Being a law school dean can be so
nerve-wracking that most deans last fewer than four years on the job.
Being a minority dean can be an even greater challenge; but it is also a great opportunity to influence admissions, hiring and other law school policy, according to minority deans on a panel at The John Marshall Law School.
Minority law school deans also can provide a prominent minority voice to the world outside academia, according to LeRoy Pernell, dean of Northern Illinois University College of Law.
"Opportunities that we as deans have to speak out and provide leadership on issues of interest to our peoples puts us in a unique situation to be part of the national debate," Pernell said.
The March forum was part of "People of Color Speak," the first national meeting of the six regional People of Color Legal Scholarship Conferences.
A 1997-1998 Association of American Law Schools study of 180 law schools nationwide found that just 16 deans, or 8.9 percent, were African-American, Asian American, Hispanic or Native-American.
The study also found that 13.2 percent of all law school faculty are minorities.
Pernell, who is African-American and the only minority dean at an Illinois law school, said that minority deans at the national meeting hope to build a formal network to help other minority law faculty become deans.
But a minority law professor aspiring to deanship must face the prejudice that he or she lacks credentials, has no vision for the school, and is unable to raise money or handle a budget, according to Gregory Howard Williams, an African-American law professor who has served as dean of Ohio State University College of Law since 1993.
Williams said he took particular offense at the suggestion that he couldn't raise or manage money, an objection he heard when being considered for the job.
"I took great umbrage at that because I remember growing up on welfare in Indiana and living on $5.50 a week. I can manage money," Williams said. "I can make something out of nothing."
Williams said his white predecessor raised $11 million in seven years while he himself raised $16 million in three.
Williams said he encourages minority law professors to become deans; but they often say they dislike fundraising, a big part of the job.
"They say to me, 'I like dealing with faculty and working on curricular issues, but I just don't like putting my hands in people's pockets. I don't like asking people for money,' " Williams said.
"Let me tell you, that is the easiest part of the job. It's a lot easier to go out and ask someone for money than it is to get more parking spaces for the law school. It's a hell of a lot easier to ask for money than to try to get through curricular reform."
Williams said minority deans must expect skepticism about their credentials.
Williams, who looks white, said that when he moved to Columbus, Ohio, and his white neighbor learned he was a law school dean, she fawned over him.
"She said, 'Oh, you're at the top of your profession; that's absolutely incredible,' " Williams said.
"And then she discovered I was black. And she asked someone else, 'Did he get the job because he was black?' When she assumed I was white, she assumed I was qualified. When she discovered that I was black, she assumed I was unqualified.
"You're going to get that. But you have to have confidence in your own mind that you know how to do this job."
The panel members discussed finding ways to admit minority students who have potential but may not meet admissions criteria.
Texas and California law limitsraced-based affirmative action in state law school admissions. L. Darnell Weeden, former interim dean of Texas Southern University Thurgood Marshall School of Law, said that sometimes deans have to be "creative" about admissions.
Weeden say he has proposed to state legislators zip-code based affirmative action and address-based affirmative action, as opposed to race.
"They say, 'Isn't address-based affirmative action the same as race?' and I say, 'Of course not, anyone can live at any given address,' " Weeden said to sustained laughter and applause from the audience.
Debrina Madison, dean of the New College of California School of Law in San Francisco, said that as dean, she's been able to make "monumental hiring decisions," raising the percentage of minority faculty at her school to 50 percent.
"You do have a position where you can make some changes," Madison said. "You don't know how long it's going to last, so you have to take advantage of it."
Madison said deans are in a tricky position.
"You always have to watch your back," Madison said. "This environment is even more problematic if you are new, refreshing, and colorful, otherwise translated to mean young, gifted and black; and you're out there trying to change the status quo."
Madison said that when she first became dean, her best friend told her a story about another new dean who asked the former dean for advice.
The former dean offered no words of wisdom but left the new dean three letters, numbered one, two and three, Madison said. The new dean was instructed to open the letters in order, one for each crisis.
The new dean threw the letters into a desk and forgot about them.
