THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Monday, January 13, 1997 TAG: 9701110030
SECTION: FRONT PAGE: A8 EDITION: FINAL
TYPE: OPINION
SOURCE: James Kilpatrick
DATELINE: WASHINGTON LENGTH: 78 lines
In the midst of the uproar over California's Proposition 209, the constitutional issues have been pretty well obscured. They deserve a closer look.
Proposition 209 is an amendment to California's state constitution. The amendment says: ``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.''
Additional provisions (1) permit bona fide qualifications based on sex in certain instances; (2) preserve existing court orders that otherwise might be overturned; and (3) authorize actions intended to prevent a loss of federal funds to the state.
At the heart of the legal battle is a clause in the 14th Amendment that forbids every state to deny to any person within its jurisdiction ``the equal protection of the laws.'' An immense body of statutory and case law has developed under the equal protection clause, but even the most experienced scholars cannot say with certainty how the clause will be applied in particular cases.
What is meant by ``equal'' protection? Obviously the word cannot be interpreted in its mathematical sense, for jurisprudence and algebra are strangers. It is a universal fact of life that some are more equal than others.
In the pending federal case, opponents of Proposition 209, led by the American Civil Liberties Union, argue that laws that are equal in theory may be unequal in their practical application. In legalistic jargon, laws have a ``disparate impact.'' Observers recall the aphorism of Anatole France that ``the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges.''
Thus, the argument goes, a state law that treats all contractors equally will have a disparate impact upon minority contractors. Typically, minority-owned firms have less capital and less experience than white contractors. Without the help of affirmative action programs, minorities will be excluded from state benefits ranging from higher education to contracts for printing and plumbing.
To that line of argument, the Pacific Legal Foundation makes a persuasive response. In a countersuit filed in a state court in Sacramento, the foundation argues that when 15 percent of a state contract is set aside for minorities, it means that some nonminority contractors will be left out in the cold. What about ``equal protection'' for them? What have they done to deserve such racial discrimination by the state?
For that matter, what have minorities done to deserve the preferential treatment extended to them? In individual cases of racial discrimination, of course, a large body of civil rights law will provide remedial action. But why should a California firm owned by a Taiwanese couple be entitled as a matter of law to special treatment?
The question answers itself, and the Supreme Court in recent years has answered it by frowning upon the kind of contractual set-asides that Proposition 209 would prohibit.
In the Richmond, Va., case of 1989, the Supreme Court ruled 6-3 against set-asides in municipal contracts. In a Colorado case in 1995, the court disapproved federal set-asides by a vote of 5-4. But even in these cases the high court left the door open for preferential treatment that is narrowly tailored to remedy past discrimination.
The Gordian tangle of state and federal courts cannot be severed by a single judicial stroke. At the moment, California's state and local agencies are under a temporary federal injunction that restrains them from enforcing the provisions of 209. U.S. District Judge Thelton Henderson in San Francisco is a Carter appointee who was for many years closely associated with the ACLU. If he continues to preside over the case, his rulings are a dead certainty.
Beyond Judge Henderson lies the U.S. Court of Appeals for the 9th Circuit, widely regarded as the weakest of the 13 circuits. And beyond the 9th Circuit lies the Supreme Court, where the case surely will wind up in time. Don't hold your breath. The mill wheels of constitutional law grind slowly, and they will be grinding on this one for years. MEMO: Mr. Kilpatrick's column is distributed by Universal Press
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