CORAL CONSTRUCTION, INC., v. CITY AND COUNTY OF SAN FRANCISCO

Filed 4/18/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Story Continued from Part III

First, the analysis assumes that section 31 and the equal protection clause are coextensive. They are not. True, the equal protection clause barely permits race- and gender-conscious remedial programs by requiring that they be both necessary and narrowly tailored to achieve a compelling interest. (Richmond v. J. A. Croson Co. (1989) 488 U.S. 469, 493-498.) But section 31 goes beyond this; it forbids not just discrimination but also narrowly-tailored preferences designed to eliminate discrimination. Thus, as one commentator has argued, [i]f the Equal Protection Clause does not prohibit the race and gender preferences barred by Proposition 209, compliance with the Equal Protection Clause cannot constitute a justification for Proposition 209s discriminatory invalidation of race and gender preferences. (Spann, Proposition 209 (1997) 47 Duke L.J. 187, 255.)

Second, and more fundamentally, the Wilson II analysis assumes that in political structure equal protection there is a pivotal distinction between what the Fourteenth Amendment permits and what it requires. (Wilson II, supra, 122 F.3d at p. 709.) This notion is sui generis, and cannot be reconciled with Seattle. The race-based busing program in Seattle was not required under the Fourteenth Amendmentthe record clearly shows that the busing program was designed to remedy de facto, not de jure, segregation. (Seattle, supra, 458 U.S. at p. 460 [segregated housing patterns . . . created racially imbalanced schools]; see also Seattle School Dist. No. 1, etc. v. State (W.D.Wash. 1979) 473 F.Supp. 996, 1001 [finding that the segregation was the result of housing patterns].) Yet this remedial programclearly a race-based preferencewas nevertheless entitled to the same constitutional protection that was afforded to the antidiscrimination laws in Hunter. (See also Nyquist, supra, 318 F.Supp. at p. 719 [rejecting the states argument that Hunter does not apply to a law that restricts political access to desegregative busing because the state has no constitutional obligation to end de facto racial imbalance].)

It is critical to remember that political structure equal protection focuses not on the substance of the legislation, but on whether and how the legislation affects political access. The doctrine protects the right to lobby for any legislation that might be sought by a minority group in its behalf (Hunter, supra, 393 U.S. at p. 393) or  in [its] interest  (Seattle, supra, 458 U.S. at p. 470) and not just legislation securing rights guaranteed under the constitution.^[1]

In sum, I cannot agree that the Ninth Circuits analysis in Wilson II is a reliable application of the Hunter-Seattle doctrine. As has been explained, I would conclude that section 31 is subject to strict constitutional scrutiny. (Conc. & dis. opn, ante, at pp. 11-13.) My task, now, is to respond to specific points made in the majority opinion.

III. The Majority Opinion

The majority poses the core question in this way: [A] challenger relying on the Hunter and Seattle decisions would have to demonstrate that the particular law (1) employs a racial classification or has the purpose of adversely impacting racial minorities, and (2) alters the political landscape on a racial matter in a manner that places a special burden on racial minorities. (Maj. opn., ante, at p. 20.) The opinion then concludes that section 31 employs no racial (or gender) classification, has no purposeful adverse impact on minorities, and places no special burdens on racial minorities or women not borne by others. (Id., at pp. 23-27.) These conclusions, however, are contradicted by the majoritys own determination that the dual purposes of section 31 were (1) to repeal[ existing] preferential race- or gender-related legislation, and (2) to require that racial and ethnic minorities and women who would want to push for such preferences [in the future], . . . launch a statewide initiative to do so[, while p]oor people, veterans, owners of small businesses, persons with disabilities and others will not have to go this extra lap . . . . (Maj. opn., ante, at pp. 23, 27.)

This, of course, is precisely what the Hunter-Seattle doctrine forbids.

