Ruling may lessen Prop. 209’s effects

Monday, December 7, 1998

Ruling may lessen Prop. 209’s effects

POLICY: Measure could have implications for university
admissions

By Christopher Kiyoshi Tomono

Daily Bruin Contributor

In what continues to be a heated debate over affirmative action,
Judge Lloyd Connelly, Jr. of the Sacramento Superior Court upheld
three laws pertaining to race and gender considerations last
Monday.

The ruling, which deals primarily with hiring and contracting
practices in California, also threw out two laws advocating quota
systems.

According to attorneys involved with the case, this ruling will
determine how some aspects of Proposition 209 are interpreted.

The decision itself comes down after a nearly one-year hiatus
during which very little litigation was decided concerning
Proposition 209.

The U.S. Supreme Court made one of the last decisions regarding
Proposition 209 in September of 1997. A petition was filed by the
Coalition for Economic Equity, asking the courts to stop the
enforcement of Proposition 209. When this petition was denied by
U.S. Court of Appeals of the 9th Circuit, the coalition went to the
U.S. Supreme Court, who opted not to hear the case.

The American Civil Liberties Union (ACLU), a member of the
coalition that filed the 1997 petition, was also a principal party
in the recent ruling.

"When you write a vague proposition like 209, you’re going to
have a large amount of litigation," said David P. Tokaji, lawyer
for the ACLU of Southern California. "The process of interpreting
209 is far from clear in application, and will be an ongoing
one."

Monday’s ruling may also have implications in the University of
California system.

SP-1 and SP-2, two decisions voted in by UC Board of Regents in
July 1995, currently govern the UC system’s policy on affirmative
action. As a result of this ruling, the board’s policies are no
longer superseded by the proposition, and may be revisited in
upcoming regent meetings.

As it currently stands, SP-1 prohibits the use of race as a
discriminating factor in admissions and financial aid, but mandates
little in terms of looking at socioeconomic background.

The recent ruling may conflict with SP-1 policy in allowing the
UC system to both set goals and timelines for the integration of
certain races and genders through admissions.

"This ruling should give the regents the confidence to
liberalize their affirmative action program," said Jeffrey Bleich,
a civil rights attorney who represented the ACLU and the coalition
in upholding the three statutes.

"This decision says ‘Yes, you can consider race, and that is not
in any way preferential,’ " Bleich said.

Both attorneys in the case and several regents agree the
ruling’s greatest effect will be felt by the UC’s outreach
programs.

"What the court decision says is that the campus or system can
look more closely at what it is doing in outreach, (and) then it
can do more of it without crossing the line," said former regent
Ralph Ochoa. "It works and it’s accountable."

Tokaji emphasized that everything is speculative at this time,
though he feels that outreach programs will never be successful
enough.

"To require outreach programs to redress discrimination,
segregation or ‘under-utilization’ is acceptable," Tokaji said.

While Gov. Pete Wilson has not yet made an official decision
whether to appeal the state Court’s ruling, Regent Ward Connerly
has.

Connerly, the author of the university’s SP-1 policy and
chairman of the California Civil Rights Initiative Campaign,
disagreed with ruling’s implications.

"I have problems with the implication that a government can set
goals and timetables," Connerly said.

"The UC system has operated on the premise that you can increase
the number of underrepresented minorities without having an effect
on other underrepresented minorities," Connerly said.

"If there’s no limitation on seats available, then it would have
no effect. But there are limitations," he added.

Friday, Connerly was finalizing plans with lawyers to determine
how long he has and if he can file an appeal to this ruling on the
basis that he is a taxpayer.

"Judge Connelly seems to be leading us back into the same
thicket – that is, how affirmative action went wrong," Connerly
said.

Connerly also predicted that the ruling’s most likely effect
would be in the university’s outreach programs.

"I have never objected to universities using outreach programs
to go into predominantly black, white, or other neighborhoods, as
long as that is not the sole factor that they use," Connerly
said.

"If you give preference to one, then you have to take some away
from another."DERRICK KUDO/Daily Bruin Senior Staff

Laura Moller, a fourth-year psychology student, holds a picture
frame with labels on it during an affirmative action protest in
October.

KIT TARROZA

A student protests affirmative action’s elimination in higher
education.

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