David B. Oppenheimer (University of California, Berkeley, School of Law) has posted Color-Blindness, Racism-Blindness, and Racism-Awareness: Revisiting Judge Henderson's Proposition 209 Decision (Berkeley Journal of African-American Law & Policy, Vol. 13, 2011) on SSRN. Here is the abstract:
In 1996 California voters passed Proposition 209, amending the state constitution to prohibit affirmative action in public education, contracting, and employment. In an eloquent decision, Judge Thelton Henderson of the U.S. District Court held that the initiative violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Judge Henderson’s opinion explained how Proposition 209 created a special barrier for minorities and women, relying on the “political structure doctrine” announced by the Supreme Court in Hunter v. Erickson and Washington v. Seattle School District No.1, which prohibits voter initiatives that single out minorities and makes it more difficult for them to seek governmental assistance on issues of particular importance to them. He also relied upon what I here describe as a “racism-aware” approach to applying the Equal Protection Clause, rejecting the increasingly popular, and deeply flawed "color-blindness” approach. This essay discusses why Judge Henderson was correct in adopting a racism-aware view of equal protection analysis, critiques color-blindness as a form of “racism blindness,” and describes the consequences of Proposition 209 for enrollments at the University of California. In 1997 the Ninth Circuit reversed Judge Henderson’s decision, applying a color-blind approach, and finding that voters may restrict affirmative action programs for women and minorities because such programs are a form of discrimination presumptively prohibited by the Equal Protection Clause, and that the removal of programs that are barely permissible cannot be impermissible.
This Essay began as a presentation at a spring 2010 symposium discussing Judge Henderson’s decisions. In August 2010, after the presentation, the California Supreme Court issued its own long-awaited decision on Proposition 209. Following the color-blind approach of the Ninth Circuit, the California Supreme Court also held that Proposition 209 did not violate the Equal Protection Clause. The majority decision regarded equality law as simply prohibiting racial classifications, rather than protecting minorities from inequality. In a dissenting opinion that tracked many of the concerns and insights of Judge Henderson’s decision, Justice Carlos Moreno argued that the initiative did violate the political structure doctrine, and pointed to the adverse consequences for minorities that Judge Henderson had correctly anticipated.
In 2006 the voters of Michigan passed Proposal 2—nearly a clone of California Proposition 209—which eliminated affirmative action admissions for minorities at Michigan’s public universities, and thus abrogated the effect of the Supreme Court decision in Grutter v. Bollinger. (The Grutter decision had permitted the University of Michigan Law School affirmative action program to continue.)
On July 1, 2011, just as this Essay was going to press, the Sixth Circuit issued its opinion in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, holding that Proposal 2 violated the Equal Protection Clause. I include in this essay a brief afterward discussing the Sixth Circuit decision, which further vindicates Judge Henderson’s application of the political structure doctrine and his approach to the Equal Protection Clause.