The majority takes issue with the notion that section 31 had as its purpose the creation of an unfair political structure; it seeks to distinguish the purpose of section 31 [to ban discrimination and preferential treatment on the basis of race, ethnicity and gender] from its effect [to require racial and ethnic minorities and women to launch a statewide initiative in order to obtain such preferences in the future]. The latter, the majority asserts, is merely a potential impact of the former. (Maj. opn., ante, at p. 27, fn 16.) Thus, the majority supports its conclusion that section 31 should escape review under Hunter and Seattle by characterizing the political handicaps created by section 31 as merely unintended and inchoate consequences of the purposeful ban on preferences. But the cases contain no such purpose/effect dichotomy.

With respect to legislative purpose, section 31 is indistinguishable from the ban on busing in Seattle. The purpose of the Seattle initiative was to effectuate a ban on racial busing by local school districts in the future, just as the purposeof section 31 was to effectuate a ban on racial and gender preferences in public contracting, employment, and education in the future. It is self-evident that such bans on future action can only be achieved by some method of political restructuring, that is, by removing authority over the subject matter to a higher political level. To pass constitutional muster, this must be done in a racially neutral fashion. Accordingly, the question asked by political structure equal protection is not whether the purpose of the legislation was to create an unfair political structure, but whether the legislation created an unfair political structure. Neither Hunter nor Seattle hold, or even suggest, that an impermissible political restructuring evades constitutional review in the absence of language evincing a legislative intent to discriminate against minorities (and women) in the political process.

The majority points to the fact that section 31 itself does not discriminate on the basis of race or gender (maj. opn., ante, at p. 28) because it places the same restrictions on every individualwhites and minorities, women and men (id., at p. 27.) As has been noted, however, this is not the focus of political structure equal protection. Indeed, it is a hallmark of this type of suspect legislation that it  treats all individuals as equals  while subtly distort[ing] governmental processes to the disadvantage of minorities. (Seattle, supra, 458 U.S. at p. 467; and see Hunter, supra, 393 U.S. at pp. 390-391.) The laws under scrutiny in both Seattle and Hunter also did not create racial categories but placed the same restrictions on everyonewhites and minorities alike. The question was whether those laws nevertheless created a discriminatory political structure, which they did. In the same way, section 31 selectively burdens [gender and] racially conscious legislation and therefore plainly rests on distinctions based on race   [and gender]. (Seattle, supra, 458 U.S. at p. 485.)

The majority opines that in Hunter and Seattle there was an underlying, though not overtly stated, assumption that one had to but barely scratch the surface of the challenged law to expose its racially discriminatory purpose, a purpose purportedly absent in section 31. (Maj. opn., ante, at p. 26.) While I disagree that this unspoken rationale can be read into the majority opinions of Hunter or Seattle, it is of no moment. The Hunter-Seattle doctrine examines the intent and effect of legislation, not whether there was racial animus. If the law reallocates political power in a way that treats all individuals equally, but operates to the political disadvantage of minority groups and their intereststhat is, where there is race-conscious restructuring of [the] decisionmaking processthe legislation is discriminatory, irrespective of the lawmakers motivations. (Seattle, supra, 458 U.S. at pp. 470, 485-486 & fn. 29.) This is true of section 31. However pure the voters motives may have been in seeking to achieve the goal of nondiscrimination, their intent was clear: to prohibit only race- and gender-based affirmative action programs, and to enshrine that selective prohibition in our Constitutionat the states most inaccessible political level.

The majority suggests I have move[d] the Hunter/Seattle doctrine too far afield from the core of equal protection jurisprudence by dismissing as irrelevant any reading of Hunter and Seattle that examines the context for, and gives credence to, a racially discriminatory purpose informing the challenged legislation. (Maj. opn., ante, at p. 26, fn 15.) This overstates what was intended to be a narrow point, viz., that proof of invidious discriminatory intent is not a sine qua non of an equal protection violation in this context.^[2] In fact, I would not disagree with the majoritys view that the context and purpose of legislation can and should inform our analysis of it. Without belaboring the point, I would simply refer to the thoroughgoing analyses of section 31s ballot materials conducted by the court in Wilson I (Wilson I, supra, 946 F.Supp. at pp. 1493-1495) and by Chief Justice George in his concurring and dissenting opinion in Hi-Voltage, supra, 24 Cal.4th 537 at pages 582-587, which leave no doubt that section 31 was engendered not by opposition to all preferences, but by opposition to preferential treatment for racial minorities and women.^[3] This is no different in kind from the motivations of those who opposed busing for racial purposes only in Seattle.

