We should begin with a brief recapitulation of the California Civil Rights Initiative story. CCRI is an amendment to the California constitution, with language lifted almost verbatim from the federal Civil Rights Act of 1964, that would ban the use of racial and gender preferences in statefunded employment, education, and contracting programs. It was approved by a 54 percent majority — a margin of nearly 800,000 votes — on November 5. The very next day, the Coalition for Economic Equality and a long list of other groups opposing CCRI (and defending affirmative action) filed a complaint in San Francisco’s U.S. District Court. They sought a restraining order to delay implementation of the measure.
On November 27, they got it — from the court’s chief judge, Thelton E. Henderson, who used a loop-hole to seize the case, which had been randomly assigned to a colleague. On December 23, he issued a more permanent ” preliminary injunction” against CCRI. On January 3, Californians Against Discrimination and Preferences, an organization representing CCRI’s authors and proponents, joined the state of California in appealing Judge Henderson’s injunction. CCRI now faces an endless round of briefs and pleadings, which will almost certainly wind up at the Supreme Court. In the best of circumstances, the measure will not take effect for many more months.
Is this simply the case of a lone, renegade judge cavalierly thwarting a cut-and-dried expression of popular will? If it were, we might propose a simple fix. Until the mid-’80s, single judges were not allowed to declare state laws unconstitutional. Three judges had to agree collectively. Congress should reinstate this “three-judge rule.”
But that’s not enough. CCRI is a much bigger problem. For starters, the pretense of a serious constitutional argument is involved. Judge Henderson guesses there is a “strong probability” that CCRI violates the equal- protection clause of the federal constitution’s Fourteenth Amendment. He cites two Supreme Court precedents in support of this view. In 1969, the court struck down a local city council’s edict requiring that fair-housing legislation win the approval of both local aldermen and a citywide voter referendum. The majority opinion said that edict was impermissible: a double, and racially targeted, legal hurdle. In 1982, the justices struck down a statewide ballot initiative that had banned the use of school busing for racial purposes while continuing to allow it for non-racial purposes.
Henderson says this pair of Supreme Court equal-protection rulings casts doubt on CCRI. Like the measures they overturned, he argues, CCRI would force certain classes of citizens seeking preferential benefits (women and racial minorities) to jump through an extra procedural hoop — in this case, passage of a ballot initiative overturning CCRI. This would be unacceptable, according to the judge, because other classes of citizens seeking preferences (the handicapped, for instance) would still be allowed to have their way through mere legislation.
We said this was the pretense of a serious constitutional argument. It gets more pretentious the closer you look.
First, the “double-track” mechanism in the 1969 case doesn’t really apply to CCRI; to revoke California’s new law, opponents only have to re-amend the state constitution once. And the 1982 case can’t apply to CCRI, because that majority opinion explicitly asserted that it did not mean efforts to end affirmative action were unconstitutional. In fact, on the same day the court issued this 1982 decision, it upheld — in a separate case — a California ballot initiative that amended the state constitution to ban racial busing.
Henderson doesn’t really dispute any of this. He doesn’t even bother to address most of it. He simply pronounces that CCRI unfairly hampers the political aspirations of women and minorities in California — including, evidently, the 27 percent of black Californians who voted for the referendum, along with absolute majorities of Asian Americans and white women. These people were deluded, the judge believes. In essence, he believes this: Any sweeping, statewide initiative that prevents government from serving its minority citizens’ best interests — as he understands those interests — violates the Fourteenth Amendment.
By this bizarre reasoning, of course, the Fourteenth Amendment practically violates itself, since it plainly prohibits a state from discriminating among its citizens on the basis of race or gender. CCRI does that too. And nothing more.
But a runaway judge propounding nasty ideas is hardly the half of it. There is something still worse — far worse — about the entire CCRI controversy, something most public commentary about the issue has thus far barely touched. For if justice be truly done, California should not need a CCRI in the first place.
No group of American voters, so far as anyone can remember, has ever directly endorsed affirmative action. In fact, no group of American voters had ever directly acted on such programs, for or against, until a majority of Californians rejected them out of hand in November. Affirmative action is a disembodied product of American democracy: invented by presidential executive order and sustained over the years by cloakroom budgeting decisions, enforcement-agency directives, and complicated litigation.
And this is the capper. Affirmative action — nearly all of it, whether administered by California, some other state, or the federal government — is now presumptively unconstitutional. Under the same Fourteenth Amendment Judge Henderson is sworn to uphold. Those preference programs that Californians thought they were repealing in November had been repealed already — by the implied but unmistakably obvious logic of Supreme Court decisions in Richmond v. Croson (1989) and Adarand v. Pena (1995).
And yet so little ever gets done about it! The state legislatures wait for their every last racial setaside and university-admissions preference to be adjudicated by the courts. The president of the United States pretends he can’t predict how those cases will ultimately be resolved and thus works to preserve the federal government’s own versions of these programs. On Dec. 20, in fact, White House spokesman Mike McCurry revealed that the president has been following CCRI “very carefully” — and that Clinton has concurred in a Hendersonian Justice Department analysis of the initiative as ” unconstitutional.” Our Justice Department will aggressively oppose CCRI in the Ninth U.S. Circuit Court of Appeals.
In the 1960s, there was massive popular resistance to court-ordered desegregation in the South. In the 1990s, throughout the nation, there is massive institutional resistance to a courtordered — and popularly supported — follow-on obligation of justice: the abolition of remaining racial and gender classifications by government. Even a “conservative” Republican Congress in Washington tacitly resists. The GOP majority has deauthorized a single affirmative action program since it arrived here in 1995. It has formally reauthorized at least one other and continued to spend money on all the rest: big, small, medium preferences — hundreds of them.
Congressional Republicans should reverse this course in 1997. Even baby steps in the direction of colorblind policy would be an improvement. That’s what the Constitution demands, after all.
David Tell, for the Editors
