>Reply-To: Discussion list for con law professors <[EMAIL PROTECTED]> >To: [EMAIL PROTECTED] >Subject: Statewide limits on local affirmative action programs: Malabed v. North Slope Borough >Date: Tue, 8 Jul 2003 18:59:54 -0700 > >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 >PepperdineThank you to Mark Scarberry for this posting.
In the second to last paragraph of the opinion, Judge Gould states "[w]ere Congress to act with a clear purpose to prohibit the states from barring discrimination in favor of Native Americans in employment, we would be faced with a different issue than that presented here," and then states in the accompanying footnote 9 that "[i]f such a clear congressional purpose to preempt were established, we would be faced with difficult federal constitutional issues regarding the permissibility of Native American hiring preferences."
Could any list-members please suggest (by on- or off-list reply) good scholarship that addresses the constitutional issues surrounding Native American hiring preferences?
Thank you.
- Ariel Waldman
>From: "Scarberry, Mark" <[EMAIL PROTECTED]>
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