The Leadership Conference on Civil and Human Rights

Volume 9 Number 1

On November 5, 1996 California voters approved an initiative amending the State Constitution's Article 1, Sec. 31, to prohibit "preferential treatment" based on "race, sex, color, ethnicity or national origin" by the State or any of its subdivisions or in strumentalities in employment, education or contracting programs. Proposition 209 abolishes California's public affirmative action program. It requires that the State deny "preferential treatment" in certain activities to certain persons only. The Stat e or its instrumentalities such as local governments may grant preferential treatment based on characteristics other than "race, sex, color, ethnicity or national origin" on other bases, say, to veterans. "The primary change that Proposition 209 makes to existing law is to close that narrow but significant window that permits the governmental race- and gender-conscious affirmative action programs...that are still permissible under the U.S. Constitution."

The Proposition states the following:

A day after the election, both Gov. Pete Wilson and State Attorney General Lungren instructed state agencies to list and undo state programs of the kind barred by Prop. 209. But on the same day, a group of minority and women's advocacy organizations f iled suit in federal court in San Francisco to stop implementation of Prop. 209 on the ground that it violates the U.S. Constitution.

The suit, Coalition for Economic Equity et al. v. Pete Wilson et al., claims that the prohibitory language of Prop. 209 deprives minorities and women of equal protection of the laws as guaranteed by the U.S. Constitution's l4th Amendment and also vio lates the Supremacy Clause of the U.S. Constitution [valid federal law is the law in every state] and it "conflicts with the federal policy embodied in Titles VI and VII of the Civil Rights Act of l964, [and] Title IX of the Educational Amendments of 1972 ...." In December, 1996 the federal court issued a temporary restraining order and subsequently a preliminary injunction against any enforcement of Prop. 209 until a final ruling on the merits of the constitutional challenge to the Proposition.

The court certified the suit as a class action and found that the plaintiffs had established a probability of success on the merits of their 14th Amendment claim. This was because the Proposition barred only minorities and women from obtaining benefit s from the State or local governments without first obtaining an amendment to the State Constitution, thus making it harder for them as compared to others to acheive their goals through the political process. Also the court found a likelihood of success on their claim that Prop. 209 violates the Supremacy Clause "because it conflicts with and is thus preempted by Title VI of the l964 Civil Rights Act". The court also ruled that the plaintiffs had established a real and imminent threat of irreparable inj ury to their interests or those of their members unless a preliminary injunction were issued.

The defendants have appealed the Preliminary Injunction, and that appeal is pending, as is an intervening defendant's application for a stay of the Preliminary Injunction in both the district court and the federal court of appeals.

A brief has been filed by the plaintiffs in the Federal Court of Appeals for the Ninth Circuit opposing the motion for a stay of the injunction, and at the end of January 1997, a brief amicus curiae also opposing the stay was filed by the United State s. The United States' brief succinctly and pointedly addresses two questions. The first question is whether the intervenor-defendant had made the "strong showing required by Supreme Court and ninth circuit precedent that the intervenor is likely to succ essfully establish the district court abused its discretion in issuing the preliminary injunction. The Government argued that the district court properly found controlling in this case the two Supreme Court cases on which the district court relied, Seatt le School District No. 1 and Hunter v. Erickson, which barred a state from singling out racial and gender issues for special treatment in the political process and thus imposing unusual burdens on the ability of minorities and women to overcome the "speci al condition" of prejudice.

The second question that the United States addressed is whether the competing equities here justify upsetting the status quo. The United States demonstrated that in this case the balance of hardships and the public interest strongly favor preserving t he status quo pending appeal by the traditional method of the district court issuing an injunction barring enforcement of the challenged initiative pending the court's decision on the merits of the complaint.