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California's Proposition 209 directs the public sector in that state to end all preferences based on race. But what constitutes a preference? Various agencies, including universities, must now contend with the messy details of that sweeping directive.

Agencies Left to Sort Out How to Obey

By Jenifer Warren and Kenneth R. Weiss
The Los Angeles Times, April 9, 1997

In upholding Proposition 209 on Tuesday, a federal appeals court left governments and schools from San Diego to Eureka wrestling with how to bring their practices in line with the anti-affirmative action initiative.

Five months after voters approved the measure, widespread questions remain about its impact--reflecting the complicated nature of government affirmative action programs. A host of legal puzzles almost certainly will still have to be sorted out in court, government officials and other experts said.

One overriding theme stands out, however: Proposition 209 could plow a wide path through the public sector, perhaps affecting everything from tutoring classes for minorities to recruitment drives for female firefighters.

The private sector is unaffected. But state and local governments may not give preference to women and minorities in hiring, contracting and education, the initiative states.

As a result, agencies from the mighty state of California on down to the tiniest water district must now examine their practices and attempt to comply.

"There are a lot of question marks," said Steve Keil, legislative director for the California State Assn. of Counties. "But it's going to mean a significant change for local governments."

The choices those governments make will vary depending on the philosophies and legal interpretations that dominate, experts say. Some cities--Berkeley, for example--plan to be aggressive in defending their programs. Others may be less willing to take risks that could land them in court.

Still others have overhauled their policies and believe they are in compliance now.

Hiring is one area governments must scrutinize, with officials slicing out programs that hand specific preferences to applicants based on race and gender.

Under Proposition 209, police departments looking to increase the number of Latino officers can no longer make specific efforts to do so. Excepted under the law are court-ordered efforts designed to remedy historic discrimination.

Although that may seem clear-cut, it isn't. One of many lingering questions, experts say, is the extent to which cities can conduct "outreach" to alert minorities and women to job opportunities, perhaps by advertising in specially targeted newspapers or by hosting a job fair.

"We just don't know how far you can go, and how all of this will be interpreted," said James Lough, an attorney who has studied Proposition 209 for the California League of Cities. "A lot of it will be decided on a case-by-case basis."

In Los Angeles County, affirmative action analysts said another question arises because the language in the proposition is vague as to what constitutes a racial or gender "preference."

"What is a race-conscious or gender-conscious program?" asked Dennis Tafoya, senior deputy at the county's affirmative action compliance office. Without specific definitions upheld in court, agencies may be left to wonder whether their practices violate the law.

In contracting, many government officials predict that they will be forced to abandon long-standing practices requiring participation of minority- or women-owned businesses.

At the state's mammoth General Services Administration--responsible, for example, for building projects and vehicle fleets--state law now requires that 15% of hiring and contracts go to minorities and 5% to women.

Under Proposition 209, "we would no longer require" that women and minorities make up certain percentages, said Kristine Berman, an agency spokeswoman.

But many contracting projects, such as highway construction and repair, involve federal dollars. In those cases, affirmative action guidelines dictated by Congress remain in effect.

And many other projects--such as sewage treatment plants--involve a mix of state and federal funds.

"What do we do in those cases?" Lough asked. "If we don't follow the [minority contracting] rules, we risk losing federal grants. But if we do, we're in violation of 209."

Some cities say their programs giving race- and gender-based preferences are protected because they have been tested in court. San Francisco--where bid preferences for projects under $10 million have been awarded to minorities and women since 1989--is a case in point.

"We've been to court over these affirmative action programs, and they have been upheld," said Scott Emblidge, a deputy city attorney. "We will continue our practices. Proposition 209 cannot tie our hands in our attempt to remedy discrimination."

In Sacramento, Gov. Pete Wilson hailed the court decision as a victory for "the integrity of the system."

"With this ruling, California comes one step closer to assuring the kind of society which will afford genuine equality and access to opportunity to all of its citizens," the governor said.

He added, however, that even with the court ruling, there remains unfinished business to ensure that the full effect of Proposition 209 is felt throughout state government.

In order to strike down "dozens" of state statutes requiring gender- and race-based hiring, contracting and college admissions policies, separate action is required in state court, he said.

To that end, Wilson has brought a lawsuit in Sacramento Superior Court asking for, ultimately, a state appellate court ruling declaring five categories of such state laws unconstitutional. The lawsuit awaits action in the lower court.

In the higher education arena, Tuesday's ruling has no immediate impact on admissions and hiring. The University of California adopted its own affirmative action ban more than a year before Proposition 209 was approved by 54% of California voters.

Tuesday's court ruling comes too late to alter the complexion of next fall's undergraduate class, the last one scheduled to be selected with preferences given to some blacks, Latinos, other minorities and women. Selections for that class will be wrapped up by the end of the month.

"We are virtually 99.9% done with freshman for this fall," said Thomas Lifka, an assistant vice chancellor at UCLA. "The decisions have been made and the notices have been mailed."

Next year, however, racial and gender considerations will be discontinued, a change that will be reflected in undergraduates enrolled for spring of 1998 and beyond. The affirmation action ban is already affecting admissions for UC's five medical schools, three law schools and 600 other graduate programs.

In hopes of maintaining a diversified student body in the post-209 era, UC officials plan to expand their outreach programs into the schools to prepare more blacks and Latinos for the university's rigorous admission standards.

Proposition 209 should not alter those plans, said UC deputy general counsel Gary Morrison, because they target economically disadvantaged students rather than focus on race or gender.

But the initiative could change the way UC doles out some scholarships designed to finance the education of minority students. Some privately funded scholarships are restricted to students of a particular race or gender, Morrison said, but are administered by the public university.

"There are some very sticky questions," he said. "We are struggling how to deal with those."

Affirmative action has not been much of an issue for admissions to the California State University system because all but one of its 22 campuses has room to accommodate every applicant who meets minimum standards for grades and test scores. The one that doesn't--Cal Poly San Luis Obispo--will review its policies, a spokeswoman said.

Warren reported from Sacramento and Weiss from Los Angeles. Also contributing were Times staff writers Max Vanzi in Sacramento and Hector Tobar in Los Angeles.

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