WASHINGTON -- Three nights ago, California's Proposition 209 -- a legal juggernaut against affirmative action -- reached another community, ending much of the city of Santa Cruz's plan to assure minorities and women more jobs on the city payroll and in private industry.
The City Council there, firmly opposed to Proposition 209 and hoping that it will someday be struck down, gave in reluctantly but unanimously. The city did not want to spend the tax dollars needed to pay for a court fight seeking to save its affirmative-action plan, City Attorney John G. Barisone said.
What occurred Tuesday in Santa Cruz is happening regularly across California as the state's bold experiment against race and gender preferences spreads. The action provides a real-world backdrop for an important vote in the U.S. Supreme Court, likely to come today.
The justices, meeting in private, are expected to vote on whether to let the experiment run on, or to rule on a plea to stop it. The dispute over the constitutionality of Proposition 209 highlights a divisive national debate over whether the time has come to end affirmative action, once and for all, and replace it with straight "colorblind" policies.
Proposition 209, a voter initiative written into the state constitution last November, flatly bans preferences for minorities and women in public education, jobs and contracts.
No one objects to the measure's ban on racial and sex discrimination; the fight is over a separate clause that bars preferences based on race or sex. A federal appeals court has upheld all the provisions.
Depending on how Proposition 209 fares in the Supreme Court, 26 other states or cities stand ready to imitate it. The next test on the issue is imminent: On Tuesday, voters in Houston will vote on a ballot measure that would halt affirmative action there.
Lawyers, law professors and other court observers have been predicting for weeks that the court will choose to stay on the sidelines for the time being. Their theory is that the constitutional challenge to Proposition 209 is premature and that the court wants the issue to percolate first in lower courts.
California officials have urged the court to leave Proposition 209 undisturbed, given that no state court has yet interpreted its meaning or scope and supposedly no one really knows what it means.
Those who drafted the measure are also resisting a Supreme Court review. Ward Connerly, the Sacramento business consultant who is the measure's chief advocate, asked the court to allow California to "begin to serve as a laboratory that the rest of the nation can observe."
But several California cities, unhappy with the measure, told the court that they need a constitutional decision from the court now, so they will know what their obligations are. The dilemma they foresee: If they enforce affirmative-action plans to assure minorities and women admission to college, hiring for jobs or access to contracts, they would face lawsuits from whites, men or state officials under Proposition 209; if they abandon those plans, they would risk lawsuits from minorities and women who benefited from them.
While the case awaiting Supreme Court action focuses only on the constitutionality of Proposition 209, and not on how it works, the ban has a practical side: It is already making a difference throughout California.
Santa Cruz could provide a case study on the measure's effect on a community with a mixed racial and ethnic population that seeks to create a work force that looks like the community. The city is reluctant to serve as a laboratory in the California experiment. In the 1996 balloting on Proposition 209, the community voted against it by a 2-to-1 margin.
"Most Santa Cruz electors and the full Santa Cruz City Council have been outspoken opponents of Proposition 209," Mayor Cynthia Mathews said.
Since 1992, the city has had a strong affirmative-action program, which city officials call "one of the most comprehensive and far-reaching local anti-discrimination ordinances in the country," covering the private sector as well as local government.
"It is Santa Cruz policy, all other things being equal," Mathews has said, "to retain and maintain a city work force which includes women and minority workers in percentages consistent with those of the local labor market."
Women make up 50.5 percent of the city's population, and minorities add up to 27.7 percent. One key provision in the Santa Cruz affirmative-action plan: If job applicants are equally qualified, minorities, women and the disabled receive priority.
To be on the safe side, the Santa Cruz City Council scuttled that entire provision Tuesday night, even though Proposition 209 bars only preferences for minorities and women. The council also deleted all requirements that minorities and women be represented on panels that review or monitor hiring.