Bill Lann Lee and Prop. 209

California's Proposition 209 forbids discrimination and preferential treatment. Surprisingly, there are folks who earnestly believe that Proposition 209 is contrary to the Constitution of the United States. Bill Lann Lee, President Clinton's nominee for assistant attorney general for civil rights, is one of these people. Unfortunately for these folks, the nation's highest court this week let stand a ruling that upheld the constitutionality of Prop. 209.
Proposition 209 & the 14th Amendment. Proposition 209 says that the State of California "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." The Fourteenth Amendment says that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Persons who have not been infected by toxic levels of leftist ideology may have a hard time understanding how a state law that forbids discrimination can be said to deny the equal protection of the laws.
Senators Question Wisdom of Nomination. The Senate Judiciary Committee is expected to vote on Mr. Lee's nomination before Congress adjourns, but the nomination appears to be in trouble. Chairman Hatch announced his opposition on the floor yesterday morning, and the Majority Leader and the Assistant Majority Leader have said they support the Chairman's decision. Many other Senators question the wisdom of elevating to the highest civil rights enforcement job in the country a man who believes that Proposition 209 is unlawful.
Background of Proposition 209. Proposition 209 was adopted one year ago by the voters of California: 54 percent of them supported it; 46 percent opposed it. In our most populous State, those few percentage points represent hundreds of thousands of voters: 4,736,000 persons voted for Proposition 209 and 3,986,000 voted against it. By adopting Prop. 209, the voters were approving an amendment to their state constitution, see Calif. Const. Art. I, 31.
The day after Proposition 209's opponents lost at the ballot box they sued in federal court. They won an initial victory in district court, 946 F. Supp. 1480 (N.D. Cal. 1996), but the Ninth Circuit Court of Appeals reversed the lower court and upheld the constitutionality of Proposition 209, Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (amended opinion). The U.S. Supreme Court said on Monday it would not review that decision (U.S. No. 97-369).
Mr. Lee's Opposition to 209. Bill Lann Lee is the Director of the Western Region for the NAACP Legal Defense Fund (LDF). He lives in California. He opposed Prop. 209 as a matter of public policy and, after it was adopted, he tried to get it declared unconstitutional. At his hearing on October 22, 1997, Mr. Lee was asked by Senator Sessions if he had supported or opposed Proposition 209. Mr. Lee said he had opposed it. Chairman Hatch asked Mr. Lee if he believed that Prop. 209 was unconstitutional. Mr. Lee said that was his belief. Senator Sessions asked Mr. Lee if he had approved the brief LDF had filed with the Ninth Circuit in an attempt to get Prop. 209 overturned. Mr. Lee said he had.
Proposition 209 and Constitutional Law. Opponents of Prop. 209 generally make two constitutional points: First, they say that Prop. 209 discriminates against women and minorities in what might be called the conventional way. Second, they say that Prop. 209 creates an unequal "political structure" that denies to women and minorities the right to seek preferential treatment from their local or state governments unless they first repeal Proposition 209. With respect to the claim of conventional discrimination, the Ninth Circuit said:
"The first step in determining whether a law violates the Equal Protection Clause is to identify the classification that it draws. Proposition 209 provides that the State of California shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race or gender. Rather than classifying individuals by race or gender, Proposition 209 prohibits the State from classifying individuals by race or gender. A law that prohibits the State from classifying individuals by race or gender a fortiori does not classify individuals by race or gender. Proposition 209's ban on race and gender preferences, as a matter of law and logic, does not violate the Equal Protection Clause in any conventional sense." 1997 U.S. App. LEXIS 22955 at *24-*25.

With respect to the claim of "political structure" discrimination, the Ninth Circuit reviewed the leading cases and then said:
"Plaintiffs challenge Proposition 209 not as an impediment to protection against unequal treatment but as an impediment to receiving preferential treatment. The controlling words [of the Constitution], we must remember, are 'equal' and 'protection.' Impediments to preferential treatment do not deny equal protection. It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment. While the Constitution protects against obstructions to equal treatment, it erects obstructions to preferential treatment by its own terms." Id. at *43 (footnote omitted). "[I]t would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it." Id. at *47 (internal quotation marks & citation omitted).

Does Mr. Lee Have the Proper Perspective? Bill Lann Lee has, of course, promised to abide by the law. However, many Senators are wondering whether an experienced civil rights lawyer who believes that Proposition 209 is unconstitutional has the proper perspective to be the nation's top civil rights enforcement officer.