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Affirmative Action Ban Is Upheld

By William Claiborne
Washington Post Staff Writer
Wednesday, April 9 1997; Page A01

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

In a strongly worded decision that reflected the politically charged nature of the issue, the three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco said there is "no doubt" the measure is constitutional. The judges unanimously ordered the lifting of a lower court injunction blocking enforcement of Proposition 209. The initiative adopted last November, 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 declared, referring to a Dec. 23 ruling by U.S. Chief District Judge Thelton Henderson that the initiative was probably unconstitutional.

Today's decision is scheduled to take effect in 21 days, but affirmative action advocates said they will ask a larger panel of the 9th Circuit to continue the ban on enforcement while the case is appealed.

President Clinton said during a White House news conference that if states are precluded from taking special measures to help disadvantaged people, "I think that will be a mistake." Clinton, who argued against Proposition 209 and had the Justice Department oppose it on appeal, added: "I think we'll all have to regroup and find new ways to achieve the same objective."

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 to conclude that by adopting the equal protection clause of the 14th Amendment, the voters of the state thereby had violated it . . .

"After all," the ruling said, "the goal of the 14th Amendment, to which the nation continues to aspire, is a political system in which race no longer matters."

The panel stressed that women and racial minorities constitute a majority of the California electorate and said that Proposition 209 was a neutrally applied law.

"As a matter of 'conventional' equal protection analysis, there is no doubt that Proposition 209 is constitutional. The ultimate goal of the equal protection clause is to do away with all governmentally imposed discrimination based on race and gender. When the government prefers individuals on account of their race or gender, it disadvantages individuals who belong to another race or gender," the court said.

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

Reaction was swift. The American Civil Liberties Union, which represented minority and women public employees, contractors and students in challenging Proposition 209, called the decision a "diatribe against affirmative action." ACLU legal director Mark Rosenbaum called the decision a "grave disappointment," saying it is "obviously and dramatically incompatible with decades of mainstream Supreme Court decisions guaranteeing women and minorities equal participation in the political process."

Elizabeth Toledo, California coordinator of the National Organization for Women, said the decision was "disappointing but not surprising."

But supporters of Proposition 209 hailed today's ruling as a vindication of their position and a major boost for similar ballot initiatives in other states.

"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. "They now know that they would be on the side of the angels if they were to move ahead with their campaigns. It's a tremendous encouragement to them."

Connerly said Washington state and Florida are farthest along with proposed anti-affirmative action initiatives and that campaigns are also underway in Arizona, Colorado, Ohio and Michigan.

Calling the ruling a "dagger in the heart of preferences" and a "huge step forward for California and indeed the whole country," Connerly nonetheless said further appeals – most likely ending up in the U.S. Supreme Court – will require vigilance by opponents of affirmative action. "Now the heavy lifting begins," he said.

Thomas Wood, co-author of Proposition 209 and executive director of the conservative California Association of Scholars, said he was contacting leaders of anti-affirmative action campaigns in other states because "a lot of people had become demoralized, thinking that the courts would just overturn any initiative they put on the ballot. This has got to help the efforts in other states."

Gov. Pete Wilson (R) said the appeals court had "flatly rejected the Orwellian reasoning that says that a ban on discrimination is an act of discrimination." He called the decision a "victory for every Californian [and] for every man, woman and child who asks only that he or she be treated equally and fairly under the law" on the basis of merit.

The battle is being watched closely by college administrators, who are facing growing pressure to scrap or limit racial preferences in admissions. Even before Proposition 209, California's Board of Regents, which governs the giant University of California system, had banned the use of affirmative action in enrollment and hiring, beginning in spring 1998.

Some higher education officials said the ruling could lead to ballot measures about affirmative action in other states. "I would expect this to give more impetus to those kind of efforts," said David Merkowitz, a spokesman for the American Council on Education, representing more than 1,300 universities.

The three-judge panel said Henderson had relied on an "erroneous legal premise" when he concluded that the measure would probably be found unconstitutional.

In issuing the original injunction, Henderson, an appointee of President Jimmy Carter, said that Proposition 209 would abolish only programs that benefited minorities and women and that those groups would have to seek redress through a new state constitutional amendment. However, he said, those seeking preferences on such grounds as age, disability or veteran status could continue to lobby for preferences from local or state agencies.

Garrett Epps, a University of Oregon law professor, noted today that the Proposition 209 case brings into conflict rulings from cases involving political participation and those involving minority contracting policies.

"We will soon find out where the Supreme Court stands on this whole issue, whether the equal protection clause will be read to be some color-blind commandment."

Staff writers Rene Sanchez and Joan Biskupic in Washington and special correspondent Cassandra Stern contributed to this report.

© Copyright 1997 The Washington Post Company

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