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US Court of Appeals
U.S. Court of Appeals for the Ninth Circuit

Case Name:
THE COALITION FOR ECONOMIC EQUITY V WILSON
Case Number: Date Filed:
97-15030 04/08/97

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE COALITION FOR ECONOMIC
EQUITY; CALIFORNIA NAACP;
NORTHERN CALIFORNIA NAACP;
CALIFORNIA LABOR FEDERATION;
AFL-CIO; COUNCIL OF ASIAN
AMERICAN BUSINESS ASSOCIATIONS,
CALIFORNIA; CHINESE AMERICAN
CITIZENS' ALLIANCE; WOMEN
CONTRUCTION BUSINESS OWNERS
AND EXECUTIVES, CALIFORNIA
CHAPTER; UNITED MINORITY
                                                     Nos. 97-15030
BUSINESS ENTREPRENEURS; CHINESE
                                                          97-15031
FOR AFFIRMATIVE ACTION; BLACK
ADVOCATES IN STATE SERVICE;
                                                     D.C. No.
ASIAN PACIFIC AMERICAN LABOR
                                                     CV-96-4024-TEH
ALLIANCE; LA VOZ CHICANA;
                                                     OPINION
BLACK CHAMBER OF COMMERCE OF
CALIFORNIA; MICHELE BENNETT;
NANCY BURNS; FLOYD CHAVEZ;
CHRISTOPHER CLAY; DANA
CUNNINGHAM; IRAN CELESTE
DAVILA; SHEVADE DOVE, nfr
Melodie Dove; JESSICA LOPEZ;
VIRGINIA MOSQUEDA; SALVADOR
OCHOA; CLIFFORD TONG,
Plaintiffs/Appellees,


v.

                               3891


PETE WILSON, Governor; DANIEL E.
LUNDGREN, Attorney General for
the State of California; JOANNE
CORDAY KOZBERG, Secretary of
State and Consumer Services
Agency and Cabinet Member;
JAMES GOMEZ, Dir Dept of Corr,
Defendants/Appellants,


CALIFORNIANS AGAINST
DISCRIMINATION AND PREFERENCES,
INC.,
Defendant-Intervenor/Appellant.


Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding


Argued February 10, 1997,
Submission Deferred, and Submitted
March 3, 1997--San Francisco, California


Filed April 8, 1997

Before: Diarmuid F. O'Scannlain, Edward Leavy and
Andrew J. Kleinfeld, Circuit Judges.


Opinion by Judge O'Scannlain

_________________________________________________________________

SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1994 by Barclays Law Publishers.
_________________________________________________________________


Individual Rights/Constitutional Rights

The court of appeals vacated a preliminary injunction and
denied an application for a stay. The court held that the Cali-


                               3892


fornia Civil Rights Initiative does not violate the United
States Constitution.


In 1996, California voters adopted Proposition 209, the
Civil Rights Initiative. The State's legislative analyst por-
trayed Proposition 209 as a measure that would eliminate
public "affirmative action" programs based on race or gender.
California law currently allows tutoring, mentoring, outreach,
recruitment, and counseling for minorities and women, affir-
mative action programs that Prop. 209 forbids.


Appellee Coalition for Economic Equity and others sued
appellant Governor Pete Wilson and other state officials and
political subdivisions under 42 U.S.C. S 1983. The complaint
alleged that Prop. 209 denies racial minorities and women
equal protection of the laws, and is void under the Supremacy
Clause because it conflicts with provisions of the Civil Rights
Act of 1964 (CRA) and the Educational Amendments of
1972.


The plaintiffs contended that Prop. 209 imposes an unequal
"political structure" that denies women and minorities a right
to seek the benefits of affirmative action programs at the low-
est level of state government, and requires them to pursue that
goal by appealing to the statewide electorate, a remote level
of government.


Denying the State's abstention motion, the district court
granted the plaintiffs' request for a preliminary injunction.
The court found that the lawsuit was a challenge to Prop.
209's prohibition against race and gender preferences, not its
prohibition against discrimination.


In its conclusions of law, the court determined that the
plaintiffs had shown a likelihood of success in their equal pro-
tection claim under Supreme Court decisions prohibiting the
imposition of substantial political burdens on the interests of
women and minorities; the plaintiffs showed a likelihood of


                               3893


success on their preemption claim under Title VII of the
CRA; the plaintiffs would suffer irreparable harm if Prop. 209
took effect, while the state would incur little harm pending
trial; and a preliminary injunction would serve the public
interest by preserving the pre-election status quo, including
state affirmative-action programs. The State appealed.


[1] As a general rule, federal courts ought not to consider
the constitutionality of a state statute in the absence of a con-
trolling interpretation of its meaning and effect by the state
courts. [2] The district court properly limited its use of the
term "affirmative action" to state programs that use race or
gender classifications. It enjoined Prop. 209 only to the extent
that it eliminates programs that grant preferential treatment to
individuals on the basis of their race or gender. The State did
not dispute that Prop. 209 operates to eliminate such pro-
grams. [3] Without this factual basis, the court of appeals
would not have hesitated to remand to the district court for
consideration of the State's abstention motion.


[4] A preliminary injunction may issue if the movant has
shown either a likelihood of success on the merits and the
possibility of irreparable injury, or that serious questions are
raised and the balance of hardships tips sharply in the
movant's favor. [5] An abuse of discretion occurs if the dis-
trict court bases its decision on an erroneous legal standard or
on clearly erroneous findings of fact.


[6] As a matter of "conventional " equal protection analysis,
there is no doubt that Prop. 209 is constitutional. [7] The ulti-
mate goal of the Equal Protection Clause is to do away with
all governmentally imposed discrimination based on race or
gender. [8] When the government prefers individuals on
account of their race or gender, it disadvantages individuals
who belong to another race or gender. Prop. 209 prohibits
state discrimination against or preferential treatment to any
person on account of race or gender.


                               3894


[9] The Equal Protection Clause guarantees that the govern-
ment will not classify individuals on the basis of impermissi-
ble criteria. A legislative classification will deny equal
protection only if it is not rationally related to a legitimate
state interest. [10] However, the general rule does not apply
when a law classifies individuals by race or gender. Any gov-
ernmental action that does is presumptively unconstitutional
and subject to the most exacting judicial scrutiny. [11] Rather
than classifying individuals by race or gender, Prop. 209
prohibits the State from doing so.


[12] However, as a matter of "political structure" analysis,
the plaintiffs challenged the level of government at which
California prohibited race and gender preferences. [13] It
makes little sense to apply "political structure " equal protec-
tion principles when the group alleged to face special political
burdens itself constitutes a majority of the electorate. [14] The
difficulty lay in reconciling that conclusion with the principle
that the Fourteenth Amendment guarantees equal protection
to individuals and not to groups.


[15] When a state prohibits race or gender preferences at
any level of government, the injury to any specific individual
is inscrutable. No one contended that individuals have a con-
stitutional right to preferential treatment solely on the basis of
their race or gender. [16] When the electorate votes up or
down on a referendum alleged to burden a majority, it is hard
to conceive how members of the majority have been denied
the vote. If members of a majority somehow can deny their
own right to ask local government for preferences, conceiv-
ably a statewide referendum affording preferential treatment
to minorities would deny members of the majority the right to
ask local governments to abolish preferences. [17] The ques-
tion was whether a burden of achieving race- or gender-based
preferential treatment can deny individuals equal protection of
the laws.


[18] The Supreme Court has recognized a distinction
between state actions that discriminate on the basis of race


                               3895


and state actions that address in neutral fashion race-related
matters. The former denies persons against whom the law dis-
criminates equal protection of the laws; the latter does not.


[19] States have wide latitude in creating various types of
political subdivisions and conferring authority on them. That
a law resolves an issue at a higher level of government says
nothing in and of itself. Every statewide policy has the effect
of denying someone an inconsistent outcome at the local
level. [20] When a state prohibits all its instruments from dis-
criminating against or granting preferential treatment to any-
one on the basis of race or gender, it has promulgated a law
that addresses in neutral fashion race- and gender-related mat-
ters. It does not isolate race or gender antidiscrimination laws
from any specific area over which the state has delegated
authority to a local entity, or treat such laws in one area dif-
ferently from race- or gender-antidiscrimination laws in
another.


