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Preferences Are Still No Go in California

by  David A. Lehrer

August 3, 2010 | 5:11 pm

A bit over a year ago, on one of our first blogs, I wrote about an opinion filed by Attorney General Jerry Brown before the California Supreme Court.

His letter opinion had been requested by the Court in a case involving the constitutionality of Proposition 209 and its applicability to laws adopted by the city of San Francisco. The proposition amended the California Constitution in 1996 to prohibit the state from discriminating against or giving preferences to anyone on the basis of “race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.” The measure was approved 54% to 45%. It was tested in the courts, and its constitutionality was previously affirmed by the California Supreme Court in 2000.

I took issue with Brown’s opinion describing his letter as an example of “legal gymnastics that defies description.”  I questioned his theory that the ban on race conscious programs in Proposition 209 was unconstitutional because it would prevent race and gender conscious programs that might be permissible under the federal Constitution. In essence, Brown opined that the barring of discrimination is impermissible because it has made the re-imposition of discriminatory governmental preferences difficult (i.e. a further constitutional amendment was required).

The Attorney General responded to my blog and snarkily dismissed my “wanting to play lawyer.” Parenthetically, I have been a member of the California bar for nearly forty years.

The California Supreme Court has just “played lawyer” too, and voted 6-1 against the theory propounded by Brown (the “political structure doctrine”). It clearly and unequivocally ruled that Proposition 209 is not “invalidated” by that ideological and illogical doctrine. Proposition 209—barring discrimination for or against anyone on the basis of race, sex, color, ethnicity or national origin—-remains good law in California

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