A federal appeals court last week upheld an amendment to California’s constitution that bars public colleges and other government agencies from granting preferences based on gender or race.
In a unanimous ruling, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rejected a lower court’s conclusion that the amendment, passed last November as Proposition 209, appeared to violate the U.S. Constitution’s equal-protection clause and other federal laws.
Concluding that the advocacy groups that challenged the amendment’s legality"have no likelihood of success,” the appeals court nullified a preliminary injunction that U.S. District Court Judge Thelton E. Henderson issued in December to block enforcement of the amendment pending a trial.
“Proposition 209’s ban on race and gender preferences, as a matter of law and logic, does not violate the Equal Protection Clause in any conventional sense,” said the appeals court’s decision, which was written by Judge Diarmuid F. O’Scannlain.
Also known as the California Civil Rights Initiative, the ballot measure prohibits state and local agencies, including public colleges and universities, from using racial and gender preferences in decisions about hiring, contracting, admissions, and financial aid.
The three judges on the appeals panel concluded that the amendment’s provisions actually mirrored the equal-protection rights guaranteed by the Fourteenth Amendment. They rejected assertions by the plaintiffs -- which included the American Civil Liberties Union and other labor and civil-rights groups -- that the measure placed unfair burdens on female and minority residents when they seek government remedies for discrimination.
“No one contends that individuals have a constitutional right to preferential treatment based solely on the basis of their race or gender. Quite the contrary,” it said.
Lawyers for the plaintiffs plan to appeal the ruling within two weeks to an 11-member panel of judges in the Ninth Circuit. Regardless of the outcome, many legal experts believe the case wils eventually be brought before the U.S. Supreme Court.
If the decision stands and Proposition 209 remains in effect, it is expected to lead, at least in the short term, to significant declines in the enrollment of black and Hispanic students at the University of California. Its opponents contend that it will also bring about the end of many programs for minority students in that university system, in the California State University System, and at state community colleges.
University officials said last week that they were still analyzing the ruling and were unprepared to respond to it at length. A spokeswoman for California State University, Colleen A. Bentley-Adler, said that"we don’t expect that it will have an immediate impact” because it is virtually certain to be appealed."Whatever the final outcome is, we obviously will comply with the law,” she said. California State has put off actions to comply with the constitutional amendment until it receives a clear signal to do so from the courts.
Officials at the University of California said that last week’s ruling would have no effect on undergraduate admissions decisions for the coming fall, which already had been made in recent weeks."They are so far along that we have sent them out, and we are starting to get back letters of intent to enroll,” said Terry Lightfoot, a spokesman for the university.
As a practical matter, the U.S. District Court’s injunction will remain in effect at least for the 21 days that the appeals court gave the plaintiffs to appeal the decision. The legal battle over the amendment is expected to drag on for months, perhaps years, and the courts could continue to block its enforcement during that time.
Nevertheless, last week’s ruling was hailed as a major victory by supporters of Proposition 209, which 54 per cent of the state’s voters had approved.
“This ruling vindicates the will of the people, who want the government out of the race- and gender-preference business,” said Clint Bolick, director of litigation at the Institute for Justice, an advocacy group in Washington that represents several of the measure’s chief backers.
Governor Pete Wilson of California, who had helped rally many of his fellow Republicans behind the measure, said the ruling brings his state"one step closer to assuring the kind of society which will afford genuine equality of access to opportunity to all of its citizens.”
“By lifting this injunction, these justices have flatly rejected the kind of Orwellian reasoning that argues that a ban on discrimination against any and all races is itself discriminatory,” Governor Wilson said. He said it was incumbent upon the state’s leaders"to focus public attention where it should have been,” on improving elementary and secondary schools and the lives of children, so people will have"no possible excuse” for seeking preferences.
In challenging the district court’s preliminary injunction, the state Attorney General’s office was joined by a group called Californians Against Discrimination and Preferences. Its members were represented by the Center for Individual Rights, the same non-profit advocacy group that last year successfully challenged the use of racial preferences by the University of Texas at Austin law school.
The amendment’s foes, who include a patchwork of student groups at colleges throughout the state, denounced last week’s ruling as a simplistic assault on affirmative action, motivated by the judges’ conservative ideology. Two of the three judges on the appeals’ panel were appointed by President Reagan and the third by President Bush. Judge Henderson, the district-court judge whose opinion they overturned, was appointed by President Carter and is widely regarded as liberal.
“With this ruling, the court has said that there will be no trial about Proposition 209,” said Mark Rosenbaum, legal director at the American Civil Liberties Union of Southern California."They have said that the facts about Proposition 209’s effects on minorities and women do not matter.” He called the ruling"obviously and dramatically incompatible with decades of U.S. Supreme Court decisions” guaranteeing the rights of women and minority-group members who"will be locked out of our system” under Proposition 209.
The U.S. Justice Department filed a legal brief challenging Proposition 209’s constitutionality and endorsed Judge Henderson’s decision to issue an injunction. President Clinton responded to the appeals court’s decision by saying,"We’ll all have to regroup and find ways to achieve the same objective” pursued by the affirmative-action programs that the California amendment bans.
The appeals court’s ruling harshly criticized Judge Henderson’s legal reasoning and his decision to consider the lawsuit and issue an injunction before the case had been heard in state court."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,” it said.
The Ninth Circuit panel appeared to take a much narrower view than Judge Henderson’s of when preferences are legally permissible. The U.S. Supreme Court, it said, has interpreted the Constitution to allow the"rare” use of racial and gender preferences that serve some compelling government interest, such as remedying discrimination that was proved in court. This"hardly implies that the state cannot ban them altogether,” the opinion said.
“The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits,” the judges said.
“It is one thing to say that individuals have equal-protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal-protection rights against political obstructions to preferential treatment.”
The plaintiffs had contended that the amendment discriminated against women and members of racial minority groups by requiring them alone to change the state constitution if they wished to petition the state government for the same sorts of remedies and preferences readily available to other groups, be they disabled residents seeking court-ordered accommodations or a business interest seeking a tax break.
In rejecting that argument, the appeals court, noting that most of California’s voters are women or members of racial minority groups, questioned how a majority of the electorate could violate its own rights by stacking"the political deck against itself.”
Ward Connerly, a University of California regent who led the Proposition 209 campaign, predicted that the appeals court’s ruling would give momentum to efforts to ban preferences in Florida, Washington, and other states. Representative Charles T. Canady, a Florida Republican, said he planned to reintroduce a bill in Congress to ban the federal government’s use of racial and gender preferences.
ALSO SEE:
Plus a special section on affirmative action and higher education.
