THE DECISION of a federal judge to temporarily void the vote that made Proposition 209 the law in California illustrates the complexity of affirmative action. Chief U.S. District Judge Thelton E. Henderson of San Francisco has set a Dec. 16 hearing. He based his preliminary invalidation of Proposition 209 on his belief that the Supreme Court will ultimately strike down the "California Civil Rights Initiative" as discriminatory against women and minorities.
That's a confusing assessment, since the supposedly anti-discrimination measure says 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 Judge Henderson says Proposition 209 is really aimed only at women and minorities, so it is itself guilty of promoting bias.
In any case, practically everyone conceded before Proposition 209 was approved last month by 54 percent of California's voters that the initiative was destined for a long court battle. Proposition 187, which prohibits California from giving state benefits to illegal aliens, has been in court ever since its approval in 1994.
Some proponents, though, had hoped Proposition 209 would serve a more immediate purpose -- the election of a Republican president. While seeking the GOP nomination, Gov. Pete Wilson, an affirmative action supporter earlier in his political career, championed Proposition 209 to improve his conservative credentials. His candidacy still failed, but eventual Republican nominee Bob Dole tried to use Proposition 209 as a wedge issue to win California votes as his campaign began to founder in its final weeks.
Californians didn't fall for that. The state's voters rejected Mr. Dole while at the same time approving Proposition 209, but its days may also be numbered.
Meanwhile, the legislation is serving a useful purpose in sparking debate on the future of affirmative action programs. Americans have yet to figure out how to make up for past wrongs without giving special consideration to people whose circumstances may in part be a legacy of discrimination. President Clinton said he wants to "mend, not end" affirmative action. His re-election gives him that chance.
Pub Date: 12/04/96