Prop. 209 Fight Could Go to Supreme Court

Proposition 209, the anti-affirmative action initiative blocked by a federal judge, appears headed for a lengthy battle over constitutional questions that may only be resolved by the U.S. Supreme Court, according to legal scholars and lawyers close to the case.

“The bottom line is that this is a sufficiently close issue that one’s basic approach to it, one’s basic ideological leanings, are going to go a long way in determining how you read U.S. Supreme Court precedents,” said UC Berkeley constitutional law expert Jesse Choper.

Chief U.S. District Judge Thelton Henderson will hear arguments today on whether to grant a preliminary injunction halting the measure’s enforcement indefinitely. In handing down a temporary restraining order last month, Henderson, a former civil rights lawyer, cited a “strong probability” that the law is unconstitutional.

State lawyers defending the measure are expected to move swiftly to appeal if an injunction is granted and to ask Henderson to decide the case quickly, possibly without a full-blown trial. They want to get the case before potentially more conservative appellate judges and ultimately to the U.S. Supreme Court as early as 1998.

“You start from the point that it looks like [Henderson] has already tipped his hand as to which way it goes,” said Anthony T. Caso, general counsel of the conservative Pacific Legal Foundation, which has joined the state in arguing before Henderson. “There is no reason to hang around in this court.”

State Atty. Gen. Dan Lungren said Henderson could decide the class-action case without taking testimony, relying instead on briefs and affidavits. “We are going to try to get it [to the U.S. Supreme Court] as soon as possible,” Lungren said in a telephone interview.

In the meantime, civil rights groups are trying to recast the debate away from affirmative action, which a majority of the U.S. Supreme Court has voted to restrict, to a denial of equal access to government.

If the U.S. Supreme Court does review the initiative, the justices are expected to be divided. But several scholars believe the balance weighs in the measure’s favor. Justice Sandra Day O’Connor, who has voted against affirmative action programs in the past, is considered the potential swing vote.

American Civil Liberties Union lawyers contend the measure is unconstitutional because it would prevent women and minorities from seeking programs to remedy discrimination while leaving that right intact for others, including the aged and the disabled.

The legal case is not about whether government can abolish affirmative action, but rather it “deals with access to government and to the political process that is available to minorities and women,” said Mark Rosenbaum, legal director of the ACLU of Southern California.

Most expect the measure’s future to be resolved more quickly than the legal battle over Proposition 187, which voters passed in 1994 to curtail immigrant rights. A lawsuit against that measure is still languishing in a federal courtroom in Los Angeles.

But the Proposition 209 dispute still could consume years in the courts. Appellate courts usually do not overturn injunctions without a finding that the trial judge has made an egregious error. An appeal would go first to the U.S. 9th Circuit Court of Appeals, which includes both liberal and conservative judges.

“Henderson may even be done with the case before the 9th Circuit issues an opinion on the preliminary injunction,” said UC Davis law professor Vikram D. Amar, who co-wrote a recent, widely discussed law journal article that argued the basis for declaring Proposition 209 unconstitutional.

Henderson has been blasted as a liberal activist for blocking the ballot measure, but both liberal and conservative legal analysts agree that there are sufficient court precedents to support his decision.

The primary case cited by civil rights groups was a 1982 U.S. Supreme Court decision about a Washington state constitutional amendment that prohibited school boards from busing children to desegregate schools.

In a 5-4 decision, the high court struck down the law, contending that it was aimed only at removing the ability of minorities to seek integration in the school system and violated the equal protection clause of the U.S. Constitution, which prohibits government from denying a person equal protection of the law.

“Why is race-based busing any different than other race-based programs?” Amar asked. “Nobody has been able to come up with a good answer to that.”

The key to both cases, he said, is that the Washington law and Proposition 209 were state constitutional amendments, which can only be repealed by another vote of Californians.

“While an entity is free to repeal affirmative action,” Amar said, “certain kinds of repeals are problematic” because they force those who have suffered to overcome a major hurdle.

But two of the three sitting justices who voted on that case, including O’Connor, joined the dissent against the ruling. The court eventually could rule that the Seattle case was different and distinguish it from Proposition 209, or simply overturn it.

“This is not a frivolous case,” said Choper, who believes that Proposition 209 is unconstitutional. “The Supreme Court, in the end, is going to have its work cut out for them to distinguish this case, if not to overturn it.”

Civil rights lawyers also have cited a more recent U.S. Supreme Court decision that said gays and lesbians may not be singled out for discrimination because of “animus” toward their sexual orientation.

In that case, the court struck down a Colorado initiative that would have allowed employers and landlords to exclude gays and barred passage of new anti-discrimination laws.

“I think a judge could very easily decide, based on the language in Romer, that 209 is unconstitutional,” said McGeorge School of Law professor Clark Kelso, a Republican who previously clerked for U.S. Supreme Court Justice Anthony M. Kennedy, an appointee of President Reagan.

“Reasonable judges are going to disagree rather dramatically whether 209 is unconstitutional.”

Lawyers for the state contend that the measure simply bars all discrimination either for or against women and minorities and therefore could not possibly violate the Equal Protection Clause.

“Look, only lawyers could figure out, in a case like this, that a prohibition of discrimination is discrimination,” Lungren said.

Women and minorities who have been discriminated against can still seek remedies by going to court or to the government agency that denied them a contract or a job, the state contends.

While making these arguments, Lungren’s lawyers will continue to ask that the proposition be reviewed first by a California court because only the state Supreme Court can interpret the state constitution.

Civil rights lawyers argue that no interpretation of the measure could make it constitutional, but state judges are elected and might be more inclined to try to uphold a voter initiative.

“If Proposition 209 needs to have a narrower interpretation to be constitutional, then the California Supreme Court is the right place for it,” said Kelso. “The Supreme Court has been willing with voter initiatives in recent years to fix things to avoid declaring an initiative unconstitutional.”

Civil rights leader Jesse Jackson has asked the Clinton administration to intervene in the case, and the administration appears to be leaning in favor of joining the legal fight against the ballot measure.

However the courts resolve Proposition 209, Gov. Pete Wilson wants to proceed with actions taken prior to the November vote to dismantle state affirmative action programs.

In the state’s legal papers filed this week, the state argues that a pending suit Wilson filed last year in state court to abolish these programs will more clearly frame or even eliminate the constitutional concerns over Proposition 209.

Under a recent U.S. Supreme Court decision, affirmative action programs are legal only if they serve a compelling interest and are narrowly tailored to further that interest.

“Certainly there are things that can be done under existing law,” Lungren said.

For example, the UC Board of Regents, while barred so far from implementing the ballot measure, can proceed with a phased-in elimination of affirmative action ordered by the regents prior to the election.

“It is conceivable,” said Kelso, “that [the ACLU] can win on Proposition 209, but as a practical matter, not have accomplished anything.”