Six months later, the first crisis arose. The students were knocking on the dean's door, making demands. The new dean remembered the letters and opened the first one. The first letter said only, "Blame the former dean."
"Of course, he used that strategy; and it worked and got him by for the first year and a half," Madison said. "The next problem was even more monumental - the faculty were getting ready to organize their own faculty senate. They were on his case, and things were looking really bad."
Then the dean remembered the second letter. He opened it; and it said, "Blame the board of trustees."
"He used that advice; and, sure enough, it worked. He got into three-and-a- half years of the deanship; and this time the students, the faculty and the board were after the dean," Madison said. "He said to himself, 'Oh, I'm so glad I have this letter.' He opened the third letter; and it said, 'Write three letters.'
"This is all to say that when you're trying to change the status quo, you need to keep your letter writing skills intact," Madison said, speaking over the laughter of the audience.
The Regional People of Color Scholarship Conferences provide minority law professors an opportunity to present and discuss papers and share professional experiences, according to Reginald L. Robinson, a Howard University School of Law professor and part of the national steering committee for the event.
The regional conferences originated in the Midwest with University of Wisconsin School of Law Professor Linda S. Greene and Loyola University Chicago School of Law Professor Norman C. Amaker, who wanted to find a way to encourage and showcase minority legal scholarship, according to Robinson.
John Marshall Law School Associate Professor Linda R. Crane said the conferences may meet nationally again in five years.
It is by now well understood ... that our society cannot be completely colorblind in the short term if we are to have a colorblind society in the long term. After centuries of viewing through colored lenses, eyes do not quickly adjust when the lenses are removed. Associate General Contractors of Massachusetts v. Altschuler (1973) [FN1] Government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction. Adarand Constructors, Inc. v. Pena (1995) (Justice Scalia, concurring in part and in the judgment) [FN2]
In order to get by racism we must first take into account race. There is no other way. And in order to treat other persons equally, we must treat them differently. Regents of the University of California v. Bakke (1978) (separate opinion of Justice Blackmun) [FN3]
A lamentable and long history of discrimination against minorities and women coupled with the promise of all attaining the bounty of the American dream provide the mix for affirmative action--one of the more divisive issues in our society. [FN4] Affirmative action plans were enacted to provide equal protection and equal access to those groups who historically have suffered the injustices and indignities of discrimination. Admission to higher education was not an early target of these plans. [FN5] But, it has become an important venue where affirmative action law and discussions about social justice are played out. A higher education degree has long been a staple of the American dream. It is perceived and supported by research that those individuals who have a college education, on par, garner greater economic resources than those without the degree. Therefore, for those individuals who are members of groups historically excluded or denied equal access to higher education, access to higher education via affirmative action is of great importance. Also, affirmative action is of great importance to those individuals who perceive that their access to higher education has been negatively impacted because of the "preferential treatment" of minorities and/or women. There are not enough seats in all of the undergraduate and graduate programs to accommodate everyone who wants to attend. Scarce resources such as admission to specific programs is the substance of politics; who gets what, when, and where.
Asian Americans are often identified with white economic and social progress rather than fellow minorities' lack of progress creating a conundrum for them. For instance in September 1998, President Clinton's Council of Economic Advisors delivered a report on the social and economic indicators of various racial and ethnic groups. The report showed that Asian Americans and whites fared better economically and had better access to health care and education than blacks and Hispanics, with Native Americans "the most disadvantaged group by far." [FN6]
Placed within the context of college admissions, Asian Americans appear to be also aligned with whites rather than with fellow minority groups. For example, when California passed Proposition 209 in November of 1996 [FN7] outlawing preferential treatment on the basis of race, color, ethnicity, or national origin in public employment, public education, or public contracting, Asian American admissions to the University of California systemwide increased while all other groups declined. First-year undergraduate admissions for Asian Americans increased from 9,529 in 1997 to 9,711 in 1998. At the same time. African American admissions declined from 998 to 758 and Latino/Latina admissions declined from 3,394 to 3,206 for the same time period. [FN8] Thus, when affirmative action was removed in admissions to the University of California system, Asian American admissions increased even when the category white/other decreased from 10,772 to 9,690. [FN9] The conundrum for Asian Americans is whether to support affirmative action since its elimination at the University of California may have aided their admissions while harming the admissions possibilities for other minorities. Are their interests better served through an alignment with white interests which argue against preferential treatment based on group characteristics or are they better served through an historic alliance with other minority groups who have also experienced discrimination at the hands of the white majority? This paper is an exploratory discussion of this conundrum within the context of higher education admissions.
"A generation ago, we did it right. We passed civil rights law to prohibit discrimination. But special interests hijacked the civil rights movement. Instead of equality, governments imposed quotas, preferences, and set- asides.... That's just plain wrong and unjust. Government should not discriminate. It must not give a job, a university admission, or a contract based on race or sex. Government must judge all people equally, without discrimination!" [FN1]
I. INTRODUCTION
Perhaps no subject generates as much controversy today as that of affirmative action. [FN2] Affirmative action has been described as "a phrase that conjures up images of everything from set-asides for government contractors to diversity programs for college students." [FN3] Connotations of "quotas" and "preferences" that are inherent in the administration of affirmative action programs have led to increasingly negative sentiment from many sectors of society. [FN4] Indeed, the very future of affirmative action may be threatened. [FN5]
Twenty years ago, the United States Supreme Court decided the landmark university admissions affirmative action case of Regents of University of California v. Bakke. [FN6] In Bakke, the Court struck down a two-track race-based admissions program at the Medical School of the University of California at Davis. [FN7] In a sharply divided opinion, [FN8] Justice Powell wrote that while quotas based solely on race or ethnicity were unconstitutional, [FN9] an admissions program may consider racial and ethnic diversity as a "plus" factor; racial and ethnic diversity "is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." [FN10] "[A]ttainment of a diverse student body.... clearly is a constitutionally permissible goal for an institution of higher education." [FN11] After Bakke, educational institutions struggled to design affirmative action programs that complied with the decision's diversity rationale and often adopted preferential admissions policies. [FN12]
The Bakke case marks the one and only time the Supreme Court has considered the constitutionality of affirmative action programs in university admissions. [FN13] However, recent developments in Texas, [FN14] California, [FN15] and Michigan [FN16] signal an erosion of the Bakke doctrine [FN17] and a trend towards anti-affirmative action. [FN18] The Supreme Court may not be able to avoid the issue much longer.
This comment examines the recent trend towards anti-affirmative action in the context of university admissions policies. [FN19] First, the comment will trace some of the formative history of affirmative action, including the Bakke decision. [FN20] It will then review and analyze specific judicial and legislative events which suggest a trend towards anti-affirmative action. [FN21] Finally, the comment will explore the different rationales for affirmative action and suggest some alternatives to racial preferences in admissions policies. [FN22]
FN2. To appreciate the current controversial nature of affirmative action, see Jean Stefancic, Affirmative Action: Diversity of Opinions--An Overview of the Colorado Law Review Symposium, 68 U. COLO. L. REV. 833, 833 (1997):
Three decades after enactment of the
Civil Rights Act of 1964, affirmative action has become once again a lightning
rod--the focus of attention by legislators, university governing boards,
newspaper editors, and courts. Debate about affirmative action addresses
questions of legality, fairness, and the various rationales put forth to
justify or condemn it. As controversial as the issue itself are the questions
of who should be able to put affirmative action programs and policies into
effect, and on what kind of showing.
Id.
FN3. Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L. REV. 1745, 1745 (1996). The authors suggest that government set-asides and diversity programs for college students are two very different affirmative action scenarios which should be analyzed separately, including applicable case law. Id. While government set-asides guarantee minority firms a chance to participate in government business, college diversity programs bring "young adults from diverse backgrounds together into a democratic dialogue ...." Id. Another definition of affirmative action includes "a policy or program for correcting the effects of discrimination in the employment or education of members of certain groups, as women, blacks, etc." WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY 33 (2nd ed. 1983); cf. Nicolaus Mills, Introduction, in DEBATING AFFIRMATIVE ACTION 1, 2-3 (Nicolaus Mills, ed., 1994) (commenting on EP{29}BP{30}CA{13} Harvard law professor Randall Kennedy's description of affirmative action as 'policies that provide preferences based explicitly on membership in a designated group').
