By Rusty Dornin
CNN.com, November 28, 1996
SAN FRANCISCO (CNN) — A federal judge has put the brakes on a controversial California referendum designed to dismantle state affirmative action programs based on sex or race.
Chief U.S. District Judge Thelton Henderson on Wednesday blocked enforcement of the anti-affirmative action initiative, saying civil rights groups have a “strong probability” of proving it unconstitutional.
Henderson issued a temporary restraining order barring Gov. Pete Wilson and Attorney General Dan Lungren from taking any action to enforce Proposition 209, at least until a hearing December 16.
“It’s a minor development in a larger picture,” said Robert Corry of the Pacific Legal Foundation. “We’ll continue to argue and assert.”
The ballot initiative, approved by nearly 55 percent of California’s voters on November 5, prohibits race and gender considerations in public hiring, contracting and college admissions.
At a hearing earlier this week, attorneys told Henderson the measure would turn the “glass ceiling” for minorities and women into an “iron cage.” They argue it violates the U.S. Constitution’s equal protection clause by blocking legislation needed to protect racial minorities and women from discrimination.
Supporters of the measure, however, say it simply bans any form of discrimination.
“The very first sentence of Proposition 209 begins, ‘The state shall not discriminate,'” said Steve Telliano, a spokesman for state Attorney General Dan Lungren. “How that amounts to discrimination is impossible to understand. It’s like saying two plus two does not equal four.”
In his order, Henderson wrote: “Courts must look beyond the plain language of an enactment. The relevant question is whether, in reality, the burden imposed by a law necessarily falls on minorities and women.”
The judge relied on a 1981 U.S. Supreme Court decision that overturned a Washington initiative prohibiting school boards from ordering busing for desegregation. That ruling said minorities were unconstitutionally prevented from seeking discrimination remedies from school boards — just as opponents of Proposition 209 argued against the California initiative.
No decision soon
The restraining order does not apply directly to local agencies or the University of California, which already has taken steps to notify new applicants that race and gender will no longer be considered.
Henderson specified that Wilson could continue to ask state agencies to identify affirmative action programs potentially affected by Proposition 209. The initial review, ordered by the governor the day after the election, was scheduled to be completed Wednesday.
On December 16, Henderson will consider a request for a preliminary injunction to prohibit enforcement of the measure until the lawsuit goes to trial. Unlike Wednesday’s order, that injunction could be appealed to a higher court.
Legal experts say it could be a year or more before there is a final ruling. That was the case with California’s Proposition 187, which would have denied most public services to illegal immigrants. It was approved in 1994 but has been tied up by court challenges ever since.
The Associated Press contributed to this report.