Supreme Inequality: High Court OKs Anti-Affirmative 209

Revolutionary Worker #932, November 16, 1997

On November 3, the United States Supreme Court rejected legal challenges to California's anti-affirmative action "Proposition 209." Passed one year ago, Proposition 209 bans affirmative action programs in state hiring, contracts and education.

Even before the passage of Proposition 209, affirmative action programs were being slashed at the federal and state level. While campaigning for re-election, President Clinton put forward his "mend it, don't end it" position on affirmative action while bragging that he had cut more affirmative action programs than any other president. In California, programs that provided some access to universities were banned by the University of California Board of Regents. California Governor Wilson cut programs to open up firefighter jobs to women, Black people, Latinos, Asians and Native Americans. In cities, states and from the federal government, programs that allowed some access to government contracts have been cut. One woman construction contractor described the situation as "the days of the good ol' boys are back" in the distribution of government contracts.

The U.S. Supreme Court's refusal to hear appeals to Proposition 209 comes after the high court refused to hear appeals to the Hopwood decision by the Fifth District Federal Court in Texas. The Hopwood ruling banned the affirmative action program at the University of Texas Law School, a school which denied admission to Black people until 1950.

In 1994 many people in California fought against another reactionary proposition, the anti-immigrant Proposition 187. This struggle brought a whole new generation of youth into battle. Thousands walked out of school and tens of thousands marched to fight attacks on immigrants. On the heels of this struggle, the anti-affirmative action forces came out with Prop 209. In response, student activists organized big debates at Cal State Northridge and San Francisco State. People marched over 500 miles from Sacramento to the Republican Convention in San Diego and held protests at dozens of college campuses and high schools across the state. In the days after Prop 209 was passed, students on campuses from Berkeley to San Diego blocked streets and freeways and occupied buildings, demanding that their schools defy Prop 209.

Courts Sanction Denial of Opportunity

The decision by the Supreme Court to not even listen to the legal arguments of opponents of Proposition 209 comes at a time when the ugly results of banning affirmative action are becoming a scandal. At the University of California Law School, not a single Black student was admitted and enrolled in this year's freshman class, although one Black student who was admitted last year deferred his enrollment and is now the lone Black person in the class of about 270 students. In graduate schools across California, the numbers of Latinos, Filipino-Americans and African-Americans in graduate school fell by 18 percent in the year after affirmative action was banned in admissions. In the wake of the Hopwood ruling, applications to the University of Texas law school from Black students fell 26 percent and applications from Latino students were down by 23 percent. These changes in the composition of a couple of the country's largest graduate school systems will have a wide-ranging ripple effect as these schools produce fewer doctors, lawyers and others who serve oppressed nationality communities.

The sequence of court rulings on Proposition 209 shows some infighting among the powers-that-be and the government's determination to reverse concessions made in the '60s that were aimed at dealing with racial and gender inequalities in society. The system is trying to turn the anger of the middle class away from those on top, and towards those on the bottom of society--and to push those in the middle down, and those on the bottom even further down. All this has been reflected in the back-and-forth in the courts over affirmative action and Proposition 209. Courts at all levels have contributed to lying about what Proposition 209 was about, and framing affirmative action as a "zero sum" game where if the people on the bottom take a step forward, white middle class people lose out.

California's Republican Attorney General Dan Lundren's office drafted the ballot wording for Proposition 209. Lundren was both a major backer of 209, and at the same time his office was the supposedly "impartial" arbitrator of how the Proposition would be described on the ballot. Lundren's office used the deceptive title "California Civil Rights Initiative" to describe the proposition to voters. Backers of Proposition 209, including racist ruling class figures who have a long history of supporting segregation, claimed that this initiative was against discrimination.

Opponents of Proposition 209 challenged this fraudulent ballot wording in court. One state court judge ruled that the ballot explanation had to at least say that the Proposition would ban affirmative action. But when polls showed that a majority of voters would oppose Proposition 209 if they knew it banned affirmative action, a higher state court immediately stepped in and restored the original, deceptive wording. After Proposition 209 passed, Federal Judge Thelton Henderson issued a temporary order blocking its implementation. Henderson ruled that there was merit to the legal arguments of the civil rights and civil liberties organizations, who argued that it was unconstitutional to ban programs that were an attempt to undo centuries of inequality. But shortly after this Henderson ruling, a three-judge panel from the Ninth Circuit Court stepped in and overruled him with what the ACLU called a "diatribe against affirmative action." The judges wrote in their decision that 209 "addresses in a neutral fashion race-related and gender-related matters." And they promoted the lie that affirmative action hurts white men, saying "Whenever the government prefers individuals on account of their race or gender it disadvantages individuals who belong to another race or gender."