Affirmative action is certainly that,
but in practice it raises a series of additional issues, whether it is
"soft" affirmative action that limits itself to special recruitment efforts
or the kind of "hard" affirmative action that sets hiring goals.... In
the 1990s it is not simply the damage-- psychological, social, economic--done
by past discrimination that affirmative action seeks to remedy. It also
seeks to remedy practices that even if they do not intentionally discriminate
have a disparate or adverse impact--that is, result in minorities or women
being underrepresented.
Id. at 3.
FN4. Lincoln Caplan et al., The Hopwood Effect Kicks in on Campus, U.S. NEWS & WORLD REPORT, Dec. 23, 1996, at 28. In a poll by the magazine on problems concerning Americans, affirmative action ranked "surprisingly low"; it tied for 30th place on a list of major issues, after tax code reform and abolition of the IRS. Id. "But references to 'quotas' or 'preferences' tap into economic worry and racial resentment and tip opinion to the negative." Id.; cf. Larry Reibstein, What Color is an A?, NEWSWEEK, Dec. 29, 1997, at 76. "Polls show that Americans are as ambivalent as ever about affirmative action. Most people tend to favor the idea of racial diversity in the workplace and on campus yet don't especially like giving preferences to minorities. Instead, Americans favor special programs for poor people, of whatever race." Id.
FN5. See Gabriel J. Chin, Bakke to the Wall: The Crisis of Bakkean Diversity, 4 WM. & MARY BILL RTS. J. 881, 881 (1996). Chin writes:
Affirmative action is in full retreat:
the Supreme Court is increasingly hostile to it; Republican presidential
candidates denounce it; and even the Regents of the University of California,
the inventors of the plan attacked in Board of Regents v. Bakke, recently
voted to end race consciousness in hiring and admissions.
Id. at 882 (footnotes omitted).
FN6. 438 U.S. 265 (1978). Bakke was a white male who was rejected twice for admission to the Medical School of the University of California at Davis. Id. at 276. He challenged the medical school's admissions program, which reserved sixteen of its one hundred places in the entry class for minorities, claiming Constitutional violations under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. Id. at 278-79.
FN7. Id. at 320 (opinion of Powell, J.). The medical school maintained a regular admissions program and a special admissions program for minorities. Id. at 265. The special admissions program was operated by a separate committee. Id. Special admissions candidates did not have to meet the same academic criteria as the general admissions group nor were they ranked against candidates in the general admissions group. Id. Bakke contended that the special admissions program "was a rigid quota that excluded him on the basis of his race." Amar & Katyal, supra note 3, at 1747.
FN8. Hopwood v. Texas (Hopwood II), 78 F.3d 932, 941 (5th Cir. 1996), reh'g en banc denied, 84 F.3d 720 (5th Cir. 1996), cert. denied, 116 S. Ct. 2581 (1996) (writing on Bakke that "[t]he Court reached no consensus on a justification for its result .... Six Justices filed opinions, none of which garnered more than four votes ....").
FN9. Bakke, 438 U.S. at 315 (opinion of Powell, J.). Powell wrote that because the medical school's special admissions program focused solely on race, it hindered rather than promoted genuine diversity. Id.
FN10. Id. at 314. Other factors could include "exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, [and] ability to communicate with the poor ...." Id. at 317.
FN11. Id. at 311-12.
FN12. Chin, supra note 5, at 881. The author asserts that Bakke has a weak legal effect due to its failure to define diversity as either cultural diversity or racial diversity. Id. As a result, many law schools, for example, base their affirmative action programs on such non-diversity grounds as "remedying societal discrimination or increasing the numbers of minority professionals ...." Id.; cf. Mills, Introduction, in DEBATING AFFIRMATIVE ACTION, supra note 3, at 3 ("In higher education, where a commitment to diversity has sanctioned the downplaying of grades and test scores for minority students, affirmative action can mean the difference between acceptance or rejection by an elite university.").
