Judge: Law Violates Prop. 209

Jim Sanders, Sacramento Bee, May 13

California lawmakers improperly and unconstitutionally adopted legislation two years ago that violated the state’s ban on race-based preferences, a Sacramento Superior Court judge ruled Thursday.

Ward Connerly called the ruling by Superior Court Judge Thomas M. Cecil another “nail in the coffin of preferences” based on race, sex, color, ethnicity or national origin.

Connerly had argued in the suit that Assembly Bill 703, signed into law by Gov. Gray Davis, was an “end run” around Proposition 209, a 1996 initiative banning preferences in state hiring, contracting and education.

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Connerly’s attorney, Paul Beard of the Pacific Legal Foundation, said public agencies, including San Francisco and the Berkeley Unified School District, have continued to use the disputed law to defend what he believes are illegal programs.

The legislation at the heart of the fight, AB 703, was proposed by Assemblyman Mervyn Dymally, D-Compton, who declined to comment on Thursday’s ruling other than to say he wants to appeal.

In proposing AB 703, Dymally had argued that it filled a loophole. Proposition 209 banned discrimination by public agencies but didn’t define the term, he said.

His bill, now Government Code 8315, provided a definition that its supporters claimed could legally benefit underrepresented groups. The measure was approved by lawmakers on a party-line vote, with Republicans opposed.

AB 703 used a definition of discrimination that stemmed from the International Convention on the Elimination of All Forms of Racial Discrimination and was part of a treaty adopted by the United Nations General Assembly in 1965.

The definition stated that “special measures” taken on behalf of underrepresented groups are not necessarily discriminatory.

Specifically, the measure exempted “special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure (them) equal enjoyment or exercise of human rights and fundamental freedoms.”

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