Ban on racial priority intact High court refuses to address Calif. repeal of affirmative action

No dissent or comment

More lawsuits on issue of hiring preferences are being developed

November 04, 1997|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF Sun staff writer Thomas W. Waldron contributed to this article.

WASHINGTON -- Giving opponents of affirmative action a major boost, the Supreme Court yesterday turned back a constitutional challenge to Proposition 209, California's ban on race and sex preferences in state education, employment and contracts.

The court's three-sentence order did not directly endorse Proposition 209, and it set no precedent. But the action had the practical effect of giving supporters of similar measures elsewhere at least a year to dismantle other affirmative action plans.

More lawsuits over the issue are developing, but none is expected to rise to the Supreme Court until well into next year.

Without dissent or comment, the court left intact a federal appeals court ruling that said: "There is simply no doubt that Proposition 209 is constitutional."

The justices displayed no doubts either: They acted swiftly, examining the case only briefly, and voted without asking the federal government for its views on the issue, a common practice in far-reaching cases.

California's voter-approved ban on race and sex preferences, adopted last November, bars state and local governments and state colleges from giving minorities or women any priority in public jobs, education or contracting.

That measure, enacted with a 54 percent "yes" vote, has taken on symbolic importance amid a national debate on affirmative action. Yesterday's action appeared to be another sign of the growing skepticism, and sometime hostility, that a court majority feels toward affirmative action.

The Justice Department joined in the opposition to Proposition 209 in lower courts, but stayed out of the case once it reached the Supreme Court. The department had no comment yesterday.

The Clinton administration's past position on the issue has contributed to difficulties in the Senate for the nomination of Bill Lann Lee to head the Justice Department's civil rights division, coming up for a vote Thursday in the Senate Judiciary Committee.

As a result of the Supreme Court's action, any state, county or city agency or public college in California that has an affirmative action plan faces the prospect of having such measures nullified. But some of those measures are expected to be tied up in state court disputes for months.

Some local governments in the state, though, are giving up their plans without a court battle, thus demonstrating that Proposition 209 is already having an effect.

More than two dozen other states or cities are considering measures like Proposition 209, seeking to undo affirmative action. The next such test will come today in Houston, where voters will decide whether to repeal that city's affirmative action plan. The balloting could be the first test of whether the Supreme Court's order will influence voters.

The co-authors of Proposition 209, Glynn Custred and Tom Wood, said at a news conference: "The fight has just begun because what we have to do is to move this forward to the rest of the country."

Maryland has moved in the opposite direction from the assaults elsewhere on affirmative action. In 1995, at the urging of Gov. Parris N. Glendening, the General Assembly passed a law increasing the state business earmarked for minority-owned companies.

For the Ravens football stadium, the state agreed to try to have minority companies handle at least 23 percent of the work.

One significant affirmative action plan in the state, however, has fallen: the Benjamin Banneker scholarship program at the University of Maryland, College Park, which provided full tuition and room and board, and was open only to black students. It was struck down by a federal appeals court in 1994, and the Supreme Court left that result undisturbed.

In Congress, Rep. Charles T. Canady, a Florida Republican who has offered a bill patterned after Proposition 209, said: "It's time for Congress to do the same for the whole nation." His bill comes up for a vote Thursday in the House Judiciary Committee.

Ward Connerly, who has championed Proposition 209 and heads the American Civil Rights Institute, a group promoting similar measures elsewhere, urged affirmative action advocates "to join with the people of California and the courts in embracing race-neutral policies and programs."

Gov. Pete Wilson, who has sued and taken other action to get Proposition 209 implemented across the state, said the Supreme Court order "takes California another step closer to ending the kind of unfair preferences that separate people into groups, and brings us another step closer to achieving a true colorblind, equal opportunity society."

On the other side, a coalition of civil rights groups that had challenged the measure called the court's action "a severe and painful disappointment."

In a joint statement, those groups denounced the measure as "more insidious than any statewide measure since the era of Southern resistance to Brown vs. Board of Education," the Supreme Court's 1954 school desegregation ruling.

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