[21] Even a state law that restructures the political process
can deny equal protection only if it burdens an individual's
right to equal treatment. [22] At a minimum, a denial of equal
protection entails a classification that treats individuals
unequally. [23] Impediments to preferential treatment do not
deny equal protection. While the Constitution protects against
obstructions to equal treatment, it erects obstructions to pref-
erential treatment by its own terms.


[24] The alleged equal protection burden that Prop. 209
imposes on those who would seek race and gender prefer-
ences is a burden that the Constitution itself imposes. The
Equal Protection Clause singles out racial preferences for
severe political burdens--it prohibits them in all but the most
compelling circumstances. [25] That the Constitution permits
the rare race- or gender-based preference hardly implies that
the state cannot ban them. Nothing in the Constitution sug-
gests that preferences based on the presumptively unconstitu-
tional classifications--race and gender--must be available at


                               3896


the lowest level of government, while preferences based on
presumptively legitimate classifications are at the mercy of
statewide referenda.


[26] It would have been paradoxical to conclude that by
adopting the Equal Protection Clause, the voters had violated
it. The district court relied on an erroneous legal premise
when it concluded that the plaintiffs demonstrated a likeli-
hood of success on their equal protection claim.


[27] The district court was correct that federal law may pre-
empt state law to the extent that the state law stands as an
obstacle to the accomplishment and execution of the full pur-
poses and objectives of Congress. However, the district court
apparently overlooked the express preemption provision of
the CRA. In two sections of the CRA, Congress indicated that
state laws will be preempted only if they actually conflict with
federal law.


[28] Prop. 209 does not require the doing of any act that
would be an unlawful employment practice under Title VII.
To the contrary, discriminatory preference for any group was
precisely and only what Congress proscribed. Title VII there-
fore does not preempt Prop. 209. [29] Because Title VII does
not preempt Prop. 209, the district court relied on an errone-
ous legal premise in concluding that the plaintiffs were likely
to succeed on the merits of their preemption claim.


[30] With no likelihood of success on their equal protection
or preemption claims, the plaintiffs were not entitled to a pre-
liminary injunction. Assuming all the facts alleged in the
complaint and found by the district court to be true, Prop. 209
does not violate the Constitution.


_________________________________________________________________

COUNSEL

Paul H. Dobson, Deputy Attorney General, Sacramento, Cali-
fornia, for defendants-appellants Pete Wilson, Governor, et al.


                               3897


Michael A. Carvin, Cooper & Carvin, Washington, D.C., for
defendant-intervenor/appellant Californians Against Discrimi-
nation and Preferences, Inc.


Mark D. Rosenbaum, ACLU Foundation of Southern Califor-
nia, Los Angeles, California, for plaintiffs/appellees Coalition
for Economic Equity, et al.


G. Scott Emblidge, Deputy City Attorney, San Francisco, Cal-
ifornia, for defendants City and County of San Francisco and
County of Marin.


Samuel R. Bagenstos, United States Department of Justice,
Washington, D.C., for amicus curiae United States.


Christine A. Littleton, UCLA School of Law, Los Angeles,
California, for amici curiae Ad Hoc Committee of University
of California Faculty and Center for Constitutional Rights.


Alfred C. Pfeiffer, McCutchen, Doyle, Brown & Enersen, San
Francisco, California, for amici curiae American Jewish Con-
gress et al.


Pamela S. Karlan, University of Virginia School of Law,
Charlottesville, Virginia, for amici curiae Alan Brownstein
et al.


Tamu K. Sudduth, Morrison & Foerster, San Francisco, Cali-
fornia, for amici curiae A. Ruiz Construction Company and
Associates, Inc., Chiang C.M. Construction, Inc., and Cresci
Electric, Inc.


Jack D. Forbes, University of California, Davis, for amicus
curiae Jack D. Forbes.


Sharon L. Browne, Pacific Legal Foundation, Sacramento,
California, for amici curiae Richard Hanlin, et al.


                               3898


Theodore B. Olsen, Gibson, Dunn & Crutcher, Washington,
D.C., for amicus curiae Independent Women's Forum.


Clint Bolick, Institute for Justice, Washington, D.C., for amici
curiae Institute for Justice et al.


G. Michael German, Law Offices of G. Michael German, San
Francisco, California, for amicus curiae Log Cabin Republi-
cans of California.


Frank Wu, Howard University School of Law, Washington,
D.C., for amici curiae National Asian Pacific American Legal
Consortium et al.


Kevin T. Snider, United States Justice Foundation, Escon-
dido, California, for amici curiae United States Justice Foun-
dation et al.


_________________________________________________________________

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether a provision of the California Con-
stitution prohibiting public race and gender preferences vio-
lates the Equal Protection Clause of the United States
Constitution.


I

A

On November 5, 1996, the people of the State of California
adopted the California Civil Rights Initiative as an amend-
ment to their Constitution. The initiative, which appeared on
the ballot as Proposition 209, provides in relevant part that


                               3899


      [t]he 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.


Cal. Const. art. 1, S 31(a).1

The California Legislative Analyst's Office portrayed Prop-
osition 209 to the voters as a measure that would eliminate
public race-based and gender-based affirmative action pro-
grams. The California Ballot Pamphlet explained to voters
that:


      A YES vote on [Proposition 209] means: The elimi-
      nation of those affirmative action programs for
      women and minorities run by the state or local gov-
      ernments in the areas of public employment, con-
      tracting, and education that give "preferential
      treatment" on the basis of sex, race, color, ethnicity,
      or national origin.


      A NO vote on this measure means State and local
      government affirmative action programs would
      remain in effect to the extent they are permitted
      under the United States Constitution.


The Ballot Pamphlet also included arguments by proponents
and opponents of Proposition 209. Proponents urged a "yes"
vote, arguing that:


      A generation ago, we did it right. We passed civil
      rights laws to prohibit discrimination. But special
      interests hijacked the civil rights movement. Instead
      of equality, governments imposed quotas, prefer-
_________________________________________________________________
1 When we use the word "race, " we refer also to color, ethnicity, and
national origin.


                               3900


      ences, and set-asides.
      . . . .


      And two wrongs don't make a right! Today, stu-
      dents are being rejected from public universities
      because of their RACE. Job applicants are turned
      away because their RACE does not meet some
      "goal" or "timetable." Contracts are awarded to high
      bidders because they are of the preferred RACE.


      That's just plain wrong and unjust. Government
      should not discriminate. It must not give a job, a uni-
      versity admission, or a contract based on race or sex.
      Government must judge all people equally, without
      discrimination!


      And, remember, Proposition 209 keeps in place all
      federal and state protections against discrimination!


Opponents of Proposition 209 urged a "no" vote, responding
that:


      California law currently allows tutoring, mentor-
      ing, outreach, recruitment, and counseling to help
      ensure equal opportunity for women and minorities.
      Proposition 209 will eliminate affirmative action
      programs like these that help achieve equal opportu-
      nity for women and minorities in public employ-
      ment, education and contracting. Instead of
      reforming affirmative action to make it fair for
      everyone, Proposition 209 makes the current prob-
      lem worse.
      . . . .


      The initiative's language is so broad and mislead-
      ing that it eliminates equal opportunity programs
      including:


                               3901


      - tutoring and mentoring for minority and women
      students;


      - affirmative action that encourages the hiring and
      promotion of qualified women and minorities;


      - outreach and recruitment programs to encourage
      applicants for government jobs and contracts;
      and


      - programs designed to encourage girls to study
      and pursue careers in math and science.


Proposition 209 passed by a margin of 54 to 46 percent; of
nearly 9 million Californians casting ballots, 4,736,180 voted
in favor of the initiative and 3,986,196 voted against it.


B

On the day after the election, November 6, 1996, several
individuals and groups ("plaintiffs") claiming to represent the
interests of racial minorities and women filed a complaint in
the Northern District of California against several officials
and political subdivisions of the State of California ("the
State").2 The complaint, brought under 42 U.S.C. S 1983,
alleges that Proposition 209, first, denies racial minorities and
women the equal protection of the laws guaranteed by the
Fourteenth Amendment, and, second, is void under the
Supremacy Clause because it conflicts with Titles VI and VII
of the Civil Rights Act of 1964, and Title IX of the Educa-
tional Amendments of 1972. As relief, plaintiffs seek a decla-
ration that Proposition 209 is unconstitutional and a
_________________________________________________________________
2 When we refer to "the State, " we mean, more specifically, Defendants/
Appellants. Certain defendants did not appeal the preliminary injunction,
including the City and County of San Francisco, the County of Marin, and

Delaine Eastin, all of whom have filed briefs and papers in support of
Plaintiffs/Appellees.


