
DATE: Tuesday, November 4, 1997             TAG: 9711040298

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: FROM WIRE REPORTS 

DATELINE: WASHINGTON                        LENGTH:  137 lines

SUPREME COURT LEAVES INTACT BAN ON RACE, GENDER PREFERENCE

The Supreme Court let stand California's ground-breaking Proposition 209 - a ban on race and gender preference in hiring and school admission - an action that could encourage voters in other states to adopt similar measures.

Campaigns to eliminate preferences based on race and sex are already under way in several states, and those on both sides of the issue predicted the court's action would reinvigorate those efforts.

Voters in Houston, the nation's fourth-largest city, are deciding today whether the local government should abandon such longstanding preferences in the area of public contracting.

``This is a green light to all the other states that want to copy Proposition 209,'' said Stanford law professor Kathleen M. Sullivan, who had helped the American Civil Liberties Union in its challenge to the California measure. ``At our count, there were 26 other states in some stage of progress.''

The measure, an amendment to the state constitution, says the state and local governments cannot ``discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin.''

When the initiative passed last year, California became the first state in the country to abolish affirmative action. The controversial measure drew national attention and was stopped from taking effect for nearly a year while it was challenged in court.

Acting without comment Monday, the nation's highest court rejected a challenge to the measure by a coalition of civil rights groups.

The justices did not make public their individual votes. It takes four votes to accept a dispute for oral argument and review.

The Supreme Court's action was not a decision and set no national precedent. It merely left in place the lower court rulings.

Lower courts had said the measure violated no one's constitutional rights and was a neutral way to promote equality. But its opponents contended the measure relegated racial minorities and women to the status of second-class citizens in California.

Supporters of the measure were pleased with the court's action.

``I hope and believe other states will follow suit,'' said Clint Bolick of the Institute for Justice. ``The court's (action) is a further repudiation of the arguments made by the Clinton administration and its allies.''

Another affirmative action foe, Michele Justin of the Pacific Legal Foundation, added: ``This ushers in a new era in civil rights. This . . . affirms that equal means equal and that discrimination will prevail no longer.''

Republicans in Congress who have supported ending most forms of affirmative action praised the court's action.

Rep. Charles Canady, R-Fla., said the action ``echoes the growing chorus of voices calling for equal protection of the law for all Americans.''

He said the House Judiciary Committee later this week would continue its work on legislation similar to Proposition 209. It would ban the federal government from granting preferences in hiring, contracting and other programs.

``You would have to be living on a different planet not to think this is a very significant decision,'' said Ward Connerly, who spearheaded the fight for California's Proposition 209 and said he now spends about a third of his time traveling to other states to help activists with similar initiatives.

Opponents of the measure, while disappointed, vowed to continue the fight.

Mark Rosenbaum of the ACLU Foundation of Southern California said he will continue to seek out an effective legal strategy to challenge Proposition 209. While the Supreme Court declined to hear the civil rights groups' appeal this term, it could consider a new challenge in the future.

``For the first time in our nation's history, state and local governments have been stripped of their authority to remedy race and gender discrimination,'' he said. Enforcement of Proposition 209 leaves California ``for the time being, at least, as the only state unwilling to stand up and take strong measures against gender and race discrimination within its borders,'' Rosenbaum said.

Martha Davis of the NOW Legal Defense and Educational Fund predicted future litigation if other states adopt similar rollbacks of affirmative action. ``The last thing we want is to hold up California as a model. I think it would be disastrous if Proposition 209 were exported to other states,'' she said.

One avenue opponents could choose is to find an individual who was particularly hurt by Proposition 209 and have that person sue to challenge the law's constitutionality.

Once the law takes effect, there are almost certain to be other legal issues to be resolved. For example, the law states simply that ``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 public contracting.'' But does ``preferential treatment'' apply only when a black or Hispanic is specifically chosen over an equally qualified white, or does it also prevent outreach and recruitment of people traditionally kept out of certain jobs?

Monday's Supreme Court action was a powerful signal, especially in light of a recent string of high-court rulings that have served to limit the scope of race-based government policies.

In California, the state is just beginning the lengthy, but largely procedural, process of eliminating preference programs. At the municipal level, there are several state hurdles that must be crossed before the law can be imposed. Under California law, Gov. Pete Wilson, a Republican, is required to file a lawsuit seeking a ruling that state affirmative action statutes are in conflict with Proposition 209. Hoping to speed up the process, Wilson in September asked the Democratic-controlled legislature to repeal or amend 30 statutes that he identified as granting illegal race or gender preferences. But the legislature adjourned for the year without acting.

At the county level, the process is also moving slowly. In most cases, county minority contracting programs are embedded in state laws that still have to be removed from the books, either by the state appellate courts or the legislature. MEMO: This story was compiled from reports by The Associated Press and

The Washington Post. ILLUSTRATION: Graphic

WHAT IT MEANS

The Supreme Court's action was not a decision and set no national

precedent. It merely left in place the lower court rulings that

upheld California's ban on race and gender preference in hiring and

school admissions. But it could encourage voters in other states to

adopt similar measures.

Graphic

OTHER ACTION

In other action, the justices:

Refused to shield committees formed by the prestigious National

Academy of Sciences from a federal law allowing public scrutiny of