Affirmative action's end put on hold Federal judge orders California not to put Prop. 209 into effect

Constitutionality at issue

Temporary ruling suggests rights groups may win their case

November 28, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- A federal judge temporarily barred California yesterday from putting into effect a measure approved by voters there to wipe out most affirmative action by government agencies and colleges in the nation's largest state.

Chief U.S. District Judge Thelton E. Henderson of San Francisco, taking the first formal action in a case almost certainly bound for the Supreme Court, said that Proposition 209 would probably be struck down as unconstitutional.

He suggested that the challengers would be able to prove that the measure discriminates against women and members of minority groups because it targets only those affirmative action programs that benefit those two groups.

Henderson's order against one of the nation's widest-ranging political attacks on public benefits for the two groups will remain in effect until Dec. 16, when he will hold a hearing to decide whether to issue a formal ban on its enforcement.

The judge's temporary order yesterday cannot be appealed. If he does impose a formal ban next month, state officials would be free to take the issue on to a federal appeals court, and then to the Supreme Court.

Nearly 9 million Californians voted on the ballot initiative early this month and it passed with more than 54 percent approval: 4.7 million votes to 3.9 million. It essentially would dismantle, at the state and local level, all "preferential treatment" in public jobs, education and contracting based on race, sex, ethnic background or national origin.

"It is not for this, or any other, court to lightly upset the expectations of the voters," Henderson wrote. But, he went on, federal courts "have no role more important than to uphold the federal Constitution," even if it frustrates the voters' will.

But it is not up to the courts, the judge stressed, to decide whether affirmative action is right or wrong.

His preliminary ruling was that the civil rights groups that challenged Proposition 209 "have demonstrated a probability" that in coming weeks they will win their claim that the measure is an unconstitutional form of discrimination and shuts off women and members of minority groups from political maneuvering to secure laws to protect them from bias.

"The continuation of a few days of affirmative action programs already in place does not impose any undue hardship on the state of California," the judge said.

Lisa Kalustian, speaking for Gov. Pete Wilson, the measure's most outspoken supporter in state government, called the ruling "an affront to common sense."

The order is aimed directly at Wilson and at the state attorney general, barring them from any move to cut off existing affirmative action programs.

Wilson and other advocates of Proposition 209 have argued that the measure does not discriminate against anyone but rather promotes equality.

The governor had gone to state court to seek orders to start the dismantling process and had refused to accept a moratorium on enforcement of Proposition 209 while the court challenge continued.

'Extremely encouraged'

Mark Rosenbaum, legal director of the American Civil Liberties Union-Southern California, which joined a coalition of groups that challenged Proposition 209 in court the day after the election, said yesterday: "Thanksgiving came a day early in California. We are extremely encouraged."

Henderson made clear that he will explore more deeply the constitutional challenge as the case moves forward next month. He emphasized that he was acting now only because the actions by the governor and other state officials threatened "an immediate possibility of irreparable harm" to members of minority groups and women in the state.

Main legal basis

The main legal basis for the order was Henderson's conclusion that Proposition 209 appears to force women and members of minority groups who seek affirmative action to win statewide voter approval for a state constitutional amendment.

By contrast, veterans, the elderly and the disabled remain free to seek simple legislation to win preferences in jobs, college admissions or contracts.

"As a result of the passage of Proposition 209, the community's political mechanisms have been modified to place effective decision-making authority over a racial issue at a different level of government," the judge said, noting that the Supreme Court had forbidden that kind of measure in a 1982 ruling that struck down a Washington state initiative against the use of school busing to end racial segregation.

The judge rejected the argument of state officials that Proposition 209 was merely a neutral approach that sought only to assure equal access to government jobs, education and contracting.

Courts, Henderson said, "must look beyond the plain language of an enactment" to see if it imposes a burden on women and members of minority groups.

He found, temporarily, that this measure did just that.

As a practical matter, the fight over Proposition 209's constitutionality seems likely to be tied up in the courts for years, following the pattern set by a challenge to a 1994 California voter initiative -- Proposition 187 -- to deny many public services to illegal immigrants.

Most of that measure, too, was temporarily barred, and federal courts have yet to rule finally on its constitutionality.

Pub Date: 11/28/96

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