In California, time running out for affirmative action (Prop 209) scofflaws

Daily News of Los Angeles ^ | June 5, 02 | Harold Johnson

[churchillbuff]

Time running out for Prop. 209 scofflaws

By Harold Johnson

A high schooler asks to transfer to a different school in the same school district. "No," comes the reply from administrators. "You're the wrong color." Couldn't happen in California, right? Not in the state whose constitution includes Proposition 209, expressly barring race discrimination in public education, contracting and hiring?

Wrong. Doing people wrong because of their color remains the rule in several major California school districts -- nearly six years after Proposition 209's enactment. In the name of "racial balance," these districts -- in Los Angeles County, the Bay Area and, at least until last week, in Huntington Beach in Orange County -- use race to decide where students can go to school.

Time is running out on the scofflaws, however. Last Friday, in the first appellate court decision applying Proposition 209 to education, the California 4th District Court of Appeal voided the Huntington Beach Union High School District's discriminatory policy on student transfers.

The district was quite candid in rejecting the principle that human beings should be judged on factors other than skin color. When a particular school's "white" population sank "too low" in the district's estimation, officials openly made it harder for white students to transfer out of that school, or for non-whites to transfer in.

District resident Bruce Crawford was offended that students were being instructed that color is what defines them -- precisely the opposite of what the founders of the civil rights movement taught. His challenge to the policy was rejected by Superior Court Judge Sheila Fell, but her misunderstanding wasn't shared by the three-judge appellate panel.

"The people have spoken," the court wrote, in unanimously reversing Judge Fell. "California Constitution, article I, section 31 (Proposition 209) is clear in its prohibition against discrimination or preferential treatment based on race, sex, color, ethnicity or national origin."

Thus, the district's race-related restrictions on student transfers are "invalid under our state Constitution."

The court noted that race-neutral strategies to promote diversity -- magnet programs or assignments by random lottery, for example -- don't break the law. But discriminating based on color does.

The court's reminder of Proposition 209's meaning was fortuitously timed, because the measure's requirements figure in an important case to be heard today by the U.S. 9th Circuit Court of Appeals in Pasadena.

At issue is a Los Angeles version of the kind of policy struck down in Huntington Beach -- specifically, a "racial balance" scheme for assigning teachers in the Los Angeles Unified School District.

Two years ago, James Friery, a physical education teacher at Van Nuys High School who happens to be white, asked about an open job at one of the school district's magnet schools. His supervisor's response: "You're of the wrong ethnic origin."

The school district seeks a formulaic mix of races on the faculty at each of its campuses. So when administrators think a particular school has "enough whites," a white teacher (e.g., Friery) can't transfer to it. Likewise, an African-American teacher would be barred from transferring to a school that has "enough African-Americans."

Federal Judge Nora Manella, a former U.S. attorney for Los Angeles under the Clinton administration, found all this perfectly permissible. Friery may have been denied a job merely because of his race, but he isn't really harmed, the judge observed, because his current job pays as much. The judge apparently couldn't hear in her words the echo of the notorious phrase, "Separate but equal."

In taking up Friery's appeal today, the 9th Circuit has the advantage of being reminded by the Huntington Beach case of the meaning and mandate of Proposition 209. Judge Manella ought to be reversed as decisively as Judge Fell was.

Violations of Proposition 209 remain disturbingly widespread. Full compliance may require a long twilight struggle of successive courtroom battles. But the ruling in Huntington Beach advances the cause significantly. It lights the way by its clarion reminder that "The people have spoken."

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Harold Johnson is an attorney with Pacific Legal Foundation, which represented Bruce Crawford in his challenge to the Huntington Beach Union High School District's racially based student transfer policy.

[The Vast Right Wing]

How can a federal court rule on Prop 209?

[stands2reason]

bump

[goldstategop]

It can't override a state constitutional provision. But it can overrule a federal judge's ruling not in conformity with it.