                               3902


permanent injunction enjoining the State from implementing
and enforcing it.


With their complaint, plaintiffs filed an application for a
temporary restraining order ("TRO") and a preliminary
injunction. The district court entered a TRO on November 27,
1996, and granted a preliminary injunction on December 23,
1996.3 The preliminary injunction enjoins the State, pending
trial or final judgment, "from implementing or enforcing
Proposition 209 insofar as said amendment to the Constitution
of the State of California purports to prohibit or affect affir-
mative action programs in public employment, public educa-
tion or public contracting." Coalition for Econ. Equity v.
Wilson, 946 F. Supp. 1480, 1520-21 (N.D. Cal. 1996).


The district court provided extensive findings of fact and
conclusions of law in support of the injunction. This lawsuit,
the court explained, challenges Proposition 209's prohibition
against race and gender preferences, not its prohibition
against discrimination. Plaintiffs' constitutional challenge is
"only to that slice of the initiative that now prohibits govern-
mental entities at every level from taking voluntary action to
remediate past and present discrimination through the use of
constitutionally permissible race- and gender-conscious affir-
mative action programs." Id. at 1489.


The elimination of such programs, the district court found,
would reduce opportunities in public contracting and employ-
ment for women and minorities. It further would cause enroll-
ment of African-American, Latino, and American Indian
students in public colleges to fall, though enrollment of
Asian-American students would increase. Finally, the court
found that minorities and women, to reinstate race-based or
gender-based preferential treatment, would have to re-amend
the California Constitution by initiative.
_________________________________________________________________
3 The district court also granted plaintiffs' motion provisionally to cer-
tify the plaintiff class on November 27, 1996, and their motion to certify
the defendant class on December 16, 1996.


                               3903


From these findings of fact the district court concluded,
first, that plaintiffs have demonstrated a likelihood of success
on their equal protection claim. Proposition 209, the court rea-
soned, has a racial and gender focus which imposes a substan-
tial political burden on the interests of women and minorities.
The court held that Hunter v. Erickson, 393 U.S. 385 (1969),
and Washington v. Seattle School District No. 1, 458 U.S. 457
(1982), prohibit such treatment of racial and gender issues in
the political process.


The district court concluded, second, that plaintiffs have
also demonstrated a likelihood of success on their pre-
emption claims. Title VII, the court reasoned, preserves the
discretion of public employers voluntarily to use race and
gender preferences. To the extent that Proposition 209 bans
such preferences statewide, the court held that Title VII pre-
empts it under the Supremacy Clause.


The district court next explained that plaintiffs would suffer
irreparable harm if Proposition 209 takes effect. If not
enjoined, Proposition 209 immediately would ban existing
preference programs in violation of plaintiffs' constitutional
rights. The State, in contrast, the court concluded, would suf-
fer little hardship from a preliminary injunction, which merely
would suspend implementation of Proposition 209 pending
trial.


Finally, the district court believed that a preliminary injunc-
tion would serve the public interest. Preserving the pre-
election status quo would "harmonize" the public need for
"clear guidance with respect to Proposition 209 " with "the
compelling interest in remedying discrimination that underlies
existing constitutionally-permissible state-sponsored affirma-
tive action programs threatened by Proposition 209."4
Coalition, 946 F. Supp. at 1520.
_________________________________________________________________
4 The district court deemed it "appropriate to waive the bond
requirement" of Federal Rule of Civil Procedure 65(c) in this case.


                               3904


C

On December 31, 1996, Californians Against Discrimina-
tion and Preferences ("CADP"), the defendant/intervenor,
applied to the district court for a stay of the preliminary
injunction pending appeal. The State joined in the application.
CADP and the State also filed notices of appeal to this court
on January 3, 1997, and subsequently moved to stay the dis-
trict court's injunction pending appeal pursuant to Federal
Rule of Appellate Procedure 8. The district court entered its
order declining to stay the injunction on February 7, 1997. On
February 10, 1997, we heard oral argument on the application
to us for a stay. The parties' arguments for and against a stay
pending appeal focused primarily on the merits underlying the
preliminary injunction itself. We thus deferred submission of
the stay application and expedited submission on the merits,5
which we now decide.
_________________________________________________________________
Coalition, 946 F. Supp. at 1521 n.54. We need not address whether the
district court erred by failing to require plaintiffs to post a bond in light

of our conclusion on the merits. We note, however, that Rule 65(c) pro-
vides that "[n]o . . . preliminary injunction shall issue except upon the giv-
ing of security by the applicant . . . for the payment of such costs and
damages as may be incurred or suffered by any party who is found to have
been wrongfully enjoined or restrained." Fed. R. Civ. P. 65; see generally
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351
(1977) (Opinion of Rehnquist, Circuit Justice, granting stay of injunction)
(noting "that any time a State is enjoined by a court from effectuating stat-
utes enacted by representatives of its people, it suffers a form of irrepara-
ble injury").
5 The practice of this Circuit, made explicit in Gregorio T. v. Wilson, 54
F.3d 599 (9th Cir. 1995), is that the panel to which a motion to stay or to
expedite an appeal from a preliminary injunction is referred may retain
jurisdiction over the merits of the appeal itself. The panel that decided
Gregorio T. had been referred motions to stay, to consolidate, and to expe-

dite appeals from a preliminary injunction against the implementation and
enforcement of California voter initiative Proposition 187. The Gregorio
T. panel, citing the priority and expedited decision that we must give
appeals from preliminary injunctions under 28 U.S.C.S 1967 and Ninth
Circuit Rule 3-3 (effective July 1, 1995), retained jurisdiction over the
merits of the appeals. Id. at 600; see Gregorio T. v. Wilson, 59 F.3d 1002
(9th Cir. 1995). Pursuant to Gregorio T., we likewise retained jurisdiction
over the merits of these appeals, which, similarly, challenge a preliminary
injunction against the implementation and enforcement of a California
voter initiative.


                               3905


II

Before reaching the merits of the preliminary injunction,
we pause to consider whether this case even belongs in fed-
eral court. No California state court has yet construed the
meaning or effect of Proposition 209. Rather, plaintiffs ask a
federal tribunal to enjoin flat-out this state constitutional
amendment passed by a majority of the voters.6 The district
court remarked that the issue in this case is not "whether one
judge can thwart the will of the people; rather, the issue is
whether the challenged enactment complies with our Consti-
tution and Bill of Rights." Coalition, 946 F. Supp. at 1490.


No doubt the district court is correct, at least in theory.
Judges apply the law; they do not sua sponte thwart wills. If
Proposition 209 affronts the federal Constitution--the Consti-
tution which the people of the United States themselves
ordained and established--the district judge merely reminds
the people that they must govern themselves in accordance
with principles of their own choosing. If, however, the district
_________________________________________________________________
6 The district court concluded that plaintiffs have standing to bring this
suit, which the State does not challenge on appeal. The court found (1)
that Proposition 209 would injure plaintiffs by eliminating programs that
benefit them; (2) that the injury would result from the State's enforcement
of Proposition 209; and (3) that a declaration that Proposition 209 is
unconstitutional and an injunction against its enforcement would redress
the plaintiffs' alleged injuries. See Lujan v. Defenders of Wildlife, 504
U.S. 555 (1992).


Plaintiffs, conversely, argue that we must dismiss this appeal because
under Arizonans for Official English v. Arizona, _______ U.S. _______, 1997 WL
84990 (U.S. Mar. 3, 1997), CADP had no standing to pursue a stay or an
appeal. The Supreme Court expressed "grave doubts " in Arizonans
whether the proponents of Arizona's "English only " initiative had
"standing under Article III to pursue appellate review." Id. at *13. The
issue, however, was one that the Court need not "definitively resolve"
because the plaintiff herself lacked standing. We likewise need not defini-
tively resolve this issue. Regardless of whether CADP has standing to
appeal or seek a stay, there is no question that the State had standing to
pursue both.


                               3906


judge relies on an erroneous legal premise, the decision oper-
ates to thwart the will of the people in the most literal sense:
What the people of California willed to do is frustrated on the
basis of principles that the people of the United States neither
ordained nor established. A system which permits one judge
to block with the stroke of a pen what 4,736,180 state resi-
dents voted to enact as law tests the integrity of our constitu-
tional democracy.


