Eliminating Race- and Ethnic-Based
Preferences in Public Employment
and Education

While California's move to eliminate race- and ethnic-based preferences in public employment and education was upheld this spring, a similar measure failed to gain passage in the Arizona legislature.

Last December, in Coalition for Economic Equity v. Wilson, a US District Court judge issued a preliminary injunction against enforcement of the California Civil Rights Initiative, or Prop. 209.

The controversial voter initiative deems it unlawful for California state agencies and institutions of higher education to "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."

On April 8, however, a three-judge panel of the US Court of Appeals for the Ninth Circuit reversed the District Court's ruling, and announced that Prop. 209 does not violate the equal protection clause of the fourteenth amendment to the US Constitution.

That provision holds that "[n]o State . . . shall deny to any person within its jurisdiction the equal protection of the laws."

According to the panel (two of whose members were named to the bench by President Reagan, the third by President Bush), "[t]he controlling words, we must remember, are 'equal' and 'protection.'"

Distinguishing between "political obstructions to equal treatment" and "political obstructions to preferential treatment," the panel cautioned that preferences are inherently discriminatory: "When the government prefers individuals on account of their race or gender, it correspondingly disadvantages individuals who fortuitously belong to another race or to the other gender.

"Where a state," the Court reasoned, "denies someone a job, an education, or a seat on the bus because of her race or gender, the injury to that individual is clear.

"The person who wants to work, study, or ride but cannot because she is black or a woman is denied equal protection. Where, as here, a state prohibits race or gender preferences at any level of government, the injury to any specific individual is utterly inscrutable. No one contends that individuals have a constitutional right to preferential treatment solely on the basis of their race or gender. Quite the contrary."

Meanwhile, Arizona's version of Prop. 209 (which was introduced in its House of Representatives) did not emerge this year among the enactments passed by 43rd Legislature during its regular session.

If approved, HB2223 would have outlawed "preferential treatment . . . in the operation of public employment, public education or public contracting" on the basis of race, sex, color, ethnicity or national origin.

A similar proposal will undoubtedly be offered in the Legislature during its next session; and though support for such a measure might gain impetus from the Ninth Circuit's ruling over Prop. 209, that decision is nearly certain to be presented for review by the US Supreme Court.

Published in the Summer 1997 Edition of In Brief