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Proposition 209 Placed On Hold By Judge California Initiative Would Dismantle Affirmative Action

Thu., Nov. 28, 1996

A federal judge blocked enforcement on Wednesday of a California initiative to dismantle affirmative action, saying civil rights groups have a “strong probability” of proving it unconstitutional.

Chief U.S. District Judge Thelton Henderson issued a temporary restraining order barring Gov. Pete Wilson and Attorney General Dan Lungren from taking any action to enforce Proposition 209, at least until a hearing Dec. 16.

The ballot initiative, approved by nearly 55 percent of California’s voters on Nov. 5, amends the state’s constitution to ban race and gender considerations in public hiring, contracting and college admissions.

State lawyers argued that Proposition 209 cannot be discriminatory because it requires equal treatment. But the lawsuit claims that despite its neutral wording, it would eliminate only programs that benefit women and minorities.

Henderson’s order said the civil rights groups that filed the lawsuit had “demonstrated a strong probability of success.”

“Courts must look beyond the plain language of an enactment,” the judge wrote. “The relevant question is whether, in reality, the burden imposed by a law necessarily falls on minorities and women.

The restraining order does not apply directly to local agencies or to the University of California, which already has taken steps to notify new applicants that race and gender will no longer be considered.

Henderson specified that Wilson could continue to ask state agencies to identify affirmative action programs potentially affected by Proposition 209. The initial review was scheduled to be completed today.

Legal experts say it could take a year or more before there is a definitive ruling.


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