Hastings Constitutional Law Quarterly


Thomas E. Wood


In November 1996, the California electorate adoited Proposition 209 (Prop. 209), otherwise known as the California Civil Rights Initiative (CCRI), thereby eliminating all state and local programs that grant "preferential treatment' based on race, sex, color, ethnicity, and national origin in the operation of public employment, education, and contracting. Professors Vikramn D. Amar and Evan H. Caminker have argued in this journal that lower courts, at least, must find CCRI unconstitutional under Washington v. Seattle School District No. 1. This Article is a response to their arguments regarding the constitutionality of CCRI.

This Article begins by noting two crucial differences between Prop. 209 and Initiative 350, the ballot measure at issue in Seattle. By analyzing the Seattle decision in the light of Reitman v. Mulkey and Hunter v. Erickson, this Article argues that the Amar-Caminker interpretation of Seattle is incorrect and that their interpretation was explicitly repudiated by the Seattle majority. Analysis of evidence against the Amar- Caminker interpretation reveals that their interpretation of Seattle leads to the unacceptable conclusion that decisional law grants whites fewer political rights under the Fourteenth Amendment than it grants to racial minorities.