November 5, 1996: Proposition 209 Passed by Large Majority of
Traitors try to overturn this popular democratic mandate!
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Traitor Thelton Henderson REBUKED
A clash over the language has accompanied the three previous measures. In 1996, in the
first public vote on the policies, California's Proposition 209 said it would ban
"preferential treatment." Though the state's population is estimated to be half
minority, most voters are white. Proposition 209 passed 54 percent to 46 percent, winning
63 percent of the white vote.
National Review Online, May 25, 2004
Blue Helmets vs. Prop. 209
A California judge uses a U.N. treaty to discriminate.
Ever since Proposition 209, the anti-race-preference initiative, was passed by
California voters in 1996, various state and local government agencies have sought a means
to save race-based government programs. In a recent ruling, an Oakland judge purports to
have found such a means in the form of a U.N. treaty that supposedly trumps Prop. 209.
The case in question involved a challenge to the Berkeley Unified School District's
student placement plan. Under the plan, parents were asked to list the top three schools
they would prefer their children to attend. The district then assigned a child based on
space availability, his residence or socio-economic status, and race/ethnicity. The
district used the race factor to achieve racial balance, based on district-wide
demographics, at each grade level. But using race to dole out coveted spots in Berkeley's
better schools is at odds with Prop. 209.
Under the voter-approved measure, government "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." Despite this clear language, however, Superior Court judge James
Richman managed to perform some shocking legal contortions in order to find that the
Berkeley plan didn't violate 209.
First, he observed that since race was just one factor used by the Berkeley school
district, it was theoretically possible that no child was placed in a school because of
race, and that all children were placed due to the other non-race factors. Using this
possibility, he found that Berkeley's plan "does not on its face discriminate"
based on race. This finding, however, is absurd since the Berkeley touted its plan as a
voluntary racial-desegregation program specifically designed to achieve racial balance.
Judge Richman also claimed that since Prop. 209 doesn't mention voluntary desegregation
plans, race-conscious school-assignment plans are permissible. He tried unconvincingly to
distinguish a 2002 state appellate court decision that held that Prop. 209's ballot
materials clearly targeted exactly these types of race-conscious desegregation programs.
Perhaps sensing the weakness of his position, Richman fell back on the 1965 United Nations
International Convention on the Elimination of All Forms of Racial Discrimination, which
California incorporates into section 8315 of its government code.
The U.N. treaty, ratified by the U.S. Senate in 1994, says that "special measures
taken for the sole purpose of adequate advancement of certain racial or ethnic groups or
individuals requiring such protection as may be necessary in order to ensure such groups
or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall
not be deemed racial discrimination...." In other words, race-preference programs are
okay as long as they advance some nebulous U.N. notion of human rights.
Then-Governor Gray Davis and the liberal state lawmakers who enacted section 8315,
which gave force of law to the U.N. treaty, tried to undercut Prop. 209 through the
section's wording that treaty-sanctioned "Special measures shall not be interpreted
as preferential treatment." Judge Richman described the Berkeley program as a
race-conscious school assignment plan that provided all students with the "same
benefit of desegregated schools." He therefore ruled that applying Prop. 209 to the
Berkeley case would be "inconsistent" with the language of the U.N. treaty.
Based partly on the U.N.-treaty language, Richman concluded that the Berkeley plan
"does not discriminate against, or provide preferential treatment to, any student
based on race." Never mind that some schools are better than others, which is why
parents choose some schools over others. Under the Berkeley plan, children could be denied
entry into a better school because that school had enough students in their racial or
ethnic group, which is racial discrimination. Further, being placed in a good school
because of race is a racial preference. Both are illegal under Prop. 209.
Will Richman's position be the legal wave of the future? David Levine, a professor at
University of California Hastings law school who has litigated race-preference cases,
believes that Richman's opinion isn't convincing and will likely be overturned on appeal.
Also, University of California regent Ward Connerly is challenging section 8315 in court.
Regardless, more local governments are discovering the U.N. treaty and its potential to
legitimize currently illegal race preferences. Look for the pro-race-preference crowd to
be sporting blue berets in their continuing battle against 209.