The Ninth Circuit has just held that section 703(i) of the Civil Rights Act of 1964 does not preempt the Alaska constitution's equal protection provisions, which the Alaska Supreme Court has held to prohibit a local government's affirmative action program that favored Native Americans very strongly in public employment. Section 703(i) provides that Title VII does not prohibit businesses or enterprises on or near reservations from having policies that prefer Native Americans. The Ninth Circuit held that the Alaska constitution, as interpreted by the Alaska S Ct, is not inconsistent with the purposes of Title VII or of section 703(i) so as to be preempted under the narrow preemption provisions of the Civil Rights Act.
Because the case could be decided on state law grounds (and thus the injunction against the program could be affirmed), the Ninth Circuit did not need to reach the question whether the local program violated the 14th Amendment--thus no discussion of Grutter. The case, Malabed v. North Slope Borough, can be found at http://www.metnews.com/sos.cgi?0703%2F9935684. The Ninth Circuit did not address Romer or any theory that a statewide rule improperly undermined Native Americans' political power at the local level. The affirmative action program was, as I said, very strong: a qualified (or even a potentially qualified) Native American was always to be preferred to a non-Native American, no matter what the non-Native American's qualifications; it was much more heavy-handed than the U. of Michigan undergraduate admissions program that violated the 14th Am. Nevertheless, I thought list members might be interested in discussing Romer or protection for minority local political power as they relate to facts like those in Malabed. Mark Scarberry Pepperdine
