On November 30, the California Supreme Court handed down an important decision detailing the reach of Proposition 209 s ban on race and sex preferences. Proposition 209 was the hotly contested constitutional amendment initiative, passed in 1996, that prohibited the State from giving preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, or public contracting. The authors of Proposition 209 used the Civil Rights Act of 1964 as its model, but explicitly stated that it was the original understanding of the Civil Rights Act, not its subsequent judicial construction, that was expressed in the Proposition. The Civil Rights Act of 1964 was based on the principle of equal opportunity. That was the principle so the framers of the Act believed demanded by fourteenth amendment s equal protection clause.
Equal opportunity requires the recognition that the Constitution is colorblind.
Yet almost immediately after its adoption, the courts began to construe the Act to require racial preferences to eradicate the present effects of past discrimination. Thus an act that was aimed at ending racial discrimination in employment was construed by the courts to require racial discrimination. This has been the familiar theme of those who support racial set-asides and quotas. It was immediately challenged in Federal Court and was initially ruled unconstitutional. Judge Thelton Henderson in what can only be described as unusual logic decided that the refusal to permit race and sex classifications was a violation of equal protection.