COURT UPHOLDS PROP. 209 AFFIRMATIVE ACTION FORCES NOT GIVING UP.

Byline: Paul Hefner Daily News Sacramento Bureau

Without comment, the U.S. Supreme Court endorsed California's controversial Proposition 209 on Monday but opponents vowed to fight against dismantling government affirmative action programs in the state.

The refusal of the nation's highest court to hear a constitutional challenge to abolishing preferences based on race or gender in public hiring, contracting and college admission moves the yearlong Proposition 209 battle to local courts and government and the state Legislature.

The court's silence marked a major victory for those who claimed that race- and sex-based preferences were themselves discriminatory.

``It is time for those who have resisted Proposition 209 to acknowledge that equal rights under the law, not special preferences, is the law of the land,'' said Gov. Pete Wilson.

Opponents vowed to fight on, and it was clear that a new host of legal questions and challenges were in the offing. Still, the court's rebuff was a major setback for defenders of affirmative action programs.

``Proposition 209 constructs a U-turn on the path to a colorblind and gender-neutral society. Its enforcement ushers in the resegregation of California,'' said Mark Rosenbaum, legal director for the American Civil Liberties Union, which led the challenge to the measure.

Rosenbaum predicted that new cases would be brought to court as the measure begins to have a tangible effect on women and minorities.

``The courts haven't seen the last of 209,'' he said.

But even opponents conceded that the court's inaction left the initiative's backers poised to force a major overhaul of decades-old affirmative action programs.

``It does mean we're on the road towards the end of most affirmative action programs in the state,'' said Evan Caminker, a professor at UCLA's school of law who helped mount the court challenge. ``It is inevitable that many of the affirmative action programs are now going to be eradicated by Proposition 209.''

But that won't happen immediately, even though the initiative, which requires that the state neither discriminate nor grant preferential treatment to anyone based on race or gender in employment, education or contracting, is part of the California Constitution.

At the state level, separate court rulings will be needed to strike many programs from the books, because state officials cannot simply declare a statute void.

Wilson earlier filed a suit, which is still pending in state court, that challenges five of the largest preference programs. Among those it seeks to end is one that requires community colleges to develop affirmative action plans to hire women and minority faculty and staff members and another that requires agencies to set participation goals for minority- and women-owned businesses in purchasing contracts.

Eliminating local programs run by specific county and city agencies may take a separate round of challenges.

Some local officials may try to defend their affirmative action programs, contending that by adopting goals and timetables for minority or women recruitment, they're not providing a preference.

But such a defense may be difficult to mount, some critics of the initiative conceded.

``My guess is goals and timetables are troubling under 209, because they require to have race and sex in mind when you make individual hiring decisions,'' Caminker said.

He said it's hard to say how far local officials will go in defending their programs.

``It may be that some of them will stick to their guns,'' Caminker said. ``It may be that others will now say, the writing is on the wall, now we've got to do something.''

Another murky legal area is how far state and local officials can go in scaling back programs without running afoul of federal affirmative action guidelines, which supercede the initiative.

``You may end up having situations where local and state agencies think they might get sued no matter what they do,'' Caminker said.

Federal officials aren't sure themselves what impact their regulations will have on officials trying to put the initiative into practice.

``It's really too soon to say,'' a Labor Department official said.

But initiative proponents said that federal regulations forbid discrimination, but don't mandate preference programs. The initiative allows for programs to continue if they are necessary to prevent a cutoff of federal funds.

``Fortunately the federal government never says, `If you take federal money you must have a goal of 10 percent black,' '' said Eugene Volokh, an adviser to the initiative's proponents.

Ward Connerly, a leading proponent of the measure, conceded there would be new battles ahead, but said he expects to win such cases. He took a verbal swipe at San Francisco Mayor Willie Brown Jr., who earlier vowed to defend his city's preference programs.

``I just have no doubt that in case after case, they'll strike it down,'' Connerly said. ``Two to three years from now, the Willie Browns of this world will get the message.''

In refusing to hear the case, the court let stand last summer's ruling by a federal appeals court that the measure did not infringe on the rights of women and minorities by outlawing preferential treatment.

The ruling struck down a lower court's decision that held up implementation of the initiative for months.

At a Sacramento news conference Monday, Connerly called for opponents of the initiative - including President Clinton - to concede defeat.

``It says to the president and to others who are challenging Proposition 209 - you ought to give up the fight,'' Connerly said.

He said civil rights activists instead should focus on rooting out ``garden variety discrimination'' that occurs when people are excluded from jobs or other opportunities on the basis of race or sex.

``We have to start getting into people's hearts and minds,'' Connerly said.

Rosenbaum argued that the initiative had taken away one of the government's best tools for remedying discrimination. He said the initiative, as well as a separate decision by the University of California to end the use of gender and race in admissions, already was hurting minority representation.

San Diego, which moved earlier to implement the initiative, has seen the number of minority contractors on city jobs drop. The University of California, Berkeley, law school saw only one new African-American student start classes this year, he said.

``The welcome mat has been removed for minorities and women to this state,'' he said.

But Connerly maintained that reverse discrimination in the form of preferences is not the answer.

``It is not only poisonous, it is destructive for us to be treating each other differently because of our skin color,'' Connerly said.