April 9, 1997
Foes vow to fight ban on affirmative action
Harriet Chiang, Chronicle Legal Affairs Writer
A federal appeals court yesterday upheld Proposition 209, ruling that California's anti-affirmative action measure does not violate the constitutional rights of women and minorities.
By a 3-0 vote, the U.S. Court of Appeals in San Francisco ruled that the initiative passed by voters in November does not cause irreparable harm to women and minorities. The law bars the state from giving preference to women and minorities in contracts, hiring and college admissions.
``We must conclude that, as a matter of law, Proposition 209 does not violate the United States Constitution,'' wrote Judge Diarmuid F. O'Scannlain of Portland, Ore., in the court's decision. ``There is no threat of irreparable injury or hardship to tip the balance in plaintiffs' favor,'' O'Scannlain concluded. Judges Edward Leavy, also of Portland and Andrew J. Kleinfeld of Fairbanks, Alaska, joined in the opinion.
The decision is scheduled to take effect in 21 days. But attorneys representing a coalition of women, minorities and civil rights groups said they will appeal. Such a move would automatically prevent Proposition 209 from taking effect and set the stage for a landmark battle before the U.S. Supreme Court, lawyers on both sides of the case said yesterday.
Governor Pete Wilson and other state officials hailed the decision. ``Today is a victory for every Californian, for every man, woman and child who asks only that he or she be treated fairly and equally under the law and be judged by their integrity and their character,'' Wilson said at a news conference in Sacramento.
Appearing with Wilson was his longtime friend and ally Ward Connerly, a University of California regent and leading opponent of affirmative action programs. ``It's a nail, it's a spike, it's a dagger in the heart of preferences,'' Connerly said. Despite any future appeals, he said, ``surely we will get to where Dr. (Martin Luther) King (Jr.) wanted to be when he climbed to that mountaintop. Today is another step toward that mountaintop for us.''
The two authors of the measure, Thomas Wood and Glynn Custred, joined in the celebration. ``The initiative simply prohibits governmental discrimination against anyone on the basis of race or sex,'' said Wood in a statement. ``A measure like that is obviously constitutional.''
Lawyers for the coalition of groups challenging the law said yesterday that they would ask the 20-judge appeals court for a rehearing. If their request is granted, it will go before a special 11-judge panel. Whatever the ruling by the panel, the loser is almost certain to pursue a final appeal with the U.S. Supreme Court. If the law is upheld, ``it will have a devastating impact on women and minorities,'' said Ed Chen, attorney with the American Civil Liberties Union, at a news conference in San Francisco. ``The court got the law completely wrong.''
Eva Paterson of the Lawyers' Committee for Civil Rights said those challenging the law are confident of prevailing on appeal, calling yesterday's decision ``misguided.''
The lawyers said the decision was not a surprise, given the conservative philosophy of the three judges. O'Scannlain, a former chairman of the Oregon Republican Party, and Leavy were appointed to the court by President Ronald Reagan. Kleinfeld was chosen by President George Bush and led an unsuccessful campaign to ban a book about homosexuality from a public library in Alaska.
The three-judge panel overturned a decision in November by U.S. District Court Judge Thelton Henderson, who blocked enforcement of the law, finding that it probably violated the constitutional rights of women and minorities. After he blocked the law, Henderson, who was appointed to the federal bench by President Jimmy Carter, was accused by Proposition 209 proponents of basing his decisions on personal bias.
In the opinion yesterday, the three-judge panel accused Henderson of relying on an erroneous legal premise and thwarting the will of the voters. ``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,'' O'Scannlain wrote.
In his decision blocking enforcement of the law, Henderson relied on two U.S. Supreme Court decisions striking down laws that appeared to be race-neutral but were in fact discriminatory in their enforcement.
But the appeals court rejected these two decisions, saying that they were ``irreconcilable'' with other high court rulings.