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U.S. Judge Blocks Enforcement of Prop. 209 in State

Courts: His injunction prevents implementation of the anti-affirmative action ban pending a trial or final ruling. State will; Wilson says he is 'deeply disappointed.'

December 24, 1996|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — Dealing another blow to opponents of affirmative action, a federal judge Monday blocked enforcement of Proposition 209 indefinitely, ruling that the initiative passed by 54% of California voters is probably unconstitutional.

Chief U.S. District Judge Thelton E. Henderson granted a preliminary injunction that prevents the state, the University of California and local governments from implementing the November ballot measure pending a trial or final ruling on its legality. UC plans to phase in its own ban on affirmative action in 1998.

"It is not for this or any other court to lightly upset the expectations of the voters," Henderson wrote in a 67-page ruling. "At the same time, our system of democracy teaches that the will of the people, important as it is, does not reign absolute but must be kept in harmony with our Constitution."

Henderson, a former civil rights lawyer, had previously issued a temporary restraining order against the measure. But an injunction carries more legal weight because it stays in effect until the case is finally resolved or until a higher court overturns it.

State lawyers will appeal the injunction and a lengthy legal fight is expected by many. Gov. Pete Wilson said he was "deeply disappointed" by Henderson's decision but declared that it came as "no surprise" that a judge who served on the board of the American Civil Liberties Union 20 years ago would "endorse the ACLU's Orwellian argument."

"This decision, however, will not stand," said Wilson, describing Henderson's legal analysis as "surreal."

Atty. Gen. Dan Lungren also refused to concede defeat.

"This is only the first of a many-round fight," Lungren said. "The final battle is far from decided."

While awaiting a ruling on the injunction from a higher court, state officials have said, they will press Henderson to decide the case as quickly as possible in hopes that the U.S. Supreme Court can review it within two years. A majority of the Supreme Court has been dubious of affirmative action, and supporters of Proposition 209 are hopeful that the measure will be declared constitutional by the high court.

Delay could work to the advantage of civil rights groups and other opponents, as long as the injunction remains in force. A trial in Henderson's district court in San Francisco could take one or two years, and the makeup of the Supreme Court might change in the meantime, tipping the balance in favor of affirmative action.

In blocking the measure, Henderson wrote that civil rights lawyers demonstrated a "probability of success" in their claim that the initiative violates equal protection guarantees and a "likelihood of success" with the argument that it illegally interferes with federal civil rights policy.

He relied in part on a 1982 Supreme Court ruling that struck down a Washington state initiative barring voluntary race-based school busing.

Proposition 209, like the Washington initiative, was a state constitutional amendment. It cannot be changed without a statewide vote of the electorate.

Henderson stressed that his ruling does not determine whether affirmative action is right or wrong or affect the ability of government entities to repeal affirmative action programs voluntarily.

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Rather, he said, the problem lies with "the particular method" Proposition 209 uses to ban affirmative action. By requiring a future statewide vote to win relief from discrimination, the measure creates a significant hurdle for women and minorities while leaving other groups unfettered, he said.

"The primary practical effect of Proposition 209 is to eliminate existing governmental race- and gender-conscious affirmative action programs in contracting, education and employment and prohibit their creation in the future, while leaving governmental entities free to employ preferences based on any criteria other than race or gender," Henderson wrote.

Some legal analysts believe the constitutional issue cited by Henderson is sufficiently close that a panel of more conservative judges on the U.S. 9th Circuit Court of Appeals might overturn the injunction and even decide the constitutionality of the measure without any more rulings by Henderson.

But other analysts note that appellate courts rescind injunctions only sparingly and only if the trial judge has clearly committed an error.

Mark Rosenbaum, legal director of the ACLU of Southern California, called the ruling "historic" and pronounced the opponents "ready to go to trial."

The ruling shows that "in a constitutional democracy, the political process has to remain open to everyone, including minorities and women," said Rosenbaum, one of the lawyers who argued the case against the proposition.

But Ward Connerly, a UC regent and one of the sponsors of Proposition 209, said Henderson's decision "will be recorded in the history of American jurisprudence as one of the most perverse."

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