[1] The Supreme Court recently reminded federal judges
that we should not even undertake to review the constitution-
ality of a state law without first asking: "Is this conflict really
necessary?" Arizonans for Official English v. Arizona, _______ S.
Ct. _______, _______, No. 95-974, 1997 WL 84990, at *18 (U.S. Mar.
3, 1997). As a general rule, federal courts "ought not to con-
sider the Constitutionality of a state statute in the absence of
a controlling interpretation of its meaning and effect by the
state courts." Id. (quoting Poe v. Ullman, 367 U.S. 497, 526
(1961) (Harlan, J., dissenting)). Justice Ginsburg emphasized
for a unanimous court that "[w]hen anticipatory relief is
sought in federal court against a state statute, respect for the
place of the States in our federal system calls for close consid-
eration of that core question." Id. "Warnings against prema-
ture adjudication of constitutional questions bear heightened
attention when a federal court is asked to invalidate a State's
law, for the federal tribunal risks friction-generating error

when it endeavors to construe a novel state Act not yet
reviewed by the State's highest court." Id. at *20.


The ink on Proposition 209 was barely dry when plaintiffs
filed this lawsuit. For this federal tribunal to tell the people of
California that their one-day-old, never-applied-law violates
the Constitution, we must have more than a vague inkling of
what the law actually does. Plaintiffs challenge Proposition
209 to the extent that it eliminates "affirmative action." A
California court that considered Proposition 209's pre-
enactment ballot title and ballot label remarked that the term
"affirmative action" is an "amorphous, value-laden term,"


                               3907


"rarely defined so as to form a common base for intelligent
discourse." Lundgren v. Superior Court, 55 Cal. Rptr. 2d 690,
694 (Ct. App. 1996) (internal ellipses and citation omitted).
"Most definitions of the term would include not only the con-
duct which Proposition 209 would ban, i.e., discrimination
and preferential treatment, but also other efforts such as out-
reach programs." Id.


[2] The district court properly limited its use of the term
"affirmative action" to state programs that use race or gender
classifications.7 It enjoined Proposition 209 only to the extent
that it eliminates programs that grant preferential treatment to
individuals on the basis of their race or gender. The court
cited as examples programs that would prefer contractors of
a certain race or gender in the evaluation of bids for public
contracts, programs that would prefer prospective employees
of a certain race or gender for public employment, and pro-
grams that would prefer prospective students of a certain race
or gender for public education or financial aid. Unlike in
Arizonans, the State does not dispute that Proposition 209
operates to eliminate such programs.8 Quite the contrary, the
district court found that Defendant/Appellant Pete Wilson,
Governor of California, issued an Executive Order on
_________________________________________________________________
7 Plaintiffs apparently do not feel the same constraints. They argue, for

example, that we must affirm the injunction because"[t]he remedy for
intentional discrimination often calls for race-specific relief." Coral Con-
str. Co. v. King County, 941 F.2d 910, 920 (9th Cir. 1991). But "race-
specific relief" is hardly synonymous with "preferential treatment on the
basis of race." A state may "eradicate racial discrimination" in many ways
that do not involve racial preferences. When, for example, a state gives the
identified victims of state discrimination jobs or contracts that were
wrongly denied them, the beneficiaries are not granted a preference "on
the basis of their race" but on the basis that they have been individually
wronged.
8 The district court denied the State's motion to abstain pursuant to
Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941), after the
preliminary injunction issued because, among other things, the State did
not dispute that Proposition 209 prohibits some race and gender preference
programs.


                               3908


November 6, 1996, implementing Proposition 209 to do just
that.


[3] Without this factual basis, we would not hesitate to
remand to the district court for reconsideration of the State's
abstention motion in light of Arizonans. From the district
court's findings, however, we are satisfied, to answer the
Supreme Court's question, that "yes--this conflict really is
necessary." We may now address the merits.


III

[4] A preliminary injunction may issue "if the movant has
shown either a likelihood of success on the merits and the
possibility of irreparable injury, or that serious questions are
raised and the balance of hardships tips sharply in the
movant's favor." Armstrong v. Mazurek, 94 F.3d 566, 567
(9th Cir. 1996) (citation omitted). We review an order grant-
ing a preliminary injunction for an abuse of discretion. Los
Angeles Mem'l Coliseum Comm'n v. National Football
League, 634 F.2d 1197, 1200 (9th Cir. 1980).


[5] An abuse of discretion occurs if the district court "bases
its decision on an erroneous legal standard or on clearly erro-
neous findings of fact." American-Arab Anti-Discrimination
Comm. v. Reno, 70 F.3d 1045, 1062 (9th Cir. 1995) (citation
omitted). We review the legal issues underlying a decision to
grant an injunction de novo, as well as the conclusion that
plaintiffs are likely to succeed on the merits of those issues.9
_________________________________________________________________
9 Plaintiffs contend, as an initial matter, that we have no authority to
review the "underlying merits" of the preliminary injunction that the dis-
trict court entered. Plaintiffs are correct to the extent that we will not
reverse a preliminary injunction just because we would have arrived at a
different result if we had applied the law to the facts of the case. Sports
Form, Inc. v. United Press Int'l, 686 F.2d 750, 752 (9th Cir. 1982); see
also Associated Gen. Contractors of Cal. v. Coalition for Econ. Equity,
950 F.2d 1401, 1419 (9th Cir. 1991) (O'Scannlain, J. concurring) (point-


                               3909


International Molders' and Allied Workers' Local Union No.
164 v. Nelson, 799 F.2d 547, 551 (9th Cir. 1986).


In granting the preliminary injunction, the district court
first concluded that plaintiffs have demonstrated a likelihood
of success on their claim that Proposition 209 violates the
Equal Protection Clause of the Fourteenth Amendment. We
must examine whether the district court's conclusion is based
on an erroneous legal premise as a matter of "conventional"
equal protection analysis, which looks to the substance of the
law at issue, or as a matter of "political structure" equal pro-
tection analysis, which looks to the level of government at
which the law was enacted. We shall apply each mode of
analysis to Proposition 209 in turn.


IV

[6] As a matter of "conventional " equal protection analysis,
there is simply no doubt that Proposition 209 is constitutional.
The Equal Protection Clause provides that "[n]o State shall
_________________________________________________________________
ing out that detailed discussion of statistical evidence to determine consti-
tutionality is inappropriate to determine constitutionality on appellate
review of preliminary injunction), cert. denied, 503 U.S. 985 (1992).
Where, as here, however, the issue is whether the district court
"misapprehended the law with respect to the underlying issues in
litigation," Sports Form, 686 F.2d at 752 (citations omitted), we assuredly
may assess whether the district court got the law right. See Glick v.
McKay, 937 F.2d 434, 436 (9th Cir. 1991) (explaining that where facts
established or of no controlling relevance, constitutional issue subject to
"plenary" review); Nelson, 799 F.2d at 550 n.1 (explaining that abuse of
discretion will be found if district court "applied incorrect substantive

law") (citation omitted).

The parties to this appeal dispute whether the district court relied on an
erroneous legal standard, not whether the district court wrongly applied
the right legal standard to the facts of the case. Where the issue is whether
the district court got the law right in the first place, we do not defer review
and thereby allow lawsuits to proceed on potentially erroneous legal prem-
ises.


                               3910


. . . deny to any person within its jurisdiction the equal protec-
tion of the laws." U.S. Const. amend. XIV, S 1. The central
purpose of the Equal Protection Clause "is the prevention of
official conduct discriminating on the basis of race."
Washington v. Davis, 426 U.S. 229, 239 (1976). The Four-
teenth Amendment forbids such conduct on the principle that
"[d]istinctions between citizens solely because of their ances-
try are by their very nature odious to a free people whose
institutions are founded upon the doctrine of equality."
Hirabayashi v. United States, 320 U.S. 81, 100 (1943). Racial
distinctions "threaten to stigmatize individuals by reason of
their membership in a racial group and to incite racial
hostility." Shaw v. Reno, 509 U.S. 630, 643 (1993) (citations
omitted).