FN13. Other plaintiffs challenging affirmative action admissions in higher education have petitioned the Supreme Court for writs of certiorari, but the Court has denied the petitions on mootness grounds. See Defunis v. Odegaard, 416 U.S. 312, 319 (1974) (deeming an Equal Protection challenge to the admissions process at University of Washington School of Law moot because Defunis was due to graduate from law school). See also Hopwood v. Texas (Hopwood IV), 116 S. Ct. 2581 (1996) (declining to hear a constitutional challenge to the admissions process at the University of Texas Law School). In an opinion by Justice Ginsburg and joined by Justice Souter, the Court acknowledged that the constitutional issue of using race or ethnicity in a public higher education admissions process "is an issue of great national importance." Id. However, the Court noted that the objectionable admissions process had already been discontinued for some time, making the issue moot. Id. In addition, the petitioners were challenging the Court of Appeal's rationale. Id. "'[T]his Court,' however, 'reviews judgments, not opinions."' Id. (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984)).
FN14. In Hopwood v. Texas (Hopwood II), 78 F.3d 932, 962 (5th Cir. 1996), the Fifth Circuit Court of Appeals struck down an admissions program at the University of Texas Law School which gave racial preferences to minority applicants through lower admissions criteria and a different admissions process. The court held that the government had not shown any compelling interests to justify the racially discriminatory admissions program. Id. at 955. Most significantly, the Fifth Circuit expressly rejected Bakke's diversity rationale by holding that the law school "may not use race ... in deciding which applicants to admit in order to achieve a diverse student body ...." Id. at 962.
FN15. On November 5, 1996, Californians passed Proposition 209, a constitutional amendment which prohibits discrimination and racial and gender preferences in the areas of public employment, education, and contracting. Darnell Weeden, Affirmative Action California Style--Proposition 209: The Right Message While Avoiding a Fatal Constitutional Attraction Because of Race and Sex, 21 SEATTLE U.L. REV. 281, 282 (1997).
FN16. A group of white students rejected by the University of Michigan challenged the school's admissions policies which apparently incorporated racial preferences and lower academic standards for minorities. Adam Cohen, The Next Great Battle Over Affirmative Action, TIME, Nov. 10, 1997, at 52.
FN17. Amar & Katyal, supra note 3, at 1745 ("Bakke, it seems, now hangs by a thread."); see Chin, supra note 5, at 881-82 (writing that "there is real doubt" whether Powell's diversity rationale for affirmative action admissions "will survive much longer").
FN18. See Mills, Introduction, in DEBATING AFFIRMATIVE ACTION supra note 3, at 4. The author writes:
Unlike the debate over political correctness
or multiculturalism, the debate over affirmative action is one in which
a broad cross section of the population believes it has a personal stake
in the outcome. For middle-class and working-class whites, who see themselves
facing downward mobility in the 1990s, the great fear is that affirmative
action will hasten their slide into poverty by closing off opportunities
they would have had a generation earlier. For these whites, affirmative
action, despite its emphasis on inclusion rather than exclusion, often
seems tantamount to reverse discrimination.
Id. at 4-5.
FN19. While this comment is primarily limited to racial preferences in university admissions programs, there is a necessarily overlap into other applications of affirmative action as well.
FN20. Infra PART II.
FN21. Infra PART III.
FN22. Infra PART IV.
Turner Law School [FN1] is a public institution in the State of California. It only has one admission space remaining in its first year class. Suppose two male college students, one African-American and one white, apply for admission to Turner, a typically average-ranked law school. Both students academically were average college students; their academic credentials do not guarantee them automatic admission to Turner, but do not guarantee them an automatic rejection either. Both students were raised in middle-class, college-educated families whose parents both earn similar salaries and are classified as having a similar socio-economic status. In essence, the only difference between the two students is race.
