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Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation.  A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.

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Judge Henderson's Decision

U.S. District Court Judge Thelton Henderson's ruling that Proposition 209 probably violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution was based on a U.S. Supreme Court case, but his underlying premise was false.

Proposition 209 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."

Henderson stated that Washington v. Seattle Sch. Dist. No. l, 458 U.S. 457 (1982) prevents the state from enacting a constitutional amendment that limits the ability of the people to provide a remedy for race and sex discrimination against people who are not white males. Henderson's granting of a preliminary injunction against enforcement of Proposition 209 is based on the premise that state-sponsored race and sex preferences in favor of individuals who are not white males are remedial. Since, according to Henderson, such race and sex preferences are remedial, they fall under the rationale of Seattle; therefore, Proposition 209's prohibition violates the Equal Protection Clause.

Henderson repeatedly stated that it was the remedial nature of the race and sex preferences that entitled them to protection under Seattle. He stated that the challenge to Proposition 209 was "only to that slice of the initiative that now prohibits governmental entities at every level from taking voluntary action to remediate past and present discrimination through the use of constitutionally permissible race- and gender-conscious affirmative action programs." According to Henderson, the phrase "affirmative action" as used in his opinion means "programs designed to remedy the continuing effects of past and/or present discrimination which contain a race- or gender-conscious component." He added, "[a]fter the passage of Proposition 209, women and minorities who wish to petition their government for race- or gender-conscious remedial programs face a considerably more daunting burden." Proposition 209 was "aimed at rolling back legislative gains that were intended as remedies for historical discrimination suffered by particular groups" and because of Proposition 209 "those seeking to reenact such remedies could no longer use the same political mechanisms that had been available prior to" its passage, Henderson said.

Thus, if the state's race and sex preferences are not remedial, then Proposition 209's prohibition of those preferences does not violate the Equal Protection Clause under Seattle. An examination of Henderson's reasoning demonstrates his failure to establish that the state's race and sex preferences are remedial, thus making Seattle inapplicable.

There are at least two reasons why Henderson's premise is false. The first is that people are primarily individuals, not primarily parts of racial or sexual groups, and remedial rights attach to individuals, not racial or sexual groups.

To Henderson, when A commits a wrong against B because of B's race or sex, than C deserves a remedy at the expense of D, simply because C shares B's race or sex, when D is an innocent individual who simply shares A's race or sex. Thus, Henderson endorses race- and sex-based group remedies, a concept inconsistent with the Equal Protection Clause's express guarantee of protection for "any person."

Only in race- and sex-discrimination cases have logical remedial principles been abandoned. Under logical remedial principles that operate in every other area of the law, the black victim of a racial injustice deserves compensation because the victim suffered an injustice, not because the victim was black. The compensation should come from the wrongdoer, not an innocent party.

Proposition 209 does not prevent specific individual victims of race or sex discrimination from obtaining legitimate compensation, nor does it prohibit legitimate punishment of race and sex discriminators.

The second reason why Henderson's characterization of the state's race and sex preferences as remedial is false is because nobody can predict the extent of future race and sex discrimination. Therefore prophylactic use of race and sex preferences cannot be crafted with assurance that they will result in the best qualified applicants being selected.

A necessary element underlying Henderson's premise of remedial preferences is the notion that the best-qualified applicant should get the job or school admission without regard to race and sex. Otherwise, on what other basis can an applicant claim that his or her rights were violated by the racially or sexually motivated selection of a lesser-qualified person?

An applicant only deserves a remedy for race or sex discrimination if the applicant otherwise deserved the position, presumably based on ability to do the job. Therefore the notion of having a remedy for race or sex discrimination necessarily implies that absent any race or sex discrimination, the best-qualified applicants should get the jobs and school admissions. Presumably, this is the result the race and sex preferences protected by Henderson are intended to achieve.

But Henderson failed to show that the race and sex preferences he protects will achieve this goal.