[7] The ultimate goal of the Equal Protection Clause is "to
do away with all governmentally imposed discrimination
based on race." Palmore v. Sidoti, 466 U.S. 429, 432 (1984)
(citation and footnote omitted). Therefore, "whenever the
government treats any person unequally because of his or her
race, that person has suffered an injury that falls squarely
within the language and spirit of the Constitution's guarantee
of equal protection." Adarand Constructors v. Pena, 115 S.
Ct. 2097, 2114 (1995). The Equal Protection Clause also pro-
tects against classifications based on gender. "Without equat-
ing gender classifications, for all purposes, to classifications
based on race or national origin, the Court . . . has carefully
inspected official action that closes a door or denies opportu-
nity to women (or to men)." United States v. Virginia, 116 S.
Ct. 2264, 2275 (1996) (internal footnote and citation omitted).


[8] The standard of review under the Equal Protection
Clause does not depend on the race or gender of those bur-
dened or benefited by a particular classification. Richmond v.
J.A. Croson Co., 488 U.S. 469, 494 (1989) (plurality opinion).
When the government prefers individuals on account of their
race or gender, it correspondingly disadvantages individuals
who fortuitously belong to another race or to the other gender.


                               3911


"Consistency does recognize that any individual suffers an
injury when he or she is disadvantaged by the government
because of his or her race." Adarand, 115 S. Ct. at 2114.
Proposition 209 amends the California Constitution simply to
prohibit state discrimination against or preferential treatment
to any person on account of race or gender. Plaintiffs charge
that this ban on unequal treatment denies members of certain
races and one gender equal protection of the laws. If merely
stating this alleged equal protection violation does not suffice
to refute it, the central tenet of the Equal Protection Clause
teeters on the brink of incoherence.


[9] The Equal Protection Clause guarantees that the govern-
ment will not classify individuals on the basis of impermissi-
ble criteria. Most laws, of course--perhaps all--classify
individuals one way or another. Individuals receive, or corre-
spondingly are denied, governmental benefits on the basis of
income, disability, veteran status, age, occupation and count-
less other grounds. Legislative classifications as a general rule
are presumptively valid under the Equal Protection Clause.
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440
(1985). A legislative classification will deny equal protection
only if it is not "rationally related to a legitimate state
interest." Id. (citations omitted).


[10] The general rule does not apply, however, when a law
classifies individuals by race or gender. Any governmental
action that classifies persons by race is presumptively uncon-
stitutional and subject to the most exacting judicial scrutiny.
Adarand, 115 S. Ct. at 2114. To be constitutional, a racial
classification, regardless of its purported motivation, must be
narrowly tailored to serve a compelling governmental interest,
an extraordinary justification. See, e.g., Wygant v. Jackson
Bd. of Ed., 476 U.S. 267, 277-78 (1986) (plurality opinion).
When the government classifies by gender, it must demon-
strate that the classification is substantially related to an
important governmental interest, requiring an "exceedingly


                               3912


persuasive" justification.10Cleburne 473 U.S. at 441; see Vir-
ginia, 116 S. Ct. at 2275.


[11] The first step in determining whether a law violates the
Equal Protection Clause is to identify the classification that it
draws. Proposition 209 provides that the State of California
shall not discriminate against, or grant preferential treatment
to, any individual or group on the basis of race or gender.
Rather than classifying individuals by race or gender, Propo-
sition 209 prohibits the State from classifying individuals by
race or gender. A law that prohibits the State from classifying
individuals by race or gender a fortiori does not classify indi-
viduals by race or gender. Proposition 209's ban on race and
gender preferences, as a matter of law and logic, does not vio-
late the Equal Protection Clause in any conventional sense.


V

[12] As a matter of "political structure" analysis, however,
plaintiffs challenge the level of government at which the State
of California has prohibited race and gender preferences.
Plaintiffs contend, along with the United States as amicus
curiae, that Proposition 209 imposes an unequal "political
structure" that denies women and minorities a right to seek
preferential treatment from the lowest level of government.
The district court agreed, relying on the so-called "Hunter"
doctrine.


A

In Hunter v. Erickson, the Supreme Court addressed the
constitutionality of an amendment to the Charter of the City
_________________________________________________________________
10 Proposition 209 contains a savings clause providing that "[n]othing in
this section shall be interpreted as prohibiting bona fide qualifications
based on sex which are reasonably necessary to the normal operation of
public employment, public education, or public contracting." Cal. Const.
art. 1, S 31(c).


                               3913


of Akron, Ohio. Before the charter amendment was enacted,
the Akron City Council had authority to pass ordinances regu-
lating the real estate market. Hunter, 393 U.S. at 390. Most
ordinances became effective thirty days after the Council
passed them. Id. The charter amendment operated to prevent
the city council from enacting ordinances addressing racial
discrimination in housing without majority approval of the
Akron voters. Id. at 387. The plaintiff, Nellie Hunter, who
wanted a fair housing ordinance enforced, claimed that the
amendment violated her right to equal protection of the laws.


The Supreme Court found in the charter amendment "an
explicitly racial classification treating racial housing matters
differently from other racial and housing matters. " Id. at 389.
The law disadvantaged those who would benefit from laws
barring racial discrimination in the real estate market as
against those who would benefit from other regulations of the
real estate market. Id. at 390-91. Absent a compelling state
interest, the state "may no more disadvantage any particular
group by making it more difficult to enact legislation in its
behalf than it may dilute any person's vote or give any group
a smaller representation than another of comparable size." Id
at 393.


The Court later applied these principles to Washington
State's educational decisionmaking structure in Washington v.
Seattle School District No. 1. A statewide initiative in Wash-
ington barred school boards from assigning students beyond
their neighborhood schools. The initiative contained several
broad exceptions, which effectively operated to preclude only
desegregative busing. Seattle, 458 U.S. at 462-63. Certain
school districts challenged the initiative under the Equal Pro-
tection Clause. Id. at 464.


As in Hunter, the Court determined that the initiative
effected a racial classification by removing "the authority to
address a racial problem--and only a racial problem--from
the existing decisionmaking body, in such a way as to burden


                               3914


minority interests." Id. at 474. The initiative had restructured
the State's educational decisionmaking process to differenti-
ate "between the treatment of problems involving racial mat-
ters and that afforded other problems in the same area." Id. at
480 (internal quotation marks and citation omitted). That dif-
ferentiation burdened minority interests "by lodging decision-
making authority over the question at a new and remote level
of government." Id. at 483. Absent a compelling state interest,
the initiative's unequal reordering of authority of school
boards violated the Equal Protection Clause. Id. at 485-86.


The district court applied Hunter and Seattle to invalidate
Proposition 209. Proposition 209, the court found, effected a
race and gender classification by singling out race and gender
preferences for unique political burdens. The court concluded
that race and gender preferences, like antidiscrimination laws
and integrative busing, are of special interest to minorities and
women. Before Proposition 209 was enacted, the court rea-
soned, women and minorities could petition local government
for preferential treatment. To obtain preferential treatment
now, the court concluded, women and minorities must appeal
to the statewide electorate, a "new and remote level of
government."


The district court next analyzed whether the classifications
it gleaned from Proposition 209 withstood "heightened
scrutiny." The court concluded that the classifications served
no important government interest, let alone a compelling one,
thus denying women and minorities equal protection of the
laws.


B

The State contends that the district court's conclusion rests
on an erroneous legal premise because Proposition 209,
unlike the Hunter and Seattle initiatives, does not reallocate
political authority in a discriminatory manner. CADP con-
tends, additionally, that a majority of the electorate cannot


                               3915


restructure the political process to discriminate against itself.
We address the second contention first.


1

Can a statewide ballot initiative deny equal protection to
members of a group that constitutes a majority of the elector-
ate that enacted it? Plaintiffs allege that Proposition 209
places procedural burdens in the path of women and minori-
ties, who together constitute a majority of the California elec-
torate. Is it possible for a majority of voters impermissibly to
stack the political deck against itself? The Supreme Court
leaves us, quite frankly, a little perplexed as to the answer.


[13] The "political structure" equal protection cases,
namely Hunter and Seattle, addressed the constitutionality of
political obstructions that majorities had placed in the way of
minorities to achieving protection against unequal treatment.
Hunter, holding that the Akron amendment denied minorities
equal protection of the laws, observed that "[t]he majority
needs no protection against discrimination and if it did, a ref-
erendum might be bothersome but no more than that."
Hunter, 393 U.S. at 391. Seattle addressed a political structure
held "to place special burdens on the ability of minority
groups to achieve beneficial legislation." Seattle, 458 U.S. at
467. In Romer v. Evans, 116 S. Ct. 1620 (1996), the most
recent "political structure" case, Colorado's Amendment 2
left homosexuals to "obtain specific protection against dis-
crimination only by enlisting the citizenry of Colorado." Id.
at 1627. It would seem to make little sense to apply "political
structure" equal protection principles where the group alleged

to face special political burdens itself constitutes a majority of
the electorate.


