WASHINGTON -- The chief federal judge in the San Francisco district is forcing California and the nation to take another look at public efforts to ban affirmative- action programs -- and at what a majority can and cannot do in America.
Judge Thelton Henderson has ruled that California's "Proposition 209," which forbids affirmative action in public employment, education and contracting, cannot be enforced until a higher court overrules his assertion that the referendum "is probably unconstitutional."
Judge Henderson, who is black and was a civil-rights activist until named to the federal bench in 1980 by President Carter, says Proposition 209 denies to women and minorities the same 14th Amendment protections that are available to the aged, the handicapped, veterans and others who get certain "preferences."
He has provoked a storm of cries that "the majority of Californians have spoken" when 54 percent of them, predominantly Caucasians, voted in November to ban affirmative action.
When the majority rules
The judge takes the position long established in American law that there are things a majority cannot do, one being to override a minority's constitutional rights or protections. If the majority always ruled, Mississippi, South Carolina and a lot of other states might still have racially segregated schools, restaurants, drinking fountains and the like because white majorities there consistently voted to maintain Jim Crow.
In a recent case, Aiken et al. v. City of Memphis, in which he voted to overturn a consent decree favoring blacks in the police and fire departments of majority-black Memphis, Tennessee, the chief judge of the 6th Circuit Court of Appeals, Gilbert Merritt, wrote that, "The Equal Protection Clause does not allow the majority race in a city to use its governmental power to prefer its race over the minority race except in the most unusual and compelling circumstances." Obviously, if the Constitution forbids a black-majority "tyranny" in Memphis, it forbids a white-majority "tyranny" in California.
The wording of Proposition 209 seems so innocuously innocent in outlawing "preferential treatment" for women and minorities that many voters lost sight of the fact that its intent was to ban "preferences" for only some Californians.
A child whose parents attended a certain university, or who have given a lot of money to that university, has a clear preference in gaining admission to that university. But a black child has no such "preferred status" at, say, the University of Maryland, because that child's parents and grandparents were denied a chance to become "alumni" when they were barred from admission because of their race.
Who gets the goods?
Judge Henderson is forcing Americans to look at the whole array of "preferences" that go into decisions as to who gets admitted to a state college, who gets hired or promoted in state jobs, and who gets state contracts.
Judges and fair-minded citizens will see that there are scholarship preferences at most universities for having a certain surname, especially one going back to the Mayflower, or a father who was an Eagle Scout, or a parent on the faculty, or one who was a missionary. Cries of "reverse discrimination" arise mostly when even the tiniest break is given to someone black who carries the burden of three centuries of American racism.
Judge Henderson is forcing his fellow judges, and you and me, to look at the whole crazy quilt of preferences in this society. The curses and insults being thrown at him indicate that a lot of Americans don't want to see the truth about who gets opportunities easily in America and who is so often barred from a fair chance.
We will probably find out, because of Proposition 209, whether our Supreme Court really wants to see the truth about affirmative action and American justice.
Carl T. Rowan is a syndicated columnist.
Pub Date: 12/30/96