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JIM LEHRER: The affirmative action story and to Margaret Warner.
MARGARET WARNER: Yesterday a federal appeals court panel in San Francisco upheld the constitutionality of a California measure outlawing state affirmative action programs. The measure known as Proposition 209, was adopted by California voters last November. The ballot measure read: “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.” Yesterday’s decision overturns an injunction issued earlier by a lower court judge that had blocked implementation of the measure. For more on yesterday’s ruling and where the issue goes from here, we turn now to the NewsHour’s regular court watcher, Stuart Taylor, correspondent for the “American Lawyer,” and “Legal Times.” Welcome back, Stuart.
STUART TAYLOR, The American Lawyer: Nice to be here.
MARGARET WARNER: Before we go into yesterday’s ruling take us back to last November, Prop 209 is passed by the voters of California, and the supporters of affirmative action go immediately to a federal district court judge to get it overturned. What did the judge rule, and what was his basis?
STUART TAYLOR: That was Chief Judge Thelton Hendersen of the U.S. District Court in San Francisco. He ruled that–he issued what’s called a preliminary injunction, saying this can’t go into effect yet at least. And his primary basis for doing so was that he said he–it was probably going to be held by the courts to be a violation of the Equal Protection clause of the 14th Amendment. He found that it violated the political rights, if you will, of women and racial minorities.
MARGARET WARNER: Explain that briefly. What was his basis for saying that, precedent?
STUART TAYLOR: He relied on a line of Supreme Court precedents that are kind of, oh, at a time when the court was more liberal on some racial matters than now. And the primary one involved Seattle in 1982. The Seattle school board adopted a voluntary integration through busing plan. They adopted it because they weren’t mandated by a federal court to do it, but it was binding on students and parents. The state’s voters by initiative barred all busing of that sort, and the Supreme Court by 5/4 held that violates the rights of minority groups because they want busing by and large and by making it necessary for them to go all the way to the state level in order to get beneficial legislation it discriminates against them in the political structuring of the state.
MARGARET WARNER: Because other groups wouldn’t have to go through the same–
STUART TAYLOR: Right. For example, if disabled people had wanted to go to the Seattle school board say and get a special program for disabled people, they’d just go to the school board. Now that if you want busing, now you have to go to the state legislature and in the state constitutional amendment process. That was the court’s ruling in 1982 in that case, and Judge Hendersen said this is similar because black people, Hispanic people, native Americans, and women, all of them are affected here, he said, who want say the Los Angeles City Council to pass some program that gives preferences to them over whites and males and Asians, they have to now get a state constitutional amendment passed where before they could have just gone to the city council.
MARGARET WARNER: Okay. So take us now to yesterday’s ruling. On what basis did this panel overturn that?
STUART TAYLOR: The three-judge panel unanimously held there was nothing inconsistent between this state constitutional amendment banning preferences and the 14th Amendment. And the court emphasized that the 14th Amendment’s “equal protection” clause, the central purpose of it, is to ban racial discrimination. And the central thrust to this opinion is that it hardly violates a ban against racial discrimination for the state’s voters to ban racial discrimination. But in dealing with this more complicated argument about the political structure, the state, they said, in essence, they made three points. First, that was a line of cases to protect politically powerless minorities. Here we’re talking about a majority of the state’s electorate that would be seeking preferences because women are one group that Judge Hendersen said needed to be protected here. And they said it’s sort of silly to protect a majority of the electorate against itself from adopting this. Two, the court said that those decisions were in apparent tension, if not conflict, with more recent Supreme Court decisions, taken a tough line against affirmative action, racial preferences, and three, they said, busing is very different from a preference. Busing doesn’t say you get the goodies because you’re black; you don’t because you’re white. Busing tries to benefit all people by producing a level of–
MARGARET WARNER: And so that this was–
STUART TAYLOR: And so that the whole logic line of decisions doesn’t apply here.
MARGARET WARNER: Now, a number of the articles today in the newspapers about this talked about the political backgrounds of the various judges involved. Explain that, and do you think it was a factor?
STUART TAYLOR: It’s hard to avoid that conclusion. Judge Hendersen is a Carter appointee and was a civil rights lawyer at the Justice Department and elsewhere before he took office, and the plaintiffs in this case, the civil rights groups, actively shopped to get the case before him. They brought it in his court; they got it moved from another judge because they thought he would rule for them, as he, in fact, did. The three judges who overturned his decision are all Republican appointees, two Reagan appointees and a Bush appointee. And the minute that panel was chosen to hear the case most people close to the case were predicting the result that we, in fact, saw yesterday.
MARGARET WARNER: Okay. So now where does it go from here?
STUART TAYLOR: The plaintiffs, the ACLU and other groups, have said they will seek what’s called an on bankery hearing before the full U.S. Court of Appeals for the 9th Circuit, which has 20 judges. They will petition to do that, and the status quo will be frozen while they petition. They need a majority of the 20 judges to re-hear it, which means to sort of–let’s look at this again, with a larger group of us. Then you have 11 of the judges actually do that, and then ultimately one side or the other will surely seek review in the Supreme Court.
MARGARET WARNER: All right. If you had to crystallize what the full 9th Circuit, the issues they have to grapple with, is it the constitutionality of affirmative action programs or race-based preferences, or is it the constitutionality of a ban against those?
STUART TAYLOR: It’s closer to the latter but it’s a little trickier. It’s the constitutionality not only of banning them because the plaintiffs, the civil rights groups concede that the Constitution doesn’t require race-based preferences. It’s the constitutionality of doing so through state constitutional amendment so that to the extent that black people, women, Hispanic people want to go to their local governments and ask for preferential treatment this stops them from doing it. They would have to go all the way to the state level and re-amend the Constitution, and the issue is whether that violates their rights to equality in the political process, if you will.
MARGARET WARNER: Great. Thanks, Stuart. I’m sure we’ll be back to talk about it again. Thank you.
STUART TAYLOR: Thank you.