LOS ANGELES - A federal appeals court, siding with opponents of affirmative action, yesterday upheld California's voter-approved ban on preferences based on race and gender.
In a strongly worded decision that reflected the politically charged nature of the issue, a three-judge panel of the 9th Circuit Court of Appeals in San Francisco said there is "no doubt" the measure is constitutional.
The judges unanimously ordered the lifting of a lower-court injunction blocking enforcement of Proposition 209. The initiative last November, making California the first state to attempt to roll back affirmative action, bars preferential treatment and discrimination in public hiring, contracting and education.
"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," the court declared, referring to a Dec. 23 ruling by U.S. District Judge Thelton Henderson that the initiative was probably unconstitutional.
Yesterday's decision is scheduled to take effect in 21 days, but affirmative-action advocates said they will ask a larger panel of the 9th Circuit to continue the ban on enforcement while the case is appealed.
President Clinton said during a White House news conference that if states are precluded from taking special measures to help disadvantaged people, "I think that will be a mistake." Clinton, who argued against Proposition 209 and had the Justice Department oppose it on appeal, added: "I think we'll all have to regroup and find new ways to achieve the same objective."
The judges emphasized that the equal-protection clause of the 14th Amendment was intended to end government discrimination based on race. They said it would be paradoxical if California voters had violated the clause by requiring all people to be treated equally and barring any preference based on race or sex.
"After all," the ruling said, "the goal of the 14th Amendment, to which the Nation continues to aspire, is a political system in which race no longer matters."
The panel stressed that women and racial minorities constitute a majority of the California electorate and said Proposition 209 was a neutrally applied law.
"As a matter of 'conventional' equal-protection analysis, there is no doubt that Proposition 209 is constitutional. The ultimate goal of the equal-protection clause is to do away with all governmentally imposed discrimination based on race and gender. When the government prefers individuals on account of their race or gender, it disadvantages individuals who belong to another race or gender," the court said.
The three-judge panel is especially conservative when compared to the generally liberal 9th Circuit. Diarmuid O'Scannlian and Edward Leavy were both appointed by Ronald Reagan; Andrew Kleinfeld was named by George Bush.
Reaction was swift. The American Civil Liberties Union, which represented minority and women public employees, contractors and students in challenging Proposition 209, called the decision a "diatribe against affirmative action."
ACLU Legal Director Mark Rosenbaum called the decision a "grave disappointment," saying it is "obviously and dramatically incompatible with decades of mainstream Supreme Court decisions guaranteeing women and minorities equal participation in the political process."
Elizabeth Toledo, California coordinator of the National Organization of Women, said the decision was "disappointing but not surprising." But supporters of Proposition 209 hailed yesterday's ruling as a vindication of their position and a major boost for similar ballot initiatives in other states.
"A number of states we've talked with had started to slow down their efforts because of (Henderson's) decision," said Ward Connerly, former chairman of the Proposition 209 campaign. "They now know that they would be on the side of the angels if they were to move ahead with their campaigns. It's a tremendous encouragement to them."
Connerly said Washington state and Florida are furthest along with proposed anti-affirmative action initiatives and that campaigns are also under way in Arizona, Colorado, Ohio and Michigan.
The battle is being watched closely by college leaders, who are facing growing pressure to scrap or limit racial preferences in admissions. Even before Proposition 209, California's Board of Regents, which governs the giant University of California system, had banned the use of affirmative action in enrollment and hiring, beginning in spring 1998.