Court Upholds Ban On Affirmative Action ‘No Doubt’ That California Plan Is Constitutional, Judges Rule

A federal appeals court, siding with opponents of affirmative action, Tuesday upheld California’s voter-approved ban on preferences based on race and gender.

In a strongly worded decision, a three-judge panel of the 9th Circuit Court of Appeals in San Francisco said there is “no doubt” the measure is constitutional.

The judges unanimously ordered the lifting of an injunction blocking enforcement of Proposition 209. The initiative, making California the first state to attempt to roll back affirmative action, bars preferential treatment and discrimination in public hiring, contracting and education.

“A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy,” the court said, referring to a Dec. 23 ruling by U.S. District Judge Thelton Henderson that the plan was probably unconstitutional.

Affirmative-action advocates said they will ask a larger panel of the 9th Circuit to continue the ban while the case is appealed.

The judges emphasized that the equal-protection clause of the 14th Amendment was intended to end government discrimination based on race.

They said it would be paradoxical if California voters had violated the clause by requiring all people to be treated equally and barring any preference based on race or sex.

The three-judge panel is especially conservative when compared to the generally liberal 9th Circuit. Diarmuid F. O’Scannlian and Edward Leavy were both appointed by Ronald Reagan; Andrew J. Kleinfeld was named by George Bush.

The American Civil Liberties Union’s legal director, Mark Rosenbaum, called the decision a “grave disappointment.”

But supporters of Proposition 209 hailed Tuesday’s ruling.

“A number of states we’ve talked with had started to slow down their efforts because of (Henderson’s) decision,” said Ward Connerly, former chairman of the Proposition 209 campaign. The ruling “is a tremendous encouragement to them.”

Connerly said Washington state and Florida are furthest along with proposed bans on affirmative action.