The majority also attempts to distinguish section 31 from the laws in Hunter and Seattle based upon a procedural/substantive dichotomy. The majority declares, citing no authority, that the laws under scrutiny in Hunter and Seattle were not overt policy pronouncements but only procedural changes that rigged the political process against racial minorities. (Maj. opn., ante, at p. 25.) The majority then characterizes section 31 as a substantive policy enactment barring race- and gender-based . . . preferences (maj. opn., ante, at p. 26) implying that, unlike the enactments in Hunter and Seattle, section 31 had no procedural component and was not intended to reallocate political power (maj. opn., ante, at pp. 25-28). But nothing in the Hunter or Seattle opinions even begins to suggest that the pieces of legislation under review in those cases enacted procedural changes only and were not also policy statements. It is difficult to imagine, for example, how a statewide initiative on the issue of busing could not be a policy enactment. Nor can it be said that section 31 is only a policy pronouncement. It is undisputed that section 31 also makes procedural changes that rig the political process against women and minorities, as did the legislation in Hunter and Seattle. (Maj. opn., ante, at p. 27.)

The majority concludes that section 31 is more akin to Proposition I, the anti-busing amendment at issue in Crawford, supra, 458 U.S. 527. (Maj. opn., ante, at p. 23.) Describing Proposition I the majority states, it worked no impermissible distortion of the political process for the people to align the states desegregation responsibilities and remedies with the standard set by the Fourteenth Amendment rather than the more protective standard repealed in part by Proposition I. The people can change their collective minds on state constitutional matters, so long as the result does not offend federal constitutional principles. (Id. at p. 21.) True enough. But the majoritys conclusion that section 31 is on footing similar to Proposition I (id. at p. 23) does not follow from the premise because, unlike Proposition I, section 31 does offend constitutional principles.

To begin with, in distinguishing Crawford from Seattle Justice Powell pointed out that after the adoption of Proposition I, [t]he school districts themselves retain a state-law obligation to take reasonably feasible steps to desegregate, and they remain free to adopt reassignment and busing plans to effectuate desegregation. [] [footnote] In this respect this case differs from the situation presented in [Seattle]. (Crawford, supra, 458 U.S. at pp. 535-536 & fn. 12.) This also differentiates Proposition I from section 31; pursuant to the latter, state and local agencies do not remain free to adopt racial preferences to ameliorate racial discrimination.

But more to the point of our analysis is the simple fact that Proposition I did not use the racial nature of an issue to define the governmental decisionmaking structure (Seattle, supra, 458 U.S. at p. 470)that is, it did not create a two-tiered political structurewhile section 31 does. Under Proposition I, pupil reassignment cannot be ordered as a judicial remedy for any purpose except to remedy a Fourteenth Amendment violation in accordance with federal standards. This constitutes a total prohibition, not one defined by race or gender. Thus, in the absence of a federal constitutional violation, Proposition I forbids court-ordered busing for any student seeking an advantageous reassignment, whether based on race, gender, special needs, sibling relationships, or any other distinction. Therefore, although it was reasonably foreseeable that Proposition I would have a disproportionate impact on minoritiesa situation that requires a different equal protection analysis (see, e.g., Arlington, supra, 429 U.S. 252)it did not erect structural barriers peculiar to minorities nor place special limits on their political options, as does section 31.

