Governments Step Unsurely Toward ‘Colorblind’ Goal

SACRAMENTO —  California’s battle over affirmative action was splintered into thousands of local and state jurisdictions Monday by the U.S. Supreme Court action that ended a historic legal challenge to Proposition 209.

Throughout the state Monday, city council members, supervisors and special district officials turned to their lawyers and administrators to examine the next step of dismantling programs that consider race or gender in government hiring, contracting or school admissions.

But what happens now--almost exactly a year after California voters approved the measure to end government affirmative action programs by 54% to 45%--remained almost as cloudy as ever.

With nearly 6,000 government agencies in California that are affected by Monday’s decision, observers said they expect a broad patchwork of responses, including some that comply, some that ignore the rules and some that resist.

“I’m sure [opponents] will stand in the doorways like the segregationists did in the ‘60s,” said Ward Connerly, chairman of the Proposition 209 campaign. “But unless you live on a different planet, you have to understand the courts are saying over and over and over again--the use of race or ethnicity or gender is not allowed.”

Connerly’s American Civil Rights Institute--an organization that stems from the Proposition 209 campaign--said it believes local governments should have already been reviewing their programs.

They contend that the proposition’s language is clear: “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 many local officials said Monday that it’s not that easy. Proposition 209 does not change federal law and many local programs include funds from Washington that come with affirmative action requirements attached. The proposition also does not change policies that were ordered by consent decrees to remedy specific cases of discrimination.

In many cases, city officials also said they believe some consideration of gender and ethnicity is consistent within the framework of the new rules.

For example, Mayors Richard Riordan in Los Angeles and Willie Brown in San Francisco--both opponents of the ballot measure--downplayed the impact of Monday’s decision because they contend their cities are already in compliance. In both cities, however, officials said there are several municipal programs that consider race and gender factors.

In Los Angeles County, Chief Administrative Officer David Janssen also said: “I don’t think there is any question that affirmative action as we know it is going to change.”

But officials at the county, which employs 85,000 people and spends 25% of its contracting dollars with firms owned by minorities, women and the disadvantaged, were hesitant to detail publicly what changes might be made to comply with the new law.

“There are so many threats to women and minorities that are posed by Prop. 209,” said Supervisor Yvonne Brathwaite Burke, who represents South Los Angeles County. “I think that the real challenge is to make sure there’s not too much retreating from goals that have been achieved.”

Opponents Call for Government Defiance

Adding to the confusion Monday, the most vocal opponents of the ballot measure continued to urge defiance by local governments--particularly because they believe the Supreme Court’s lack of an explanation or a hearing has failed to resolve the issue.

“I don’t think 209 is constitutional and I don’t think the court’s ruling is a statement that 209 is constitutional,” said Mark Rosenbaum, the American Civil Liberties Union attorney who represented opponents of the ballot measure. “I think state and local governments should continue to stand up to the opportunistic politicians who want to remove their authority to redress discrimination. . . . There will be many future challenges.”

That threat appeared to portend another long and divisive chapter in the Proposition 209 legacy. It also left many local authorities dangling in a continuing swamp of advice.

“We haven’t had any clear indication from Sacramento, so we’re doing things the same as we did before,” said Lancaster Mayor Frank Roberts, who defended affirmative action policies as “essential to civil rights.”

“We would still try to recruit along the lines of diversity. It just makes good sense to hire that way,” he said, predicting “slow change, and kind of an uprising and a reaction by the ethnic groups that have been affected.”

“The debate is not over,” he said.

Connerly said his organization will now begin to review every jurisdiction in the state for compliance with the ballot measure. In cases where there is not compliance, he said, his organization will sue to enforce the new law--as it already has in San Jose.

Still, such a review could take years. Many local officials offered comments Monday like those of Raul Godinez, the mayor of San Fernando, a city that is 80% Latino.

“When you look at the real basis of affirmative action, it’s equal opportunity,” he said. “I think we’ve been doing that all along.”

Agoura Hills, Hidden Hills, Calabasas and Westlake Village officials said the decision will not affect them because their cities have no formal affirmative action programs.

The same applies to Santa Clarita, said Mayor Clyde Smyth, who supported passage of 209. “Unfortunately, I do not believe [affirmative action] worked,” he said.

City officials in Pasadena, one of the cities named as a defendant in the Proposition 209 case, contend they are in compliance. “It was our position that Pasadena was not doing anything that violated 209,” said Lawrence Newberry, assistant city attorney.