[14] The difficulty, however, lies in reconciling what seems
to be that eminently sensible conclusion with the principle
that the Fourteenth Amendment guarantees equal protection
to individuals and not to groups. That the Fourteenth Amend-


                               3916


ment affords individuals, not groups, the right to demand
equal protection is a fundamental first principle of
"conventional" equal protection jurisprudence. Adarand, 115
S. Ct. at 2111. The Equal Protection Clause, after all, prohib-
its a state from denying "to any person within its jurisdiction
the equal protection of the laws." U.S. Const. amend. XIV,
S 1 (emphasis added).


[15] Where a state denies someone a job, an education, or
a seat on the bus because of her race or gender, the injury to
that individual is clear. The person who wants to work, study,
or ride but cannot because she is black or a woman is denied
equal protection. Where, as here, a state prohibits race or gen-
der preferences at any level of government, the injury to any
specific individual is utterly inscrutable. No one contends that
individuals have a constitutional right to preferential treat-
ment solely on the basis of their race or gender. Quite the con-
trary. What, then, is the personal injury that members of a
group suffer when they cannot seek preferential treatment on
the basis of their race or gender from local government? This
question admits of no easy answer.


[16] Hunter and Seattle suggest that the political structures
they held unconstitutional imposed individual injuries analo-
gous to "denying [members of a racial minority ] the vote, on
an equal basis with others."11Seattle, 458 U.S. at 470 (quoting
Hunter, 393 U.S. at 391). When the electorate votes up or
down on a referendum alleged to burden a majority of the vot-
ers, it is hard to conceive how members of the majority have
been denied the vote. If members of a majority somehow can
deny their own right to ask local government for racial prefer-
ences, conceivably a statewide referendum affording
preferential treatment to racial minorities would deny mem-
_________________________________________________________________
11 In the voting rights cases Hunter cited, Reynolds v. Sims, 377 U.S. 533
(1964), and Avery v. Midland Co., 390 U.S. 474 (1968), each individual
was denied his or her right to a vote of substantially equal weight to the
vote of other residents.


                               3917


bers of the racial majority the right to ask local governments
to abolish racial preferences. "Consistency does recognize
that any individual suffers an injury when he or she is disad-
vantaged by the government because of his or her race, what-
ever that race may be." Adarand, 115 S. Ct. at 2114.


[17] Thankfully, the absence of any specific findings by the
district court in this regard relieves us from having to recon-
cile "the long line of cases understanding equal protection as
a personal right," Id., with Hunter 's admonition that "the
majority needs no protection against discrimination, " Hunter,
393 U.S. at 391.12 Our task in this case is merely to determine
whether the district court relied on an erroneous legal prem-
ise. We accept without questioning the district court's find-
ings that Proposition 209 burdens members of insular
minorities within the majority that enacted it who otherwise
would seek to obtain race-based and gender-based preferential
treatment from local entities.13 The legal question for us to
_________________________________________________________________
12 This admonition seems to perceive the right to equal protection as a
group right rather than an individual right, which the Supreme Court later
denounced in Croson and Adarand. When we attribute equal protection
rights to groups rather than to individuals, "[i]t reinforces the perception

that members of the same racial group--regardless of their age, education,
economic status, or the community in which they live--think alike, share
the same political interests, and will prefer the same candidates at the
polls. We have rejected such perceptions elsewhere as impermissible
racial stereotypes." Shaw, 509 U.S. at 647.
13 CADP's argument that Hunter and Seattle do not extend to gender-
based laws because women themselves constitute a majority of the elector-
ate is, nonetheless, compelling. Had the parties presented evidence, and
had the district court found, that women constitute a majority of the Cali-
fornia electorate, we likely would conclude as a matter of law, for that rea-
son alone, that Proposition 209's ban on gender-based preferences does
not deny women equal protection. By so concluding, to be sure, we would
bring to a head the tension between the protection that the "political
structure" cases afford to the "ability of minority groups to achieve benefi-
cial legislation," Seattle, 458 U.S. at 3193, and the "fundamental principle

of equal protection as a personal right." Adarand, 115 S. Ct. at 2117. On
the one hand, "[t]he majority needs no protection against discrimination,"


                               3918


decide is whether a burden on achieving race-based or
gender-based preferential treatment can deny individuals
equal protection of the laws.


2

[18] The Supreme Court has recognized an explicit distinc-
tion "between state action that discriminates on the basis of
race and state action that addresses, in neutral fashion, race-
related matters." Crawford v. Board of Education of the City
of Los Angeles, 458 U.S. 527, 538 (1982). The former denies
persons against whom the law discriminates equal protection
of the laws; the latter does not. Into which category Proposi-
tion 209 falls we must now determine.


In Crawford, the Supreme Court considered an amendment
to the California Constitution that prohibited state courts from
mandating pupil assignment or transportation except to rem-
edy a specific equal protection violation. Id. at 532. Minority
students had alleged that the amendment employed a racial
classification that burdened minorities who sought to vindi-
cate state-created rights. Id. at 536. The Supreme Court dis-
agreed, holding that the amendment did not employ a racial
classification. Unlike the charter amendment in Hunter, "the
simple repeal or modification of desegregation or antidiscrim-
ination laws, without more, never has been viewed as
_________________________________________________________________
Hunter, 393 U.S. at 562, but, on the other, the Equal Protection Clause
protects the individual members of the majority, not the majority as a
group. Caught in the cross-fire of seemingly irreconcilable Supreme Court
precedent, we would deem it better to err on the side of common sense.
To hold that women as a majority could impose a political structure that

denied themselves equal protection of the laws would subject to "political
structure" scrutiny any state law that imposed benefits on those that shared
a minority trait (e.g. veterans), with corresponding burdens on those that
shared a majority trait (e.g. the non-veterans). Such a revolutionary con-
cept is inimical to a constitutional scheme founded on democratic self-
government.


                               3919


embodying a presumptively invalid racial classification." Id.
at 539.


Crawford, thus, on the one hand, dictates that "the Equal
Protection Clause is not violated by the mere repeal of race-
related legislation or policies that were not required by the
Federal Constitution in the first place." Id. at 538. Hunter and
Seattle, on the other hand, prohibited states from placing deci-
sionmaking authority over certain racial issues at higher levels
of government.


Plaintiffs attempt to align Proposition 209 with Hunter and
Seattle and distinguish it from Crawford. Crawford, they
argue, addressed an amendment that merely repealed a benefit
that the state itself had afforded, not the authority of local sub-
divisions to afford the same benefit. Hunter and Seattle, in
their view, foreclose the authority of states to withdraw local
jurisdiction to enact race and gender preferences unless the
state also withdraws local jurisdiction to enact preferences
based on any other criteria. Such an extraordinary proposition
hardly follows from Hunter and Seattle .


a

The Hunter doctrine "does not mean, of course, that every
attempt to address a racial issue gives rise to an impermissible
classification." Seattle, 458 U.S. at 485. Rather, for the doc-
trine to apply at all, the state somehow must reallocate politi-
cal authority in a discriminatory manner.


[19] States have "extraordinarily wide latitude . . . in creat-
ing various types of political subdivisions and conferring
authority upon them." Holt Civic Club v. Tuscaloosa, 439
U.S. 60, 71 (1978).14 That a law resolves an issue at a higher
level of state government says nothing in and of itself. Every
_________________________________________________________________
14 See Williams v. Mayor, 289 U.S. 36, 40 (1933) ("A municipal corpo-
ration, created by a state for the better ordering of government, has no
privileges or immunities under the federal constitution which it may
invoke in opposition to the will of its creator."); Hunter v. Pittsburgh, 207
U.S. 161, 178 (1907) ("The number, nature and duration of the powers
conferred upon [municipal] corporations and the territory over which they
shall be exercised rests in the absolute discretion of the State.").


