Jewish 209 foes regroup to continue fight for equality

In the wake of this week's federal court decision to uphold Proposition 209, Jewish opponents of the anti-affirmative action measure say they will redouble efforts to stem any inequities resulting from its becoming law.

"Certainly this is discouraging news, but it's not going to stop our prodigious efforts to ensure opportunities for everyone," said Tracy Salkowitz, executive director of the regional American Jewish Congress, which joined a multiethnic coalition to defeat the measure.

A 9th U.S. Circuit Court of Appeals panel Tuesday unanimously upheld the proposition, also called the California Civil Rights Initiative.

The initiative bars the state from showing preference to women and minorities in hiring, awarding contracts and college admissions.

The three-judge panel ruled that the measure does not violate the Equal Protection Clause of the U.S. Constitution.

In so ruling, the panel overturned a temporary restraining order by Chief U.S. District Court Judge Thelton Henderson, who acted on a lawsuit filed the day after the Nov. 6 election by a coalition of civil rights, minority and women's groups.

David Oppenheimer, a professor of law at Golden Gate University Law School who wrote a friend-of-the-court brief in the suit on behalf of AJCongress, said he wasn't surprised by the appeals court ruling. But he was dejected nonetheless.

"Hope springs eternal," said Oppenheimer, adding that the legal battle over the measure is likely not over.

Opponents of Prop. 209 can now request that a larger appeals court panel consider their case; they can also directly petition the U.S. Supreme Court. Opponents have already said they plan to appeal.

The measure's legal future may hang in the balance, but passionate opinions on both sides of the issue remain as steadfast as ever. Gov. Pete Wilson and other supporters hailed the decision this week; others offered somber warnings.

"I think it's at the heart of what it means to be a Jew in a multiracial and multicultural society that we honor the story from the Haggadah of our quest for freedom," Oppenheimer said.

"We're not free until all people are free and 209 is a terrible step backwards in the struggle for freedom."

Rabbi Alan Berg of Peninsula Temple Beth El in San Mateo echoed the sentiment, adding that whatever happens with Prop. 209, Jews can seize the opportunity to consider the issues it raises — and act on them.

"The question is can we as Jews be more involved in creating opportunity situations, opening doors everywhere? I think we can," Berg said.

"What we can do is build coalitions aggressively, coalitions that have as their goals economic opportunity and educational opportunity."

From its inception, Prop. 209 became a hot-button issue in the Jewish community.

Numerous synagogues and Jewish organizations sponsored forums and debates on the issue. Some rabbis even spoke about it from their pulpits.

Much of the organized Jewish community came out against the measure and informal surveys showed that more Jewish voters statewide opposed it than supported it.

But many agree that the Jewish community has been far from monolithic on the controversial measure.

In fact, one of the bill's co-chair, state Sen. Quentin Kopp (Independent-S.F.), is Jewish. He insisted the bill will do nothing to undercut affirmative action as it was outlined in the Civil Rights Act of 1964.

Another Jewish supporter, attorney Lawrence Siskind, has agreed. In an October debate on Prop. 209 at Congregation Emanu-El in San Francisco, the former Reagan and Bush Justice Department appointee asserted that "affirmative action won't be banned by CCRI."

To him, the measure refers to "outreach efforts and a careful re-examining of hiring and admission criteria. We still need those today. This is a debate about preferences, not affirmative action."

Now that the debate is being continued in the legal realm, others, such as Mark Schickman, believe Prop. 209 may bring dire consequences.

"I think that putting 209 into action is going to result in more, not less, discrimination," said Schickman, president of the San Francisco Bar Association and a vice chair of the S.F.-based Jewish Community Relations Council, "and more, not less, prejudice."

Leslie Katz

Leslie Katz is a former J. staff writer.