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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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9th Circuit Court of Appeals Decision in Proposition 209 Case

Holding Proposition 209 constitutional in Coalition for Economic Equity v. Wilson, 97 Daily Journal D.A.R. 4552 (1997), the 9th U.S. Circuit Court of Appeals may give the U. S. Supreme Court an opportunity to resolve a contradiction inherent in the high court's line of racial preference decisions: The endorsement of a race-based remedy under an Equal Protection Clause that protects individuals, not groups.

In Coalition, the 9th Circuit barely mentioned this contradiction but clearly sided with Supreme Court precedent favoring protection of individuals over groups. However, in so doing, the 9th Circuit did not adequately discuss the main point underlying U.S. District Court Judge Thelton Henderson's decision holding that Proposition 209 is probably unconstitutional: the so-called "remedial" justification for racial preferences.

In Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995), the plurality opinion of the Supreme Court did not completely prohibit government's use of racial preferences. But the opinion held that all such programs must survive a strict scrutiny analysis to be constitutional. This means they must be narrowly tailored to meet a compelling need.

The Adarand opinion said that a "narrowly tailored race-based remedy" could satisfy the strict scrutiny test. As an example the court cited United States v. Paradise, 480 U.S. 149 (1987), wherein the Alabama Department of Public Safety illegally denied employment opportunities to black individuals because of their race. The remedy permitted by five Justices consisted of racial preferences for black individuals in promotions. The remedy could benefit individuals who had never been victimized by the Department's racial discrimination and allowed for the promotion of a lesser-qualified individual over a better-qualified individual if the lesser-qualified individual was black and the better-qualified individual was white.

Those endorsing race-based remedies believe such remedies can correct prior racial discrimination. They believe that racial discrimination against an individual can be remedied by giving a racial preference to a completely different individual who was never victimized by the original racial discrimination, if the preferred individual belongs to the same race as the victimized individual. They fail to recognize that a victim of illegal racial discrimination deserves a remedy because he suffered a legally compensable injury, not because of his race and the motivation of the victimizer.

They also believe that racial preferences can prevent future racial discrimination that would occur in the absence of racial preferences for nonwhites. They believe that state agencies that are not compelled to give racial preferences to nonwhites will select lesser-qualified white individuals over better-qualified nonwhite individuals. Thus, it is believed, the racial preference for nonwhites forces the state to select nonwhites to such a degree that all of the best-qualified applicants, of all races, get selected.

Judge Henderson believes in race-based remedies. He repeatedly stated in his opinion that it was the remedial nature of racial preferences that entitled them to protection from Proposition 209. However, Henderson failed to demonstrate how a racial preference for one individual can remedy racial discrimination perpetrated against a different individual. He also failed to demonstrate how he could predict the extent of future racial discrimination in state agencies and the qualifications of future applicants so as to make the prophylactic use of racial preferences result in the best qualified applicants being selected.

Briefly noting Henderson's "remedial" justification for racial preferences, the 9th Circuit barely confronted Henderson on this point. Citing several U.S. Supreme Court cases, the 9th Circuit said that the central purpose of the Equal Protection Clause was "the prevention of official conduct discriminating on the basis of race," and that "the Fourteenth Amendment guarantees equal protection to individuals and not to groups." The Ninth Circuit also said:

They [the plaintiffs] argue, for example, that we must affirm the injunction because "[t]he remedy for intentional discrimination often calls for race-specific relief." ... But "race-specific relief" is hardly synonymous with "preferential treatment on the basis of race." A state may "eradicate racial discrimination" in many ways that do not involve racial preferences. When, for example, a state gives the identified victims of state discrimination jobs or contracts that were wrongly denied them, the beneficiaries are not granted a preference "on the basis of their race" but on the basis that they have been individually wronged.

Coalition, at fn. 7.

Noting that under Adarand, the Equal Protection Clause "barely permits" racial preferences, the 9th Circuit appears to recognize that when individuals who are not "identified victims" of racial discrimination receive a racial preference, they are receiving a race-based remedy, not an injury-based remedy.

The 9th Circuit noted Adarand's endorsement of "the long line of cases understanding equal protection as a personal right," and did not see the need "to reconcile" this line of cases with a Supreme Court case used by Henderson (Hunter v. Erickson, 393 U.S. 385 (1969)), that said "the majority needs no protection against discrimination."

Thus, the 9th Circuit's more explicit comments about this contradiction between the Adarand line of cases and Hunter was relegated to footnotes. The 9th Circuit said the Hunter opinion "seems to perceive the right to equal protection as a group right rather than an individual right, which the Supreme Court later denounced in Croson and Adarand." (Coalition, at fn. 12).

Further contrasting Hunter with the Adarand line of cases, the 9th Circuit said, "the Equal Protection Clause protects the individual members of the majority, not the majority as a group. Caught in the cross-fire of seemingly irreconcilable Supreme Court precedent, we would deem it better to err on the side of common sense." (Coalition, at fn. 13).

Yet, the 9th Circuit completely failed to acknowledge the internal contradiction in Adarand's endorsement of a race-based remedy.

Despite it's timid discussion about the contradiction between race-based remedies and constitutional protection of individuals over groups, the 9th Circuit's decision does indicate a preference for the position of Justice Antonin Scalia. In his concurring opinion in Adarand, he completely rejected the validity of race-based remedies. He said "government can never have a `compelling interest' in discriminating on the basis of race in order to `make up' for past racial discrimination in the opposite direction. ... Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as a either a creditor or a debtor race."

If Coalition gets to the Supreme Court, perhaps Justice Scalia will lead the Court to a resolution of its contradiction.

Los Angeles Daily Journal and the San Francisco Daily Journal, April 10, 1997, p.6. Each of these newspapers primarily serves the legal community.  This digital version is substantially similar to the published version. This version has some additional material.

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