 209 won passage at the California polls in November, 54 percent to 46 percent, the American Civil Liberties Union won a temporary restraining order against it before it could take effect.

That order was issued by Thelton Henderson, chief judge of the U.S. District Court in San Francisco, who is to decide by Monday whether to issue an injunction against the measure and so extend the blocking of it until the matter is settled at trial.

Justice Department officials said yesterday that they had not yet decided whether they would petition the court to become a party to the suit or instead file a friend-of-the-court brief.

The Justice Department does not intend to argue broadly on behalf of any practical or legal merits of granting preferences to minorities and women per se. Instead, it will make the more limited argument that in approving the ballot measure, the voters illegally denied minorities and women the ability to seek redress from state and local institutions for past discrimination.

The administration's decision to intervene cheered the initiative's opponents, who before its passage had grumbled that President Clinton, although expressing opposition to it, was not doing enough to help defeat it.

"I think this puts a red, white and blue nail in Proposition 209's coffin," said Mark Rosenbaum, a lawyer with the ACLU of Southern California, which filed the challenge to the measure.

Supporters of the initiative attacked the administration's move.

"By joining the lawsuit against Proposition 209, Clinton has betrayed his commitment to centrist politics," said Ward Connerly, a black California businessman who led the campaign for the initiative. "He recently said he wanted to forge a coalition of the center, yet by this action he joins the radical left."

The administration undertook a broad review of federal affirmative action programs last year, prompted by Republican pressure to legislate an end to them. After that review, Clinton concluded that while some programs needed revising, the concept of preference programs for minorities and women ought to be retained.

But the decision to enter the California case raises the political stakes for Democrats, especially for their presidential nominee in 2000.

Although Clinton carried California this year despite his expressed opposition to the ballot measure, voters tend not to appreciate politicians who seek to overturn popularly passed initiatives. Indeed, a legal challenge filed by Thomas S. Foley, speaker of the House, against a voter-passed amendment in Washington state limiting terms for elected officials proved to be a major reason for his election defeat in 1994.

"The administration has placed itself not only against the principle of nondiscrimination but also against the popular will," said Clint Bolick, vice president of the Institute for Justice, a group that opposes affirmative action programs.

And with Republicans maintaining control of Congress, the administration's rationale for intervening in the case will be vigorously dissected in hearings for a new assistant attorney general for civil rights, whom Clinton has yet to nominate.

McCurry, the presidential press secretary, said the decision to try to overturn a measure approved by voters had been a difficult one for Clinton.

But he added, "If a significant, overriding constitutional concern presents itself, the president, as the nation's chief constitutional officer, has to act to defend the Constitution."

Some civil rights figures put the issue in starker terms.

"If we were to make policy based on popularity alone, African-Americans would still be slaves and women would still be denied the right to vote," said Wade Henderson, executive director of the Leadership Conference on Civil Rights.

Pub Date: 12/21/96

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