For example, if the state's race and sex preferences result in lesser-qualified preferred applicants getting jobs and school admissions over more-qualified rejected applicants, then the race and sex preferences have gone too far. They are no longer serving their prevention and remediation role, but are resulting in the very evil that they were intended to combat: the awarding of positions on the basis of race and sex to lesser-qualified applicants. They simply have changed the race and sex of the lesser-qualified applicants who obtained their positions and changed the race and sex of the more-qualified applicants who were displaced.

Therefore, for Henderson's premise to be true, the race and sex preferences must be so carefully crafted that they will yield the same employment pool and student body that would have resulted if the best qualified applicants were selected without regard to race and sex.

However, it is virtually impossible to predict how many individuals who are not white males will be among the best-qualified applicants and how many of those will be rejected because of race or sex discrimination in the absence of the preferences Henderson protects.

Consider the example of a state employee who was going to make hiring decisions without regard to race and sex and thereby select the best-qualified applicants. Suppose the employee's legitimate selection of the best-qualified applicants would yield only white males. If prophylactic race and sex preferences in favor of those applicants who are not white males is enforced, then some of these preferred applicants, who are not among the best-qualified, will get jobs at the expense of better-qualified applicants.

In this case the preferred applicants did not receive a prophylactic remedy; rather, they received an undeserved benefit that should have gone to someone more qualified.

Now change the example so that the hiring employee is going to discriminate against applicants who are not white males and some of these applicants are among the best-qualified who deserve to be selected on the basis of individual merit. Suppose that this would result in the hiring of some white males who are lesser-qualified at the expense of those applicants who were better-qualified, but were not white males.

In that situation, if the hiring employee was forced to use race and sex preferences against white males, it is possible that those individuals who are not white males, who deserve their jobs on the basis of merit, but who would have been rejected on the basis of race or sex, will be hired and everybody hired will be better-qualified than those who were rejected.

But this only will be true if the correct degree of race and sex preference is applied. Grant the race or sex preferences to too many individuals in this example and you have deliberately created the evil you sought to prevent -- hiring of the lesser-qualified over the better-qualified -- only with different races and sexes in the roles of victims and beneficiaries.

The necessary foundation for a legitimate implementation of Henderson's prophylactic remedy -- the ability to precisely predict how many better-qualified applicants who are not white males will be rejected because of race and sex in favor of lesser-qualified white males -- is absent from Henderson's opinion. Since neither Henderson or anybody else has the necessary foresight, and nothing in his opinion explains how the race and sex preferences he protects can be made precise enough to prevent lesser-qualified individuals from getting undeserved benefits at the expense of better-qualified individuals, his justification for the preferences evaporates.

This is especially true with regard to the University of California. Over the last quarter century there is no evidence that the university has discriminated against any applicants on the basis of race or sex, except for those who are white or male (and Asian in later years). Therefore, applicants who are not white males are not entitled to any remedy from the university because it has not used their race or sex against them.

Furthermore, there is no basis for imposition of a prophylactic remedy on the university. Henderson failed to cite any evidence that it will use race or sex against individuals who are not white males in the future under any circumstances. Indeed, such discrimination appears extremely unlikely given the university's history of race and sex discrimination against many white males. Moreover, the objectively verifiable nature of the university's primary admissions criteria -- grades and test scores -- makes such discrimination virtually impossible to hide, further diminishing the need for prophylactic race and sex preferences.

So in the name of providing a prophylactic remedy for applicants who are not white males, Henderson prevented implementation of Proposition 209 by a university that never engaged in the conduct for which the remedy is designed and based on all available evidence, never will do so.

Henderson also failed to show that other state action that distributes scarce resources largely on the basis of objectively verifiable criteria -- like civil service test scores and monetary bids for contracting jobs -- needs to be subjected to the prophylactic remedy of the race and sex preferences he protects.

Indeed, the main thing Henderson's opinion shows is the remedial need for appellate courts.

Los Angeles Daily Journal and the San Francisco Daily Journal, December 31, 1996, p.6.  Each of these newspapers primarily serves the legal community.

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