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.
It is legitimate for a judge to hold that an amendment to the state constitution, passed directly by the voters, can violate the federal constitution. However, this is not the issue in the judicial debate over Proposition 209.
The issue is that Judge Thelton Henderson did not do his job and he violated the law. Our founding fathers gave us a government of laws under which judges were not to enforce their own prejudices, but to interpret the law. Henderson failed to interpret the law and instead enforced his own prejudices.
To Henderson, individuals are not primarily individuals, but rather, are members of racial groups. He believes that when A commits a wrong against B because of B's skin color, than C deserves a remedy at the expense of D, simply because C shares B's skin color, when D is an innocent individual who simply shares A's skin color. Thus, he endorses "racial" remedies, a concept inconsistent with the U.S. Constitution's 14th Amendment.
Therefore, to Henderson, racial preference programs are "remedial" and Proposition 209's elimination of them denies a remedy for racial discrimination even as the Proposition expressly prohibits racial discrimination.
People who think like Henderson don't understand the fact that a black victim of a racial injustice deserves compensation because the victim suffered an injustice, not because the victim was black and that the compensation should come from the wrongdoer, not an innocent party.
Proposition 209 does not prevent victims of racial discrimination from obtaining legitimate compensation, nor does it prohibit legitimate punishment of racial discriminators.
It was Henderson's job to keep his prejudice out of his interpretation of the law. He failed.
Allan J. Favish
Los Angeles Daily News, December 19, 1996, p. 24.