The majority relies upon Justice Mosks concurring opinion in Hi-Voltage, supra, 24 Cal.4th at pages 570-571, as showing that section 31 brooks no impermissible racial classification. (Maj. opn., ante, at p. 24.) That reliance is misplaced. The concurrence addresses neither the issue of racial classification[s] nor any constitutional question. Rather, in addressing the City of San Joses ordinance granting preferences in public contracting Justice Mosk merely explains that one cannot avoid the prohibitions of section 31 by using an improper means to achieve a proper end. (Hi-Voltage, supra, 24 Cal.4th at pp. 570-571 (conc. opn. of Mosk, J.).) Moreoverand precisely because he was not addressing an equal protection issueJustice Mosks shorthand characterization of the provisions of section 31 glosses over its critical feature. He writes: Stated negatively, section 31 prohibits governmental actors from improperly burdening or benefiting any individual or group in the operation of public employment, public education or public contracting. . . . [] Stated positively, section 31 commands governmental actors to treat all individuals and groups equally in the operation of public employment, public education, and public contracting. (Hi-Voltage, at pp. 570-571 (conc. opn. of Mosk, J.), italics added.) This clearly overstates the reach of section 31. Its provisions do not command governmental actors to treat all individuals and groups equally; nor do they prohibit government actors from improperly burdening or benefiting any individual or group. Section 31 prohibits only race- or gender-based burdens or benefits. Justice Mosk perhaps had reason to paint section 31 with overly broad strokes, but in doing so, he did not purport to supply any constitutional or equal protection analysis.

Finally, the fact that section 31 can be described as utopian in nature, that it embraces general principles of nondiscrimination, and that it can . . . be viewed as standing for the proposition that racial and gender discrimination, affirmative or reverse, is unfair and wrong, (maj. opn., ante, at pp. 26, 23, 24) is irrelevant. In fairness, it should be noted that benign interpretations of section 31 and its particular type of color-blindness are not universally shared.^[4] For example, a law prohibiting only race and gender preferences in state university admissionswhile allowing preferences for family lineage (legacies), athletic ability, wealth, special gifts, or even just connectionsmay reflect a utopian or dystopian vision, depending on ones point of view.^[5] But that is a political debate, not a judicial one. It is not for us to decide the normative issue of whether racial and gender preferences promote or undermine the goals of the Fourteenth Amendment. We decide only whether the enactment meets constitutional standards.

Judge Hendersons incisive remarks in Wilson I apply with equal force here: It . . . cannot be overemphasized that this case does not call upon this Court to adjudicate whether affirmative action is right or wrong, or whether it is no longer an appropriate policy for addressing the continuing effects of past and present discrimination against racial minorities and women. Such questions, while they are most certainly of vital public policy interest, lie beyond the purview of this Court. Nor does this case implicate the ability of governmental entities to voluntarily repeal affirmative action policies . . . . [] Rather, the substantive issues raised by this action are considerably more narrow, albeit no less important: whether the particular method chosen by Proposition 209 to curtail affirmative action is unlawful because it . . . violates the rights of women and minorities to fully participate in our political system . . . . (Wilson I, supra, 946 F.Supp. at p. 1490.)

IV. Conclusion

I agree with the Ninth Circuits observation that states have  extraordinarily wide latitude  in reserving or delegating political power. (Wilson II, supra, 122 F.3d at p. 706.) And no one questions the voters authority to resolve[] an issue at a higher level of state government. (Ibid.) But these actions must be accomplished by a method that conforms to equal protection principles. (Seattle, supra, 458 U.S. at p. 487.)

I dissent from the majority opinion only insofar as it upholds the judgment of the trial court with respect to the constitutionality of section 31. I would reverse that portion of the judgment and remand for a determination of whether section 31 can be justified by a compelling state interest, and is narrowly tailored to do so.

_________________________________

RIVERA, J.