Julian Gross, an attorney with the Employment Law Center (ELC) in San Francisco told the RW, "One of the most disturbing things" about the Supreme Court's decision was that it let stand such an outrageous ruling from the Ninth District Court. Gross, whose organization was among those that appealed the decision, pointed out that the Ninth District Court slammed Judge Henderson for daring to consider that Proposition 209 might unconstitutionally deprive whole sections of people of their rights. Gross pointed out that in their ruling, the Ninth District Court stated, "A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy." This exposes the myth that millions of American kids in civics class are taught that this is a system of "checks and balances" where laws that violate the constitution can be challenged in court. Another attorney who has been part of the fight against 209, Angelo Ancheta from the Asian Law Caucus, told the RW that the decision by the Supreme Court, along with their earlier decision not to hear appeals of the Hopwood ruling in Texas, "sends a bad message" and that "it may mean that other states will try to enact statues like Proposition 209." In fact, in the wake of the court's decision, there were renewed calls in congress for laws banning affirmative action at the federal level.

The legal status of thousands of affirmative action programs in California is not yet settled, although the Supreme Court's action casts a darker shadow over them. By law, these programs will stay in effect until they are repealed, or overturned through lawsuits. Lawsuits had already been filed against affirmative action programs in San Jose, and one alumni of UC's Boalt Hall Law School is suing the student alumni association to prevent them from encouraging enrollment by Black, Latino and other underrepresented students. Legal organizations committed to defending affirmative action are preparing for a wave of court battles. Oren Selstrom from the Lawyer's Committee for Civil Rights told the RW that in the legal arena, "the battle is far from over, it moves down to the ground level now in California."

"We Won't Go Back"

On the Thursday following the Supreme Court decision not to hear appeals of Proposition 209, dozens of students blocked the main gate that leads into the campus of the University of California at Berkeley holding a banner saying "Welcome to 209." While they blocked the main gate, they left a small, side gate open with a sign above it saying "White Men Only." The action confronted every student with the implications of the passage of 209.

A protest organizer was quoted in the campus newspaper saying, "We are demonstrating tangibly that 209 will narrow the door. (UC Berkeley) Chancellor Berdahl is not listening to us. 209 will have a disastrous impact on the community of color. Our brothers and sisters won't have a chance to be here to speak. We're here for the future of our brothers and sisters." Another student said, "I'm glad people aren't apathetic to sexism and racism on this campus."

The fact that many students at UC Berkeley have resisted 209 from its inception is important. To be admitted to Berkeley, students have to have an almost perfect grade point average, score high on tests that measure skills only taught in elite schools, come up with tens of thousands of dollars in admission costs and do many hours of homework each night. Part of the program behind banning affirmative action is to transform schools like Berkeley into more efficient producers of tomorrow's corporate and technical elite in service of capitalism and imperialism. The class schedule at Boalt Hall Law School at UC Berkeley is filled with classes in international business law, foreign trade contracts and other skills that facilitate the exploitation of the workers in the U.S. and the people of the third world.

Last month over 50 students, alumni and other area law school students were arrested in protests demanding diversity in enrollment at Boalt. In one protest, some white students symbolically gave up their seats in class to Black students who do not attend Boalt. The students have put forward the slogans, "Educate Don't Segregate," "Protect Diversity at Boalt Hall," and "It's not a University without Diversity." And there have been continuing, ongoing protests in California before and since the passage of Proposition 209. On April 28, 70 student protesters were viciously pepper-sprayed in the Administration Building at UC Berkeley while protesting 209. In mid and late October, thousands of people participated in "Save the Dream" rallies and marches organized by Jesse Jackson, along with unions, student groups, civil rights organizations and others. Protests have also hit at the next ugly, racist proposition being prepared for the California ballot--the "English Only" initiative that would ban or severely restrict bilingual education.

Meanwhile, in Houston, Texas, a proposition to ban affirmative action was defeated at the polls. That ballot measure had the same content as California's Proposition 209, but the ballot wording did include the fact that it would ban affirmative action. The defeat of this initiative was, as Angelo Ancheta from the Asian Law Caucus told the RW, "a nice break in the momentum" of attacks on affirmative action.

In the face of attacks on affirmative action, revolutionaries have posed the question "what kind of a society do you want to see?" This is a here and now question. In the year since the passage of Proposition 209, real changes have taken place that are aimed at enforcing and promoting inequality.

Each attack on equality has brought forward resistance, and that resistance needs to become stronger. Folks who have been "in the middle" on this battle, or confused by the demagogic rhetoric about "reverse discrimination" need to take a look at the whites-only reality that is the result of attacks on affirmative action.

Attacks on affirmative action are part of a bigger war on the people that is coming down from the system. While school doors and job opportunities are slammed shut, the prisons and graveyards are being filled with youth for whom the system has no future. The battle for equality, including resisting and beating back attacks on affirmative action and fighting to extend these programs is a vital part of the fight against the system's war on the people.

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