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

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

By MAURA DOLAN

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 in junction 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.

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." "To say that an initiative which grants equal treatment under the law to all citizens grants a privilege to some is doublespeak at its worst," Connerly said, "and represents contempt for the constitutional principle of equality." University of California attorneys and senior managers had not received a copy of the ruling to review before leaving for the Christmas holidays, said UC spokes man Rick Malaspina. "But if the injunction is consistent with the restraining order, the university will revert to the policies and plans that were in place before the election," Malaspina said. That means UC admissions officers would use race and gender for the last time in evaluating applicants for the fall 1997 freshman class for the nine-campus, 164,000 student system. Next year, UC officials are scheduled to phase in a UC regent imposed ban on affirmative action, starting with 1998 admissions. Malaspina said he did not anticipate a final determination on 1997 admissions criteria until after Christmas, when UC attorneys can fully evaluate the judge's ruling Henderson, who was appointed by Democratic President Jimmy Carter, is regarded as a cautious liberal. He was the first African American appointed to the district court here and the first to administer the courts as chief judge, a position obtained by seniority. He attended law school at UC Berkeley and served as an assistant dean for several years at Stanford University's law school. State officials have filed a motion asking Henderson to step aside and allow a California state court to interpret Proposition 209. That motion will be heard in early January.

The sponsors of Proposition 209 also have submitted a request that Henderson be removed be cause he served on the ACLU Board of Directors briefly 20 years ago and until 1992 retained mem bership in another civil rights group that favors affirmative ac tion. Henderson has declined to step down and has asked the clerk of the court to assign another judge to rule on the request. When Henderson granted a temporary restraining order last month against the proposition, a state lawmaker derided him as an example of why affirmative action benefits the unqualified, and Wilson called the ruling an affront to voters.

Civil rights lawyers had argued that the law is unconstitutional because it preempts federal civil rights policies and bars women and minorities from seeking govern ment remedies from discrimination while allowing all other groups, including the aged and the disabled, such access. Led by the ACLU, those lawyers have been trying to divert the arguments away from affirmative action, framing the case instead as a question of egual access to gov ernment. The Clinton administration gave them a boost last week, announcing that the U.S. Justice Department would join the ACLU, either as a party to the litigation or as a friend of the court, in arguing against Proposition 209. State lawyers contend that the law simply bans all kinds of discrimination and therefore could not possibly violate equal protection rights. State officials maintain that victims of discrimination can still seek redress by asking for reconsideration of a contract or employment decision or by filing a lawsuit.

Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu