November 30, 1996 in Nation/World

In Wake Of Ruling, Prop. 209 On Track To Supreme Court Displeased Gov. Wilson Will Continue Affirmative Action Review

Carol Ness San Francisco Examiner
 

A federal judge’s order temporarily blocking Proposition 209 sets the anti-affirmative-action initiative on a familiar and lengthy legal course to the U.S. Supreme Court.

While opponents of the law crowed, proponents, including Gov. Pete Wilson, expressed confidence that they would win in the end.

A constitutional law expert said both sides had strong legal arguments, but “chances are better than not” that Prop. 209 ultimately would be upheld as constitutional in higher courts.

Practically speaking, officials in cities such as San Francisco said Wednesday’s federal court order told them they were on the right course in sticking with their affirmative action programs despite Prop. 209. The new law would end race- and gender-based preferences in state and local hiring, contracting and school admissions.

Wilson’s office said the court order would not prevent the governor from continuing his review of state affirmative action programs that might be affected by Prop. 209.

And the University of California, where the deadline for the first round of applications that could be affected by 209 is Monday, urged the courts to “keep the interest of students and their families in mind” and provide prompt guidance.

Wednesday, acting on a class-action lawsuit filed by a coalition of civil rights, minority and women’s groups, Chief U.S. District Judge Thelton Henderson in San Francisco issued a temporary restraining order, blocking Prop. 209 at least until he hears arguments for a preliminary injunction Dec. 16.

Opponents of the law, passed by 54 percent of state voters Nov. 5, had “demonstrated a strong probability of success” in proving that it violated the equal protection and supremacy clauses of the U.S. Constitution, wrote Henderson, based on three hours of arguments in the case Monday.

He rejected the state’s argument that the measure, in banning all racial and gender preferences, couldn’t be discriminatory.

“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.”

Wilson called the order “an affront to common sense (that) distorts the purpose of the amendment.”

He added, “I am confident that the will of the voters will ultimately prevail.”

Robert Corry, an attorney for the Pacific Legal Foundation, a party to the pro-209 side, said they would have new arguments for the judge on Dec. 16.

Opponents’ legal arguments are frivolous and require incredible mental gymnastics, he said. “I don’t think the judge is going to fall for that.”

Attorneys from the American Civil Liberties Union and the Employment Law Center, representing the anti-209 coalition, were optimistic as well.

“As lawyers, we’re always happy to have a judge say it looks like you’re going to win,” said Bill McNeill of the Employment Law Center in San Francisco.

Because the order directly affects only Wilson and Attorney General Dan Lungren, it has no immediate impact on cities and counties, which are in a quandary about changing their affirmative action programs.

San Francisco hasn’t made any changes since Prop. 209 passed because it believes its programs, including minority contracting, already comply with the law, according to Deputy City Attorney Scott Emblidge.

The order also has no immediate effect at the University of California, where decisions will begin soon on applications from students seeking to enter next fall. After Prop. 209 passed, UC moved up its end to race and gender preferences in admissions from spring 1998 to fall 1997.

Attorneys for the anti-209 side have said that when they go back to court, they will seek to extend the reach of the court order to cover UC, San Francisco and every other government entity affected by Prop. 209.

James E. Holst, vice president of legal affairs for UC, said, “Our most immediate concern is to provide students who are now applying … with a clear understanding of the criteria to be used in the selection process.” Decisions will begin soon, he said.

On the basis of the Dec. 16 hearing, Henderson will decide whether to expand his order and issue a preliminary injunction blocking 209 until the Supreme Court decides its fate.

At Boalt Hall Law School at the University of California at Berkeley, Constitutional Law Professor Jesse Choper said Henderson had strongly signaled he is likely to issue an injunction - and eventually declare 209 unconstitutional. Both decisions can be appealed to the 9th Circuit Court of Appeals.

He said Henderson’s order was “based on a plausible argument made to a judge who would be sympathetic to hearing it. … Whether it will ultimately prevail or not is a different issue.”

A less sympathetic judge, he said, might find that affirmative action is different enough from busing that the Seattle case Henderson based his order on would not prove decisive.

“Predictions are always hazardous,” Choper said, “but it’s likely this case will go to the Supreme Court, and chances are better than not that they’ll uphold 209. But it’s close.”


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