The Leadership Conference is working diligently to see that Tom Perez is confirmed as U.S. Secretary of Labor. Perez is an eminently qualified public servant and consensus builder who has dedicated his career to ensuring that all individuals are treated fairly and have the opportunity to succeed. He has served with integrity and distinction at the local, state and national level, compiling an outstanding record of achievement.
Civil Rights Monitor
The CIVIL RIGHTS MONITOR is a quarterly publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Back issues of the Monitor are available through this site. Browse or search the archives
Volume 9 Number 1CALIFORNIA'S PROPOSITION 209 CHALLENGED
On November 5, 1996 California voters approved an initiative amending the State Constitution's Article 1, Sec. 31, to prohibit "preferential treatment" based on "race, sex, color, ethnicity or national origin" by the State or any of its subdivisions or in strumentalities in employment, education or contracting programs. Proposition 209 abolishes California's public affirmative action program. It requires that the State deny "preferential treatment" in certain activities to certain persons only. The Stat e or its instrumentalities such as local governments may grant preferential treatment based on characteristics other than "race, sex, color, ethnicity or national origin" on other bases, say, to veterans. "The primary change that Proposition 209 makes to existing law is to close that narrow but significant window that permits the governmental race- and gender-conscious affirmative action programs...that are still permissible under the U.S. Constitution."
The Proposition states the following:
(a) The state shall not discriminate against, or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or publi c contracting.
(b) This section shall apply only to action taken after the section's effective date.
(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.
(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.
(f) For purposes of this section, "state" shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or government instrumentality of or within the state.
(g) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are other-wise available for violations of then-existing California antidiscrimina tion law.
(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law of the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.
A day after the election, both Gov. Pete Wilson and State Attorney General Lungren instructed state agencies to list and undo state programs of the kind barred by Prop. 209. But on the same day, a group of minority and women's advocacy organizations f iled suit in federal court in San Francisco to stop implementation of Prop. 209 on the ground that it violates the U.S. Constitution.
The suit, Coalition for Economic Equity et al. v. Pete Wilson et al., claims that the prohibitory language of Prop. 209 deprives minorities and women of equal protection of the laws as guaranteed by the U.S. Constitution's l4th Amendment and also vio lates the Supremacy Clause of the U.S. Constitution [valid federal law is the law in every state] and it "conflicts with the federal policy embodied in Titles VI and VII of the Civil Rights Act of l964, [and] Title IX of the Educational Amendments of 1972 ...." In December, 1996 the federal court issued a temporary restraining order and subsequently a preliminary injunction against any enforcement of Prop. 209 until a final ruling on the merits of the constitutional challenge to the Proposition.
The court certified the suit as a class action and found that the plaintiffs had established a probability of success on the merits of their 14th Amendment claim. This was because the Proposition barred only minorities and women from obtaining benefit s from the State or local governments without first obtaining an amendment to the State Constitution, thus making it harder for them as compared to others to acheive their goals through the political process. Also the court found a likelihood of success on their claim that Prop. 209 violates the Supremacy Clause "because it conflicts with and is thus preempted by Title VI of the l964 Civil Rights Act". The court also ruled that the plaintiffs had established a real and imminent threat of irreparable inj ury to their interests or those of their members unless a preliminary injunction were issued.
The defendants have appealed the Preliminary Injunction, and that appeal is pending, as is an intervening defendant's application for a stay of the Preliminary Injunction in both the district court and the federal court of appeals.
A brief has been filed by the plaintiffs in the Federal Court of Appeals for the Ninth Circuit opposing the motion for a stay of the injunction, and at the end of January 1997, a brief amicus curiae also opposing the stay was filed by the United State s. The United States' brief succinctly and pointedly addresses two questions. The first question is whether the intervenor-defendant had made the "strong showing required by Supreme Court and ninth circuit precedent that the intervenor is likely to succ essfully establish the district court abused its discretion in issuing the preliminary injunction. The Government argued that the district court properly found controlling in this case the two Supreme Court cases on which the district court relied, Seatt le School District No. 1 and Hunter v. Erickson, which barred a state from singling out racial and gender issues for special treatment in the political process and thus imposing unusual burdens on the ability of minorities and women to overcome the "speci al condition" of prejudice.
The second question that the United States addressed is whether the competing equities here justify upsetting the status quo. The United States demonstrated that in this case the balance of hardships and the public interest strongly favor preserving t he status quo pending appeal by the traditional method of the district court issuing an injunction barring enforcement of the challenged initiative pending the court's decision on the merits of the complaint.