APPENDIX TO CONCURRING AND DISSENTING OPINION

A. Articles that Argue Section 31 Violates Equal Protection

Goodman, Redacting Race in the Quest for Colorblind Justice: How Racial Privacy Legislation Subverts Antidiscrimination Laws (2004) 88 Marq. L.Rev. 299, 344 [the Wilson II courts statementthat a law does not classify by race if it prohibits classification by racemisses the point of the Hunter doctrine]

Strasser, Same-sex Marriage Referenda and the Constitution: On Hunter, Romer, and Electoral Process Guarantees (2001) 64 Alb. L.Rev. 949, 970-974 [Wilson II is not persuasive because it overstated the case and misrepresented the spirit of Hunter]

Miller, Democracy in Free Fall: The Use of Ballot Initiatives to Dismantle State-sponsored Affirmative Action Programs (1999) 1999 Ann. Surv. Am. L. 1, 36-37 & fn. 239 [[Hunter and Romer] clearly stand for the proposition that when a minority of the population is deprived access, via ballot initiative, to governmental and political processes it had received through the legislative process, the Equal Protection Clause is violated. Proposition 209 . . . eliminating state-sponsored affirmative action programs fall[s] within the scope of these precedents.]

Sealing, Proposition 209 as Proposition 14 (as Amendment 2): The Unremarked Death of Political Structure Equal Protection (1999) 27 Cap.U. L.Rev. 337, 367-380 [Proposition 209, the charter amendment in Hunter, and the referendum in Seattle all placed a structural impediment to fair access to the political process by those who would seek protection from discrimination; therefore, they violated the Equal Protection Clause]

Pillai, Neutrality of the Equal Protection Clause (1999) 27 Hastings Const. L.Q. 89, 113-115 [section 31 is not neutral but contains a facial classification based on race and gender by singling out racial and gender preferences for prohibition and therefore is subject to strict scrutiny]

Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities Democratic Citizenship (1999) 60 Ohio St. L.J. 399, 537-538 [Wilson II missed the point of Hunter-Seattle and Romer, which is that a majority cannot unfairly and unequally burden minorities access to the political process]

Oppenheimer,^[6]Carcieris Self-described Progressive Critique of the ACLU on Proposition 209: A Conservative Response (1999) 39 Santa Clara L.Rev. 1153, 1165-1167 [Proposition 209 violates equal protection under the Hunter-Seattle doctrine]

Tokaji and Rosenbaum,^[7]Promoting Equality by Protecting Local Power: A Neo-federalist Challenge to State Affirmative Action Bans (1999) 10 Stan. L.Rev. 129, 138-139 [Wilson II, [w]hile purporting to apply the principle articulated by the Supreme Court, . . . is irreconcilable with both the holding and the result of Seattle]

Comment, Reassessing the Right of Equal Access to the Political Process: The Hunter Doctrine, Affirmative Action, and Proposition 209 (1999) 73 Tul. L.Rev. 1415, 1435-1440 [the dissenters in Wilson II and the district court in Wilson I more accurately interpreted and applied the Hunter doctrine toProposition 209]

Note, Ruling by Numbers: Political Restructuring and the Reconsideration of Democratic Commitments after Romer v. Evans (1999) 109 Yale L.J. 587, 605-606, 622 [Wilson II failed to recognize and reconcile the holding in Romer in which the court repudiated the notion that an act of political restructuring is neutral because the protections that it repeals are not constitutionally required; Proposition 209 is subject to strict scrutiny under the long-established Hunter doctrine]

Amar, Recent Cases: The Equal Protection Challenge to Proposition 209 (1998) 5 Asian L.J. 323, 325-327 [Wilson II failed to follow U.S. Supreme Court precedent]

Note, Proposition 209: Does It Eliminate or Perpetuate Discrimination? The Ninth Circuit Dismantles Affirmative Action in Coalition for Economic Equity v. Wilson (1998) 42 St. Louis U. L.J. 883, 912-914 [Wilson II incorrectly concluded Proposition 209 addressed race in a  neutral fashion  because the court looked only at the language of the amendment rather than its effect, which was to eliminate race- and gender-based affirmative action]

Spann, Proposition 209 (1997) 47 Duke L.J. 187, 242-256 [Wilson II incorrectly characterizes Proposition 209 as neutral; Proposition 209 categorically prohibits programs designed to end discrimination against minorities and women, and therefore is subject to strict scrutiny for the same reasons the affirmative action programs in Croson, supra, 488 U.S. 469 and Adarand Constructors, Inc. v. Pea (1995) 515 U.S. 200 are subject to strict scrutiny]

