Prop. 209 Fight Isn’t Over Yet

Tuesday’s appellate court decision upholding Proposition 209, the anti-affirmative action initiative, will almost surely be appealed to a larger panel within the 9th Circuit Court of Appeals. That court should agree to review the case, and it ought to reach a different conclusion on this measure’s constitutionality.

Proposition 209, approved by California voters last November, forbids racial, ethnic and gender preferences by state and local agencies in hiring, contracting and university admissions, thus ending many affirmative action programs.

In December, a federal district judge stayed enforcement of the initiative, reasoning persuasively that it would abolish programs that benefited minorities and women but not those that might aid, for instance, military veterans, athletes, the elderly or children of college alumni. Such disparate treatment, he said, violates the standards of equal protection that the U.S. Supreme Court articulated in 1982 when it struck down a Washington state initiative barring local school boards from ordering busing for integration.

A three-judge panel of the circuit court unanimously rejected that argument Tuesday, ruling that preferences based on race or gender are constitutionally suspect and can be abolished by a state. The 14th Amendment, which guarantees equal protection under the law, “does not require what it barely permits,” the court said, referring to Supreme Court rulings that have put limits on preferential programs.

The panel, three of the circuit court’s more conservative judges, was sharply critical of “a system that permits one judge to block . . . what 4,736,180 state residents voted to enact.” But that system exists for a reason: While the majority rules in a democracy, its actions must conform to constitutional principles. Proposition 209 is at odds with the principle of equal protection. Further appellate review should embrace that concept.