                               3920


statewide policy has the "procedural" effect of denying some-
one an inconsistent outcome at the local level."[A] lawmak-
ing procedure that `disadvantages' a particular group does not
always deny equal protection. Under any such holding, pre-
sumably a State would not be able to require referendums on
any subject unless referendums were required on all, because
they would always disadvantage some group." James v. Val-
tierra, 402 U.S. 137, 142 (1971).


Hunter and Seattle relied expressly on the states' existing
educational and housing decisionmaking processes to find
that they had reallocated authority in a racially discriminatory
manner. In Hunter, the state obstructed equal housing by
removing only racially fair housing prerogatives from the
lawmaking procedure for all other housing matters. In Seattle,
the state obstructed equal education by removing only racially
desegregative prerogatives from the lawmaking procedure for
all other educational matters.


As the Seattle Court explained:

      Before adoption of the initiative, the power to deter-
      mine what programs would most appropriately fill a
      school district's educational needs--including pro-
      grams involving student assignment and desegrega-
      tion--was firmly committed to the local board's
      discretion. The question whether to provide an inte-
      grated learning environment rather than a system of
      neighborhood schools surely involved a decision of
      that sort. After passage of Initiative 350, authority
      over all but one of those areas remained in the hands
      of the local board. By placing power over desegrega-
      tive busing at the state level, then, Initiative 350
      plainly differentiates between the treatment of prob-
      lems involving racial matters and that afforded other
      problems in the same area.


Seattle, 458 U.S. at 479-80 (internal quotation marks and cita-
tions omitted). Plaintiffs would have us extrapolate from


                               3921


Seattle that a state may never treat race qua race differently
from any other legal classification. Seattle itself, however,
declined that invitation.


The Seattle majority specifically allayed any concern that
its holding rendered the state powerless to address racial
issues where localities acted first. Justice Powell had
lamented in dissent what a "strange notion" it was, "alien to
our system--that local governmental bodies can forever pre-
empt the ability of a State--the sovereign power--to address
a matter of compelling concern to the State." Id. at 495 (Pow-
ell, J., dissenting). He questioned how a statewide repeal of
busing created a racial classification when identical action by
the local government would not. Id. at 494 (Powell, J., dis-
senting). To him, the decision left "unclear whether the State
may set policy in any area of race relations where a local gov-
ernmental body arguably has done `more' than the Fourteenth
Amendment requires." Id. at 498 n.14 (Powell, J., dissenting).


The majority responded that the "horribles paraded by the
dissent" in footnote 14 were "entirely unrelated to this case."
Id. at 480 n.23. The Seattle majority did not question "that the
State might have vested all decisionmaking authority in
itself." Id. at 477; see id. at 480 n.23. The State's prerogative
in that regard was "irrelevant" in Seattle, though, because "the
political structure it in fact erected impose[d ] comparative
burdens on minority interests . . . ." Id. at 477. The State, of
course, "could have reserved to state officials the right to
make all decisions in the areas of education and student
assignment." Id. at 487. Conversely, the State had "not
attempted to reserve to itself exclusive power to deal with
racial issues generally."15Id. at 479 n.22. By removing deseg-
regative prerogatives from these general grants of power, the
State, as in Hunter, differentiated the treatment of racial prob-
_________________________________________________________________
15 Rather, the State had given its municipalities "the power to enact

antidiscrimination ordinances." Seattle, 458 U.S. at 479 n.22.

                               3922


lems in education from that afforded educational and racial
issues generally.


[20] When, in contrast, a state prohibits all its instruments
from discriminating against or granting preferential treatment
to anyone on the basis of race or gender, it has promulgated
a law that addresses in neutral-fashion race-related and
gender-related matters. It does not isolate race or gender
antidiscrimination laws from any specific area over which the
state has delegated authority to a local entity. Nor does it treat
race and gender antidiscrimination laws in one area differ-
ently from race and gender antidiscrimination laws in another.
Rather, it prohibits all race and gender preferences by state
entities.


b

[21] Even a state law that does restructure the political pro-
cess can only deny equal protection if it burdens an individu-
al's right to equal treatment.


[22] A denial of equal protection entails, at a minimum, a
classification that treats individuals unequally. See, e.g., Ada-
rand, 115 S. Ct. at 2111. The "political structure" cases do not
create some paradoxical exception to this sine qua non of any
equal protection violation. In Hunter, the lawmaking proce-
dure made it more difficult for Nellie Hunter to obtain protec-
tion against unequal treatment in the housing market. In
Seattle, the lawmaking procedure made it more difficult for
minority students to obtain protection against unequal treat-
ment in education.16 In Romer, Colorado's Amendment 2
_________________________________________________________________
16 The district court perceived no relevant difference between the busing
programs at issue in Seattle and the racial preference programs at issue
here. We have recognized, however, that " `stacked deck' programs [such
as race-based `affirmative action'] trench on Fourteenth Amendment val-
ues in ways that `reshuffle' programs [such as school desegregation] do

not." Associated Gen. Contractors of Cal. v. San Francisco Unified Sch.

                               3923


denied homosexuals the ability to obtain "protection against
discrimination," thus classifying homosexuals "not to further
a proper legislative end but to make them unequal to everyone
else." Romer, 116 S. Ct. at 1629.


[23] Plaintiffs challenge Proposition 209 not as an impedi-
ment to protection against unequal treatment but as an imped-
iment to receiving preferential treatment. The controlling
words, we must remember, are "equal" and "protection."
Impediments to preferential treatment do not deny equal
protection.17 It is one thing to say that individuals have equal
protection rights against political obstructions to equal treat-
ment; it is quite another to say that individuals have equal
protection rights against political obstructions to preferential
treatment. While the Constitution protects against obstruc-
tions to equal treatment, it erects obstructions to preferential
treatment by its own terms.


[24] The alleged "equal protection " burden that Proposition
_________________________________________________________________
Dist., 616 F.2d 1381, 1387 (9th Cir.), cert. denied, 449 U.S. 1061 (1980).
Unlike racial preference programs, school desegregation programs are not
inherently invidious, do not work wholly to the benefit of certain members
of one group and correspondingly to the harm of certain members of
another group, and do not deprive citizens of rights. Id.
17 We must be sure not to misread the district court's finding that those
seeking race or gender preferences now must mount a statewide campaign
while "those seeking preferences based on any ground other than race or
gender, such as age, disability, or veteran status, continue to enjoy access
to the political process at all levels of government." Proposition 209 only
prohibits preferential treatment based on race or gender. "Those seeking
preferences based on any ground other than race or gender, such as age,
disability, or veteran status," who "continue to enjoy access to the political

process at all levels of government," include, we must remember, every-
one--members of all races and both genders. If the state ever prohibited
women and minorities from seeking preferences on a basis available to
everyone else, such as age, disability, or veteran status, the state would
violate Proposition 209's prohibition against race or gender discrimina-
tion.


                               3924


209 imposes on those who would seek race and gender prefer-
ences is a burden that the Constitution itself imposes. The
Equal Protection Clause, parked at our most "distant and
remote" level of government, singles out racial preferences
for severe political burdens--it prohibits them in all but the
most compelling circumstances. It is well-settled that "all
governmental action based on race--a group classification
long recognized as in most circumstances irrelevant and there-
fore prohibited--should be subject to detailed judicial inquiry
to ensure that the personal right to equal protection of the
laws has not been infringed." Adarand, 115 S. Ct. at 2112-13
(internal quotation marks and citation omitted). That is
because "there is simply no way of determining what classifi-
cations are `benign' or `remedial' and what classifications are
in fact motivated by illegitimate notions of racial inferiority
or simple racial politics." Id. at 2112 (quoting Croson, 488
U.S. at 493 (1989) (plurality)). Rather, "any person, of what-

ever race, has the right to demand that any governmental actor
subject to the Constitution justify any racial classification sub-
jecting that person to unequal treatment under the strictest
judicial scrutiny." Id. at 2111. A governmental action that
classifies persons on the basis of gender demands an "exceed-
ingly persuasive justification" to survive constitutional scru-
tiny. Virginia, 116 S. Ct. at 2275.


[25] That the Constitution permits the rare race-based or
gender-based preference hardly implies that the state cannot
ban them altogether. States are free to make or not make any
constitutionally permissible legislative classification. Nothing
in the Constitution suggests the anomalous and bizarre result
that preferences based on the most suspect and presumptively
unconstitutional classifications--race and gender--must be
readily available at the lowest level of government while pref-
erences based on any other presumptively legitimate classifi-
cation--such as wealth, age or disability--are at the mercy of
statewide referenda.