Comment, A World Without Color: The California Civil Rights Initiative and the Future of Affirmative Action (1997) 38 Santa Clara L.Rev. 235, 263-265 [the Wilson II opinion ignores the central meaning behind the theory of equal protection and ignores the legal significance of Hunter and Seattle]

Margolis, Affirmative Action: Dj Vu All Over Again? (1997) 27 Sw.U. L.Rev. 1, 60-62 [Wilson II used a flawed analysis by equating preferences with unequal treatment that is constitutionally prohibited]

Note, Gender Blindness and the Hunter Doctrine (1997) 107 Yale L.J. 261 [the Wilson II opinion rests on questionable grounds]

Amar and Caminker,^[8]Equal Protection, Unequal Political Burdens, and the CCRI (1996) 23 Hastings Const. L.Q. 1019, 1045 [[Proposition 209] embodies the kind of political process burden on the exercise of minority political power that the Hunter doctrine forbids]

B. Articles that Argue Section 31 Does Not Violate Equal Protection

Carcieri, A Progressive Reply to Professor Oppenheimer on Proposition 209 (2000) 40 Santa Clara L.Rev. 1105, 1118-1121 [Proposition 209 does not violate equal protection because women and minorities are not constitutionally entitled to preferences]

Heriot,^[9]Proposition 209 and the United States Constitution (1998) 43 Loyola L.Rev. 613, 623-634 [Proposition 209 is valid because it does not explicitly restructure the political process, but instead, is a substantive policy pronouncement banning state-sponsored racial and gender discrimination in public employment, public education and public contracting]

Wood,^[10]Does Decisional Law Grant Whites Fewer Political Rights Under the Fourteenth Amendment Than It Grants to Racial Minorities? A Response to Vikram D. Amar and Evan H. Caminker (1997) 24 Hastings Const. L.Q. 969, 999-1000 [neither Seattle nor Hunter applies to Proposition 209 because it is a pure policy enactment and does not explicitly alter the political decision making process on a racial question]

Kmiec, The Abolition of Public Racial PreferenceAn Invitation to Private Racial Sensitivity (1997) 11 Notre Dame J.L. Ethics & Pub. Poly 1, 6-7 [Proposition 209 is valid because it has merely amended the California Constitution to be expressly color-blind]

Weeden, Affirmative Action California StyleProposition 209: The Right Message While Avoiding a Fatal Constitutional Attraction Because of Race and Sex (1997) 21 Seattle U. L.Rev. 281, 297-316 [Proposition 209 is valid because it does not contain a racial classification and had no discriminatory purpose]

Trial Court: San Francisco Superior Court

Trial Judge: Hon. James L. Warren

Counsel for Appellants: Dennis J. Herrera

City Attorney

Wayne K. Snodgrass

Sherri Sokeland Kaiser

James M. Emery

Deputy City Attorneys

Moscone, Emblidge & Quadra LLP

G. Scott Emblidge

Rachel J. Sater

Meyers, Nave, Riback, Silver & Wilson

Mara E. Rosales

Joseph M. Quinn

K. Scott Dickey

Counsel for Amicus Curiae on

Behalf of Appellants: Bingham McCutchen LLP

Michael Isaku Begert

Sujal J. Shah

Rianne E. Nolan

Renee M. DuPree

Nancy M. Wang

Elizabeth M. Hall

Lawyers Committee for Civil Rights

Oren Sellstrom

Counsel for Respondents: Pacific Legal Foundation

John H. Findley

Sharon L. Browne

Paul J. Beard II

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

^[1]In Coalition to Defend Affirmative Action v. Granholm (6th Cir. 2006) 473 F.3d 237, the court was led astray by Wilson IIs faulty analysis. Granholm agreed with Wilson IIs conclusion that  [i]mpediments to preferential treatment do not deny equal protection.  (Granholm, at p. 250, citing Wilson II, supra, 122 F.3d at p. 708.) The majority in this case also incorrectly finds meaning in the distinction between forbidding discrimination and forbidding preferences. (Maj. opn., ante, at p. 28.)