The admissions committee, seeking to promote diversity in the student body, informally decides to offer admission to the African-American candidate and to reject the white candidate. Paul, [FN2] a member of the admission committee, vehemently protests this decision as unfair and plainly wrong. He argues that the committee is discriminating in favor of the African-American candidate and against the white candidate based solely on race. He argues that this decision involves disparate treatment and is unconstitutional under the California Constitution and the Equal Protection Clause of the Fourteenth Amendment.
As a result, the admissions committee informally decides to offer admission to the white candidate and to reject the African-American candidate. Olivia, [FN3] another member of the committee, protests, arguing that Turner has a duty to remedy the present effects of past discrimination. The committee should admit the African-American candidate in order to comply with the purpose of the Civil Rights Act [FN4] which reinforces the Fourteenth Amendment's equal protection guarantee against disparate treatment, particularly for African- Americans.
In response, Paul immediately points out that the real purpose of the Civil Rights Act was to eliminate discrimination based on race, whether the race is black or white. [FN5] Thus, to admit the African-American candidate, in this circumstance, would be to admit him based on race, contrary to the purposes of the Act. Olivia reminds Paul that the purpose of the Civil Rights Act was to remedy past discrimination against African-Americans and other minorities, not to remedy discrimination against white males, who traditionally benefited from past discriminatory practices. [FN6] The committee has a dilemma. Who should it admit?
The State of California attempted to solve this dilemma by enacting the California Civil Rights Initiative ("CCRI"), more commonly known as Proposition 209. Proposition 209, a newly-enacted constitutional amendment, [FN7] "reaffirms" existing anti-discrimination protections provided in both the United States and California Constitutions. [FN8] However, Proposition 209 goes one step further: it dismantles narrowly tailored and constitutionally permissible race and gender conscious affirmative action programs on the grounds that such programs are, under a literal interpretation of the Civil Rights Act, discriminatory.
Premised on the idea that the initiative represents the true intent of the Civil Rights Act, Proposition 209, by dismantling these race and gender conscious programs, reinforces the notion of color blindness that prohibits discrimination against or preferential treatment to any individual or group based on race, sex, color, ethnicity, or national origin in public education, employment or contracting. [FN9] However, what Proposition 209 attempted to give, it took away even more. While Proposition 209 purports to reinforce anti-discrimination legislation, opponents of the initiative argue that the amendment, as applied, only prohibits discrimination against whites in that it targets affirmative action programs that solely benefit African-Americans and other minorities, even though such programs have been deemed necessary to remedy the present effects of past discrimination.
Opponents argued that Proposition 209 eliminates the narrow band of constitutionally permissible race and gender conscious affirmative action programs while allowing other preferential programs to remain in tact. In essence, opponents claim that Proposition 209 prohibits discrimination against one group (i.e., mainly whites) while furthering discrimination against another group (i.e., mainly African-Americans and other minorities by solely eliminating race and gender conscious programs) under the guise of providing equal protection for all.
In Coalition for Economic Equity v. Wilson, [FN10] the Ninth Circuit Court of Appeals held that Proposition 209, which eliminated race and gender conscious affirmative action programs, did not deny African-Americans and other minorities equal protection guaranteed under the Fourteenth Amendment. [FN11] While the Ninth Circuit addressed only the narrow issues brought under Proposition 209, the Court's decision significantly impacts the state of race and gender conscious affirmative action programs, in particular, and civil rights policy, in general.
Is it necessary to grant preferential treatment to a historically disadvantaged group that may discriminate against a traditionally advantaged group in order to ensure equal protection to all? Does eliminating race and gender conscious programs that benefit a historically disadvantaged group without eliminating all preferential programs deny the disadvantaged group equal protection under the law?
This casenote analyzes the Ninth Circuit's decision in Wilson to dismantle race and gender conscious affirmative action programs in California. Furthermore, this note argues that the Court's misunderstanding of both the purposes of the Civil Rights Act, in general, and race and gender conscious affirmative action programs, in particular, effectively unevens the playing field and subjects African-Americans and other minorities to further discrimination.