After all, the "goal" of the Fourteenth Amendment, "to
which the Nation continues to aspire," is "a political system


                               3925


in which race no longer matters." Shaw, 509 U.S. at 657.
When the people enact a law that says race somehow matters,
they must come forward with a compelling state interest to
back it up. Plaintiffs would have us also require the people to
come forward with a compelling state interest to justify a state
law that says that race cannot matter in public contracting,
employment, and education. Plaintiffs' counsel went even one
step further at oral argument. He urged that "[t]he people of
the State of California are not entitled to make a judgment as
to whether compelling state interests have been vindicated.
That is for the courts." Au contraire! That most certainly is
for the people of California to decide, not the courts. Our
authority in this area is limited to deciding whether the inter-
ests proffered by the people are sufficient to justify a law that
classifies among individuals. If the federal courts were to
decide what the interests of the people are in the first place,
judicial power would trump self-government as the general

rule of our constitutional democracy.

The Constitution permits the people to grant a narrowly tai-
lored racial preference only if they come forward with a com-
pelling interest to back it up. See, e.g., Adarand, 115 S. Ct. at
2114. "[I]n the context of a Fourteenth Amendment challenge,
courts must bear in mind the difference between what the law
permits, and what it requires." Shaw, 509 U.S. at 654. To hold
that a democratically enacted affirmative action program is
constitutionally permissible because the people have demon-
strated a compelling state interest is hardly to hold that the
program is constitutionally required. The Fourteenth Amend-
ment, lest we lose sight of the forest for the trees, does not
require what it barely permits.


[26] A state law that prohibits classifications based on race
or gender is a law that addresses in neutral-fashion race-
related and gender-related matters. As in Crawford, "[i]t
would be paradoxical to conclude that by adopting the Equal
Protection Clause of the Fourteenth Amendment, the voters of


                               3926


the State thereby had violated it."18  Crawford, 458 U.S. at
535. For these reasons, we are persuaded that the district court
relied on an erroneous legal premise when it concluded that
plaintiffs have demonstrated a likelihood of success on their
equal protection claim.


VI

The district court also concluded that plaintiffs have dem-
onstrated a likelihood of success on their claim that Proposi-
tion 209 is invalid under the Supremacy Clause because Title
VII of the Civil Rights Act of 1964, 42 U.S.C. S 2000e et seq,
pre-empts it.19 The district court found Title VII to be "silent"
on "the role of voluntary race- and gender-conscious affirma-
tive action" under its schema. It thus turned, pursuant to
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), to an interpretation of the statute
by the Equal Employment Opportunity Commission
("EEOC"). An EEOC Guideline states: "Voluntary affirma-
tive action to improve opportunities for minorities and women
must be encouraged and protected in order to carry out the
Congressional intent embodied in title VII." 29 C.F.R.
S 1609.1(c). Applying Chevron, the court gave "substantial
deference" to this interpretation of the statute.


[27] The district court is correct that federal law may pre-
empt state law to the extent that the state law "stands as an
_________________________________________________________________
18 To the extent that Proposition 209 prohibits race and gender prefer-
ences to a greater degree than the Equal Protection Clause, it provides
greater protection to members of the gender and races otherwise burdened
by the preference. See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74,
81 (1979) (noting a state's "sovereign right to adopt in its own Constitu-
tion individual liberties more expansive than those conferred by the Fed-
eral Constitution").
19 The district court also found that Title VI of the Civil Rights Act of
1964, 42 U.S.C. S 2000d et seq., and Title IX of the Education Amend-
ments of 1972, 20 U.S.C. S 1681, did not pre-empt it. Plaintiffs do not
contend otherwise on appeal.


                               3927


obstacle to the accomplishment and execution of the full pur-
poses and objectives of Congress." Hines v. Davidowitz, 312
U.S. 52, 67 (1941).20 The district court apparently overlooked,
however, the express pre-emption provisions of the 1964
Civil Rights Act.21 "In two sections of the 1964 Civil Rights
Act, SS 708 and 1104, Congress has indicated that state laws
will be pre-empted only if they actually conflict with federal
law." California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S.
272, 281 (1987) (plurality opinion).


[28] Section 708 of Title VII provides:

      Nothing in this subchapter shall be deemed to
      exempt or relieve any person from any liability,
      duty, penalty, or punishment provided by any pres-
      ent of future law of any State or political subdivision
      of a State, other than any such law which purports to
      require or permit the doing of any act which would
      be an unlawful employment practice under this sub-
      chapter.


42 U.S.C. S 2000e-7. That is all Title VII pre-empts. Proposi-
tion 209 does not remotely purport to require the doing of any
act which would be an unlawful employment practice under
Title VII. Quite the contrary, "[d]iscriminatory preference for
any group, minority or majority, is precisely and only what
Congress has proscribed." Griggs v. Duke Power Co., 401
U.S. 424, 431 (1971). Title VII, therefore, does not pre-empt
Proposition 209.
_________________________________________________________________
20 Plaintiffs raise no claim of field pre-emption, which, as the district
court noted, does not apply. The district court also rejected plaintiffs pre-
emption claim on the ground that "compliance with both federal and state
regulation is a physical impossibility." Florida Lime & Avocado Growers,
Inc. v. Paul, 373 U.S. 132, 142-43 (1963).
21 In light of the express pre-emption provisions and plain language of
Title VII, we do not reach the question of whether EEOC guidelines, as
opposed to regulations, merit Chevron deference.


                               3928


Section 1104 of Title IX also generally limits the pre-
emptive effect of all titles of the Civil Rights Act:


      Nothing contained in any title of this Act shall be
      construed as indicating an intent on the part of Con-
      gress to occupy the field in which any such title
      operates to the exclusion of State laws on the same
      subject matter, nor shall any provision of this Act be
      construed as invalidating any provision of State law
      unless such provision is inconsistent with any of the
      purposes of this Act, or any provision thereof.


42 U.S.C. S 2000h-4.

Section 1104's more general pre-emption provisions would
operate to pre-empt Proposition 209 only if Proposition 209
were inconsistent with any purpose or provision of the 1964
Civil Rights Act. Title VII's one command regarding race and
gender preferences conclusively demonstrates that Proposi-
tion 209 is entirely consistent: "Nothing contained in this sub-
chapter shall be interpreted to require any [entity] . . . subject
to this subchapter to grant preferential treatment to any indi-
vidual or to any group because of the race, color, religion,
sex, or national origin of such individual or group . . . ." 42
U.S.C. S 2000e-2(j); see Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 259 (1981) ("Title VII. . . does not
demand that an employer give preferential treatment to minor-
ities or women."). Nothing in Title VII suggests that Congress
intended to leave government with less latitude under Title
VII than private employers. Local No. 93, Int'l Ass'n of Fire-
fighters v. Cleveland, 478 U.S. 501, 520 n.10 (1986).


[29] Because Title VII by its plain language does not pre-
empt Proposition 209, the district court relied on an erroneous
legal premise in concluding that plaintiffs are likely to suc-
ceed on the merits of their pre-emption claims.


                               3929


VII

[30] With no likelihood of success on the merits of their
equal protection or pre-emption claims, plaintiffs are not enti-
tled to a preliminary injunction. The district court determined
that plaintiffs had demonstrated irreparable harm because
Proposition 209 threatened to inflict an immediate and ongo-
ing constitutional injury upon them. That conclusion, for rea-
sons we have explained, rests on an erroneous legal premise.
As we explained in Glick v. McKay, 937 F.2d 434 (9th Cir.
1991), our review of a constitutional issue is plenary where
"the facts are established or of no controlling relevance." Id.
at 436 (quoting Thornburgh v. American College of Obstetri-
cians & Gynecologists, 476 U.S. 747, 757 (1986)). Assuming
all facts alleged in the complaint and found by the district
court to be true, and drawing all reasonable inferences in
plaintiffs' favor, we must conclude that, as a matter of law,
Proposition 209 does not violate the United States Constitu-
tion. With no constitutional injury on the merits as a matter

of law, there is no threat of irreparable injury or hardship to
tip the balance in plaintiffs' favor.


For the foregoing reasons, we vacate the preliminary
injunction, deny the motion to stay the injunction as moot,
and remand to district court for further proceedings consistent
with this opinion.


Preliminary injunction VACATED; stay DENIED as
moot; REMANDED.


                               3930