^[2]As is explained in Seattle, the United States Supreme Court has not insisted on a particularized inquiry into motivation in all equal protection cases: A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. [Citation.] (Seattle, supra, 458 U.S. at p. 485, italics added.) A political restructuring along racial linesalthough engendered by a facially neutral lawcreates just such a classification. [W]hen the political process or the decisionmaking mechanism used to address racially conscious legislationand only such legislationis singled out for peculiar and disadvantageous treatment, the governmental action plainly rests on distinctions based on race.  [Citation.] (Id. at pp. 485-486.)

^[3]One of the ballot arguments for section 31 makes this point emphatically.  REVERSE DISCRIMINATION BASED ON RACE OR GENDER IS JUST PLAIN WRONG!. . . . [Sic.] [S]tudents are being rejected from public universities because of their RACE. Job applicants are turned away because their RACE does not meet some goal or timetable. Contracts are awarded to high bidders because they are of the preferred RACE. . . . Proposition 209 will stop [these] terrible programs. . . . (Wilson I, supra, 946 F.Supp. at p. 1494.)

^[4]See, e.g., Note, Proposition 209: Does It Eliminate or Perpetuate Discrimination? The Ninth Circuit Dismantles Affirmative Action in Coalition for Economic Equity v. Wilson (1998) 42 St. Louis U. L.J. 883, 885 [[w]hile Proposition 209 purports to reinforce anti-discrimination legislation, opponents of the initiative argue that the amendment, as applied, only prohibits discrimination against whites in that it targets affirmative action programs that solely benefit African-Americans and other minorities, even though such programs have been deemed necessary to remedy the present effects of past discrimination]; Lpez, Colorblind to the Reality of Race in America, The Chronicle of Higher Education (Nov. 3, 2006) p. B6 [[w]e find ourselves now in the midst of a racial era marked by what I term colorblind white dominance, in which a public consensus committed to formal antiracism deters effective remediation of racial inequality, protecting the racial status quo while insulating new forms of racism and xenophobia].

^[5]Comment, A World Without Color: The California Civil Rights Initiative and the Future of Affirmative Action (1997) 38 Santa Clara L.Rev. 235, 265.

^[6]Oppenheimer authored a brief on behalf of amici curiae the American Jewish Congress and the National Council of Churches arguing for an affirmance of Wilson I. (Wilson II, supra, 122 F.3d at pp. 695-696; see Oppenheimer, Carcieris Self-described Progressive Critique of the ACLU on Proposition 209: A Conservative Response (1999) 39 Santa Clara L.Rev. 1153, fn. *.)

^[7]The authors were part of the team of attorneys representing plaintiffs in the Wilson case. (Wilson I, supra, 946 F.Supp. at p. 1487; Wilson II, supra, 122 F.3d at p. 695; see Tokaji & Rosenbaum, Promoting Equality by Protecting Local Power: A Neo-federalist Challenge to State Affirmative Action Bans (1999) 10 Stan. L.Rev. 129, 143, fn. 1 (Tokaji & Rosenbaum).)

^[8]The authors were part of a team of attorneys representing plaintiffs in Wilson I. (Wilson I, supra, 946 F.Supp. at p. 1487; see Tokaji & Rosenbaum, supra, 10 Stan. L.Rev. at pp. 129, 143, fn. 1.)

^[9]The author cochaired the Yes on Proposition 209 campaign. (Heriot, Proposition 209 and the United States Constitution (1998) 43 Loyola L.Rev. 613, fn. a1.)

^[10]Wood was the co-author and coproponent of Proposition 209, and is a coprincipal in Californians Against Discrimination and Preferences, which was a defendant intervener in Wilson. (Wood, Does Decisional Law Grant Whites Fewer Political Rights Under the Fourteenth Amendment Than It Grants to Racial Minorities? A Response to Vikram D. Amar and Evan H. Caminker (1997) 24 Hastings Const. L.Q. 969, fn. *.)