Part II is divided into two subparts.
The first subpart briefly traces the history of discrimination and civil
rights in America, including the introduction of affirmative action as
a tool to implement civil rights policy. This subpart then examines how
civil rights philosophy imparts confusion in squaring equal protection
guarantees with the use of affirmative action. The second subpart analyzes
the tension between equal protection and affirmative action and the Supreme
Court's uncertainty regarding the appropriate level of scrutiny to apply
to reconcile these competing interests. Part III examines Proposition 209
and analyzes whether the amendment remedies or perpetuates discrimination
by outlining the proponents' and opponents' views regarding the purpose
and effect of the initiative. Then, Part IV outlines the district court
and Ninths Circuit's decision in Wilson. Part V critiques the Ninth Circuit's
decision in Wilson and concludes that the court's failure to look beyond
the plain language of Proposition 209, by utilizing a traditionalist civil
rights philosophy, does not comport with either the purposes of affirmative
action or the Civil Rights Act.
FN2. Paul is a fictitious name.
FN3. Olivia is a fictitious name.
FN4. The Civil Rights Act referred to are Titles VI and VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. See 42 U.S.C. ss 2000d-e, et seq. (1994); 20 U.S.C. s 1681 (1994). This note limits the discussion of discrimination to that based on race and sex.
FN5. "[O]ne cannot prefer on the basis of [race, sex, ethnicity, color or national origin] without discriminating against someone else." See The California Civil Rights Initiative will Restore to California the Original Meaning and Purpose of the U.S. Civil Rights Act (last modified June 17, 1996) <http://www.publicaffairsweb.com/ccri/cract.htm>. Additionally, Senator Hubert Humphrey, Democrat representing the State of Wisconsin, noted, "The simple and complete truth...is that [we must] forbid discriminating against anyone on account of race." Id.
FN6. "The U.S. Civil Rights Act has been amended by judicial interpretation to permit preferential treatment for certain groups on the basis of race, sex and ethnicity." Id. See also United Steelworkers of Am. v. Weber, 443 U.S. 193, 202 (1979) (Brennan, J.) ("[in light of the plain language, purpose, and Congressional intent in fashioning and enacting [the Civil Rights Act]] to forbid all race-conscious affirmative action 'would bring about an end completely at variance with the purpose of the statute"').
FN7. Proposition 209 was passed by popular vote in California and is currently part of the Constitution. See Cal. Const. art. I, s 31 (1997).
FN8. See U.S. Const. amend. XIV, s 1; Cal. Const. art I, s 7(a) (1997). Both of these provisions provide that no person shall be denied the equal protection of the laws. These protections are in conjunction with Titles VI and VII of the Civil Rights Act of 1964 that prohibit discrimination based on race, sex, color, ethnicity or national origin in "any project or activity receiving federal financial assistance," and in employment and Title IX of the Education Amendments of 1972 prohibiting discrimination based on race in education. See Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, 1488 n.2 (N.D. Cal. 1996).
FN9. Cal. Const. art. I, s 31(a) (1997). The notion of color blindness means that the Civil Rights Act intended to prohibit discrimination of African- Americans and whites. Proponents of Proposition 209 argue that judicial interpretation of the Civil Rights Act permits preferential treatment to African-Americans and other minorities that, in turn, discriminate against whites. This type of discrimination, known as reverse discrimination, is, in some circumstances, not violative of the Civil Rights Act. Thus, proponents argue that Proposition 209 addresses this issue by restoring the original purpose of the Civil Rights Act which prohibits discrimination in toto, as against African-Americans or whites.
Agreeing that Proposition 209 returns civil rights legislation to the notions of color blindness, Governor Pete Wilson states, "We now have the opportunity to establish California as America's first true color-blind society." See Dozens of California statutes violate Proposition 209, U.S. News, Sept. 9, 1997 (visited Sept. 23, 1997) <http:// www.cnn.com/US9709/09/briefs.pm/prop209.list/index.html>.
FN10. 122 F.3d 692 (9th Cir. 1997).
FN11. Id. at 702.