No state shall…deny to any person within its jurisdiction the equal protection of the laws.
–U.S. Constitution, Amendment XIV
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….
–California Civil Rights Initiative
(added to state constitution by voters’ adoption of Proposition 209 on Nov. 5)
The question presented is whether the second of these two laws violates the first. The question should answer itself, even for those who think the CCRI is bad policy. The notion that a state violates the 14th Amendment’s prohibition of almost all racial discrimination when it prohibits all racial discrimination is absurd on its face. Butt a little absurdity has not deterred civil rights groups, led by the American Union, from rushing into federal court (and shopping for a sympathetic judge) with a claim that the CCRI must be enjoined as contrary to the equal protection clause. Nor has it prevented U.S. District Judge Thelton Henderson of San Francisco from issuing a temporary restraining order (on Nov. 27) finding that the plaintiffs have "a strong possibility of success on the merits."
How strong? Some predictions: Assuming that Judge Henderson grants a preliminary injunction, the U.S. Court of Appeals for the 9th Circuit will reverse him and uphold the CCRI’s constitutionality. The Supreme Court will then either decline to hear the case or add an exclamation point by upholding the CCRI-unanimously.
The strategy of the ACLU and its allies represents "an Orwellian assault on democracy," in the words of columnist Charles Krauthammer.
Whether it is wise for the voters to tell a state and its subdivisions to stop discriminating against, for example, Asians and whites (and in favor of blacks and Latinos) in university admissions is debatable. But the notion that it violates equal protection for the voters to ban such racial preferences lakes one’s breath away.
This is not to deny that there may be rare cases in which federal law will override the CCRI by. requiring .racial preferences to remedy discrimination. Nor is it to deny that the plaintiffs and Judge Henderson have found a couple of Supreme Court precedents that give a surface plausibility to the effort to strike down the CCRI on its face. But their argument melts away on closer inspection of those precedents, and of other precedents and principles that limit their teach.
The plaintiffs’ favorite precedent is Washington v. Seattle School District (1982), which struck down, by a vote ©f 5-4, a ballot initiative adopted by the state’s voters to end the Seattle school board’s use of mandatory busing to achieve racial integration of the schools. The Court held that the initiative would place "special burdens m the ability of minority groups to achieve beneficial legislation."
While noting that the school board would have been free to repeal the busing plan in favor of a neighborhood-schools policy, the Court held that the state’s voters could not do so-at least, not In a fashion that "lodges] decisionmaking authority over the question at a new and remote level of government " This, the Court said, would’ violate the :principal of its 1969 decision in Hunter v, Erickson (the plaintiffs’ other key precedent) by forcing racial minorities who seek race-related benefits (such as integration through busing) "to surmount a considerably higher hurdle than persons seeking comparable legislative action."
The equal protection attack on the CCRI goes something like this: The CCRI, like the initiative in Seattle, would not only wipe out race-related policies that benefit certain minorities, but would also block future adoption of such policies unless their advocates could persuade "a new and remote level of government" to repeal the CCRI. This would make it harder for racial minorities than, say, the elderly, veterans, or children of alumni, to win preferential treatment through the political process.
But even assuming that Seattle is good law-which is dubious, given the internal incoherence of that opinion and the Court’s more recent decisions curbing racial preferences-the plaintiffs are unpersuasive in seeking to stretch Seattle to void the CCRI.
First, their interpretation was repudiated in the Seattle opinion itself-which explicitly suggested that the Court would not strike down a statewide law or amendment barring all racial discrimination and preferences.
Justice Harry Blackmun’s majority opinion reaffirmed the settled rule that the "central purpose of the Equal Protection clause…is the prevention of official conduct discriminating on the basis of race." That is also precisely the purpose of the CCRI.
More specifically, Blackmun rejected Justice Lewis Powell Jr.’s complaint in dissent (at note 14), that Seattle could lock in racial preferences forever by casting doubt on the constitutionality of state laws repealing them. Blackmun said (in note 23) that this and other warnings by Powell "evidence a basic misunderstanding of our decision," and that "the horribles paraded by the dissent…-which have ‘nothing to do with the ability of minorities to participate in the process of self-government-are. entirely unrelated to this case."
Second, while Seattle rested on the premise that a [political] powerless" racial minority "cannot be subjected to ‘a debilitating and often insurmountable [political] disadvantage," the CCRI-which bans preferences based on sex, ethnicity, and national origin, as well as race-is in no sense aimed at harming or disadvantaging minorities. Nor can the blacks, Hispanics, and women who receive most of the preferences that the CCRI would abolish be described as politically powerless.
To the contrary, they represent the vast majority of California’s electorate. Arid the CCRI seeks to end governmental discrimination against not only whites, bat also Asians-a racial minority with less political clout than blacks or Hispanics. Thousands of Asians have been excluded by implicit or explicit racial quotas from the University of California and other-institutions.
The CCRI would also end discriminatory preferences that favor Hispanics over blacks, blacks over Hispanics, and whites over both groups. Such preferences exist, and have been spreading as California’s politics have increasingly evolved into a racial and ethnic spoils system, and as state and local bureaucrats have increasingly become fixated on counting by race in all walks of life.
Third, while Seattle involved a law that the Court found to be a constitutionally suspect "racial classification," the CCRI is clearly not a racial classification, but rather a ban on racial classifications.
This point is underscored by another ruling issued on the same day as Seattle. In that case, Crawford v. Board of Education of Los Angeles, the Court upheld by 8-1 a ballot initiative in which California’s voters amended-as they were later to do in adopting CCRI-the equal protection provisions of their state constitution to overrule the state supreme court’s prior interpretation. Specifically, the voters had barred state courts from ordering school integration through busing absent a need to remedy the kind of de jure segregation that is prohibited by the federal equal protection clause.
Justice Powell’s majority opinion in Crawford stressed-in a holding in some tension with Seattle-that this amendment "does not embody a racial classification" because it "neither says nor implies that persons are to be treated differently on account of their race." Of course, the same is true of the CCRI.
Any claim that a state ban on racial preferences is itself a constitutionally suspect racial classification also flies in the face of the Supreme Court’s rulings in both Adarand Constructors v. Peña (1995) and Richmond v. J.A. Croson Co. (1989) that "the standard of review under the equal protection clause is not dependent on the race of those burdened or benefited by a particular classification." This no-double-standard rule means that if any antidiscrimination law violates the equal protection principle, then all of them do.
That would include, for example, the 1991 law in which Congress banned "race-norming" of test scores-and thus blocked black people from seeking state or local race-norming in hiring and promotions. It would also include the entire 1964 Civil Rights Act, which of course makes it harder for any racial group as such-than for, say, alumni children-to obtain preferential treatment from the government.
If this is starting to sound a bit too much like gibberish about how many law professors can deconstruct on the head of a judge, that’s because sometimes you have to fight gibberish with gibberish.
The most important reason, however, why the Supreme Court will never hold that it violates the equal protection of the laws for a state to require the equal protection of the laws is not an argument from precedent but rather the most important test in all of law-the straight-lace test.