Judge Squelches Ban On Affirmative Action Says California Law Probably Illegal Because Only Certain Groups Are Affected

TUESDAY, DEC. 24, 1996

A federal judge on Monday blocked enforcement of Proposition 209 until courts rule on the constitutionality of the initiative, freezing for at least a year implementation of the voter-approved ban on affirmative action.

The preliminary injunction by U.S. District Judge Thelton Henderson means that local governments and the University of California system, which were preparing to scrap affirmative action programs must abandon immediate plans to do so. In his ruling, Henderson said he found a “strong probability” that the measure would be proven unconstitutional.

The California Civil Rights Initiative, a constitutional amendment which won 54 percent of the vote in November, outlaws consideration of race or gender in government hiring, university admissions and awarding public contracts.

Henderson had earlier delayed implementation of the initiative, putting a temporary restraining order into effect Nov. 28. The new preliminary injunction goes beyond that and effectively stops enactment of the law until a final legal conclusion - which will probably come from the U.S. Supreme Court, perhaps as early as next year.

Henderson’s decision has wide implications not only to California but for other states considering similar initiatives. Indicative of its importance, the Clinton administration announced last week that it will join the legal challenge to the initiative, saying Justice Department attorneys fear it could undermine federal civil rights policy.

In his ruling, Henderson essentially agreed with arguments by the American Civil Liberties Union, which is leading the challenge to the proposition. The ACLU maintains that the initiative violates the “equal protection” clause of the 14th Amendment because it only does away with programs benefiting minorities and women while leaving intact preference programs for the disabled and the elderly.

As a result, the ACLU argues, the initiative denies minorities and women the ability to ask their governments for programs that would help them overcome lingering discrimination.

Henderson agreed.

“What a state may not do … is single out an issue of special interest to minorities and women and require that such legislation run a unique political gauntlet,” the judge wrote.

Civil rights groups “have demonstrated a probability of success” on their contention, he wrote. To put the law into effect now may risk irreparable harm to women and minorities if the initiative is later deemed unconstitutional, he said.

Supporters of Proposition 209 said they plan to appeal.

“We find it amazing that he could ignore the wording of the 1964 Civil Rights Act, from which we took our wording,” Ray Batz, spokesman for the California Civil Rights Initiative, told the Associated Press. “No one has ever found the 1964 Civil Rights Act unconstitutional.”

Henderson’s ruling mirrored an indefinite stay placed by a federal judge on most parts of Proposition 187 after it passed in 1994. That initiative, which would deny most public benefits to undocumented immigrants, remains tied up in federal courts.

The similar lengthy battle is ahead for Proposition 209.

The next level in the fight will be the 9th U.S. Circuit Court of Appeals. There, the case will probably be expedited because it involves a preliminary injunction and justices could render a decision by late summer, a court clerk there said.

That decision would be almost certain to be appealed to the U.S. Supreme Court.

xxxx THE PROPOSITION Proposition 209 states: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.”


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