In Glendale, Mayor Larry Zarian said he favors Proposition 209 “because I believe no one should have an edge over another.” Still, he said, Glendale has not taken any action in response to the ballot measure so far and he is uncertain what will happen now. The city’s personnel director, meanwhile, predicted little change. “We’re an equal-opportunity employer,” he said. “We don’t have affirmative action contracts.”

Burbank City Atty. Dennis Barlow said the city is reviewing the ruling, but he added he was not aware of any city contracts currently alloted under affirmative action programs.

Moves Toward Implementation

Perhaps one of the most significant breakthroughs in that direction came Monday in Sacramento.

Gov. Pete Wilson, the chief political sponsor of the ballot measure, has been thwarted by a Democratic-controlled Legislature in his hope to implement Proposition 209 quickly. Instead, he has sought the changes through a lengthy court action.

On Monday, however, state Senate President Pro Tem Bill Lockyer (D-Hayward) indicated the Legislature may now reconsider its position.

“I have asked Senate members and staff to make an independent determination of which existing statutes and programs may need to change to comply with Proposition 209,” Lockyer said Monday. “The court has spoken. Now it’s up to the Legislature to see to it . . . that we are thoughtful and careful in replacing old laws with new laws.”

Wilson has already compiled a list of dozens of programs that he would target for change under Proposition 209. While Lockyer indicated he hopes to compile his own list, the Legislature’s cooperation could mean changes to billions of dollars in contracting programs and thousands of job considerations in coming months.

“This decision takes California another step closer to ending the kind of unfair preferences that separate people into groups and brings us another step closer to achieving a true colorblind, equal opportunity society,” Wilson said Monday.

The impact of Proposition 209 skipped around the state and the nation Monday, touching down with large consequences in some places and little change in others.

At the University of California, the nine campuses continued as before to prepare criteria for selecting next fall’s freshman class without any preferences for race or gender. The university’s Board of Regents took its own controversial vote to outlaw affirmative action considerations in 1995.

Officials are already bracing for a drop in the number of blacks and Latinos admitted to the 165,000- student system--as happened this fall when UC administrators phased out affirmative action in picking candidates for its five medical schools and three law schools.

UC figures released last year projected that UCLA’s and UC Berkeley’s undergraduate enrollment of blacks and Latinos could drop 50% to 70%, while white and Asian American enrollment grows.

To avoid such a sharp shift in demographics, admission officers are working on alternative ways to attract blacks, Latinos and other disadvantaged students who historically have not gained admission in numbers approaching those of other groups.

One suggestion is to give special consideration to students who overcome hardships, such as those who excel in school despite working part-time to support the family, said UC Berkeley Chancellor Robert H. Berdahl.

“We really need to find out what kind of ambition and what kind of drive that student has despite coming from a poor environment,” Berdahl said in a recent interview. “I think there are ways to do that.”

Officials Say L.A. Already Is Complying

In Los Angeles, Monday’s court decision was not expected to have much immediate impact. Officials publicly assert that the city already has abandoned ethnicity as a factor in hiring and promotions--or at least that it uses ethnicity in a way that Proposition 209 cannot change.

Riordan, who has said he believes his record should be judged in part by the diversity of the work force he presides over, issued a statement Monday that avoided any discussion of the measure’s potential impact on the city bureaucracy.

“There is no question that there is a continued need to provide people with real access to real opportunity,” Riordan said. “While no single pronouncement or edict will end discrimination in our city or state, we must work hard to ensure that Angelenos live, learn and work on a level playing field where everyone has a fair shot at fulfilling their dreams.”

Although Los Angeles officials stressed that the city does not discriminate in contracting or hiring, it is not true that race is ignored in evaluating all candidates for city jobs. The Los Angeles Police Department, for instance, has often accepted black and Latino job applicants who score lower on entrance examinations than white males who are turned away.

Fire Department Faces Changes

Similarly, the Fire Department has been under intense pressure to add to the number of women and minorities in the ranks, going so far as to bar white males from taking a recent hiring test.

But for now, at least, most of those practices are beyond the reach of Proposition 209. Because it is state law, the initiative cannot overcome federally approved consent decrees, which govern much of the hiring by the city of Los Angeles, including the police and fire departments.

* MINORITY CONTRACTORS

Preferences in public contracts are seen continuing for now. D3