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Judge Blocks Measure On Affirmative Action

By William Claiborne
Washington Post Staff Writer
Thursday, November 28 1996; Page A01

A federal judge today temporarily blocked enforcement of California's ballot initiative to dismantle affirmative action, saying there is a "strong probability" that it will be proven unconstitutional and permanently struck down.

Saying he did not lightly decide to negate the will of the electorate, Chief U.S. District Judge Thelton Henderson in San Francisco issued a temporary restraining order against Proposition 209, which was approved by 54 percent of the state's voters on Nov. 5.

His order bars implementation of the ballot measure, which would prohibit racial or gender preferences in public employment, education or contracting, at least until a hearing on Dec. 16.

But Henderson said the evidence presented to him so far "strongly suggests" that the proposition violates the equal protection clause of the 14th Amendment to the Constitution because it disadvantages women and racial minorities who seek relief from discrimination, but not members of other groups.

Gov. Pete Wilson (R), who with state Attorney General Dan Lungren (R) was enjoined from enforcing the ballot measure, called the ruling "an affront to the overwhelming majority of California voters." Wilson said it was also "an affront to common sense to declare that a proposition which prohibits discrimination against all races is in violation of the 14th Amendment, which itself is designed to eliminate discrimination."

But Mark Rosenbaum, legal director of the American Civil Liberties Union of Southern California, which filed suit against the proposition, hailed the ruling as a "tremendous victory that stops Proposition 209 in its tracks."

"Thanksgiving came a day early in California," Rosenbaum said. "The governor has had his race card removed." Wilson, who made a brief run for the Republican presidential nomination, was an outspoken advocate of the ballot initiative, as was Robert J. Dole in the waning days of his presidential campaign.

Henderson's six-page ruling left little doubt that he is inclined, at this point, to accept the argument advanced by civil rights groups that the measure selectively bars women and racial minorities from seeking redress through affirmative action programs, while those seeking preferences on such grounds as age, disability or veteran status face no such barriers.

The rights groups contend that if Proposition 209 were implemented, women and racial minorities would be forced to seek another initiative to amend the California Constitution to gain access to affirmative action programs.

Proposition 209 states simply that "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting."

Despite its seemingly neutral language, the measure would effectively eliminate scores of affirmative action programs in state agencies and educational institutions. Such programs cost more than $125 million annually, according to the state Legislative Analyst's Office.

The key question, Henderson said in his ruling, is whether the burden of Proposition 209 falls unfairly on women and racial minorities and forces them to "surmount a higher political hurdle" than other groups in seeking relief from discrimination.

Quoting a 1981 U.S. Supreme Court ruling overturning an anti-busing ballot initiative in Washington state, Henderson said it appeared that "the community's political mechanisms have been modified [by Proposition 209] to place effective decision-making authority over a racial issue at a different level of government" than for other groups.

On that relatively narrow basis, the judge said, the plaintiffs have "demonstrated a strong probability of success on the merits" of their equal protection claim. Henderson said there was no need for the civil rights groups to demonstrate irreparable injury – the usual requirement for court injunctions – because they had strongly indicated a deprivation of a constitutional right.

© Copyright 1996 The Washington Post Company

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