Our View: Affirmative action comeback?

Proposition 209, the voter initiative passed in 1996, is under attack. It stipulated that the state cannot "discriminate against" nor "grant preferential treatment to" anyone "on the basis of race, sex, color, ethnicity, or national origin" for public employment, education and contracts.

On July 1, a three-judge panel of the 6th U.S. Circuit Court of Appeals struck down a similar initiative passed by Michigan voters in 2006. "Proposal 2 reorders the political process in Michigan to place special burdens on minority interests," wrote judges R. Guy Cole Jr. and Martha Craig Daughtrey in their majority opinion. Actually, like Prop. 209, the Michigan initiative prohibited discrimination against minorities. Michigan Attorney General Bill Schuette is appealing the ruling to the full appeals court.

Next target: the Golden State. "Shanta Driver, an attorney in the firm of Scheff, Washington and Driver, which brought the lawsuit to end the ban on affirmative action, said that ... they plan to file a lawsuit in the 9th U.S. Court of Appeals in California to strike down Prop. 209," the Detroit News reported.

That might not be so easy, Ward Connerly says. The director of the Sacramento-based American Civil Rights Institute helped write Prop. 209, Proposal 2 and similar initiatives in other states. "The people of California have ruled that they don't want race preference," he says. He pointed out that the full 9th Circuit court upheld Prop. 209 in 1997. The 6th Circuit doesn't operate out here. He added that the California state Supreme Court also has upheld Prop. 209, most recently in August 2010.

But Connerly warned that both Gov. Jerry Brown and California Attorney General Kamala Harris want to overturn Prop. 209. On July 8, Brown filed a brief backing the new case before the 9th Circuit to reverse its previous decisions upholding Prop. 209. Connerly believes the challenge to Prop. 209 will have a tough go in the 9th Circuit.

A bigger danger is Senate Bill 185, by state Sen. Ed Hernandez, D-West Covina. The bill would allow state universities and colleges "to consider race, gender, ethnicity and national origin, along with other relevant factors, in undergraduate and graduate admissions" — a direct violation of Prop. 209. The bill passed the Assembly in June and now is in the Senate Appropriations Committee.

Connerly said he expects the bill to be passed and signed into law by Gov. Brown. If that happens, Connerly promised, "We will litigate it."

We have supported Prop. 209 as an essential framework for our increasingly diverse society. People should be viewed as individuals, each with their own unique talents. School admission and work hiring and promotion decisions should be based on the merits of what each person can contribute — not race, sex, national origin, etc. And, the market must keep its eyes open to the potential of diverse individuals.

Affirmative action programs also mask the root causes of minority underrepresentation in state universities. A major reason African Americans and Latinos go to college at lower rates is that the K-12 schools they attend often are so poor.

The main point today, however, is that the answer is not a retreat from laws like Prop. 209, either in Michigan or California.