Judge Extends Curb on Proposition 209

A federal judge Monday extended a temporary order barring enforcement of Proposition 209, the anti-affirmative action measure passed by voters in November.

After hearing several hours of arguments over the constitutionality of the measure, Chief U.S. District Judge Thelton Henderson extended the temporary restraining order he granted last month until next Monday.

He promised to decide by then whether to hand down a preliminary injunction that would ban enforcement until he resolves the dispute--which could take months. The state intends to appeal any such order.

Henderson noted media “speculation” that the U.S. Supreme Court would uphold Proposition 209--even in the face of a legal precedent cited by civil rights groups. But the judge said he is obliged to follow precedent rather than guess what the Supreme Court might do.

“It seems clear to me that I am not allowed the luxury of that kind of speculation,” Henderson said.

Civil rights groups have argued that a precedent, a 1982 U.S. Supreme Court ruling on a Washington state constitutional amendment over race-based busing, compels Henderson to find Proposition 209 in violation of the equal protection clause of the U.S. Constitution.

If the precedent applies, Henderson said, he must follow it even if he believes the current members of the U.S. Supreme Court would not.

“As important as the will of the people is. . . ,” Henderson said, “the will of the people must always be kept in harmony with the federal Constitution.”

Henderson spoke after a day of often impassioned arguments over whether a preliminary injunction is required. The state contends that Proposition 209 bars all discrimination, while opponents say it favors white men and others at the expense of women and minorities.

Mark Rosenbaum, the legal director for the ACLU of Southern California, contended that Proposition 209 is unconstitutional because it prohibits women and minorities from going to government agencies for remedies for discrimination while allowing other groups, such as veterans and the aged, to seek such protections.

He argued that Proposition 209 puts a “special and unique burden” on women and minorities by forcing them to seek another constitutional amendment to obtain relief from discrimination.

“This is the most radical restructuring of the political process to the detriment of minorities in the history of this country,” Rosenbaum said.

A lawyer for the state countered that the ballot measure still will allow women and minorities remedies for discrimination, barring only programs that grant preferences.

“We’re not restricting a group’s right to seek legislation to benefit itself,” said Deputy Atty. Gen. Paul H. Dobson. The measure prohibits such benefits only if they come “to the detriment of someone else.”

He said the 1982 Washington precedent was different because the anti-school busing initiative was only aimed at taking away a benefit for minorities whereas Proposition 209 prevents harm to others, such as white men who are denied government contracts even if they are lowest bidder.

Also participating in the court hearing was a lawyer for sponsors of the proposition. He asked that Henderson be disqualified from the case on the grounds of bias and prejudice. Henderson said he will refer the matter to another judge.

Manuel S. Klausner, the lawyer representing the proposition’s sponsors, noted in a declaration that Henderson belonged to a civil rights group that favors affirmative action as recently as 1992 and that he previously served on the board of directors of the ACLU of Northern California.

Klausner produced a transcript of Henderson’s 1980 confirmation hearing before a U.S. Senate committee in which Henderson said he might recuse himself for “some period of time” from cases brought by organizations with which he had been affiliated.

But ACLU lawyer Ed Chen said no judge is likely to rule that Henderson should step down because he served on the ACLU board 20 years ago.